RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2015-00632 COUNSEL: HEARING DESIRED: YES APPLICANT REQUESTS THAT: 1. His records meet a Medical Evaluation Board (MEB). 2. His characterization of service be changed from “Honorable” to “Medical Disability Retirement,” effective 30 May 13, and his Narrative Reason for Separation, Separation Program Designator (SPD) code and Reentry (RE) code be changed accordingly. 3. He receives any and all medical disability retirement pay and benefits retroactive to 30 May 13. APPLICANT CONTENDS THAT: Through counsel, he suffered from various medical problems for several years while serving as an Active Guard Reserve (AGR) Airman and as a Federal Technician. He was treated for sleep apnea, sinus problems, sore throat and cough, hernias, gout, shoulder, back, neck, knee, and elbow pain. The Fitness Assessment (FA) entry for 31 Aug 10 stated he was exempt from all events of the FA. On 15 Mar 11, he was granted exemption from the push-up, crunch and running portion of the test until 4 Jun 11. On 15 Jun 11, he was granted exemption from the push-up crunch, and running portion of the test until 30 Sep 11. On 13 May 12, he received an unsatisfactory rating on a FA. On 13 Oct 12, he received a referral evaluation for failing to meet fitness standard. On 4 Nov 12, he was granted exemption from the push-up, crunch, running, walk and abdominal circumference portion of the FA until 28 Feb 13. This exemption was not honored, and on 6 Nov 12, he received an unsatisfactory rating on a FA for failed abdominal circumference. The unit determined he would take the FA before 19 Nov 12. On 20 Mar 13, the 128th OG/CC verbally denied him medical leave to have shoulder surgery that would have corrected his AC joint degeneration. On 27 Mar 13, he received a Letter of Counseling (LOC) informing him that he had to receive a minimum passing score of 75 days within 42 days or would be separated from the AGR program. On 19 Apr 13, he then received a letter of intent of AGR separation stating he had not passed a FA since 17 Oct 08 and that he had seven days to prepare a rebuttal. This letter did not mention any of his previous exemptions or medical history. The applicant submitted his request to retire from the service in order to avoid the separation action threatened by this command. When the applicant submitted his retirement application he received a note from the Total Force Service Center (TFSC) which stated that while the package was received, they needed “a MEB packet with the letter and AF Form 469, Duty Limiting Condition Report, based on a code “31.” On 11 Jul 13, the TFSC notified the applicant his requested retirement application was approved and that an MEB package was not initiated. The applicant should have been afforded the opportunity to undergo an MEB/PEB process and evaluation for medical disability retirement based on his health problem. He served for more than 24 years and received positive evaluations and several awards. He developed many health issues during that timeframe, such as: sleep apnea, back, shoulder and elbow programs for which the Department of Veterans Affairs (DVA) awarded him a disability rating of 80%. Because he was not evaluated by and MEB/PEB, he does not have a percentage based on the Physical Disability Evaluation System (PDES). Although the DVA rating is not binding on the services in terms of disability ratings, the fact that he received such a high rating from the DVA a few months after he retired is some evidence that an evaluation by an MEB or PEB was necessary. Therefore, he should have been evaluated for an MEB or PEB prior to his transfer to the retired reserve. The applicant’s sleep apnea was sufficient condition to require an MEB. On 19 Jan 13, the Air Force Guidance Memorandum to AFI 48-123, Medical Examinations and Standards, implemented immediate changes that required mandatory compliance. Paragraph 5.3.2.1.4.1.1 was added, which stated “Airmen with severe or moderate obstructive sleep apnea (diagnostic Polysomnogram AHI/RDI greater than 15) and/or symptoms despite treatment and regardless of severity require an evaluation for a Medical Evaluation Board (MEB)”. The applicant was diagnosed with obstructive sleep apnea on 17 Nov 12. The applicant’s apnea/hypopnea index (AHI) was 47, and after applying 9 cm of pressure, it decreased to 17.8. Paragraph 5.3.2.1.4.2. states; “the use of stimulant medication or supplemental oxygen for treatment of obstructive sleep apnea requires an MEB evaluation”. The applicant must use a CPAP for treatment of his severe OSA for his lifetime; thus, for his diagnosis, AHI, and treatment regimen he should have received an MEB for sleep apnea. His doctor was asked by his unit to provide a letter; but was not asked whether the applicant needed a MEB or what impact, if any; his OSA would have on his duties as a boom operator. We ask the Board find that the applicant should have received an MEB and correct the error and injustice that occurred when the unit did not initial one. The applicant’s medical exemptions also provide evidence of the necessity for an MEB. He received exemptions for the FA in 2010, 2011, and 2012. Paragraph 1.3.5 of AFI 40-501 states that medical conditions requiring medical exemption from fitness assessment do not require a MEB unless required under AFI 48- 213. However, paragraph 3.6.4.1 of AFI 40-510 states: those members with medical exemptions, who are still unable to exercise after one year, should receive strong consideration for MEB in accordance with AFI 48-123. In the applicant’s case the WIANG did not follow proper procedures required by Air Force Instructions. Specifically if an airman is medically exempted from FA for an acute medical condition which precludes all forms of exercise, the exemption period should include a period of time for fitness improvement, before the next required FA. The applicant was not given a period of time for fitness improvement. Rather, he was given a FA on 6 Nov 12 when his exemption from abdominal circumference was not honored. On 20 Mar 13, the applicant was verbally denied medical leave for shoulder surgery; then on 27 Mar 13, the applicant received a Letter of Counseling (LOC), informing him he had 42 days to pass the FA or he would be separated from the AGR program. 42 days is not a sufficient period of time for fitness improvement, considering the applicant needed surgery, had years of exemptions from the physical exercise portion of the FA, and suffered from serious medical conditions that greatly impacted his ability to pass even the abdominal circumference portion of the test. Thus, the command unjustly forced the applicant to retire when they should have authorized a MEB/PEB. Furthermore, had they afforded him the MEB/PEB process, and had the MEB/PEBB deemed him fit for further service, the command would have been required to give him sufficient time to improve his fitness. The WIANG did not comply with the AFIs, and the Board should correct this injustice. The applicant provided all of his medical documentation to the WIANG. It does not appear that an evaluation was conducted regarding to how his health problems could have affected his ability to pass the FA from 2009 to 2013. He only had two failed FA in a 24 month period and although the command completed AF Form 469 and 422, they did not rule out medical conditions precluding him from achieving a passing score. The applicant’s failures were insufficient to warrant separation, which is what the command threatened him with in order to force him to retire. The command also failed to adequately consider his medical conditions when evaluating his physical fitness. Thus the Board must correct the injustice that occurred. Finally, instead of receiving the appropriate time in 2013 to improve his fitness, the applicant was essentially threatened that he would be separated and lose his ability to retire if he did not voluntary retire. The applicant was provided notice of pending involuntary separation action without due regard for his health problems. This behavior by the command was unconscionable; the applicant served honorably for 24 years and had several medical conditions that warrant an MEB. He should not have had t the command demand his retirement without consideration of his circumstances in accordance with the applicable Air Force Instructions. The command’s actions resulted in the injustice of the applicant being denied the ability to be evaluated for medical disability retirement and the Board should correct this wrong. Because the applicant should have been medically retired from the dates of his discharge he should receive any and all medical disability retirement pay and benefits retroactive to 30 May 13. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 3 Aug 87, the applicant entered the Regular Air Force. On 11 Jul 92, the applicant was released from active duty and transferred to the Reserve Air Force. On 5 Feb 93, the applicant entered the Air National Guard. On 23 Dec 09, the applicant completed a FA. He was not exempt from any components. He received a composite score of “68.05” along with a fitness level of “Poor.” On 31 Aug 10, the applicant was exempt from all components of the FA. On 15 Mar 11, the applicant was exempted from running, push-up and sit-up portions of the FA. These exemptions expired on 5 Jun 11. On 15 Jun 11, the applicant was exempted from running, push-up and sit-up portions of the FA. These exemptions expired on 30 Sep 11. On 23 May 12, the applicant completed a FA. He was not exempt from any components. He received a composite score of “59.70” along with a fitness level of “Unsatisfactory.” On 4 Nov 12, the applicant was exempted from all portions of the FA. These exemptions expired on 28 Feb 13. On 6 Nov 12, the applicant completed a FA. He was exempt from cardio, push-ups, and sit-ups. His abdominal circumference was documented at 40 inches. He received a composite score of “0.00” along with a fitness level of “Unsatisfactory.” On 29 May 13, the applicant was transferred to the Reserve Retired List and furnished an Honorable discharge, and was credited with 24 years, 9 months, and 27 days total service for retired pay. On 14 Mar 14, the applicant received a Department of Veterans Affairs disability rating of 60% for sleep apnea, right shoulder AC joint arthritis, degenerative disc and arthritic disease of the lumbar spine and high thoracic spine strain (claimed as upper and lower base conditions), and tinnitus. The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPR) and the BCMR Medical Consultant, which are attached at Exhibits C, D, and E. AIR FORCE EVALUATION: NGB/SGP recommends denial indicating there is no evidence of an error or an injustice. The applicant failed to meet the requirements for his FA IAW AFI 36-2905, Fitness Program, and ANGI 36-101, The Active Guard/Reserve (AGR) Program. In addition, the applicant’s medical condition did not warrant a full MEB. The applicant served in Active Guard Reserve (AGR) status. There is no documentation submitted to show he was a Federal Technician, it is unclear if the applicant’s lawyer misunderstood the applicant’s status and the meaning of a Federal Technician. AFI 36-2905 states all members are required to complete an abdominal circumference, since there is no risk the member. The applicant failed to complete or pass the abdominal circumference as required. The only passing FA documented is from 2008. In accordance with Air National Guard Instruction (ANGI) 36-101 all AGR members are required to meet a composite score of 75 or higher and anyone who fails a FA is required to re-test within 180 days. The applicant failed to re-test in the required time. A complete copy of the NGB/SGP evaluation is at Exhibit C. NGB/SG recommends denial indicating there is no evidence of an error or an injustice. The applicant was assigned to Active Guard Reserve (AGR) status. This was an Active Duty Title 32 status. The documentation submitted does not show the applicant was a “Federal Technician.” A Federal Technician is a civilian position required assignment to a traditional National Guard position. According to the documentation submitted, the applicant did not pass his FA in 2009. In 2010, the applicant was granted a FA exemption for all components. He was not placed on a profile at that time. Later in Mar 2011, the applicant was place on a profile with FA exemptions for push-ups, sit-ups, and running with an expiration date of 30 Sep 11. The reason for the profile is listed as fitness. There is not record of the applicant performing a FA in 2011. On 23 Jun 12, the applicant attempted and failed his FA. On 4 Nov 12, the applicant was placed back on a profile with FA exemptions for all components with an expiration of 28 Feb 13. Documents submitted states the State Human Resource Office (HRO) notified the applicant on 4 Nov 12 that an extension of his AGR status would not be granted until a FA was performed. It also stated the applicant needed to complete the minimum of abdominal circumference to meet the standard required to obtain an AGR extension. The applicant attempted the abdominal circumference portion of the FA on 6 Nov 12 and did not pass. In accordance with AFI 36-2905, the applicant received a Letter of Counseling (LOC) on 27 Mar 13 with instructions to complete a FA within 42 days of memorandum. On 19 Apr 13, the applicant was notified by official memorandum he would be removed from the AGR program due to not having any passing FA score in 17 Oct 08. The applicant was diagnosed with obstructive sleep apnea (OSA) which requires a retention waiver for continued service, however, according to AFI 10-203, Duty Limiting Conditions, Chapter 5, paragraph 5.2, states: “existence of a physical defect or condition does not in itself necessarily provide justification for or entitlement to an initial RILO, MEB, ALC or FFD”. The 128th Guard Medical Unit submitted a Modified Review in Lieu of a MEB in May 13 to NGB/SGPA. The documentation submitted did not show any medical restrictions affecting the applicant’s ability to perform his military duty. AFI 41-210, Tricare Operations and Patient Administration Functions, states the presumption of fitness policy may be applied to a case decision resulting in a RTD without full MEB. The applicant’s condition did not warrant an MEB due to the presumption of fitness. The documentation submitted did not indicate the OSA prevented him from completing his duties; therefore, the case did not warrant an MEB. According to the documentation, the applicant submitted a retirement request after 19 Apr 13. The retirement request was placed on hold due to a code “31” profile on the AF Form 469. In accordance with AFI 10-203, A Modified Review in Lieu of a MEB was submitted to NGB/SGPA in Jun 13 and was returned with a disposition of Return to Duty (RTD) with an Assignment Limitation Code (ALC). AFI 10-203 states a full MEB is not necessary when members are approaching retirement, as member are presumed fit for duty. The applicant was Honorable discharged upon receipt of the RTD. A complete copy of the NGB/SG evaluation is at Exhibit D. BCMR Medical Consultant opines the applicant has not met the burden of proof of error or injustice that warrants the desired change of the record. The Board may yet consider offering him the MEB he desires, but bringing him back on duty with the expectation of a medical retirement is unlikely to result in his desired outcome. Addressing the applicant’s desire to supplant his separation and transfer to the Reserve Retired Section with a return to military service conduct a Medical Evaluation Board (MEB), with the expectation of a medical retirement, he is advised that the military Disability Evaluation System, operating under Title 10, United States Code (U.S.C.) offers compensation only for conditions that are the cause for career termination; and then only based on the level of impairment present at the “snapshot” time of separation. First, in order to justify a Medical Evaluation Board, there must be evidence of a disqualifying medical condition, found in Line of Duty, which interferes with or restricts the performance of duty to the extent and duration [greater than 365 days], that renders the member non-worldwide qualified. That includes prior scrutiny by a Deployment Availability Working Group, which may then recommend retention with an Assignment Limitation Code. There may be a legitimate argument for conducting such a review. However, in order to then justify a medical retirement the medical condition(s) must be found unfitting by a Physical Evaluation Board and, more importantly, the medical condition(s) found unfitting must reach the minimum 30% disability rating threshold to qualify for retirement. Department of Defense Instruction 1332.18, Disability Evaluation System (DES), Appendix 2 to Enclosure 3, offers the following general criteria for determining unfitness: a. A Service member will be considered unfit when the evidence establishes that the member, due to disability, is unable to reasonably perform duties of his or her office, grade, rank, or rating, including those during a remaining period of Reserve obligation. b. A Service member may also be considered unfit when the evidence establishes that: (1) The Service member’s disability represents a decided medical risk to the health of the member or to the welfare or safety of other members; or (2) The Service member’s disability imposes unreasonable requirements on the military to maintain or protect the Service member. The evidentiary standards for determining unfitness due to disability include: a. Objective Evidence (1) The Secretary of the Military Department concerned must cite objective evidence in the record, as distinguished from personal opinion, speculation, or conjecture, to determine a Service member is unfit because of disability. (2) Doubt that cannot be resolved with evidence will be resolved in favor of the Service member’s fitness through the presumption that the Service member desires to be found fit for duty. b. Preponderance of Evidence. With the exception of presumption of fitness cases, the Secretary of the Military Department concerned will determine fitness or unfitness for military service on the basis of the preponderance of the objective evidence in the record. While the applicant has provided evidence of receiving recurring evaluations and treatment for somatic complaints in civilian community, these were never shown to preclude the performance of the duties of his office, grade, rank, and rating. Even though counsel has raised particular attention to the applicant’s obstructive sleep apnea as warranting an MEB [and implicitly an unfit determination], the fact that the applicant was prescribed a continuous positive airway pressure device does not automatically warrant a cause for career termination under today’s standards; and indeed, more likely than not would result in his retention under an Assignment Limitation Code, but not for the applicant’s co-morbid musculoskeletal complaints. The Medical Consultant directs attention to a document on HQ 128th Air Refueling Wing letterhead, addressed to the 128 MDG healthcare provider requesting a response to a number of questions regarding the impact of the applicant’s obstructive sleep apnea on duty performance. The evaluating provider, AMG [Aurora Medical Group] Pulmonary Clinic, responded “No, patient has minimal symptoms related to his OSA” to the question asking whether the applicant’s condition would impact performance or safety. The provider also responded “No” to the question asking whether the applicant requires frequent follow-up or is predisposed to sudden incapacitation; although conceding to a “once yearly” evaluation. The provider responded in the affirmative [“Yes”] to questions asking whether the applicant could deploy for 120 days without any undue risk, perform duties for a prolonged period [12 hours or more], wear a gas mask, tolerate heat and cold, travel by sea or air, and subsist on field rations. Thus, even if the applicant was found unfit for his right shoulder and back conditions, rated at 10% each, he would not reach the threshold for retirement eligibility. The applicant and the Board are reminded that, operating under a different set of laws, Title 38 U.S.C., the Department of Veterans Affairs (DVA) is authorized to offer compensation for any medical condition found service-incurred, without regard to its proven or demonstrated impact upon a service member’s retainability, fitness to serve, or narrative reason for release from military service. With this in mind, the DVA offers compensation for conditions that were service-incurred, but not proven military unfitting at the time of release from service; although the ratings are generally made effective the day following release from service. The DVA is also empowered to adjust disability ratings as the level of impairment of a given medical condition may vary over lifetime of the veteran. A complete copy of the BCMR Medical Consultant evaluation is at Exhibit E. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations and BCMR Medical Consultant were forwarded to the applicant on 5 Feb 16 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 an error or injustice. We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility (OPR) and the BCMR Medical Consultant and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. Even though counsel has raised particular attention to the applicant’s obstructive sleep apnea as warranting an MEB, the fact that the applicant was prescribed a continuous positive airway pressure device does not automatically warrant a cause for career termination under today’s standards; and indeed, more likely than not would result in his retention under an Assignment Limitation Code. The applicant is reminded that, operating under a different set of laws, Title 38 U.S.C., the Department of Veterans Affairs (DVA) is authorized to offer compensation for any medical condition found service-incurred, without regard to its proven or demonstrated impact upon a service member’s retainability, fitness to serve, or narrative reason for release from military service. With this in mind, the DVA offers compensation for conditions that were service-incurred, but not proven military unfitting at the time of release from service; although the ratings are generally made effective the day following release from service. The DVA is also empowered to adjust disability ratings as the level of impairment of a given medical condition may vary over lifetime of the veteran. The Board is not convinced the applicant met the burden of proof of error or injustice that warrants the desired change of the record. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 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-2015-00632 in Executive Session on 8 Mar 16 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-00632 was considered: Exhibit A. DD Form 149, dated 12 Dec 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, NGB/SGP, dated 15 Jan 16. Exhibit D. Memorandum, NGB/SG, dated 21 Jan 16. Exhibit E. Memorandum, SAF/MRBC, dated 2 Feb 16. Exhibit F. Letter, SAF/MRBR, dated 5 Feb 15.