RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-00012

XXXXXXXXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: NO	

APPLICANT’S REQUEST

He be evaluated by a Medical Evaluation Board (MEB) and given a medical retirement.

APPLICANT’S CONTENTIONS

He was rated by the Department of Veterans Affairs (DVA) at 100 percent disabled and was told he no longer medically qualified to attend drill.  He was forced into a no pay, no points status for a period greater than two years and was threatened by leadership with a demotion and a dishonorable discharge if he did not voluntarily separate early.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force Reserve (AFR) staff sergeant (E-5). 

On 11 Oct 12, AF IMT 1288, Application for Ready Reserve Assignment, indicates the applicant was recommended and approved for a transfer to the AFR noting the applicant met the physical qualifications for continuing service.

On 4 Feb 13, DD Form 214, Certificate of Release or Discharge from Active Duty, reflects the applicant was honorably discharged in the grade of senior airman (E-4) after serving 10 years and 1 day of active duty.  He was discharged, with a narrative reason for separation of “Reduction in Force” and was transferred to the AFR.

On 27 Aug 14, DD Form 214, reflects the applicant was honorably discharged in the grade of staff sergeant (E-5) after serving 10 months and 25 days of active duty while assigned to the AFR.  He was discharged, with a narrative reason for separation of “Completion of Required Active Duty Training.”

Dated 6 Mar 19, Reserve Order XXXXXX, indicates the applicant was honorably discharged from the AFR, effective 3 Feb 19.

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

AFRC/SGO determined it is unclear whether the applicant meet retention standards and if MEB processing would have been required at the time of his active service.  The applicant entered into the Regular Air Force (RegAF) on 4 Feb 03; during his time he was seen and treated for a number of conditions to include headaches, Polyarthralgia, knee pain, hand pain, and Gastroenteritis.  The only AF Form 469, Duty Limiting Condition Report, accessible to AFRC/SGO for review was for foot and hand surgery, neither of which would be considered disqualifying for retention in accordance with per AFI 48-123, Medical Examinations and Standards.  The applicant also had a pulmonary consult ordered in Dec 12.  Unfortunately, AFRC/SGO cannot verify if this assessment was accomplished as there are no notes associated with this visit uploaded into his record.  He was cleared to transfer to the AFR in 2013, thus presumed fit for duty per AFI 48-123.  During a review of his Electronic Health Record (EHR) as well as the attached documentation that accompanied his application, AFRC/SGO was unable to locate or confirm that he received a Separation History and Physical Examination (SHPE) before his transition from Active Duty to the Reserve.  Without the SHPE, it is difficult to determine if he was entitled to a MEB during his Regular Component Active Duty time or if he should have been considered for a medical retirement by the AF Physical Evaluation Board (PEB).  Review of the EHR and supplied records do not indicate the applicant was disqualified for retention per AFI 48-123 necessitating this process though.  AFRC/SGO was supplied with emails between the applicant and his unit discussing how to correctly fill out his transfer to the Inactive Ready Reserve (IRR) paperwork, as well as other miscellaneous documentation.  None of the records constitute pertinent or relevant medical documentation from which AFRC/SGO can access his medical status at the time.  As a result of the applicant entering into the IRR, no further consideration of his fitness for duty status was accomplished.

The complete advisory opinion is at Exhibit C.

AIR FORCE EVALUATION

The AFBCMR Medical Advisor recommends denying the application finding insufficient evidence to grant his request for a medical retirement.  None of the applicant’s reviewed medical conditions progressed to the degree of unfitness while in military service.  The crucial item in determining Disability Evaluation System (DES) eligibility in this case remained in meeting medical standards for either enlistment or retention with an emphasis on his active duty (AD) service.  There remained no evidence that an error or injustice occurred in processing the applicant’s discharge and supportive evidence was insufficient to grant the applicant’s request. The burden of proof is placed on the applicant to submit evidence to support his request.  The evidence he did submit was assessed to not support his request for a finding of or granting a medical retirement.  Although the submitted application to this board made note that the applicant was rated 100 percent disabled by the DVA, it also failed to identify a specific medical condition for which the applicant alludes to be “considered” for processing via a MEB while in military service.  Therefore, both personnel and medical records submitted with the application, as well as those found in the electronic medical records data base, were reviewed to determine if the applicant’s medical condition(‘s), while serving, met criteria for a MEB.  

Submitted with the application were copious amounts of clinic encounters from the DVA, all of which were dated after the applicant’s last discharge from active duty (27 Aug 14).  The documents (dated late spring and summer of 2015) were Disability Benefits Questionnaires (DBQ’s) which were specific encounters for a variety of physical complaints or conditions.  The conditions included neck, shoulder, knee, ankle, and wrist pain, depression, obesity, allergic rhinitis (nasal inflammation), elevated blood-pressure, wheezing, tinnitus (ringing in the ears), fibromyalgia (muscle/joint pains), obstructive sleep apnea, irritable bowel syndrome, gastroesophageal  reflux (heartburn), and anxiety.  A DVA psychology note dated 13 Feb 18, documented that the member had (at that time) a combined DVA disability rating of 80 percent.  Individual ratings were for sleep apnea, anxiety, tinnitus, fibromyalgia, shoulder bursitis, and neuropathy (nerve pain).  All other conditions were rated at 0 percent impairment.  Documents showing dates and reasons for an increase to 100 percent were not available for review.  Having no specific medical condition identified in this application coupled with the knowledge as to what the DVA considered ratable for disability, this medical advisor carefully considered all encounters within the electronic medical record data base in assessing if the applicant did not meet retention standards and thus considered for a MEB.  As gathered from the chronology of clinic encounters, the applicant sought medical attention for a variety of physical complaints, many of which were minor in nature and required either a single visit for care or one follow-up encounter.  The most frequent clinical visits were for non-traumatic orthopedic conditions of left knee pain and left shoulder pain; both of which were arthroscopically operated on in Jun and Nov 09, respectively.  Temporary profiles of no running and no pushups were in-place for a total of 150 days prior to the first surgery in Jun 09.  The AF Form 422, Physical Profile Serial Report or AF Form 469 were not actually contained in the reviewed records, but were noted in some clinical encounters’ under disposition and plan.  In assessing fitness, the applicant reported being “pain free” only two months after his second surgery in Nov 09 and in less than a year after his last surgery; the applicant stated that he was “doing well and doing P90X” (a highly intense [whole body] physical workout).  Such statements and activity presumes one to be fit for duty.  A further assessment of fitness was that the applicant was “released without limitations” after a post-deployment physical examination (PE) in late 2011 as well as “no critical medical issues identified” on a preventive health assessment (PHA) in May 12.  Although the applicant’s knee and shoulder pain symptoms returned in late 2013 and continued into 2014, his new “profiled restrictions” were documented from 9 Sep to 30 Nov 13.  However, in the interim, x-rays of both knees and shoulders were completely normal and a conflicting encounter dated 14 Aug 13 noted that he was “released without restrictions;” thus presumed fit.  Twenty four days prior to returning back to AD on 3 Oct 13, the applicant was placed on a no running and no push-up profile to last for 82 days.  To begin a second tour of AD, the applicant had to have met enlistment standards under DoDI 6130.03, sec 5.19, Miscellaneous Conditions of the Extremities. Subsection (a) of that instruction states, “history of chondromalacia (softening under the patella [kneecap] causing pain), including but not limited to chronic Patellofemoral Pain Syndrome (PFPS)…” are disqualifying for enlistment.  Additionally, the profiled shoulder pain, which may reasonably be expected to prevent satisfactory performance of duty is also disqualifying for enlistment under subsection (c) of 6130.03; Residual Weakness and Pain.  

The military’s 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 post-service progression of disease or injury.  In this case, it remains problematic to accurately determine the applicant’s fitness status near the time of separation from AD in Feb 13 without a distinct SHPE.  Despite such lack of evidence, neither the knee or shoulder pain conditions were not disqualifying for retention according to DoDI 6130.03 and the Medical Standards Directory.  Additionally, the consistent reporting of meeting and or exceeding physical fitness standards on all EPR’s coupled with passing a physical fitness test within seven months of separation and no commander notes of poor performance standards, indicates that neither of the most prominent physical conditions could be assessed as unfitting and thus eligible for processing via the DES.  Lastly, the applicant in his application stated that he was refused the option to continue with drills or to re-enlist due to disabilities from medical conditions.  As previously discussed, he did not meet enlistment medical standards and when this was discovered by the Reserve unit, appropriate action ensued.

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 24 Oct 21 for comment (Exhibit E), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was 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.  Therefore, the Board 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-2020-00012 in Executive Session on 9 Nov 21 and 25 Nov 21:

, 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 23 Oct 19.
Exhibit A:	Additional Documents, dated 8 Jan 20.
Exhibit A:	Additional Documents, dated 20 Jan 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFRC/SGO, dated 24 Sep 21.
Exhibit D:	Advisory Opinion, AFBCMR Medical Advisor, dated 12 Oct 21.
Exhibit E:	Notification of Advisory, SAF/MRBC to Applicant, dated 24 Oct 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.