RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-04128 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: She be granted medical retirement as of her expiration term of Service (ETS) date. APPLICANT CONTENDS THAT: She received permanent injuries due to her time in the military, and should have been medically retired. However, her injuries were incurred so close to her ETS, the authorities denied her request for a medical evaluation board and pushed her discharge through. Now the Department of Veterans Affairs (DVA) has rated her as Category 1 (at least 50 percent disabled and unemployable due to her service-connected medical conditions). The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant initially entered the Regular Air Force on 29 Nov 05. On 25 Nov 09, the applicant submitted a memorandum to the Military Personnel Flight requesting she be retained on active duty beyond her ETS for medical evaluation, and if necessary, processed for disability separation. On 28 Nov 09, the applicant was furnished an honorable discharge, with a Narrative Reason for Separation of “Completion of Required Active Service,” and was credited with four years of active service. According to the documentation submitted by the applicant, on 14 Dec 09, the DVA assigned her the following disability ratings, effective 29 Nov 09: 20 percent for lumbar spine disc disease, 10 percent for fracture, left scaphoid, 10 percent for left knee patella tendonitis, 10 percent for right knee patella tendonitis, and 10 percent for mood disorder and insomnia. The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C. AIR FORCE EVALUATION: The BCMR Medical Consultant recommends denial indicating there is no evidence of an error or an injustice. The applicant had been under evaluation and care for back pain with radiation to the right foot dating to at least Aug 06, reportedly after moving heavy furniture. She also received evaluation and care of bilateral knee pain from at least Apr 06, as a result of a fall while hiking. On 4 Dec 07, a CT Scan of her wrist demonstrated a non-displaced fracture, which ultimately required surgery. In Mar 08, the applicant was prescribed Zoloft to aid with depression and as a sleep aid. On 19 Aug 09, the applicant presented with “worsening low back pain,” but the medical provider did not indicate MEB/PEB processing was required. On 26 Aug 09, the applicant completed the DD Form 2697, Separation History (Questionnaire) and Physical Examination, on which her health care provider summarized: 1. Chronic LBP X 3 years with recent right-sided radiculopathy; MRI L-spine pending; no red flags. 2. History of depression—currently doing well off meds. 3. Migraines—improved since delivering twins 6 months ago. 4. History of scaphoid fracture, 2007; had surgical fixation, 2008; does have some mild stiffness pain with extreme extension. On 14 Dec 09, after her separation, the DVA assigned the applicant a 20 percent disability rating for lumbar spine disc disease, a 10 percent rating for her left scaphoid fracture, a 10 percent rating for patella tendonitis (each knee), a 10 percent rating for mood disorder, and a 0 percent rating for seasonal allergic rhinitis, migraine headaches, and lower right and left extremity radiculopathy, all effective 29 Nov 09. Addressing the applicant’s expressed desire for a medical retirement, the military Disability Evaluation System (DES), established to maintain a fit and vital fighting force, can by law, under Title 10, United States Code (U.S.C.), 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 progression of injury or disease. Department of Defense Instruction 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, in effect at the time of the applicant’s service, 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 (hereafter called duties) to include duties during a remaining period of Reserve obligation.” Additionally, paragraph E3.P3.3.3, Adequate Performance Until Referral, of the same instruction, reads: “If the evidence establishes that the Service member adequately performed his or her duties until the time the Service member was referred for physical evaluation, the member may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duty.” The applicant’s performance reports have not been supplied for this review for a different perspective on the impact of her medical condition had upon her ability to function in military service. The Medical Consultant acknowledges the apparent acute exacerbation of the applicant’s back pain was reported on August 19, 2009. However, likely based upon her long-standing history of chronic back pain [since 2006], the chronic degenerative changes on MRI scan, the subsequent intervening periods of symptomatic improvement, and the absence of an immediate indication for surgical treatment, the applicant was allowed to proceed with her scheduled separation and to pursue further care as needed thereafter. The Consultant concedes, but not for the applicant’s impending discharge, it is possible she might have been ultimately issued a Duty Limiting Condition Report that, if prohibiting worldwide qualification for 12 or more months, or sooner if not expected to result in return to unrestricted duty, would have warranted MEB/PEB processing. Under current standards, she would have undergone a review by a Deployment Availability Working Group (DAWG) which, working in conjunction with the Medical Standards Division, HQ AFPC/DPANM, could also have resulted in her retention under an Assignment Limitation Code (ALC). On the other hand, noting the longstanding nature of the condition, this reviewer believes processing under the full Disability Evaluation System would have been justified. However, had the applicant been retained to undergo a MEB/PEB processing, operating under the Integrated Disability Evaluation System, the Military Department would determine which conditions were unfitting, but would be restricted to using the disability ratings assigned by the DVA. Since the preponderance of evidence indicates it was the applicant’s recalcitrant lumbar pain and radicular symptoms that interfered with her ability to function, then utilizing the probative value of the disability rating(s) assigned by the DVA for these conditions [20% for lumbar pain and 0% for radiculopathy], her disability rating(s) would fall short of the minimum rating required to qualify for a medical retirement. Although also assigned disability ratings for bilateral patella tendonitis, scaphoid fracture, and a mood disorder, the Medical Consultant did not find evidence either of these rendered the applicant permanently non-worldwide qualified or interfered with her ability to reasonably perform the duties of her office, grade, rank, and rating to the extent that warranted a separate basis for release from military service. Operating under a different set of laws (Title 38, U.S.C.), with a different purpose, the DVA is authorized to offer compensation for any medical condition determined service incurred, 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 why an individual can be found fit for release from military service for one reason and yet soon thereafter receive compensation ratings from the DVA for one or more service-connected, but militarily non-unfitting conditions. The DVA is also empowered to conduct periodic re-evaluations for the purpose of adjusting the disability rating awards (increase or decrease) as the level of impairment from a given service connected medical condition may vary (improve or worsen), affecting future employability (as noted by the applicant’s “Category 1” status) over the lifetime of the veteran. The Medical Consultant opines, while the applicant has provided evidence to suggest she should have been extended beyond her ETS to allow for further evaluation and treatment [and possibly considered for a disability separation], the preponderance of evidence present at the time of discharge is not sufficient to warrant the retroactive medical retirement she desires. A complete copy of the BCMR Medical Consultant evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In further support of her request, the applicant submitted a personal statement and a statement from her husband. She believes the recommendation from the BCMR Medical Consultant is “flawed,” and argues her position is supported by the fact the DVA has recognized her disabilities. In addition, referencing the DoDI 1332.32 requirement for a member to be considered unfit when they are unable to reasonably perform the duties of her office, grade, rank, or rating, she states there is substantial documentation which demonstrates her medical incapacitation at the time of her request for a medical board, and highlights the DVA classified her Category 1 (by definition unfit to work) less than 30 days after her separation. She believes the evidence clearly shows her disability prevented her from performing her duties. For her, the facts are simple: she was injured in the Air Force as the result of her duties, she is incapable of working as a result of those injuries, and she was incorrectly denied a medical evaluation board when one was requested. Her husband attests to the extent of her physical disabilities, describes how hard this has made their lives, and alleges she could not deploy or meet the physical requirements of her role in the military. FINDINGS AND CONCLUSIONS OF THE BOARD: After careful consideration of applicant’s request and the available evidence of record, we find the application untimely. Applicant did not file within three years after the alleged error or injustice was discovered as required by Title 10, United States Code, Section 1552 and Air Force Instruction 36-2603. Applicant has not shown a plausible reason for the delay in filing, and we are not persuaded that the record raises issues of error or injustice which require resolution on the merits. Thus, we cannot conclude it would be in the interest of justice to excuse the applicant’s failure to file in a timely manner. THE BOARD DETERMINES THAT: The application was not timely filed and it would not be in the interest of justice to waive the untimeliness. It is the decision of the Board, therefore, to reject the application as untimely. The following members of the Board considered AFBCMR Docket Number BC-2014-04128 in Executive Session on 9 Jul 15 under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered: Exhibit A.  DD Form 149, dated 3 Oct 14, w/atchs. Exhibit B.  Applicant's Master Personnel Records. Exhibit C.  Memorandum, AFBCMR Medical Consultant, dated 27 Mar 15. Exhibit D.  Letter, SAF/MRBR, dated 2 Apr 15. Exhibit E.  Letter, Applicant, undated, w/atch.