RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-05004 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: 1.  He receive a medical retirement. 2.  His two non-selections for promotion to the grade of major while he was in the Individual Ready Reserve (IRR) in nonparticipating status be removed from his record. (His record was administratively corrected to remove his second non-selection.) APPLICANT CONTENDS THAT: 1.  He was unjustly separated through the force shaping program after failing his PT test, when he should have been processed for medical retirement through a medical evaluation board (MEB) due to his knee injuries and multiple knee surgeries. 2.  Because of his medical condition, he had no unit of affiliation after 1 Oct 11, so there was no basis for him to be evaluated by a promotion board after that date. He was unaware he would be considered for promotion in the IRR. Moreover, he had no notice of the hearing and was denied representation and due process. The applicant’s complete submission, with attachments, is at Exhibits A and E. STATEMENT OF FACTS: The applicant initially entered the Air Force Reserve on 11 Apr 06, after serving less than a year in the Marine Corps. On 8 Apr 11, the applicant failed his annual Fitness Assessment (FA), due to failing the cardio (walking) portion of the test. On 11 May 11, the applicant received an Officer Performance Report (OPR) covering the period 11 Apr 10 through 10 Apr 11, which included the following statement in Block IV: “Failed PT test; walk portion incomplete due to intentional slowing...” On 11 Jul 11, after a Force Shaping Board selected the applicant for involuntary separation, the Medical Group reviewed his medical records and determined an MEB/PEB was not required. On 1 Oct 11, the applicant was furnished an honorable discharge, with a narrative reason for separation of “Force Shaping (Board Selected),” accepted separation pay, was credited with 6 years and 8 days of total active service, and was assigned to the Nonobligated Nonparticipating Ready Personnel Section (NNRPS), effective 2 Oct 11. On 14 Jan 13, while in the NNRPS, he met and was non-selected for promotion by the Calendar Year 2013 (CY13) Line and Non-Line Nonparticipating Reserve Major Promotion Selection Board. The quota for this Board was one selectee. According to the documents submitted by the applicant, on 30 Sep 13, the Department of Veterans Affairs (DVA) rated his injuries at a 10 percent disability rating for injuries to his right knee and 10 percent for his left knee, for a combined compensable disability rating of 20 percent. Under Reserve Order HB-001542, dated 29 Oct 13, the applicant was transferred from the NNRPS to the Inactive Status List Reserve Section (ISLRS), effective 2 Oct 13. The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPRs), which are attached at Exhibits C and F. AIR FORCE EVALUATION: ARPC/PB recommends denial indicating there is no evidence of an error or an injustice. Following his discharge from active duty on 1 Oct 11, the applicant was assigned to the Nonobligated Nonparticipating Ready Personnel Section (NNRPS). Although members in the NNRPS are not in a participating status, in accordance with Title 10 United States Code (USC) §14301, all officers on the Reserve Active Status List (RASL) must be considered for promotion when eligible. Although the applicant cites disqualifying medical conditions as the reason he was separated from active duty, he was separated due to force shaping. The applicant was correctly assigned following release from active duty and was correctly considered by the promotion board in CY13. A review of the applicant’s military records determined a deferral for promotion from active duty was incorrectly carried over in the Reserve. This pass-over was removed from his records, and as of this date his record reflects he is a one-time pass over. A complete copy of the ARPC/PB evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In further support of his request, the applicant submitted a personal statement reiterating his claim that his medical condition was severe enough to interfere with the performance of his duties; explaining in great detail why he was not physically fit enough to pass the FA, his knee injuries were the only reason he failed the FA, and it was his injuries which led to his separation; states that at the time of his Force Shaping Board he had already requested an MEB; suggests he was “blacklisted” from entering the Air Force Reserve and Air National Guard after his separation; and, through the use of multiple rhetorical questions, appears to make a host of accusations against his leadership when he was assigned to Holloman AFB, NM, but then states “I make no accusations or allegations against anyone or anything at this point” (Exhibit E). ADDITIONAL AIR FORCE EVALUATION: The BCMR Medical Consultant recommends denial indicating there is no evidence of an error or an injustice. If the applicant’s medical condition warranted processing through the military Disability Evaluation System prior to his discharge from active duty, this would be validated by 12 or more months [or sooner depending upon the severity of impairment and the expected recovery] of sustained or cumulative Physical Profile Serial Reports, AF Form 422, prohibiting worldwide qualification, or Duty Limiting Condition Reports, AF Form 469, with a check mark in Block 37 to indicate the applicant’s medical conditions warranted MEB/PEB processing. Moreover, if an individual had a disqualifying medical condition for which he or she received a waiver for non-participation in any Fitness Assessment (FA) activity for 12 or more months, an MEB would be warranted. This applicant has supplied no documentation reflecting the aforementioned documentation for MEB/PEB or an alternate medical basis for release from military service. Concerning the applicant’s stress and possible related headaches, no evidence has been provided to indicate the headaches interfered with his ability to perform military duties. Moreover, although the applicant has undergone multiple surgical procedures, the underlying pathology interfering with his ability to function can be captured under Veterans Affairs Schedule for Rating Disability (VASRD) code 5003, for degenerative arthritis. He did not present evidence of warranting a higher disability rating for his degenerative arthritis or bilateral knee pain. Finally, the applicant is reminded that under Operating Title 38 U.S.C the DVA is authorized to offer compensation for any medical condition determined service incurred, without regard to [and independent of] its demonstrated or proven impact on a service member’s retainability, fitness to serve, narrative reason for separation, or the intervening period since the date of separation. With this in mind, Title 38 USC, which governs the DVA compensation system, was written to allow awarding compensation ratings for conditions that were not individually unfitting during military service or at the time of separation. Based upon the limited supplied medical evidence, the applicant has not met the burden of proof of error or injustice that warrants a change in reason for discharge to medical separation of retirement. A complete copy of the BCMR Medical Consultant’s evaluation is at Exhibit F. APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: A copy of the additional Air Force evaluation was forwarded to the applicant on 11 Feb 15, for review and comment within 30 days (Exhibit G). As of this date, no response has been received by this office. 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. We took notice of the applicant’s complete submission, to include his rebuttal response to the advisory opinions in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility (OPRs) and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. The Board notes ARPC/PB determined one of the applicant’s two non-selections for promotion to the grade of major should not have been on his record and therefore administratively corrected his record to remove one non-selection. In addition, the Board notes the applicant makes several vague references in his rebuttal statement to the possibility that he was the victim of reprisal however, he also states very clearly that he is making no allegation and is accusing no one at this point. The Board takes claims of reprisal very seriously. If the applicant believes he has been the victim of reprisal under the Whistleblower Protection Act, he should file a timely claim with the Inspector General of the Air Force (SAF/IG) so his concerns and be properly investigated. Without a formal complaint, the Board will take no further action on the issue or reprisal in this case. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 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 issues involved. Therefore, the request for a hearing is not favorably considered. THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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 AFBCMR Docket Number BC-2013-05004 in Executive Session on 8 Sep 15, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence pertaining AFBCMR Docket Number BC-2013-05004 was considered: Exhibit A.  DD Form 149, dated 10 Oct 13, w/atchs. Exhibit B.  Applicant's Master Personnel Records. Exhibit C.  Memorandum, ARPC/PB, dated 13 Feb 15. Exhibit D.  Letter, SAF/MRBR, dated 21 Jul 14. Exhibit E.  Letter, Applicant, not dated. Exhibit F.  Memorandum, BCMR Medical Consultant, dated 8 Dec 14. Exhibit G.  Letter, SAF/MRBR, dated 11 Feb 15. 5 6