RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-04059 XXXXXXXXXX COUNSEL: XXXXXXXXXX HEARING DESIRED: YES APPLICANT REQUESTS THAT: 1. Her involuntary separation from the Air Force be overturned. 2. She be placed on the Permanent Disability Retired List (PDRL) effective of 1 November 2011. 3. She receive back retirement pay from 1 December 2011 to present. APPLICANT CONTENDS THAT: An Informal Physical Evaluation Board (IPEB) found her fit for duty a mere six months after her diagnosis of Multiple Sclerosis (MS). It appears this decision was grounded in part due to her commander's recommendation to retain her. Her commander was not a physician. The Veterans Administration Schedule for Rating Disabilities (VASRD) code of 8018, MS, has a minimum rating of 30 percent without residuals. The applicant was non-deployable in a war time environment and was subject to constant medical scrutiny. Being retained on active duty by the IPEB and being coded with an Assignment Limitation Code (ALC) of C2 eventually caused her to be non-selected for promotion to the grade of Lieutenant Colonel (Lt Col) and involuntarily separated from the Air Force. At the time of the IPEB, the applicant was under a P4 profile, was not physically qualified for service and should have been permanently retired. A P4 profile denotes “Organic defect(s), systemic and infectious disease(s) which has already undergone an MEB or ALC fast track as determined by the Deployment Availability Working Group. Assigning her to the PDRL is appropriate because the MS has been stable and therefore the Temporary Disability Retired List (TDRL) is not appropriate. In support of her request, the applicant provides a counsel’s brief, copies of her SF 600, Chronological Record of Medical Care; AF IMT 618, Medical Board Report; AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board; AF Form 469, Duty Limiting Condition Report; AF Form 422, Notification of Air Force Member’s Qualification Status; DD Form 214, Certificate of Release or Discharge from Active Duty; Enlisted Performance Reports, and various other documents associated with her requests. Her complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to her DD Form 214, the applicant entered the Regular Air Force on 10 July 1996. According to SF 600 dated 24 April 2008, the applicant was diagnosed with MS. In a letter dated 21 May 2008, addressed to the Medical Evaluation Board (MEB), the applicant’s commander documented that her medical condition had not altered her primary duty schedule and would not prevent her from serving in her primary Air Force Specialty Code. According to AF IMT 618 dated 2 June 2008, a MEB recommended referral to the IPEB. On 19 August 2008, the IPEB found the applicant fit and recommended “Return to Duty,” finding the medical condition "does not prevent you from reasonably performing the duties of your office, grade, rank or rating." The IPEB further stated that another MEB may be required if she should report any significant change in her medical condition, or should her medical condition affect her duty performance. On 14 June 2011, the applicant was notified by her commander that she was non-selected for promotion to the grade of Lt Col by the Calendar Year (CY) 2011A Lt Col Central Selection Board (CSB). Since this was her second nonselection, she would be involuntarily separated not later than 30 November 2011. An AF Form 422 dated 11 July 2011, reflects the applicant was found fit and returned to duty with continuation of ALC-C2, which is used for medical conditions for which specialist medical care and referral within one year is likely but who could be deployed or reassigned OCONUS or to non-fixed environments if appropriate specialty care is available, or for short periods of time. She was not worldwide qualified. Mobility restrictions expired on 30 August 2011. On 30 November 2011, the applicant was honorably discharged under the provisions of AFI 36-3207, Separating Commissioned Officers. Her narrative reason for separation is “Non- selection, Permanent Promotion.” She served on active duty for a period of 15 years, 4 months and 21 days. AIR FORCE EVALUATION: AFPC/DPSOO recommends denial of the applicant’s request that her involuntary separation be overturned. The applicant met and was non-selected for promotion by the CY2010A and CY20l1A Lt Col CSBs which convened on 8 March 2010 and 7 March 2011, respectively. As a result of her second non-selection she was involuntarily separated on 30 November 2011. While counsel states that separation was inevitable given the coded ascription in combination with MS, the C-2 code nor any other medical issues on eligible officers is a part of the Officer Selection Record or the Officer Selection Brief. The only way board members would know is if the applicant wrote a letter to the board and advised them of such. DPSOO has reviewed the applicant's record and she did not write a letter to the board. Therefore, they do not believe the C-2 code nor any other medical issue was known to board members during the promotion scoring process or was a part of the promotion or continuation decision process. Based on the guidance provided to the continuation board by the Secretary of the Air Force, the applicant's record was reviewed for continuation; however, in the eyes of the board, the applicant did not warrant retention on active duty. To overturn her separation and continue her on active duty would be unfair to the other 156 officers who were not retained on active duty. The complete DPSOO evaluation is at Exhibit C. AFPC/DPSOR recommends denial of the applicant’s request that her involuntary separation be overturned. The applicant did not provide any evidence that an error or injustice occurred in the processing of her discharge. Officers who are twice non- selected for promotion to the grade of captain, major, and lieutenant colonel are projected for mandatory separation. Therefore, the discharge, to include the separation code, narrative reason for separation and character of service, was appropriately administered and within the discretion of the discharge authority. The complete DPSOR evaluation is at Exhibit D. The BCMR Medical Consultant recommends denial. The neurology MEB narrative dated 24 April 2008, described the applicant's presenting symptoms of MS together with radiologic and laboratory test results. The clinical findings on examination document a near normal neurological examination with some mild right upper extremity weakness. Summary notes indicate, "Patient's current physical disability is mild" and acknowledges the unpredictability of the disease. The MEB and IPEB found that, although the diagnosis of MS was present, it was not unfitting in 2008. The ALC-C2 code was assigned and the applicant continued to perform her assigned duties in an exemplary fashion. In fact, the commander's letter to the MEB identified the applicant as an outstanding performer. He further states that her medical diagnosis does not limit the mission in any way. Thus, the applicant’s medical condition was not unfitting shortly after the diagnosis was established. To establish whether the condition was unfitting around the time of separation, medical progress notes dated 11 February 2011, document the applicant had “no recurrence of symptoms since initial presentation in 2008.” Additional comments state, “The patient is able to participate in all unit activities, denies any impact on duty because of multiple sclerosis.” It also documents the most recent fitness test score (85 percent; Satisfactory) from June 2010. An AF Form 422, dated 11 July 2011, indicates the applicant was found fit for duty with continuation of the ALC-C2 restrictions which had previously been instituted. Therefore, the Medical Consultant concludes the applicant's MS was not a medically unfitting condition at the time of separation and proper administrative procedures followed for determining fitness for duty. The determination that involuntary administrative separation due to the second non-selection is clearly established as the sole reason for termination of the applicant's active duty career. There is no evidence the level of fitness or any other physical limitations resulting from the MS shortened the applicant's career. The military Disability Evaluation System (DES), established to maintain a fit and vital fighting force, can by law, under Title 10, USC, only offer compensation for those service incurred diseases or injuries which specifically rendered a member unfit for continued active service and were the cause for career termination; and then only for the degree of impairment present at the time of separation and not based on future occurrences. DODI 1332.32, Physical Disability Evaluation, Enclosure 3, Part 3, Standards For Determining Unfitness Due to Physical Disability or Medical Disqualification, paragraph E3.P3.2.1, reads:" A Service member shall be considered unfit when the evidence establishes that the 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." The complete BCMR Medical Consultant’s evaluation is at Exhibit E. APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: Counsel stands by his assertion that MS is an unfitting condition, which by law, has a minimum disability rating of 30 percent. Moreover, the Air Force advisory opinions are nothing more than attempts to avoid responsibility to the applicant. Counsel’s complete response is at Exhibit G. 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 error or injustice. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force Offices of Primary Responsibility (OPR) and the BCMR Medical Consultant and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. While counsel’s response to the BCMR Medical and Air Force evaluations are noted, he has not provided substantial evidence which, in our opinion, successfully refutes the assessment of his case by the aforementioned evaluations. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 4. 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 issue(s) involved. Therefore, the request for a hearing is not favorably considered. THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. ? The following members of the Board considered this application in Executive Session on 7 August 2014, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered pertaining to AFBCMR BC-2013-04059: Exhibit A. DD Form 149, dated 21 August 2013, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSOO, dated 3 March 2013. Exhibit D. Letter, AFPC/DPSOR, dated 4 April 2013 Exhibit E. Letter, BCMR Medical Consultant, dated 8 April 2014. Exhibit F. Letter, SAF/MRBR, dated 18 April 2014. Exhibit G. Letter, Counsel, dated 26 May 2014. 8 9