RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-01037

	COUNSEL: MR. STEPHEN M. JEWELL

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His DD Form 214, Certificate of Discharge from Active Duty, Block 28, Narrative Reason for Separation, be corrected to reflect that he was discharged for medical disqualification.

He be placed on the Permanent Disabled Retired List (PDRL) with a 70% disability rating.

In the alternative, he be processed through the Integrated Disability Evaluation System (IDES).

APPLICANT’S CONTENTIONS

He believes his DD Form 214 should reflect that he was “medically discharged” for a service-connected injury that resulted in him being permanently disabled.  If his injury was so severe that he could not continue to serve, it does not make sense why it would not be annotated on his DD Form 214.  Had his injury been listed on the form, it would have identified him as a service-connected disabled veteran.

A fellow veteran told him his DD Form 214 did not reflect the actual reason for his discharge as reflected on Reserve Order EK-0612, dated 27 Oct 99.  The order states that his service obligation was waived due to being “Med Disq,” which means medically disqualified for service.   However, he was never identified as being medically disqualified due to a service-connected injury and this has prevented him from receiving full Federal and State benefits that he has earned. 

The Department of Veterans Affairs (DVA) rated him with a 40% disability rating for his service-connected back injury.  AFI 48-123, Medical Examinations and Standards, allows a member to request a waiver.  However, he was forced into a medical retirement with no medical examination, no chance to request a waiver, and no opportunity to review his DD Form 214 to ensure it was accurate prior to being generated.  AFI 48-123 was not complied with when the “Presumption of Fitness,” “Disability Information,” and “Mandatory Examinations,” were ignored.  Additionally, he was denied the right to seek a medical waiver as allowed in the AFI for flying duties.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force Reserve (AFR) technical sergeant.

The applicant’s DD Form 214 issued in conjunction with his 17 Apr 95 separation reflects his narrative reason for separation as “COMPLETION OF REQUIRED ACTIVE DUTY TRAINING.”  He served 4 months and 20 days of active service and over 13 years of total service for pay.

On 6 Nov 97, according to the applicant’s AF Form 422, Physical Profile Serial Report, he was placed on a profile that rendered him “not qualified for deployment” and “not qualified for reassignment.”  His profile expired on 6 Nov 98.

On 8 Dec 98, the 349th MDS/SGP notified the applicant that his Physical Profile had expired.  SGP granted a 90-day extension in order for him to provide additional medical documentation regarding his prognosis, limitation, complications, treatments, medication and sequelae.  

On 21 Dec 98, SGP sent another memorandum notifying the applicant that he must complete and return the acknowledgement of receipt of the SGP memorandum within 24-hours.  The memorandum noted that failure to comply would constitute as a waiver of this right and discharge proceedings would continue.

On 9 Sep 99, according to the AFRC/DPM memorandum, the applicant was notified of his pending administrative discharge under AFI 36-3209, paragraph 3.14, Physical Disqualification.  On 17 Sep 99, the applicant acknowledged receipt of the discharge notification and on 24 Sep 99, according to AF Form 131, Application for Transfer to the Retired Reserve, the applicant applied for transfer to the Retired Reserve, effective 1 Oct 99.

On 27 Oct 99, according to Reserve Order EK-0612, the applicant was relieved from his current assignment and assigned to the Retired Reserve Section and placed on the Reserve Retired List, effective 1 Oct 99, by reason of medical disqualification, awaiting pay at age 60 (DOB: 26 Feb 64).

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

APPLICABLE AUTHORITY

The military 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 and the 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.

IAW AFI 36-3202, Separation Documents, Table 2, Rule 18, a DD Form 214 is not issued when a service member is removed from the TDRL.  AFI 36-3212, Personnel Physical Evaluation for Retention, Retirement and Separation, paragraph 7.22 states, HQ AFPC/DPPD announces the final disposition on a Retirement Special Order.  These orders are the official notice to TDRL members of final disposition action.

AIR FORCE EVALUATION

ARPC/DPTS recommends denying the application.  There is no error or injustice within the applicant’s military record.  He was not eligible for a DD Form 214 at the time of his retirement because he was not on continuous active duty orders of 90 continuous calendar days leading up to his retirement.  Although he now has a 40% rating from the DVA, it does not change his eligibility and receipt of a retirement DD Form 214.  Per Air Force Instruction 36-3202, Table 2, a member (ANGUS or USAFR) has to serve 90 continuous calendar days or more of active duty to qualify for a DD Form 214.  

The complete advisory opinion is at Exhibit C.

The BCMR Medical Advisor recommends denying the application.  There is no evidence to support a medical retirement or a change in the applicant’s narrative reason for separation.  Although the DVA granted compensation for his medical condition, it was based upon a non-duty related back condition, which the applicant elected to retire in lieu of a discharge for a physical disability.  

On 17 May 97, the applicant was placed in a duties not including flying (DNIF) status due to chronic narcotic use and permanent physical limitations, and was found to be disqualified for continued military service. 

On 21 Dec 98, the applicant was notified that additional medical documentation was needed in order to further evaluate his medical condition.  Despite several attempts, he did not comply nor did he elect to have his case further reviewed by the Physical Evaluation Board (PEB).  He was placed on “no pay no points” status prior to his medical case being submitted for further review.  Medical documentation notes the applicant received several phone calls and letters via certified mail explaining the process and requesting additional information.  The applicant states he was not notified of a possible disqualification from the military.  Because the applicant did not respond, his case was referred to AFRC/SGP with no updated medical treatment notes.  

On 22 Jun 99, AFRC/SGP found the applicant disqualified for continued military duty and recommended administrative action for being diagnosed with Bilateral L4 spondylosis and L5 + S1 herniation, status post-spinal instrumentation and history of chronic pain with work limitation and narcotic requirement.  The applicant’s commander reviewed SGP’s recommendation and non-recommended him for retention based on his inability to deploy or perform the duties of a flight engineer.  

The Medical Advisor found no medical documentation of any injury that occurred in April 1991 while attending survival school.  In fact, the applicant’s medical records noted he injured his back in a motor vehicle accident in 1995 and again in 1996 when he lifted a 70-pound aircraft battery.  However, neither of the events occurred while the applicant was on active duty orders; thus, the injury was not found to be in line of duty.  Furthermore, it was noted in the applicant’s medical records from St. Vincent Hospital and Health Services that he denied any military accidents or injury.  

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant on 31 Jan 20 for comment (Exhibit D), and the applicant’s counsel replied on 2 Mar 20.  In counsel’s 6-page response, he reiterates the applicant’s original contentions and makes the following comments in rebuttal:

While on active duty for training in January 1991, he fell approximately 100 feet into a ravine.  After the fall, on-site medical technicians saw him; however, he remained at the training site until he returned home then his wife took him to the hospital for treatment.  The physician explained that his injury could result in him being discharged.  Fearing he would lose his career, he opted to leave the hospital.  He continued to drill with his unit after the AFR failed to properly diagnose his pre-existing injury as being severely aggravated.  

The Air Force failed to follow proper IDES processing procedures when the applicant was discharged.  He did not receive his mandatory medical examination; thus, he was never properly evaluated for the injury he suffered in 1991. 

The BCMR Medical Advisor applied the wrong rule of the governing instructions and did not consider any of the evidence provided by the applicant.  Specifically, the Medical Advisor did not consider the proper Rule in Table 2 of AFI 36-3202.  Rule 2 mandates the issuance of a DD Form 214 and Rule 3 does not apply to the applicant’s case.  The applicant’s spouse provided an affidavit that notes she observed and knows the extent of his injury from 1991.

He worked for United Airlines in his civilian job when he aggravated his back injury causing him to be incapacitated requiring him to have surgery.  He underwent three (3) surgeries for his back injury.  Due to the surgeries, he was involuntarily retired from the AFR.  In February 2006, he was no longer able to work for the airlines, he placed a claim with the Social Security Administration (SSA).  After appealing the SSA’s decision, he presented his case to an administrative judge in 2007 who found him disabled and granted him SSA benefits, effective 15 Jan 03.  

His initial service-connected disability rating was 40%; however, he filed an appeal and the rating was increased to 70% with 100% un-employability, effective May 2016.  His application was timely filed as he petitioned the Board once he received the DVA decision on 25 Oct 18.  

The applicant’s complete response is at Exhibit E.

FINDINGS AND CONCLUSION

1.  The application was not 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 ARPC/DPTS and the BCMR Medical Advisor and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  While counsel believes the Medical Advisor used the wrong rule of AFI 36-3202, we do not agree.  The Board also notes the applicant did not file the application within three years of discovering the alleged error or injustice, as required by Section 1552 of Title 10, United States Code, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  While the applicant asserts a date of discovery within the three-year limit, the Board does not find the assertion supported by a preponderance of the evidence.  The Board does not find it in the interest of justice to waive the three-year filing requirement.  Therefore, the Board finds the application untimely and 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-2019-01037 in Executive Session on 20 May 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 16 Nov 18.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, ARPC/DPTS, dated 26 Dec 19.
Exhibit D: Advisory opinion, BCMR Medical Advisor, 13 Jan 20.
Exhibit E:	Notification of advisory, SAF/MRBC to applicant, dated 31 Jan 20.
Exhibit F:	Applicant’s response, w/atchs, dated 2 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.