RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2015-00161 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: His military personnel records be corrected to reflect that he was permanently retired for physical disability instead of being discharged for physical disability. His records be corrected to reflect he retired in the grade of technical sergeant (E-6) instead of staff sergeant (E-5). APPLICANT CONTENDS THAT: His 20 percent compensable disability rating was incorrect at the time of his separation from the Air Force because he had epidural injections the month prior to assignment of the rating. He was diagnosed with sleep apnea in June 2012, which was prior to his medical discharge; therefore, that diagnosis should have been included in his rating. His Physical Evaluation Board Liaison Officer (PEBLO) was informed in June 2012 that he was diagnosed with sleep apnea, which contributed to his fitness assessment failure. However, the PEBLO indicated that his diagnosis did not matter because the board would only be concerned as to whether or not he could pass the physical fitness test. Furthermore, he was discouraged from requesting a formal board hearing; therefore, medical witnesses could not show the discovery of a new bad disc that caused his fitness test failure. He would have been able to make E-6 if he did not have any back problems. His back issues were caused by the Air Force and happened on duty starting in 2009. Throughout his career he received adverse actions for his disability. His overall compensable disability rating has since been rated at 70 percent. STATEMENT OF FACTS: The applicant initially entered the Regular Air Force on 4 August 1999. On 8 August 2008, the applicant’s AF Form 910, Enlisted Performance Report (EPR) (AB thru TSgt), rendered for the period 9 August 2007 thru 8 August 2008 was referred due to a rating and comments relative to his fitness assessment (FA) failure on 30 July 2008. The applicant argued that his failure was due to his medical conditions. On 21 September 2011, the applicant’s AF Form 910, rendered for the period 9 August 2010 thru 8 August 2011 was referred due to a rating and comments relative to a FA failure. The applicant argued that his failure was due to medical issues with his back. On 13 October 2011, an AF Form 469, Duty Limiting Condition Report, was initiated that placed duty and mobility restrictions upon the applicant, to undergo a Medical Evaluation Board (MEB) to determine his medical fitness for continued worldwide duty and retention. On 31 October 2011, the applicant was issued a Letter of Reprimand (LOR) for his unsatisfactory fitness level category for the third time within a 24 month time period and the commander established an unfavorable information file (UIF) to file the LOR. The applicant contested the UIF and stated he was undergoing a MEB since he cannot run without causing tremendous pain or soreness with the muscles in his back. On 6 December 2011, the applicant acknowledged that he was briefed on the Integrated Disability Evaluation System (IDES) process, he could request an Air Force physician or other appropriate health care professional (not involved in his MEB process) to offer an impartial review of the medical evidence, and his responsibility to file a disability claim with the Department of Veterans Affairs (DVA), if so desired. On 9 December 2011, the applicant was evaluated and identified as having a medical condition that precluded him from achieving a passing score on the air force fitness assessment. On 1 February 2012, the applicant’s commander indicated that due to his ongoing medical problems he was unable to perform his in-garrison, work-related duties associated with his primary career field since his arrival on 11 June 2000. Furthermore, he was unable to deploy or mobilize. On 10 February 2012, according to a narrative summary, a certified family nurse practitioner indicated the applicant’s recurring mid-back pain will prevent him from performing his work duties and from completing his fitness test. On 27 February 2012, a MEB convened to consider the applicant for continued active duty. The applicant was diagnosed with recurrent mid back pain with the approximate date of origin on 15 June 2000. The MEB recommended the applicant be referred to an Informal Physical Evaluation Board (IPEB) and the applicant did not request an impartial review of his MEB. On 6 April 2012, an IPEB was convened which found the applicant unfit due to cervical and lumbar intervertebral disc syndrome. The IPEB indicated the applicant was a participant of the IDES program and would finalize their recommendation upon receipt of ratings from Veterans Affairs (VA). On 11 April 2012, the PEB requested the VA to provide the applicant a disability rating percentage to include its rationale. On 18 May 2012, the VA proposed a combined disability rating of 20 percent. On 8 June 2012, an IPEB convened and found the applicant unfit for continued service because of physical disability and determined that his medical condition was incurred in LOD. The IPEB determined the applicant’s degree of impairment was permanent and recommended he be discharged with a 20 percent compensable disability rating and entitlement to severance pay. On 27 June 2012, the applicant agreed with the findings and recommended disposition of the IPEB. He waived his right to a formal PEB hearing. On 10 July 2012, officials with the Office of the Secretary of the Air Force (SAF) determined the applicant was physically unfit for continued military service and directed he be discharged for physical disability with entitlement to severance pay. On 28 September 2012, the applicant was honorably discharged, with a narrative reason for separation of “Disability, Severance Pay, Non-Combat (Enhanced) and was issued an SPD code of “JEB” and an RE code of “2Q” (medically retired or discharged). He was credited with 13 years, 1 month, and 25 days of total active service. 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 and D. AIR FORCE EVALUATION: AFPC/DPFD recommends denial of the applicant’s request for a medical retirement. There is no evidence an injustice or error occurred during the processing of the applicant’s disability case file. The applicant did not provide any documentation that would change the final outcome rendered at the time of his processing through the disability evaluation system. The applicant’s claimed condition of sleep apnea would not have rendered him unfit as it would not have created any significant duty or medical restrictions and, as such, would not have been found unfitting or compensable at the time of the applicant’s discharge. In addition, the ratings assigned are arrived at after a full review of all medical documentation provided with the MEB case file. In this case, the DVA considered the applicant’s service treatment records, VA examinations, and other supporting documents in order to determine an appropriate rating. Furthermore, in regards to the applicant’s contention that he was unable to have witnesses substantiate the discovery of a new bad disc, the IPEB review indicates back pain is rated on the service member’s ranged of motion and not the number of discs involved. The rating assigned by the DVA included the entire spine and would not have changed based on the addition of an additional “bad disc”. Furthermore, the applicant’s 2014 reevaluation by the DVA for his back remained unchanged from his previous rating awarded in 2012. A complete copy of the AFPC/DPFD evaluation is at Exhibit C. AFPC/DPSOE recommends denial of the applicant’s request to change his retirement grade from E-5 to E-6, as he was never selected for promotion to E-6. Based on the applicant’s date of rank (DOR) to E-5, he was considered and non-selected for promotion to E-6 during promotion cycles 07E6, 08E6, 10E6, and 11E6. The weighted airman promotion system (WAPS) history records reveal the applicant was ineligible for promotion consideration to E-7 during cycles 09E6 and 12E6 due to receipt of referral EPRs for fitness failures. A complete copy of the AFPC/DPSOE evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant argues there have been many service members that were ineligible for deployments due to sleep apnea; however, his commander sent a letter to the MEB indicating that others in the squadron needed to pick up his deployments because he was unable to deploy or mobilize. Also, there are other cases of members in the grade of staff sergeant that were retired in the grade of technical sergeant. There is evidence of an injustice due to the noncompliance with regulations and his ability to prove that his discharge was a deployment based decision and his sleep apnea diagnosis should have been considered as part of is MEB. The applicant’s complete response is at Exhibit F. 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, in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force offices of primary responsibility (OPR) and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. While the applicant’s contentions are duly noted, we find no evidence or documentation that would lead us to believe that the applicant’s disability discharge was not carried out in accordance with the prescribed directives. We further note the applicant has indicated his awareness of many service members ineligibility for deployments due to sleep apnea and members in the grade of staff sergeant being allowed to retire in the grade of technical sergeant, essentially asserting that the circumstances are significantly close enough that similar consideration should be applied to his case and relief be granted. Although, the applicant cited these instances, the circumstances giving rise to those cases are unknown. Nevertheless, we are not bound to recommend relief in one circumstance simply because the situation being reviewed appears similar to another case and precedent is not a controlling issue in our decision on the instant case. Each case presented before this Board is considered on its own merits and precedent does not bind us. Therefore, in view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 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-2015-00161 in Executive Session on 20 August 2015 under the provisions of AFI 36-2603: Chair Member Member The following documentary evidence was considered: Exhibit A.  DD Form 149, dated 12 January 2015, w/atchs. Exhibit B.  Applicant's Master Personnel Records. Exhibit C.  Memorandum, AFPC/DPFD, dated 17 February 2015. Exhibit D.  Memorandum, AFPC/DPSOE, dated 4 June 2015. Exhibit E.  Letter, SAF/MRBR, dated 2 July 2015. Exhibit F.  Letter, Applicant, dated 27 July 2015.