RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-02639

XXXXXXXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

1.  Her DD Form 214, Certificate of Release or Discharge from Active Duty be corrected as follows:  

	a. Block 11, Primary Specialty, remove “Helper” to show the official Air Force Specialty Code (AFSC) title and 6 months and 20 days and guaranteed AFSC specialty versus “3P011, Security Forces Helper, 4 months.” 

b.  Block 12e, Total Prior Inactive Service, should reflect her Army Junior Officer Training Corps (JROTC), (4 years) and Delayed Entry Program (DEP) (3 months and 13 days) time versus 3 months and 13 days.

c. Block 13, Decorations, Medals, Badges Citations and Campaign Ribbons Awarded or Authorized, reflect entitlement to and award of the “Force Protection Occupational Badge.”

	d.  Block 14, Military Education, reflect credit for Security Forces AFSC and full General Military Course (GMC) credit.  

	e.  Block 23, Type of Separation, reflect “Released from Active Duty versus Entry-Level Separation.”

	f.  Block 24, Character of Service, reflect “Honorable versus Uncharacterized.”

	g.  Block 27, Separation Code, reflect “JFL-1 or JFL-2,” which denotes Physical Disability with Severance Pay versus “JFC,” which denotes Erroneous Enlistment.

	h. Block 28, Narrative Reason for Separation, reflect “Physical Disability versus “Erroneous Entry,” with full retroactive severance pay entitlements and applicable veterans service benefits.

2.  Active Duty credit for 3-6 years, including JROTC GMC credit.

3.  Eligibility for the Montgomery GI Bill with waiver to transfer to eligible dependents.

4.  Eligibility to convert Servicemen’s Group Life Insurance (SGLI) to Veterans Government Life Insurance (VGLI) and a timeline waiver (Not within the Boards Purview).

5.  Early promotion to the grade of airman first class (E-3/A1C) based his on Army JROTC completion. 

APPLICANT’S CONTENTIONS

In a 10-page brief, the applicant makes the following contentions:

She served in the Army JROTC from 2003-2007 prior to enlisting in the Air Force, which resulted in promotion to the grade of A1C (E-3) upon completion of basic military training (BMT).  

Her Military Entrance Processing Station (MEPS) records do not contain a history of Pes Planus.  Subsequently, on 29 September 2008, she was diagnosed with Pes Planus (moderate-severe).  Therefore, it is more likely than not with greater probability that the condition developed during military service and was aggravated as evidenced in her service treatment records (STRs) with several ankle/feet medical encounters.  

In the interest of the government and applicant, an alternate job specialty would have been reasonable.  In addition, the Integrated Disability Evaluation System (IDES) process should have been initiated to determine her fitness for duty, and if eligible placed on the temporary disability retired list/permanent disability retired list (TDRL/PDRL) if warranted by the Medical Evaluation Board/Physical Evaluation Board (MEB/PEB).  

This negligence and injustice has prevented her access to Department of Veteran Affairs (DVA) treatment for the service-connected condition/aggravation and other DVA benefits, to include eligibility for the GI Bill and JROTC GMC credit for active duty.   

In accordance with (IAW) AFI 36-3208,  Administrative Separation of Airmen, paragraph 1.19.1.2, “The Secretary of the Air Force (SECAF) determines, on a case-by-case basis, that characterization as honorable is clearly warranted by unusual circumstances of personal conduct and performance of military duty. The separation authority will forward a recommendation for an honorable characterization to AFPC/DPMARS2 for review and further processing, if the reason for separation is:

	1.19.1.2.1., A change in military status according to Chapter 2;

	1.19.1.2.2., For the convenience of the government (COG) according to Chapter 3;

	1.19.1.2.3., For disability according to AFI 36-2902 (formerly AFR 35-4); or

	1.19.1.2.4., Directed by the SECAF according to paragraph 1.2.

Her discharge should have been characterized under AFI 36-3208, paragraph 1.19.1.2.3., for disability based on equitable considerations.
Based on the referenced AFIs and similar BCMR/Physical Disability Board of Review (PDBR) cases previously considered, (BC-2008-02773, BC-2010-00169, BC-2015-01253, PD-2015-00005, and PD-2015-00100) equitable treatment is required.

The applicant’s complete submission is at Exhibit A.
STATEMENT OF FACTS

On 16 January 2008, per DD Form 4/1 Enlistment/Reenlistment Document Armed Forces – Armed Forces of the United States, the applicant enlisted in the Air Force Reserve Delayed Entry/Enlistment Program (DEP).  

DD Form 2808, Report of Medical Examination, dated 16 January 2008, item 35, Feet reflects “Pes Planus, Mild and Asymptomatic.” 

According to AF Form 3008, Supplement to Enlistment Agreement – United States Air Force, Block 1E, Remarks, dated 8 April 2008, the applicant acknowledged that she was “enlisting in the Regular Air Force in the pay grade of airman (E-2) for six years of active duty.  I have been counseled on my enlistment and have no claim to a higher grade.  If enlisting in pay grade E-1 (Airman Basic) or E-2, I understand I will be promoted, with pay and allowances, to pay grade E-3 (Airman First Class) upon completion of Technical Training, Indoctrination Training for Pararescue/Combat Controller AFSCs, or after 20 weeks of Technical Training, whichever comes first.  I also understand my date of rank (DOR) for pay grade E-3 will be my date of graduation from Basic Military Training (BMT) and I will not be entitled to back pay or allowances. If enlisting in the pay grade E-3, I understand my DOR and promotion date will be my date of Regular Air Force enlistment.”

On 28 April 2008, the applicant was discharged from DEP and enlisted in the Regular Air Force on 29 April 2008.    

On 3 October 2008, per AETC Form 125A, Record of Administrative Training Action, dated 10 October 2008, the applicant was diagnosed with Pes Planus.  The medical examiner noted the condition did exist prior to entry into military service but was cleared by the MEPS and recommended the applicant be administratively separated from the Air Force.  The applicant did not request a waiver.  

On 21 October 2008, the applicant’s commander recommended she be discharged from the Air Force, under the provisions of AFI 36-3208, for Erroneous Enlistment.  The specific reason for the action was as follows:

a.	The Standard Form 600, Chronological Record of Medical Care, dated 3 October 2008, 
states “you were diagnosed with Pes Planus and chronic ankle pain.  The condition existed prior to entering the military.  Had the Air Force known of this condition prior to enlistment, you would not have been allowed entry into the military.”

On 27 October 2008, the discharge action was found legally sufficient, and the discharge authority approved the recommendation on 4 November 2008.  
On 18 November 2008, the applicant received an entry-level separation, with uncharacterized service and narrative reason for separation of Erroneous Entry (Other).  She was credited with 6 months and 20 days of active service.  

On 26 September 2018, the applicant appealed to the Air Force Discharge Review Board (AFDRB) for an upgrade of her discharge characterization to honorable and narrative reason for separation.  
On 8 April 2019, the applicant was notified the AFDRB denied her appeal and noted they found insufficient evidence of an inequity or impropriety to warrant a change to her discharge. 

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

AIR FORCE EVALUATION

AFPC/DP2STM, recommends denying the applicants request to change her narrative reason for separation and character of service.  The applicant was diagnosed with a pre-existing medical condition prior to entering military service.  As a result, discharge action was recommended, and the discharge authority approved the separation.  Furthermore, airmen are given entry-level separation with uncharacterized service when the discharge action is initiated within the first 180 days of continuous active service.  The Department of Defense (DoD) determined that if a member served less than 180 days of continuous active service, it would be unfair to the member and the service to characterize their limited service.  

The complete advisory opinion is at Exhibit C.

AFPC/DP2SSM recommends denying the applicant’s request to add the Force Protection Occupational Badge to her DD Form 214, indicating that based on the documentation provided by the applicant and analysis of the facts, there is no evidence of an error or injustice.  

The applicant did not graduate from the Security Forces Technical Training School; therefore, she did not earn her 3-skill level.  To be awarded the basic level occupational badge you must be awarded your 3-skill level.

The complete advisory opinion is at Exhibit D.

AFPC/DP3DW recommends denying the applicant’s request to remove the word “helper” to show the official Air Force Specialty Code (AFSC) title and 6 months and 20 days and guaranteed AFSC specialty (3P031, Security Forces Apprentice) versus “3P011, Security Forces Helper, 4 months,” from block 11 of her DD Form 214.  Based on a review of the applicant’s master personnel record, the documentation provided by the applicant and analysis of the facts, there is no evidence of an error or injustice.  

AFI 36-3202, Separation Documents, Table 4, Rule 14, Item 11, states, “to list the Primary Specialty (Number, Title, and Years and Months in Specialty).”  The official AFSC title received was from the Air Force Enlisted Classification Directory, dated 31 October 2008.  The title listed for 3P011 was Security Forces, Helper.  The number of days are not listed on the DD Form 214, IAW AFI 36-3202.  
The applicant’s DD Form 214, block 12c reflects the active service period 6 months and 20 days.  The length of time for block 11 was determined after subtracting two months for attending BMT.  Therefore, block 11 correctly reflects the timeframe held in the Primary AFSC of four months.  

The complete advisory opinion is at Exhibit E.

AFPC/DP2LT recommends denying the application, indicating the applicant’s DD Form 214 reflects the correct amount of time for her Total Prior Inactive Service for her DEP.  JROTC is a secondary educational program and is not credible towards military service.  

JROTC is a secondary educational program for students who are in the 8th grade or above.  Title 10, United States Code (USC), § 2013, states, the purpose of JROTC is to “instill students in the United States secondary educational institutions the values of citizenship, service to the United States, and personal responsibility and a sense of accomplishment.”  Students who participate in JROTC are not required to join the military after high school and the program is not a military preparation class.

The complete advisory opinion is at Exhibit F.

AFPC/DP3SA recommends denying the applicant’s request for entitlement to the MGIB with a waiver to transfer her benefits to eligible dependents, indicating, that based on a review of the documentation provided by the applicant and analysis of the facts, there is no evidence of an error or injustice.   

IAW Title 38, USC, § 3011, individuals are entitled to educational assistance under the MGIB program if entering the Armed Forces for the first time after 30 June 1985 [(a) (1)(A)].  In addition, individuals whose obligated period of active duty is three years or more, must serve at least three years of continuous active duty and after completion of service be discharged from active duty with an honorable discharge [(a)(1)(A)(i) and (a)(3)(B)].  Use of the MGIB entitlement expires at the end of the 10-year period beginning on the date of discharge [38 USC, § 3031 (a)].  Furthermore, the MGIB does not offer a transfer of education benefits option.  Based on the applicant’s uncharacterized character of service, she is ineligible for both the MGIB and Post-9/11 GI Bill programs.  In addition, the applicant does not meet eligibility requirements to transfer Post-9/11 GI Bill entitlements to her dependents.  

The complete advisory opinion is at Exhibit G.  

AFPC/DP2SPP recommends denying the applicant’s request for entitlement to an early promotion to the grade of airman first class (E-3/A1C) based on her Army JROTC completion, indicating that based on the documentation provided by the applicant and analysis of the facts from AFPC/DL2LT, there is no evidence of an error or injustice.  

The complete advisory opinion is at Exhibit H.

The AFBCMR Medical Advisor recommends partially granting the applicant’s request to change her character of service to reflect “honorable” versus “uncharacterized,” and narrative reason for separation to reflect “Physical Disability – Entitled to Severance Pay” versus “Erroneous Entry” under the provisions of AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation.  

The Medical Advisor opines the applicant’s record has established that the medical condition for which she was disqualified for service [pes planus], existed prior to service (EPTS), as noted on her DD Form 2808.  Even though recorded as “mild” and “asymptomatic” at the time of her MEPS examination, this did not eliminate pes planus as a primary risk factor for developing subsequent medical complaints experienced by the applicant.  Nonetheless, she was cleared to enter military service without a waiver.  

The applicant developed a post-abrasive infection [cellulitis] at the lateral aspect of the left big toe in May 2008, which was of no permanent consequence to her service.  She later developed anterior leg pain, suggestive of shin splints, or at worse, stress fractures.  These were also no permanent consequence of her service; as noted in her documented recovery of pain, return to running, and an expressed desire to return to training (RTT).  

Based on the applicant’s self-disclosure of feeling a “pop” in July 2008 and experiencing pain “every [sic] since,” and the “50 percent cartilage loss” seen on her Magnetic Resonance Imaging (MRI) scan, with an “osteochondral fragment,” suggestive of a “remote injury,  the Medical Advisor finds it plausible that, absent a clearly documented de novo re-injury during military service, the applicant’s predisposition for developing recurrent or chronic ankle pain did not necessarily represent permanent service-aggravation; but may have been the expected natural expression of the underlying pre-existing pathology and the foot mechanics attendant with pes planus.”  However, the applicant denied any significant injuries prior to July 2008.  

The Medical Advisor noted the imbedded allegation that training officials ordered the applicant to continue to run, despite the activity restrictions recommended by medical officials.  Determining whether such alleged continued activity resulted in permanent aggravation of the applicant’s pre-existing condition would require resorting to speculation and conjecture but does not overcome the “clear and unmistakable” evidence policy.

The Medical Advisor would like to redirect the Boards attention to the other MRI diagnostic findings of “increased edema” at or about the posterior tibialis tendon, which the radiologist characterized as “tenosynovitis.”   While edema generally represents an acute process, possibly precipitated by required military activities, one could still argue that it may have been present as a chronic ailment to some degree prior to military service.  However, that does not explain its delayed presentation in September 2008, given the earlier acute presentations with only shin pain in August 2008.  

Confounding the implicit conclusions above, the Board is advised that the posterior tibial tendon is recognized for its primary arch support function, and that when there is inflammation [tenosynovitis] or a tear present, the dysfunction results in loss of the normal arch support function, leading to an [acquired] flatfoot.  Therefore, while it could be postulated that the applicant had some prior element of posterior tibial tendon dysfunction or congenital pes planus prior to military service, the reviewer could not rule-out, through “clear and unmistakable” evidence, that her tenosynovitis was in fact a de novo medical condition incurred during military service, as a contributory aggravating factor affecting her pre-existing pes planus.  

The Directive Type Memorandum (DTM) published as part of the National Defense Authorization Act 2008 (NDAA 2008), dated 13 Mar 08, in a change to DoDI 1332.38, Physical Disability Evaluation, paragraph E3.P4.5.2.2.1, reads “Presumption of Sound Condition for members ordered on active duty for more than 30 days.”  This presumption applies in all cases in which a member, on active duty for more than 30 days is found to have a disability and the disability was not noted at the time of the member’s entrance on active duty.  This presumption is overcome if clear and unmistakable evidence demonstrates that the disability existed before the service member’s entrance on active duty and was not aggravated by military service.  Absent such clear and unmistakable evidence, the Physical Evaluation Board (PEB) will conclude that the disability was incurred or aggravated during military service.  

Lastly, should the Board grant this portion of the applicant’s request, the Medical Advisor recommends rating her condition of pes planus (flat foot), moderate, aggravated by posterior tibial tendon tenosynovitis, under hyphenated Veteran Affairs Schedule for Rating Disabilities (VASRD) code 5024-5276 with a 10 percent disability rating.  The choice for using this hyphenated code for pes planus, rather than the hyphenated VASRD code 5024-5271 [ankle], is due to the fact the applicant’s normal ankle range of motion would not rise to the minimum 10 percent rating under VASRD 5271, based upon the previously demonstrated full range of ankle motion [inversion, eversion, dorsiflexion, and plantar flexion]. 

The complete advisory opinion is at Exhibit I.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant on 9 March 2020 for comment (Exhibit J), and the applicant not replied.

FINDINGS AND CONCLUSION

1.  The application was not timely filed, but it is in the interest of justice to excuse the delay.

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 the victim of an error or injustice.  While the Board notes the recommendations of AFPC/DP2STM, DP2SSM, DP3DW, DP2LT, DP3SA, and DP2SPP against correcting the record, the Board finds a preponderance of the evidence substantiates the applicant’s contentions in part.  Specifically, the Board concurs with the rationale and recommendation of the AFBCMR Medical Advisor, which is sufficient to justify granting the applicant’s request to change her character of service, narrative reason for separation, and separation code.  However, for the remainder of the applicant’s request, the Board finds no basis to recommend granting that portion of the applicant’s request.  Therefore, the Board recommends correcting the applicant’s records as indicated below.

4.  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 pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that:  
	a.  On 17 November 2008, she was found unfit to perform the duties of her office, rank, grade or rating by reason of a physical disability; that the diagnosis in her case was pes planus (flat feet), moderate, aggravated by posterior tibial tendon tenosynovitis, under the Veterans Administration Schedule for Rating Disabilities (VASRD) Code 5024-5276, with a 10 percent disability rating.  

b.	 She was honorably discharged on 18 November 2008, under the provisions of AFI 36-
3212, Physical Evaluation for Retention, Retirement, and Separation by reason of a physical disability, with entitlement to disability severance pay.

c.	Her DD Form 214, Certificate of Release or Discharge from Active Duty issued in 
conjunction with her 18 November 2008 separation, should reflect “Honorable” in Block 24, Character of Service and “JFL” in Block 26, Separation Code.

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

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-2019-02639 in Executive Session on 17 March 2020.

, Panel Chair
, Panel Member
, Panel Member 

All members voted to correct the record.  The panel considered the following:

The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, undated.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2STM, dated 1 July 2019.
Exhibit D: Advisory opinion, AFPC/DP2SSM, dated 23 July 2019.
Exhibit E: Advisory opinion, AFPC/DP3DW, w/atch, dated 13 August 2019.
Exhibit F:  Advisory opinion, AFPC/DP2LT, w/atch, dated 27 January 2020.
Exhibit G: Advisory opinion, AFPC/DP3SA, dated 10 February 2020.
Exhibit H: Advisory opinion, AFPC/DP2SPP, dated 12 February 2020.
Exhibit I:  Advisory opinion, SAF/MRB, w/atchs, dated 9 March 2020.
Exhibit J:  Letter, SAF/MRBC, w/atchs, dated 12 April 2020.

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.