RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-03528 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: His separation from the Air National Guard (ANG) for non-retention be changed to a medical retirement. The following missing medical documents be put in his medical file: (Administratively Corrected) AF Form 422, Physical Profile Serial Report, dated 5 March 2007. AF Form 422, dated 5 May 2007. Memorandum, medical evaluation appointment, dated 8 January 2011. SF 600, Chronological Record of Medical Care, dated 8 January 2011. Memorandum, medical evaluation appointment, dated 14 May 2011. Doctor’s note, dated 8 September 2011. AF Form 422, dated 15 September 2011. Doctor’s note, dated 22 September 2011. Doctor’s note, dated 4 October 2011. Surgery report, pages 4 and 5, dated 18 November 2011. APPLICANT CONTENDS THAT: The missing documents in his medical records are the result of the medical squadron not following the procedures in AFI 48-123, Medical Examinations and Standards, AFI 10-203, Duty Limiting Conditions, and AFI 36-3208, Administrative Separation of Airmen. In support of his requests, the applicant provides character reference letters and extracts from his medical records, email communiqué and other various documents associated with his requests. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 15 September 2012, the applicant was discharged from the Air National Guard (ANG) and on 16 September 2012, he was placed on the Retired Reserve List. On 1 October 2011, the applicant was notified of his commander’s intent to recommend he be discharged from the ANG In Accordance With (IAW) AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members. The specific reason for the recommendation was erroneous enlistment. The commander states that he would not have permitted the applicant to reenlist on 15 September 2011 had he been aware of his entire fitness history. The applicant’s Fitness Assessment (FA) history was reviewed in detail and it was found that he had not met Air Force fitness standards since 12 October 2007 when he received a marginal score of 73.5. He tested in 2008 and 2009 and received poor scores. In 2010, he was exempt from the FA and received an unsatisfactory score in May 2011. He then tested again on 10 and 11 September 2011 and received unsatisfactory scores. He had ample opportunity to meet the standards and failed to do so. His inability to meet fitness standards since 2007 undermined his supervisory authority and reduced his effectiveness as a Noncommissioned Officer (NCO) responsible for leading subordinates. On 1 October 2011, the applicant acknowledged the discharge recommendation and requested a hearing. He indicated he would submit statements in his own behalf, make a personal appearance before the board and consult legal counsel. His NGB Form 22, Report of Separation and Record of Service, reflects he was honorably discharged on 15 September 2012, IAW AFI 36-3209, paragraph 3.12.1, Discharge for the Good of the Service, with a separation code of “RBD” which denotes “Sufficient Service for Retirement.” He was credited with 26 years, 10 months and 19 days of total service for retired pay. Per Reserve Order EK-6336 dated 6 September 2012, the applicant was placed on the Retired Reserve List effective 16 September 2012. On 23 June 2015, AFMOA/SGAT scanned the missing medical documents noted above into the applicant’s Service Treatment Record. AIR FORCE EVALUATION: The BCMR Medical Consultant recommends denial of the applicant’s petition to supplant his non-retention action and transition to the Retired Reserve with a medical retirement. Addressing the applicant’s fitness to serve, the AF Form 469, Duty Limiting Condition Report, is a key tool utilized by Air Force providers to indicate whether a service member is under care for a medical condition affecting duty, mobility or requires a Medical Evaluation Board (MEB). Except for the 11th hour AF Form 469 of 8 September 2012, for a condition determined not in the Line of Duty (LOD), none of the applicant’s other AF Forms 469 introduced the prospect of a medical condition requiring a MEB/Physical Evaluation Board (PEB). This appears to have paved the way for his commander to deny reenlistment. Determinants of unfitness are outlined in DODI 1332.38, Physical Disability Evaluation, and several policy statements within this directive could have precluded processing the applicant through the Disability Evaluation System (DES). The applicant provides extracts of AFI 48-123, Medical Examination and Standards, demonstrating conditions and defects that are potentially disqualifying and/or preclude continued military service presumably to bolster his position that he should have been placed in a medical hold to undergo a MEB. The Medical Consultant concedes there is evidence of significant osteoarthritis of the right knee. However, none of his service or civilian records refer to the presence of joint instability, recurrent effusion or locking of the knee; nor frequent incapacitation. In July 2007, he did undergo right shoulder surgery however, in December 2007 he was assigned a “U1” profile which denotes World Wide Qualified (WWQ) and cleared by his provider to perform all aspects of fitness testing. The applicant’s AF Form 469 dated 8 January 2012, documents duty and mobility restrictions with an expiration date of 15 March 2012; along with a check mark in Block 31, to indicate the condition would be resolved within 31 to 365 days. However, no subsequent AF Form 469 was presented after the date of expiration in order to specifically determine the more current status of his left shoulder and its impact upon his fitness to serve. The applicant also highlighted obstructive sleep apnea requiring use of Continuous Positive Airway Pressure (CPAP); however, under today’s standards use of the CPAP is not an automatic basis for an unfit finding by a PEB. Although a ratable condition by the Department of Veterans Affairs, members are more commonly retained who have this condition and, at worse, are placed on a stratified Assignment Limitation Code (ALC). The Medical Consultant cannot provide implicit misadventure on the part of his commander or complicity by military providers; nor is he in a position to supplant his clinical judgment with that of the treating physicians familiar with his medical condition and its impact upon WWQ at the time of his service. However, based upon the periodic assessments of the civilian orthopedic surgeon, the Medical Consultant is convinced that his right knee, which precluded the performance of high impact activities, albeit approved for a permanent waiver, would have likely generated an MEB or WWQ determination at some point when such restrictions had been imposed for 12 months or more. Although the military providers appear to have been careful not to issue an extended “L4” (not WWQ) profile for the applicant’s right knee, the Medical Consultant opines the severity of his right knee arthritis and the restrictions imposed would be incompatible with the rigors of continued military service and raise doubt to his ability to function as a Total Force asset. The Medical Consultant considered including the applicant’s more recently operated left shoulder as an unfitting medical condition; however, no evidence is supplied to indicate the clinical status of this condition or whether it rendered him incapable of performing his military duties at the time he was released from military service. Based upon criteria outlined in the Veterans Affairs Schedule for Rating Disabilities (VASRD), the Medical Consultant opines the applicant’s right knee would rate at least 10 percent but not greater than 20 percent under VASRD code 5003. Such a rating decision would still only give the applicant the option of a medical separation with severance pay and not a medical retirement. Although otherwise justifiable, supplanting his current length of service Reserve Retirement with severance pay could be considered a longer-term detriment to him. A complete copy of the BCMR Medical Consultant’s evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: He disputes the facts in the BCMR Medical Consultant’s advisory. He is not alleging anything and has provided AFI references and copies of letters from his doctors. The medical squadron did not follow Air Force regulations. He presented evidence of physical disabilities and they were not vetted according to procedures outlined in the regulations. He was encouraged to stay in contact with his former command and provide necessary documentation that would be needed during the DES process. However, they never contacted him and did not do their part. His orthopedic surgeon dispatched a memorandum characterizing his degree of osteoarthritis as grade 3, on a scale of 1 through 4, where 4 represents exposed bone. His orthopedic surgeon stated that reflecting upon past surgical history and significance of arthritic wear, that it would be very difficult for him to stand and walk for long periods of time. Thereafter, in August 2012 he underwent a sleep study which demonstrated obstructive sleep apnea. He knows this is medically disqualifying. In a 20 August 2012 e-mail, he was told that his medical condition would be reviewed at drill and that the doctor could sign off the paperwork that would be sent to the Force Support Squadron (FSS) showing that he had a disqualifying condition. He knows three individuals who received medical separations for sleep apnea. He asks how he is different and why he is being singled out. He was not treated fairly. There are inaccuracies in the evaluation and it changes the meaning of what is being said. This is not fair to him. He provides his points history and asks if there is anything else that he could provide in his case. The BCMR Medical Consultant makes him feel that his doctor is not credible. He also makes him feel that the regulation is not important. His orthopedic and spine center is a reputable place and they take care of athletes from Fresno State University and other individuals from the 144th have gone there, to include pilots. The applicant’s complete submission, with attachment, is at 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 error or injustice. While the applicant's assertions that he was treated differently from others is noted, he has not provided substantial evidence which, in our opinion, successfully refutes the assessment of his case by the BCMR Medical Consultant. Therefore, we agree with the opinion and recommendation of the BCMR Medical Consultant and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden of proof that he has suffered an error or injustice. We also note that the AFMOA/SGAT added the missing medical documents noted above to his medical records; therefore, this request is moot. In view of the above and in the absence of evidence to the contrary we find no basis to recommend granting the additional 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-2014-03528 in Executive Session on 14 April 2015 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 24 Jul 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, BCMR Medical Consultant, dated 23 Feb 15. Exhibit D. Letter, SAF/MRBR, dated 9 Mar 15. Exhibit E. Letter, Applicant, undated, w/atch.