RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-04549

	COUNSEL: NONE
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

1. His honorable discharge be changed to a medical retirement effective 20 Aug 07.

2. His DD Form 214, Certificate of Release or Discharge from Active Duty, be amended to include the Defense Meritorious Service Medal (DMSM) – administratively corrected.

APPLICANT’S CONTENTIONS

He was medically unfit for duty and requested to be evaluated by a Medical Evaluation Board (MEB), but his request was denied.  Had he been evaluated by an MEB as required by the governing instructions, he would have been found unfit for duty and involuntarily separated from active duty and placed on the permanent disability retired list.  Instead, he was forced to voluntarily separate due to medical reasons.

He had an accident while carrying a vat of dye; the dye spilled on his uniform and exposed skin.  He sought medical attention; however, they did not believe he was suffering any adverse effects from the dye spillage.  A week later, he experienced fever, aches in his joints, and nausea, and was diagnosed with having the flu.  In hindsight, the medical opinion is that the dye [Coumarin 440] affected his liver, which caused a cascading effect of neurological and endochrinological anomalies.

He was assigned to an isolated research facility at Eglin AFB, FL.  The facility was a former bomb range that was littered with unexploded ordinance, typically from cluster bombs.  The closest neighboring field was once used to test Agent Orange during the Vietnam era.  He frequently exercised in these areas and was unaware that the areas were off-limits or what the areas were used for.  In early 2003, he was notified that the water supply was considered safe.  However, prior to that time, the water supply was deemed unsafe.

He believes that one or more exposures during his assignments were most likely the cause of his gastrointestinal autoimmune response that prevented his body from properly absorbing vitamin B12.  Regardless of the root cause of the vitamin B12 deficiency, the preponderance of medical evidence demonstrates that the deficiency is a common link to many of him medical disabilities.

He was diagnosed with Bell’s palsy, dysfunction of cranial nerve VII, on the left side of his face.  He recently learned that there are four separate nerves involved in the paralysis of his face and throat.  In 2005, he lost all feeling in his ring finger of his left hand.  The damage most likely will not repair itself.  

In 2003, he started a liver treatment with a drug called lamivudine.  The drug has numerous detrimental side effects, some of which mirror the side effects for sleep apnea, hypothyroidism and vitamin B12 deficiency.  

In 2003, he was diagnosed with hypothyroidism after having an elevated Thyroid Stimulating Hormone (TSH) test, which he was treated with Synthroid.  After he left the military, he found out that the preferred treatment for his condition is a supplemental T3, though the treatment does not eliminate his symptoms.

He was not worldwide qualified (WWQ) and was not eligible for deployment due to him being on a profile.  On 9 Jun 04, he was placed on a profile restricting him from running, push-ups, jumping, or prolonged standing as a result of his left ankle sprain.  On 8 Jul 05, his physical profile was continued and exempted him from performing the cycle ergometry test, running, and the abdominal circumference test.  On 4 Oct 05 and 31 May 06, his physical profiles were extended.  

He intended to complete 20 years in the Air Force until his physical and mental disabilities interfered with his service.  He did his best in spite of his limitations.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Regular Air Force major (0-4).

Per AF Form 422, Physical Profile Serial Report, dated 7 Oct 03, the applicant was on a profile that exempt him from running and jumping that expired on 7 Dec 03.

Per AF Form 422, dated 9 Jun 04, the applicant was on a profile that exempt him from running, jumping, prolonged standing, and push-ups that expired on 10 Jul 04.

Per AF Form 422, dated 15 Jul 04, the applicant was on a profile that reflects no restrictions.

Per AF Form 422, dated 8 Jul 05, the applicant was exempt from cycle ergometry, running, abdominal circumference measurement that expired on 6 Oct 05.  

Per AF Form 422, dated 4 Oct 05, the applicant was exempt from cycle ergometry, running, abdominal circumference measurement that expired on 3 Dec 05.  

The applicant’s DD Form 214, effective 20 Aug 07, reflects he was honorably separated with a narrative reason for separation of “VOLUNTARY SEPARATION – COMPLETION OF ACTIVE DUTY SERVICE COMMITMENT,” after serving 10 years, 1 month, and 21 days of active service.

AFPC/DP1SSP verified the applicant was awarded the DMSM and has administratively correct his records.

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

AIR FORCE EVALUATION

The BCMR Psychiatric Advisor recommends denying the application indicating the applicant has not been able to demonstrate with the required burden of proof that he had suffered from psychiatric ailment while in service and that his condition rose to the level of unfitness.         
                              
Despite the age of the applicant’s case file, it contains comprehensive service treatment records.  In 2002, the applicant was seen for therapy to address a loss of his newborn child during his first marriage.  His Primary Care Manager prescribed him an antidepressant.  By the summer of 2002, the applicant’s difficulties had resolved.  Psychopathology was never identified and he was not diagnosed with an Axis I condition.  No additional encounters with behavioral health providers were identified.    

Addressing the applicant’s explicit request for medical retirement, the military Disability Evaluation System (DES), established to maintain a fit and vital fighting force, can by law, under Title 10, United States Code (U.S.C.), only offer compensation for those service incurred diseases or injuries which specifically rendered a member unfit for continued active service and were the cause for career termination; and then only for the degree of impairment present at the “snapshot” in time of separation and not based on future progression of injury or illness.  Department of Defense Instruction 1332.38 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 (hereafter called duties) to include duties during a remaining period of Reserve obligation.”  Indeed, on review of the applicant’s Officer Performance Reports, quite the opposite is observed.  For example, in his last performance report from March 2006-March 2007 he was ranked “top 10% in 22+ yrs!” and named an “exceptional officer.”  

With respect to evidentiary standard for determining unfitness because of disability, under DoDI 1332.18, “The Secretary of the Military Department concerned must cite objective evidence in the record, as distinguished from personal opinion, speculation, or conjecture, to determine a Service member is unfit because of disability.”  Additionally, “With the exception of presumption of fitness cases, the Secretary of the Military Department concerned will determine fitness or unfitness for military service on the basis of the preponderance of the objective evidence in the record.”   Therefore, due to the complete lack of mental health records to support mental health diagnoses during his time in service, any estimate of the applicant’s psychological state due to depression at the time of discharge would be purely speculative.  

Operating under a different set of laws (Title 38, U.S.C.), with a different purpose, the DVA is authorized to offer compensation for any medical condition determined service incurred, without regard to and independent of its demonstrated or proven impact upon a service member’s retainability, fitness to serve, or the length of time since date of discharge.  This is the reason why an individual can be released from military service for one reason and, yet sometime thereafter, receive compensation ratings from the DVA medical conditions that were service connected, but were not militarily unfitting at the time of discharge.  The DVA is also empowered to conduct periodic re-evaluations for adjusting the disability rating awards (increase or decrease) over the lifetime of the veteran as in the case under review. 

The complete advisory opinion is at Exhibit C.

The BCMR Medical Advisor recommends denying the application.  A preponderance of evidence indicates that, but not for the applicant’s weight and possible professional appearance issues, he would have continued to serve; noting his continued WWQ despite his medical conditions.  This will be explained in various Air Force and DoD policy extracts.

The Board will note early visits related to the applicant’s weight, followed by a diagnosis of Bell’s palsy, a neurological condition of viral etiology presenting as unilateral facial muscle weakness; then Hepatitis B, treated with Epivir, presenting periodically with elevated liver function tests [LFTs]; Hypothyroidism, treated [controlled] with Synthroid replacement; years-long history of right knee pain, treated through physical therapy, nonsteroidal anti-inflammatories, and combination steroid-anesthetic local injection; along with an ankle/foot injury, various dermatologic conditions, and an episode of sinusitis.  While each of the aforementioned medical conditions were being managed by primary care physicians and clinical specialists, the applicant was concurrently confronted with weight issues, dating from Calendar Year 1999, then likely later complicated by Fitness Assessment (FA) failures or a possible professional appearance problem.  The applicant’s cumulative log of FA scores has not been provided for comment, nor has any memo from a credentialed military provider to indicate whether or not he had a medical condition that prevented him from passing the FA.

While either of the aforementioned medical conditions might have presented with abnormal findings at a given time, whether through laboratory data or physical examination, all profile restrictions imposed of [via legacy AF Form 422] were either limited in duration, did not reach “4T” status, or he was consistently characterized as WWQ.  The BCMR Medical consultant provides an exhaustive chronology of event that is intended to facilitate an informed Board decision.  

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 2 Jun 20 for comment (Exhibit E), but has received no response.

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 recommendations of the BCMR Psychiatric Advisor and 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).  The Board does not find it in the interest of justice to waive the three-year filing requirement.  Therefore, other than the administrative corrections noted, 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 issue 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-2019-04549 in Executive Session on 2 Jul 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 26 Aug 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, BCMR Psychiatric Advisor, dated 13 May 20.
Exhibit D: Advisory opinion, BCMR Medical Advisor, dated 27 May 20.
Exhibit E:	Notification of advisory, SAF/MRBC to applicant, dated 2 Jun 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.