RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-00486

	COUNSEL: 

	HEARING: YES

APPLICANT REQUESTS THAT:

He receive a medical retirement instead of his medical separation with severance.

APPLICANT CONTENDS THAT:

The Air Force denied him an exit physical after “four failed surgeries on his right foot”, and he was “denied an exit physical by his unit.  His unit stated he was having a Compensation & Pension (C&P) exam with the Department of Veterans Affairs (DVA), and that this exam covered his exit physical.”  Applicant contends that his medical condition occurred during a training exercise in Ali Al Salem, Kuwait.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant is a medically separated former Air Force Security Forces technical sergeant.

On 24 Aug 10, per the applicant’s medical record, the applicant reported to Sherwood Foot Clinic complaining of a right foot and big toe movement pain. The medical notes further state, the applicant recalled a trauma injury playing football in high school and pain when he was in Kuwait jumping out of the back of a truck.

On 20 Jun 14, the applicant’s commander referred him to a Medical Evaluation Board (MEB) stating he was not world-wide qualified and could not perform the required Security Forces duties.

On 4 Aug 14, the MEB convened and found the applicant had a potentially worldwide duty disqualifying condition – Hallux Arthrosis.

On 27 Aug 14, the Informal Physical Evaluation Board (IPEB) found the applicant had an unfitting condition of Arthritis, Right Big Toe with a zero percent compensable rating and, a recommendation of discharge with severance pay (DWSP). His Category II conditions (not currently unfitting) included: 1) obstructive sleep apnea, 2) tinnitus, and 3) dermatitis.

On 12 Sep 14, the applicant non-concurred with the IPEB finding; however, on 17 Nov 14, he waived his earlier decision to demand a formal hearing and concurred with the IPEB’s recommendations and findings.

On 13 Jan 15, the IPEB again reviewed the applicant’s case and changed the diagnosis to Arthritis, Right Big Toe, Rated as Hallux Limitis, Hallux Arthrosis Right, Incomplete Union first Metatarsophalangeal Joint fusion (as an unfitting condition) with a combined compensable percentage listed at ten percent and a recommended disposition of discharge with severance pay (DWSP).

On 20 Jan 15, the applicant submitted a Limited Assignment Status Application request to be retained on active duty, however, his application was denied on 12 Feb 15.

On 28 May 15, applicant was honorably discharged with disability severance pay, noncombat (enhanced).

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibit C and Exhibit D.

AIR FORCE EVALUATION:

AFPC/DPFDD recommends partially granting a correction to the applicant’s record, but only to the extent that his condition should be determined as “combat zone, not combat related”. No evidence was found to indicate the applicant had any other unfitting condition(s) at the time his medical board was processed.

The member’s unfitting condition does qualify as combat zone, as indicated on the service member’s medical documentation; injury was a result of jumping from a truck and stepping on a rock while on deployment. Therefore, the condition should have been determined as incurred in a “combat zone.” However, AFPC/DPFDD recommends denying the medical retirement, while acknowledging the applicant’s long and distinguished service, neither he nor his record meets the burden of proof of error or injustice that warrants the desired change of record.

The complete advisory is at Exhibit C.

The AFBMCR Medical Advisory recommends denying the applicant’s request for a medical retirement as neither he nor his record meets the burden of proof of error or injustice that warrants the desired change of record. The military Integrated Disability Evaluation System (IDES) is established to maintain a fit and vital fighting force and can, by law, 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 disease or injury. In the case under review, although the applicant was evaluated and treated for a number of medical ailments for which he has received compensation ratings by the DVA, the preponderance of evidence of record fails to indicate neither of those additional conditions, e.g., obstructive sleep apnea, tinnitus, and various scars, were not so severe as to disqualify him from worldwide duty, from further injury and suffering due to his right foot ailment. With respect to the disability rating assigned for his right foot ailment, the Military Department was legally bound to accept the rating 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 (and independent of) its demonstrated or proven impact upon a service member’s retain ability, fitness to serve, or narrative reason for separation. This is the reason why an individual can be found unfit for military service for one reason, and yet can (concurrently under IDES) receive compensation ratings from the DVA for additional medical condition that were service-connected, but were not militarily unfitting at the time of discharge. The complete advisory is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluations to the applicant on 1 Feb 18 for comment (Exhibit E), but has received no response.

THE BOARD CONCLUDES THAT:

1.  The application was timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is not the victim of an error or injustice with regard to his medical separation.  The Board concurs with AFPC/DPFDD and AFBCMR Medical Advisor that the applicant has failed to meet the burden of proof of an error or injustice that warrants the desired change of the record.

4.   However, the Board finds that a preponderance of the evidence shows the applicant’s record is in error and agrees with AFPC/DPFDD that it should be corrected to show that his unfitting condition was incurred in a combat zone, not combat-related.  Therefore, the Board recommends the applicant’s records be corrected as indicated below.

5.  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 the Board’s understanding of the issues involved.

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that his unfitting condition was incurred in a combat zone, not combat-related. 

However, regarding the remainder of the applicant’s request, the Board recommends the applicant be informed the evidence did not demonstrate material error or injustice and the application could only be reconsidered upon receipt of relevant evidence not already considered by the Board.

The application was adjudicated without a personal appearance.

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-2017-00486 in Executive Session on 28 Mar 18:

The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 01 Feb 17.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFDD, dated 15 Nov 17.
Exhibit D:	Advisory opinion, AFBCMR Medical Advisor, w/atchs dated 28 Dec 17.
Exhibit E:	Notification of Advisory, SAF/MRBC to applicant, dated 01 Feb 18.

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