RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-00849

XXXXXXXXXXXXXXX	COUNSEL: NONE 

  	HEARING REQUESTED: NO

APPLICANT’S REQUEST

He be medically retired and his narrative reason for separation reflect his disability was aggravated by service.  

APPLICANT’S CONTENTIONS

The military entrance processing station (MEPS) evaluated him on two occasions and cleared him medically for enlistment.  He aggravated his knee in basic military training (BMT).  He is now completely disabled.
 
The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force airman basic (E-1).

On 9 Jul 84, a medical evaluation board (MEB) referred the applicant to a physical evaluation board (PEB) for his chondromalacia patella of the right knee, undetermined origin but existed prior to service (EPTS).  

On 13 Jul 84, the informal PEB recommended he be discharged for chondromalacia patella of right knee, EPTS, without service aggravation.  

On 30 Jul 84, he was honorably discharged with a narrative reason for separation of “For disability which existed prior to service, no separation pay.”  He served 1 month and 10 days on active duty.  

For more information, see the advisory at Exhibit B.

AIR FORCE EVALUATION

The BCMR Medical Advisor opines the applicant has not met the burden of proof of error or injustice to warrant the desired change of record.  The applicant’s history of knee complaints prior to entering service may have involved a meniscal injury and the onset of worsening symptoms at the eighth day of training.  Absent an acute de novo injury, an underlying pre-existing pathological process, exacerbated by activities in the military but not permanently aggravated above and beyond its expected natural clinical expression with certain activities.  The Board should consider policy requiring “clear and unmistakable” evidence, while serving on active duty (31 days or more), that the condition was not permanently aggravated by military service.   

The Medical Advisor concedes that absent comparative objective testing, such as an MRI or bone scan conducted at or about the time of discharge, it is virtually impossible, over 30 years later, to determine whether his medical condition was or was not permanently aggravated by his brief period of military service.  

The complete advisory opinion is at Exhibit B.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 1 Oct 20 for comment (Exhibit C), 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 recommendation of the BCMR Medical Advisor and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  In this respect, the applicant has not sustained his burden of proof that his knee injury was not EPTS or was aggravated by military service during his very brief (one month and 10 days) active duty service more than 30 years ago. 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 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-2020-00849 in Executive Session on 14 Oct 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 1 Dec 19.
Exhibit B:	Advisory opinion, Medical Advisor, dated 25 Sep 20.
Exhibit C:	Notification of advisory, SAF/MRBC to applicant, dated 1 Oct 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.