RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-04369

XXXXXXXXXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

His narrative reason for separation of “Existed Prior to Service (EPTS)” be changed to either a service connected medical separation or permanent retirement for a condition which incurred while on active duty.

APPLICANT’S CONTENTIONS

He was unfairly discharged under EPTS for a disability that incurred while he was on active duty, which took most of the central visual acuity known as Leber’s Hereditary Optic Neuropathy (LHON).  The Formal Physical Evaluation Board (FPEB) and the Department of Veterans Affairs (DVA) established that the disease was directly related to his service in the military.  The medical evidence clearly shows that this disability was service connected due to stress and job hazards including fumes, lubricants, fuels and other solvents, all of which contributed to inducing the disease.  The Air Force overlooked the environmental triggers that can excel neuropathy.  The service records and the medical opinion by the military ophthalmologist were presented and then disregarded.  He has also incurred secondary conditions related to LHON of depression and anxiety, due to the sudden loss of vision and the inability to continue his military service.

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS

The applicant is an honorably discharged Air Force senior airman (E-4).

On 5 Oct 06, the Medical Evaluation Board (MEB) recommended the applicant be referred to the Informal Physical Evaluation Board (IPEB) for Bilateral Optic Neuropathy consistent with Leber’s Hereditary Neuropathy.

On 4 Dec 06, the IPEB recommended the applicant be Discharged Under Other Than Chapter 61, Title 10 USC (EPTS) for conditions that can be unfitting but are not currently compensable or ratable of (1) Bilateral Optic Neuropathy consistent with Leber’s Hereditary Optic Neuropathy, existed prior to service; and (2) Hypertension.

On 5 Dec 06, the applicant disagreed with the findings and recommended disposition of the IPEB and demanded a formal hearing.

On 23 Jan 07, the FPEB determined that the applicant’s Bilateral Optic Neuropathy was consistent with Leber’s Hereditary Optic Neuropathy, was unfitting and recommended permanent retirement with a 70 percent disability rating.

On 23 Jan 07, the applicant agreed with the findings and recommended disposition of the FPEB and acknowledged that upon review by a special assistant to the Secretary of the Air Force Personnel Council (SAFPC), that his case may be referred to the SAFPC for further review and final decision.

On 6 Mar 07, the Secretary of the Air Force directed that the applicant be Discharged Under Other Than Chapter 61, Title 10 USC (EPTS) for conditions that can be unfitting but are not currently compensable or ratable of (1) Bilateral Optic Neuropathy consistent with Leber’s Hereditary Optic Neuropathy, existed prior to service without service aggravation; and (2) Hypertension.

On 25 Apr 07, the applicant was furnished an honorable discharge with a narrative reason for separation of “Discharge: Disability Existed Prior,” and was credited with 4 years, 6 months, and 3 days of total active service.

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

AIR FORCE EVALUATION

The AFBCMR Medical Advisor found no error or evidence to warrant changing the applicant’s narrative reason for separation.  There is insufficient evidence to show that the applicant’s eye condition was service connected or service aggravated.  The AFBCMR Medical Advisor notes the applicant was identified as having a disqualifying hereditary eye disorder.  This medical condition prevented the applicant from performing his duty as a weapons loader.  Although the applicant disagrees with the recommendation of the AF Personnel Board, the AFBCMR Medical Advisor notes the applicant was diagnosed with a genetic condition.  Medical records provide evidence that although the applicant did not begin to notice any visual changes until he was stationed in Korea, his genetic testing performed on 9 Nov 06, confirmed the optic neuropathy was hereditary.  According to the genetic counselor, the condition is caused by a mutation of mitochondrial DNA and exclusively from maternal inheritance (transmitted by his mother).  Based on the evidence from the genetic testing, it can be concluded that the applicant was born with this defect and therefore existed prior to military service.  The AFBCMR Medical Advisor notes the applicant stated that his sudden loss of vision was triggered by environmental factors he was exposed to working on the flight line.  Although the AFBCMR Medical Advisor agrees that the applicant would not have known that he carried the mutation since routine genetic testing is not generally performed during enlistment into the Armed Forces, there is no evidence in the record to support the applicant was exposed to any particular environmental triggers.  Based on the genetic component of disorder and the lack of evidence to support service aggravation beyond the normal progression of the disease, the AFBCMR Medical Advisor found no evidence to suggest that a change in the applicant’s narrative reason is warranted.

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 16 Apr 20 for comment (Exhibit D), and the applicant replied on 27 Apr 20, 4 May 20, and 7 May 20.  In his response, the applicant contended that the Board should take into consideration all of the evidence that he has submitted and not just look at the genetic aspect of this disease, but the multifactorial sides that initiate the onset.  The Board will see the side of service aggravation due to environmental triggers.  He provides copies of a report from an optometry exam in Oct 05; a letter of support from a former co-worker; several photographs taken while he is performing his duties on the job; an article on Genomic Medicine in the Military; AF Instruction 36-2910, Line of Duty (LOD) Determination, Medical Continuation (MEDCON), and Incapacitation (INCAP) Pay; and AF Instruction 36-27, Equal Opportunity.  He states these policies hold it unlawful to discriminate based on having genetic information or a disability.

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 the AFBCMR Medical Advisor and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  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.

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 Board recommends informing the applicant the application was not timely filed; it would not be in the interest of justice to excuse the delay; 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-2019-04369 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 19 Aug 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFBCMR Medical Advisor, dated 6 Apr 20.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 16 Apr 20.
Exhibit E:	Applicant’s responses, dated 27 Apr 20, 4 May 20 and 7 May 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.