ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2014-04673-2

	COUNSEL: YES
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

The Board reconsider his request to change his honorable discharge to a medical retirement.

RESUME OF THE CASE

The applicant is an honorably discharged Air Force master sergeant (E-7) with a narrative reason for separation of “Physical Standards,” and credited with 13 years, 5 months, and 2 days of active service.  On 1 Oct 15, the Board considered and denied his request for a medical retirement from thoracolumbar spine degenerative disc disease, post-traumatic stress disorder (PTSD) and respiratory issues.  The Board determined the applicant had not provided substantial evidence showing that he had an unfitting medical condition that would have required his processing through the Military Disability Evaluation System – a prerequisite to a medical discharge.

For an accounting of the applicant’s original request and the rationale of the earlier decision, see the AFBCMR Letter and Record of Proceedings at Exhibit F.

On 14 Feb 20, through counsel, the applicant requested reconsideration of his request and any other relief that is equitable and just.  The applicant contends he was diagnosed with a pituitary tumor in Oct 19, approximately 8 years after he was discharged, and according to his doctors the tumor had likely began in excess of 10 years before it was discovered.  He was likely exposed to environmental toxins while deployed that have been attributed to a variety of cancers and other ailments, including head and neck cancers.  There is little doubt that his tumor prevented him from reasonably performing his duties in that he was unable to meet physical standards because of weight gain, deteriorating vision and other physical ailments caused by the tumor.  If he had been properly referred to an MEB, he would have been medically retired.  He is receiving ongoing care for the pituitary tumor and the Department of Veterans Affairs (DVA) rated the tumor 60% disability, effective 2 May 20.

The applicant’s complete submission is at Exhibit G.

APPLICABLE AUTHORITY

The Department of Defense (DoD) and the Department of Veterans Affairs (DVA) disability evaluation systems operate under two separate laws.  Under Title 10, United States Code, Physical Evaluation Boards must determine if a member's condition renders them unfit for continued military service relating to their office, grade, rank or rating.  The fact that a person may have a medical condition does not mean the condition is unfitting for continued military service.  To be unfitting, the condition must be such that it alone precludes the member from fulfilling their military duties.  If the board renders a finding of unfit, the law provides appropriate compensation due to the premature termination of their career.  Further, it must be noted the AF disability boards must rate disabilities based on the member's condition at the time of evaluation; in essence a snapshot of their condition at that time.  It is the charge of the DVA to pick up where the AF must, by law, leave off.  Under Title 38, the DVA may rate any service-connected condition based upon future employability or reevaluate based on changes in the severity of a condition.  This often results in different ratings by the two agencies.

AIR FORCE EVALUATION

BCMR Medical Advisor recommends denying the application.  In order to qualify for a medical retirement, a service member must have a medical condition that prevents him or her from reasonably performing the duties of his or her office, grade, rank, or rating.  Although the applicant clearly presented with the classic signs and symptoms of a pituitary tumor after leaving service, the Medical Advisor opines the nature of the applicant’s complaints during military service and the lack of specific complaints reported at the time of separation, indicates there was insufficient clinical evidence present to justify a MEB and referral for a Physical Evaluation Board.  

According to DoDI 1332.18, Disability Evaluation System, paragraph E3.P3.3.2, Referral for Chronic Impairment, “When a Service member is referred for disability evaluation under circumstances other than as described in paragraph 3a of this appendix [disability following an acute, grave illness or injury], an evaluation of the Service member’s performance of duty by supervisors may more accurately reflect the capacity to perform.  Supervisors may include letters, efficiency reports, credential reports, status of physician medical privileges, or personal testimony of the Service member’s performance of duty to provide evidence of the Service member’s ability to perform his or her duties.”  Despite the applicant’s poor or marginal Fitness Assessment scores, his primary duties were not adversely impacted; as shown on his Enlisted Performance Reports (EPR) and his ability to perform his primary assigned military duties was never brought into question.

Nearly a decade since the applicant’s discharge and given the tumor was discovered in 2019, the evidence utilized in any de facto or post facto unfit or retirement determination, must be based upon the evidence present at the “snapshot” time of final military disposition; and not based upon future progression of disease or injury.

While the Department of Veterans Affairs may choose to establish service-connection for the applicant’s pituitary tumor, this fact would not be determinative of the applicant’s fitness to serve or eligibility for medical retirement.

The complete advisory opinion is at Exhibit H.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 31 Jul 20 for comment (Exhibit I), and the applicant replied on 2 Sep 20.  In his response, the applicant, through counsel, encourages the Board to disregard the erroneous recommendations made by the Medical Advisor and contends the fact that he was not officially diagnosed with the tumor until after his military service is immaterial and part of the injustice is that he was not properly diagnosed while in service.  

The applicant’s complete response is at Exhibit J.

FINDINGS AND CONCLUSION

After reviewing all Exhibits, the Board remains unconvinced the evidence presented demonstrates an error or injustice.  The Board concurs with the rationale and recommendation of the BCMR Medical Advisor and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board also notes the applicant’s rebuttal contesting the medical advisory and does not find it to persuade our decision.  Therefore, the Board recommends against correcting the applicant’s records.

The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2014-04673-2 in Executive Session on 16 Dec 20:

Panel Chair
Panel Member
Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit F:	Record of Proceedings, w/ Exhibits A-E, dated 1 Oct 15.
Exhibit G:	Application, DD Form 149, w/atchs, dated 14 Feb 20 and 11 Aug 20.
Exhibit H:	Advisory opinion, BCMR Medical Advisor, dated 16 Jul 20. 
Exhibit I:	Notification of advisory, SAF/MRBC to applicant, dated 31 Jul 20.
Exhibit J:	Applicant’s response, dated 2 Sep 20.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.