RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-02765 COUNSEL: HEARING DESIRED: NO APPLICANT REQUESTS THAT: She be reinstated in the Air Force Reserve (AFR). APPLICANT CONTENDS THAT: Her counsel failed to present crucial documents for consideration of her case which resulted in her discharge. She provides a letter dated 14 Apr 14 from the Deputy Chief, Air Force Office of Airmen’s Counsel which states he misunderstood the status of the applicant’s case when he spoke to her during the Sep/Oct 13 timeframe because their tracking system did not reflect an administrative Physical Evaluation Board (PEB) on file. If he knew she had agreed to an unfit finding believing she had to appear before the Formal PEB (FPEB) in person, it would have been very easy for her to withdraw her acceptance and request a hearing before the FPEB by telephone, which the board President routinely approves. He hopes she will be allowed to present her case to the FPEB. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 30 Oct 03, the applicant initially entered the AFR. On 10 Apr 14, she was discharged from the AFR under honorable conditions for physical disqualification in the grade of Staff Sergeant (SSgt, E-5). AIR FORCE EVALUATION: AFRC/A1K recommends the case be reviewed by the AFPC Disability office to determine whether or not the applicant’s claims warrant convening a FPEB. In regards to the applicant’s administrative discharge from the AFR, all discharge actions were accomplished in compliance with AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members, paragraph 3.14, Physical Disqualification. The applicant was notified of her rights to an IPEB and FPEB. She waived her right to a FPEB and acknowledged receipt of the formal notification of the administrative discharge action. A complete copy of the A1K evaluation is at Exhibit C. AFPC/DPFD recommends denial of the applicant’s request. The preponderance of the evidence reflects that no error or injustice occurred during the disability process or at time of separation. A medical disqualification case on the applicant was forwarded to the IPEB in Jul 13 for review and recommendation. The IPEB reviewed the case file and found the service member unfit for continued military service for the medical diagnosis of chronic back pain, lumbosacral strain. She was briefed on the IPEB findings and on 28 Oct 13, she declined her right to a formal board hearing. She was subsequently discharged from the AFR on 10 Apr 14 under honorable conditions. In a 14 Apr 14 letter, signed by the counsel who was consulting the applicant during the disability evaluation process, he contends she made the decision to concur with the IPEB recommendation based on misunderstandings and assumptions made by him and possibly the applicant during the process. However, the AFRC/A1K evaluation states she was notified of her rights to an IPEB and FPEB but declined her rights to the FPEB. She had ample time to consult with her legal counsel and request a formal board hearing prior to her discharge. A complete copy of the DPFD evaluation is at Exhibit D. The AFBCMR Medical Consultant recommends denial. The Medical Consultant found no basis in medical evidence that warrants granting the applicant’s request, other than her counsel’s plea that she accepted the unfit finding of the IPEB based upon misunderstandings and assumptions during the process. Moreover, the applicant has not presented evidence that she should have been found fit and returned to duty. The applicant is advised that under DODI 1332.38, Physical Disability Evaluation, paragraph 4, subparagraph 4.2, “Members of the Reserve components who are not on a call to active duty of more than 30 days and who are medically disqualified for impairments unrelated to the member’s military status and performance of duty shall be referred into the Disability Evaluation System (DES) solely for a fitness determination upon the request of the member or when directed by the Secretary concerned.” Therefore, since the applicant was found unfit by the IPEB, her next recourse would have been to appeal to the FPEB for being retained and returned to duty fit. The FPEB would not have been charged with attempting to overturn the designation that her medical condition was non-service related but would have been limited to determining her fitness only. A complete copy of the BCMR Medical Consultant’s evaluation is at Exhibit E. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 17 Feb 15 for review and comment within 30 days (Exhibit F). 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 error or injustice. After careful consideration of applicant's request and the available evidence of record, we find insufficient evidence of error or injustice to warrant corrective action. Therefore, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain her burden of proof of either an error or an injustice. In the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 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-2014-02765 in Executive Session on 10 Jun 15 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 1 May 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFRC/A1K, dated 15 Dec 14. Exhibit D. Memorandum, AFPC/DPFD, dated 24 Dec 14. Exhibit E. Memorandum, AFBCMR Medical Consultant, dated 4 Feb 15. Exhibit F. Letter, SAF/MRBR, dated 17 Feb 15.