RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-04163

XXXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His honorable discharge be changed to a medical retirement.

APPLICANT’S CONTENTIONS

He injured his back in 2007 while in Germany and when he returned, he was not awarded treatment.  While deployed to Iraq in 2010 he aggravated his back and upon return, an MRI and CT scan were conducted that revealed “a lot of injuries.”  The doctor he was referred to misinformed the base about his injuries and he was returned to service.  His health continued to downgrade and he was unable to pass his physical fitness test.  His unit chose not to allow him a Medical Evaluation Board (MEB) due to his enlistment was up within a few months.  After his discharge, an MRI revealed more damage to his back and neck.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an honorably discharged Air National Guard technical sergeant (E-6).

The applicant was issued a DD Form 214, Certificate of Release or Discharge from Active Duty, for the period of 13 May 07 to 13 Oct 07, with Narrative Reason for Separation, “Completion of Required Active Service,” with remarks, “In support of Operation ENDURING FREEDOM.”

The applicant was issued a DD Form 214 for the period of 25 Feb 10 to 18 Nov 10, with Narrative Reason for Separation, “Release Due to Demobilization,” with remarks, “Member served in support of Operation ENDURING FREEDOM.”

The applicant was issued a DD Form 214 for the period of 19 Jan 11 to 19 Aug 11, with Narrative Reason for Separation, “Release Due to Demobilization,” with remarks, “Member on (Title 10) 10 U.S.C. 12301 for Medical Continuation Orders.”

On 10 Oct 15, the applicant received an honorable discharge and was credited with 13 years of service for retired pay.

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

APPLICABLE AUTHORITY

The military Disability Evaluation System (DES), established to maintain a fit and vital fighting force, can by law, under Title 10, United States Code (USC), only offer compensation for those service incurred diseases or injuries which specifically rendered a member unfit for continued 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 occurrences.  DoDI 1332.32, Physical Disability Evaluation, 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.”

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

NGB/SG recommends denying the application.  A thorough review of the medical documentation was conducted to address the applicant’s claims.  No evidence was provided to demonstrate he had a physical impairment that meets Medical Retirement Criteria.  There is no documented evidence to support that the applicant was diagnosed with a duty related disqualifying condition at the time of discharge.  10 U.S.C, Chapter 61, provides eligibility criteria for retirement or separation for physical disabilities.  To be eligible for consideration of medical disability retirement, individuals must have a condition that is or may be of a permanent nature and found unfit by the DES board. 

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 18 Oct 19 for comment (Exhibit D), and on 19 Nov 19, the applicant requested more time to respond to the advisory opinion (Exhibit E).  On 8 Jan 20, the applicant’s case was administratively closed (Exhibit F). 

On 20 Mar 20, the applicant’s case was reopened upon receipt of his new evidence, specifically a summary of benefits from the Department of Veterans Affairs indicating his combined service-connected evaluation is 90 percent and payed at the 100 percent rate for being unemployable due to his service-connected disabilities, effective 31 Aug 18.  

The applicant’s complete response is at Exhibit E.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

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

3.   After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of NGB/SG and finds a preponderance of the evidence, to include the additional documentation received by the applicant, does not substantiate the applicant’s contentions.  Therefore, the Board recommends against correcting the applicant’s records.

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-2017-04163 in Executive Session on 17 Jun 20:

Panel Chair
Panel Member
Panel Member

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

Exhibit A:	Application, DD Form 149, w/atchs, dated 2 Feb 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, NGB/SG, dated 25 Sep 19.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 18 Oct 19.
Exhibit E:	Applicant’s response, dated 19 Nov 19.
Exhibit F:	Letter, SAF/MRBC, dated 8 Jan 20.
Exhibit G: Applicant’s response, w/atch, dated 3 Mar 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.