RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-02128 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. Her retirement status be changed from Temporary retired to Permanent Medical Retirement. 2. Her retirement pay be adjusted from 1 May 2010 to present based on her medical retirement percentage. 3. She be allowed to add her spouse to her Survivor Benefit Plan (WITHDRAWN). 4. She be allowed to apply for Veteran’s Group Life Insurance. ________________________________________________________________ APPLICANT CONTENDS THAT: In a 13-page statement, the applicant states she was forced to retire in 2010. She was injured and unable to perform her duties without increasing her pain or causing further injury. In 2009, she was advised that she had a year to resolve her medical conditions or she would be considered for a Medical Evaluation Board (MEB). She was secretly removed from medical profile in December 2009 and the medical unit failed to inform her. She was notified of the change in the profile by her commander in March 2010. They did this so that she could not pursue a complaint with the Inspector General (IG) for discrimination and falsifying medical records. In the end, the IG refused to help her. She also made contact with the base legal office; they also would not help her. She is currently 90 percent disabled. She was served a severe injustice and requests her records be corrected accordingly. She understands the AF rating system is different from the Department of Veteran’s Affairs (DVA); however, she asks the Boards consideration that several of her conditions are chronic and negatively impact other conditions. In support of this appeal, the applicant provides a personal statement, medical records, letters of support AFI 36-3212, Physical Evaluation for Retention, Retirement and Separation and other supporting documentation. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant is a former member of the Air National Guard who retired on 1 May 2010. On 28 February 2014, by e-mail, the applicant indicated she did not want to pay the back premiums in order to effect her new SBP election and requested to withdraw that portion of her request (Exhibit G). The remaining relevant facts pertaining to this case are contained in the letters prepared by the Air Force office of primary responsibility and the BCMR Medical Consultant which is listed at Exhibit C and D. ________________________________________________________________ AIR FORCE EVALUATION: NGB/SGPA recommends denial of the applicant’s request to change her retirement to a medical retirement and any back pay associated with that request. SGPA recommends the applicant be allowed to apply for VGLI. The applicant contends she was secretly removed from her Duty Limiting Condition Report in December 2009. She was a no show for her medical appointment in December 2009. After reviewing her medical records, a military medical provider determined there was insufficient documentation to support her remaining in a duty limiting status as would be documented on the AF Form 469. The applicant submitted documentation from February 2010 whereas her restriction was no running. Although there was insufficient documentation to support maintaining a Duty Limiting Report, the applicant was restricted from completing the run portion of her fitness assessment. In spite of repeatedly completing and submitting medical release forms, no medical documentation was submitted from civilian medical providers. With no supporting documentation, the applicant was not placed back in a duty limiting condition status. The applicant reported numerous medical conditions, but appeared to have met retention and mobility standards in accordance with AFI 48-123. The applicant requested and was transferred to the USAF Retired Reserve List on 1 May 2010. The complete SGPA evaluation is at Exhibit C. The BCMR Medical Consultant recommends denial of changing the applicant’s retirement to a medical retirement. The applicant reports that she completed an annual retention interview by her home station while deployed. She was advised that she must pass her fitness assessment upon her return and prior to April 2009, noting her term of service expired in May 2009. Upon return from the deployment, her medical conditions worsened or deteriorated resulting in a Duty Limiting Condition Report. She was also given the impression that if her conditions did not improve within one year, she would require an MEB. Prior to the one-year period, a senior military physician, implicitly and maliciously, changed her profile restrictions and returned her to duty with the advice to lose weight and quit smoking. She also states she gained 20 pounds which she attributed in part, to the diagnosis of hypothyroidism. Addressing the applicant’s petition for a medical retirement, the military Disability Evaluation System (DES) was established to maintain a fit and vital fighting force. By law, the DES can only offer compensation for those service incurred diseases or injuries which specifically render a member unfit for continued active service and were the cause for career termination, and then only to the degree of impairment present at the time of separation and not based on future occurrences. Department of Defense Instruction 1332.32, Physical Disability Evaluation, Enclosure 3, Part 3, Standards for Determining Unfitness Due to Physical Disability or Medical Disqualification, E.3.P3.2.1, reads “A service member shall be considered unfit when the evidence establishes that a member, due to physical disability, is unable to reasonably perform the duties of his or her office, grade, rank or rating, to include duties during a remaining period of Reserve obligation.” In the case under review, it could not be established that the applicant was unable to reasonably perform her military duties, as a Security Forces Shift leader, as would reflect on a Physical Profile Restriction of sufficient level, for example “L4T profile, and duration sustained 12 months or more to trigger an MEB and further processing under the Physical Evaluation Board (PEB).” Moreover, under the paragraph entitled Adequate Performance Until Referral, if the evidence establishes the member was referred for physical evaluation, the member may be considered fit for duty even though the medical evidence indicates questionable physical ability to continue to perform duty. Based upon the service medical evidence, the Medical Consultant found no medical condition that established a cause and effect relationship with the termination of the applicant’s military service, particularly in the context of her medical clearance to participate in the Fitness Assessment program. On the other hand, the DVA operates under Title 38 and is authorized to offer compensation for any medical condition with nexus to military service, without regard to its demonstrated or proven impact upon a service member’s retainability, fitness to serve, or narrative reason for release from military service. This is the reason individuals can be found fit for release from military service for one reason and yet receive compensation ratings from the DVA for service-connected, but not military unfitting conditions. The DVA is also empowered to conduct periodic re-evaluations for the purpose of adjusting the disability rating awards as the level of impairment from a given service connected medical condition my vary, improve or worsen, over the lifetime of the veteran. The Medical Consultant agrees that the failure to include the applicant early in the notification process was inappropriate. After reviewing the email traffic between the applicant and her supervisor, there appears to be some implicit suspicion on the part of the military physician of the applicant’s true capabilities or level of impairment, noting the emphasis he placed upon her ability to deploy a year earlier without, in his opinion, any significant changes in health status. The Medical Consultant notes that the ANG/SGPA advisory recommends denial of the applicant’s request stating there was no medical documentation received from the applicant’s civilian providers; and thus, the applicant was not placed back into limiting conditions status. To the contrary, two of the applicant’s civilian physicians provided medical assessments, both dated 31 March 2010, regarding their opinions of the impact of her medical conditions on deployment. It is not known if SGPA had access to the records provided in this review. Given the fact that this review was requested by the medical organization on 15 March 2010 and completed on 31 March 2010, the timely reply seems to have landed on deaf ears. The facts indicate a disagreement with the fitness assessment of the civilian physicians, noting tools available to Service SG’s to retain individuals under and assignment limiting code, if otherwise eligible for retention and adequately performing the mission. The Medical Consultant reviewed the applicant’s case in earnest search of error or injustice. While there appears to be some element of clandestine behavior on the part of the senior medical provider, there also appears to be some awareness by all that the applicant had been otherwise able to perform her military duties and would likely have been allowed to reenlist, but not for her fitness failure. The BCMR Medical Consultant’s complete evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 27 August 2013 and 3 September 2013 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit E). ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice with regard to the applicant’s request for a medical retirement and accompanying back pay and allowances. After a thorough review of the evidence of record and the applicant’s complete submission, we are not persuaded the applicant is entitled to the relief she seeks. We took note of the applicant’s contention that she was secretly removed from her medical profile. While the BCMR Medical Consultant noted clandestine behavior by a senior medical provider, we agree there was no medical condition that established a cause and effect relationship with the termination of the applicant’s military service. The applicant was able to perform her military duties. Therefore, we agree with the opinion and recommendation of the BCMR Medical Consultant and adopt his rationale as the basis for our conclusion the applicant is not entitled to a medical retirement. With regard to the applicant’s request to add her spouse to her SBP plan, we note that the applicant has indicated by e-mail correspondence, that she wishes to withdraw this portion of her request. Therefore, the Board will not address this issue. 4. Notwithstanding the above determination, we believe some relief is warranted. We note NGB/SGPA’s recommendation that the applicant should have the opportunity to apply for VGLI. We agree. After a thorough review of the documentation submitted, we find she was not provided the information necessary to make an informed decision regarding her VGLI. Accordingly, we recommend the applicant’s record be corrected as indicated below. 5. The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that on 23 April 2010, she executed SGLI Form 8714, Application for Veteran’s Group Life Insurance (VGLI), effective 1 May 2010. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2013-02128 in Executive Session on 28 January 2014, under the provisions of AFI 36-2603: All members voted to correct the record, as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dtd 29 Apr 13, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, NGB/SGPA, dtd 7 Jun 13. Exhibit D. Letter, BCMR Medical Consultant, dtd 26 Aug 13. Exhibit E. Letter, SAF/MRBC, 27 Aug 13. Exhibit F. Letter, SAF/MRBR, dated 3 Sep 13. Exhibit G. E-mail from Applicant, dated 28 Feb 14.