RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-04899

xxxxxxxxxxxxx	COUNSEL: XXXXXXXXXXX

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His discharge from the Air Force Reserve (AFR) be changed to show he acquired enough points for a regular Reserve retirement or he be medically separated.

APPLICANT’S CONTENTIONS

He acquired over 19 years of service for retirement in the AFR but due to his deteriorating medical condition, Irritable Bowel Syndrome (IBS), he was found unfit for duty and discharged before he obtained 20 good years of service.  While he was on active duty, he was diagnosed and treated for IBS.  The AFR did not enter him into the Disability Evaluation System (DES) process properly and treated his condition as non-duty related which rendered him ineligible for medical separation pay or a medical retirement.  He was not evaluated for possible disability retirement purposes; he was told to forego a DES review and to file his claim with the Department of Veterans Affairs (DVA).

The applicant’s complete submission is at Exhibit A and E.

STATEMENT OF FACTS

The applicant is a former AFR technical sergeant (E-6). 

On 14 Feb 01, DD Form 214, Certificate of Release or Discharge from Active Duty, reflects the applicant was honorably discharged in the grade of staff sergeant (E-5) after serving 17 years, 7 months and 29 days of active duty.  He was discharged with a narrative reason for separation, of “Completion of Required Active Service.”

On 18 Feb 03, a Fitness for Duty Determination memorandum indicates the applicant’s medical condition of IBS is potentially disqualifying for continued military service to which a determination will be made; fit for duty, fit for duty with limitations, unfit for duty in current specialty requiring retraining, or unfit for duty with an administrative discharge.

On 24 Nov 03, a DES Counseling memorandum indicates the Fitness Review Panel (FRP) found the applicant physically disqualified for continued military service due to IBS.

On 1 Dec 03, Acknowledgement of Understanding and Selection of Options Regarding Legal Counsel for Discharge Processing, indicates the applicant declined legal counsel and waived his right to be represented by counsel in his discharge case.  He acknowledged he did not want his case to be entered into the DES and requested immediate separation.

On 30 Dec 03, the applicant’s commander recommended the applicant be discharged from the AFR, under the provisions of AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members, table 3.1, rule 30, for a physical disqualification. 

On 4 Jan 04, the discharge action was approved.

On 14 Jan 04, Reserve Order XXXX, indicates the applicant was relieved from assignment and honorably discharged from the AFR.

On 27 Jul 20, the applicant’s counsel requested his case be suspended until further evidence was submitted to which a letter was sent by SAF/MRBC on 14 Aug 20, closing the case.  On 7 Dec 20, the applicant’s counsel submitted additional evidence and the case was reopened (Exhibits C, D, and E).

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits F and G.

AIR FORCE EVALUATION

AFRC/SG3P recommends denying the applicant’s request for a medical separation finding no evidence of an error or injustice in the medical process.  Due to worsening symptoms of IBS, a fitness for duty determination was required per AFI 48-123, Medical Exams and Standards.  The physician review provided as part of the applicant’s case file, indicates the condition of IBS originated in the late 1990s, which would correspond to time spent while part of the Regular Active Duty Component.  While the medical standards for IBS in 2004 are unknown, today’s policy lists IBS as disqualifying when it results in frequent medical appointments, need for ongoing specialty follow-up, or frequent missed duty time and therefore required a fitness for duty determination, and if requested, DES processing.  However, based on the applicant’s clearance to separate active duty and enter the AFR it is presumed the severity of the IBS did not rise to this level.  On 28 Aug 03, the ARPC Fitness Review Panel (FRP) reviewed and recommended the applicant be found unfit for service indicating the condition had worsened upon entering the AFR.  The service connection contention made in the 7 Dec 20 memorandum from applicant’s counsel, secondary to prior service while part of the Regular Component Active Duty, and thus entitlement to disability separation consideration, could have been addressed by the DES and Air Force Physical Evaluation Board (PEB), which the applicant declined.  It is unknown if the applicant declined DES processing because he believed he was receiving the early retirement referred to in the JA FRP findings to ARPC/CC and would have elected otherwise, had he known only a discharge would have been offered.
The complete advisory opinion is at Exhibit F.

The AFBCMR Medical Advisor recommends granting the applicant’s request for a Reserve retirement based upon provisions in Title 10, United States Code (U.S.C.) Sections 12731 and 12731b.  Upon a final review of the documents, this medical advisor saw no actual error committed by the Service in the processing of the applicant’s military separation as requested.  

IBS is a common disorder that affects the large intestine.  The etiology of the condition can be that of a sudden onset or a slow progressive onset.  Although the diagnoses of diarrhea and chronic diarrhea were noted in the applicant’s medical records in the late 1990’s, much of those encounters consisted of acute and limited symptoms and were attributed to arrival in the deployed setting with its associated changes from the home environment.  It was early 2000 when the Gastroenterology (GI) specialist identified a condition that was synonymous with IBS and the actual identified IBS condition was documented a few months later.  At the same time, the applicant denied having any condition that limited his ability to perform duties in his primary military specialty and was deemed qualified for worldwide deployment.  In this case, six months prior to the completion of his active duty tour, the actual IBS diagnosis was listed in the applicant’s record.  Because it being a “potentially” disqualifying condition, a local line of duty (LOD) determination should have been initiated.  A review of all records submitted as well as those reviewed electronically did not reveal that a LOD determination was ever initiated and/or processed once the diagnosis of IBS was determined.  This medical advisor has no knowledge as to why a LOD determination was not performed nor did the record review state any such reason.  As per USAF Medical Standards Directory, IBS is a disqualifying condition (for retention) when it results in frequent medical appointments, need for on-going specialty follow-up or frequent missed duty time.  Although, the GI work-up performed in Mar 00 noted the applicant having GI distress complaints for nearly a year, there was no evidence at that point in time that his IBS resulted in frequent medical appointments, need for on-going specialty care, or resulted in frequent missed duty time. Therefore, his IBS could “potentially” have been a disqualifying condition and an initial review in-lieu of (IRILO) and medical evaluation board (MEB) would have been appropriate.   Counsel clearly states that the applicant’s IBS condition was incurred while he was a member of the Regular Air Force, performing extended active duty, and that the disease was diagnosed around Aug 00.  As to when the diagnosis was determined, counsel is indeed correct.  However, when the condition was incurred is another issue.  This medical advisor can find no recorded or documented evidence to definitively say that the IBS condition was “not incurred” while in a duty status and therefore, if a LOD determination was performed, it should have been favorable to ILOD.  Specifically, paragraph 1.8.2 above pertains to the criteria of a Prior Service Condition (PSC)…a medical condition that was incurred during one period of service that later recurs or otherwise causes the member to become unfit is considered ILOD.  This determination is only applicable if the medical condition did not progress to unfitness as the result of “intervening events” when the applicant was not in a duty status.  The applicant’s increasing bouts of diarrhea did not suddenly and only appear on weekend Reserve duty, but rather the condition was present and of a worsening nature throughout the weeks and months of when the applicant was not in a military duty status.  His civilian employer has also documented the applicant’s inability to perform work duties during the week as well …thus evidence shows that the presumption of ILOD status is non-applicable and the condition would be considered not in the line of duty (NILOD).  The applicant joined the Reserves as an immediate follow-on from active duty.  To appropriately accomplish that transfer, the applicant had to have met Air Force accession standards per DoDI 6130.03, Medical Standards for Military Service, Vol 1, sec 5.12 (Abdominal Organs and GI System), paragraph c (Small and Large Intestine).   Both a history of inflammatory bowel disease as well as a history of IBS of sufficient severity to require frequent intervention or prescription medicine or that may reasonably be expected to interfere with military duty are disqualifying conditions.  The applicant would have required a waiver to enter the AFR for his accession disqualifying condition.  A waiver was not found in the record review.  It appears that the in-service recruiter that noted, “I certify member meets eligibility requirements for assignment into the USAFR” was incorrect.  Nonetheless, his Reserve application was approved.  Clearly, from the civilian clinical encounters, the applicant’s adverse IBS symptoms significantly worsened over the next 1-2 years after entry into the AFR.  The severity of his IBS related symptoms have progressed to where the applicant was unable to fulfill both his required military duties as well as duties involved with his civilian employment.  In various questionnaires and memorandums, the applicant’s self-evaluations were in line with the inability to adequately perform his duties and he requested separation.   The ARPC/CC approved the FRP’s recommendation of the applicant’s finding of unfit and approximately five weeks later, HQ AFPC/DPPS properly counseled the applicant on the DES process and options regarding the DES and to fully understand the process.  The applicant specifically declined going into the DES and requested separation.  

Members of the Reserve and National Guard attain eligibility for retired pay under title 10, U.S.C., 12731, normally at age 60, after completion of at least 20 years of satisfactory service.  However, airmen who have been found physically unfit for continued military service and have completed at least 15 years, but less than 20 years, of satisfactory military service are eligible for transfer to the Retired Reserve under Title 10, U.S.C., 12731b, “Special rule for members with physical disabilities not incurred in the line of duty” and qualify for a retirement at age 60.  In reference to this section of the U.S.C., a review of the case file did not reveal evidence that the applicant was ever officially notified of his eligibility for retired pay.  Despite the applicant’s acceptance of an honorable separation when confronted with options regarding the DES, he did have a non-duty related disqualifying medical condition and he did have greater than 15 years and less than 20 years of satisfactory service which are the required criteria under this coded section and therefore, he would have qualified for such a retirement.  The required notification of such information was apparently never afforded to the applicant and if such notification and its understanding of the same was documented, a different and favorable outcome could have occurred.

The complete advisory opinion is at Exhibit G.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 13 Sep 21 for comment (Exhibit H), and the applicant’s counsel replied on 15 Sep 21.  In his response, the applicant’s counsel contends the fundamental error was the Air Force Reserve's erroneous "determination" that the applicant was entitled to DES processing not for potential disability rating but only for a fitness for duty finding.   The applicant did not believe he was fit for duty and therefore declined a DES, for it would serve no purpose.  Airmen such as the applicant rely on the USAF to know the law and apply the law correctly.  It simply is not acceptable for the USAF to say that there is no error or injustice because the airman should have done his or her research.  It is inaccurate and unfair for the BCMR Medical Advisor to assert there was no error or injustice in the medical processing of the applicant’s case.  He most certainly had an ILOD medical condition that was subject to full DES processing.  The AFBCMR Medical Advisor asserts that the presumption of ILOD is inapplicable because "the applicant’s increasing bouts of diarrhea did not suddenly and only appear on weekend Reserve duty, but rather the condition was present and of a worsening nature throughout the weeks and months of when the applicant was not in a military duty status."  We respectfully disagree with this interpretation.  The distinction drawn by the AFBCMR Medical Advisor between "incurred" and "aggravated" is misplaced.  The applicant's condition was incurred in the line of duty and thus "duty-related," and therefore under both the DoD provisions and AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation, he was entitled to full DES processing, not as specified in Section 8.19, a determination of fitness only.

The applicant’s complete response is at Exhibit I.

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.  The Board concurs with the rationale and recommendation of the AFBCMR Medical Advisor and finds a preponderance of the evidence substantiates the applicant’s contentions in part.  Specifically, the applicant has provided relevant evidence showing he did have a non-duty related disqualifying medical condition and he did have greater than 15 years and less than 20 years of satisfactory service.  This is sufficient to justify granting the applicant’s request for a Reserve retirement based upon provisions in Title 10, U.S.C. Section 12731b, which states airmen who have been found physically unfit for continued military service and have completed at least 15 years, but less than 20 years, of satisfactory military service are eligible for transfer to the retired reserve.  However, for the remainder of the applicant’s request, for a medical separation, the evidence presented did not demonstrate an error or injustice.  There is no evidence to support the applicant’s contention that his medical condition was found in the line of duty.  The Board therefore 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.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show the following:

a.	He was not discharged on 15 January 2004, under the provisions of AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members, but rather, he was relieved from Reserve duty on 15 January 2004 and, effective 16 January 2004, he was medically retired under the provisions in Title 10, United States Code (U.S.C.) Section 12731b.

b.	His election of the Reserve Component Survivor Benefit Plan (RCSBP) option will be corrected in accordance with his expressed preferences and/or as otherwise provided for by law or the Code of Federal Regulations.  

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-2019-04899 in Executive Session on 6 Oct 21 and 24 Jan 22:

, Panel Chair
, Panel Member
, Panel Member

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

Exhibit A:	Application, DD Form 149, w/atchs, dated 13 Nov 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C: Letter from Applicant, Close Case, 27 Jul 20.
Exhibit D: Letter, SAF/MRBC (Closed Case), 14 Aug 20.
Exhibit E: Letter from Applicant, Case Reopened, 7 Dec 20.
Exhibit F:	Advisory opinion, AFRC/SG2P, dated 5 Aug 21.
Exhibit G:	Advisory opinion, AFBCMR Medical Advisor, dated 6 Sep 21.
Exhibit H:	Notification of advisory, SAF/MRBC to applicant, dated 13 Sep 21.
Exhibit I:	Applicant’s response, dated 15 Sep 21.

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.