RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-03068

xxxxxxxxxxx	COUNSEL: XXXXXXXXXXXX

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

1.   She be given constructive service credit for a 20-year active duty retirement or, in the alternative, be returned to duty to finish the last 8 months and 12 days of her Active Guard Reserve (AGR) tour to qualify for a 20-year active duty retirement.

2.  Her unfit medical conditions of asthma and positive Antineutrophil Cytoplasmic Antibodies (ANCA), be found as combat-related, as a direct result of armed conflict as defined in 26 USC 104 combat-related determination.

APPLICANT’S CONTENTIONS

In 2003, she became ill while deployed overseas in Iraq as a direct result of her deployment.  Again, between 2007 and 2011, while deployed to Afghanistan, she experienced poor air quality, due to direct exposure to burn pits, which contributed to her illness.  These illnesses, asthma and positive ANCA, are not accurately reflected in her record and should be considered combat-related.  She should not have been granted an early, permanent disability retirement because the Air Force was fully aware of her medical conditions each time they approved her reenlistment.   She has been operating at the same exemplary capacity, and in the same position, with her medical conditions.  Her leadership recommended she be retained, indicating her medical conditions did not interfere with her duties.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a medically retired Air National Guard master sergeant (E-7).

Dated 1 Dec 17, Commander’s Impact Statement for Medical Evaluation Board, indicates the applicant’s commander recommended she be retained indicating her medical conditions did not interfere with her duty performance with the only limitation being her fitness assessment.

On 20 Feb 18, AF IMT 618, Medical Board Report, indicates the applicant was referred to the Informal Physical Evaluation Board (IPEB) for Tachycardia, Depression (Major Depressive Disorder (MDD)), and Hypothyroidism.

On 12 Jun 18, the Department of Veterans Affairs (DVA) proposed a disability rating for her unfitting medical conditions of ANCA Vasculitis Autoimmune Disorder with Pseudo tumor at 100 percent; Obstructive Sleep Apnea with Asthma at 50 percent; and Tachycardia with Implanted Cardiac Monitor at 30 percent.  

On 26 Jun 18, AF Form 356, Informal Findings and Recommended Disposition of USAF Physical Evaluation Board, indicates the applicant was found unfit due to her medical conditions of ANCA Positive Vasculitis, Chronic Persistent Severe Asthma, and Tachycardia with Implantable Loop Recorder with a combined disability compensation rating of 100 percent with a recommendation of “Permanent Retirement.”  Her other conditions of MDD and Hypothyroidism were rated as Category II conditions that can be unfitting but are not currently unfitting.  None of her conditions were found as a direct result of combat-related operations.

On 5 Jul 18, AF Form 1180, Action on Physical Evaluation Board Findings and Recommended Disposition, indicates the applicant disagreed with the findings of the board and requested a formal hearing.

Dated 31 Jul 18, an email from AFPC/FPEB Admin indicates the applicant was scheduled for a Formal Physical Evaluation Board (FPEB) on 25 Jul 18, but choose to waive her rights to the hearing resulting in the acceptance of the IPEB findings.

Dated 17 Sep 18, Special Order XXXXX, indicates the applicant was permanently disability retired in the grade of master sergeant with a compensable percentage for physical disability of 100 percent, effective 29 Dec 18.  The applicant’s active service for retirement is indicated as 19 years, 3 months, and 18 days. 

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

APPLICABLE AUTHORITY/GUIDANCE

DoDI 1332.18, Disability Evaluation System (DES), Appendix 5 to Enclosure 3, “Combat Related” covers injuries and diseases attributable to the special dangers associated with armed conflict or the preparation or training for armed conflict.  A disability is considered combat-related if it makes the member unfit or contributes to unfitness and the preponderance of evidence shows it was incurred under any of the following circumstances; as a direct result of armed conflict; while engaged in hazardous service; under conditions simulating war; or caused by an instrumentality of war.  Armed conflict is defined as a war, expedition, occupation of an area or territory, battle, skirmish, raid, invasion, rebellion, insurrection, guerilla action, riot, or any other action in which service members are engaged with a hostile or belligerent nation, faction, force, or terrorist.

AIR FORCE EVALUATION

NGB/A1PP recommends denying the applicant’s request for a 20-year active duty retirement.  The medical evaluation found the member medically unfit for duty; she was processed though the medical evaluation board (MEB), and was subsequently granted a permanent disability retirement.  On 17 Sep 18, Special Order (SO) XXXXX relieved the applicant from active duty effective 28 Dec 18 and she received permanently disability retirement effective 29 Dec 18. The Special Order indicates the applicant had 19 years, 3 months, and 18 days of active service for retirement.  Per AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation, permanent disability retirement applies to service members who have been found unfit, the condition is stable and permanent, and the total disability rating is 30 percent or greater or the service member has 20 years or more service computed under 10 U.S.C. § 1208 regardless of the combined compensable disability rating.  Furthermore, per AFI 36-3203, Service Retirements, table 3.1 rule 5, if a member is pending a MEB, that member is ineligible to apply for voluntary retirement until the MEB/PEB process is completed and a determination of service fitness is made. Members who are found fit for continued service may then apply for retirement.  Since the applicant was found unfit for duty prior to being eligible for an active duty retirement and subsequently granted a permanent disability retirement, the applicant cannot request a different retirement type after going through the permanent disability retirement process. The member has been discharged with full medical disability benefits, a change in retirement type is not authorized.

The complete advisory opinion is at Exhibit C.

NGB/SGP recommends denying the applicant’s request for a 20-year active duty retirement.  The IPEB conducted the applicant’s MEB accordingly and rendered their disposition.  On 5 Jul 18, the member signed the AF Form 1180 disagreeing with the findings and recommended disposition of the IPEB and requested a formal hearing, but a FPEB hearing did not take place.   The member was deemed disqualified for retention by the local Guard Medical Unit (GMU) Deployment Availability Working Group (DAWG) for her unfitting medical conditions of ANCA Positive Vasculitis, Chronic Persistent Severe Asthma, History of Tachycardia with Implantable Loop Recorder as well as the potentially unfitting conditions of Major Depressive Disorder and Hypothyroidism which were not unfitting at the time of the MEB.  The applicant was afforded the opportunity to have an impartial review of her MEB as well as provide a letter detailing concerns; she elected to do so by signing the Impartial Election Review Form on 15 Mar 18.  An impartial provider completed the MEB review on 28 Mar 18 and concurred the narrative summary and MEB package which adequately reflected the complete spectrum of injuries or illness of the applicant.  On 10 Apr 18, the applicant acknowledged the impartial review by signing the Impartial Election Review Form and elected not to submit a rebuttal letter.  She also signed the AF IMT 618, Medical Board Report, on 10 Apr 18 acknowledging she was informed of the findings and recommendation of the medical board to refer her case to the IPEB for the medical conditions of Tachycardia, Major Depressive Depression (MDD), and Hypothyroidism.

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 26 Oct 21 for comment (Exhibit E), and the applicant replied on 22 Nov 21.  In her response, the applicant’s counsel states both advisories missed the mark.  The opinion of her command stated she was able to perform her duties; she would schedule her medical appointments to minimize impact upon her work performance and she performed her duties in an exemplary fashion.  The applicant was medically separated through no fault of her own because the local guard unit had failed to process one of her waivers, all of which had been previously granted.  She was erroneously and negligently advised not to appeal the IPEB findings because her retirement was a foregone conclusion.  The applicant continues to serve in her unit as a Title 5 employee, doing the exact same job for which she served while in the military.

The applicant’s complete response is at Exhibit F.

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 recommendations of NGB SG and A1P finding a preponderance of the evidence does not substantiate the applicant’s contentions.  Specially, the Board found no error in the applicant’s MEB/PEB process and agreed with the IPEB findings that the applicant’s medical conditions prevented her from reasonably performing the duties of her office, grade, rank or rating.  Her conditions limited her from mobility/deployment and she was physically unable to perform any portion of the AF Fitness Assessment.  Since she was found unfit for duty prior to being eligible for an active duty retirement and subsequently granted a permanent disability retirement, the applicant cannot request a different retirement type after going through the permanent disability retirement process nor can she be returned to duty.  The Board did not find sufficient evidence to support her claim that her medical conditions of ANCA Positive Vasculitis and Chronic Persistent Severe Asthma met the criteria for combat-related, as a direct result of armed conflict as defined in 26 USC 104 combat-related determination.  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-2020-03068 in Executive Session on 15 Dec 21 and 10 Jan 22:

, 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 Feb 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, NGB/A1PP, w/atchs, dated 17 Jun 21.
Exhibit D:	Advisory Opinion, NGB/SGP, w/atchs, dated 24 Aug 21.
Exhibit E:	Notification of Advisory, SAF/MRBC to Applicant, dated 26 Oct 21.
Exhibit F: Applicant’s Response, w/ atch, dated 22 Nov 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.