RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00647

XXXXXXXXXXXXX	COUNSEL: XXXXXXXXXXXXX
(MEMBER)

XXXXXXXXXXXXX 	HEARING REQUESTED: YES           (APPLICANT)

APPLICANT’S REQUEST

The former service member’s record be corrected as follows:

1.   His service obligation for his Post-9/11 GI Bill transfer of education benefit (TEB) be waived and her eligibility for the education benefit be restored.   

2.   The narrative reason for separation be changed to “Conditions that interfere with military service” or “Condition is not a disability.”

3.  His reentry (RE) code be changed to “3K,” with reason as “Secretarial Authority.” 

APPLICANT’S CONTENTIONS

Counsel, on behalf of the applicant, states on 18 Mar 21, the Air Force Discharge Review Board (AFDRB) denied the applicant’s request for change of the former service member’s discharge and separation reasons.  

The former service member experienced significant issues with his right ankle.  After returning from his deployment in Aug 03, he was evaluated for his ankle injuries and was diagnosed with extreme mobility of right talofibular joint in area of lateral malleolus.  On 25 Mar 04, he was diagnosed with arthropathy, generalized joint disease.  He elected to wear an ankle brace in lieu of surgery.  He was told he needed to limit his mileage to 10 miles a week. 

In Jul 10, the Air Force revised the fitness assessment (FA) program.  On 19 Aug 10, he reenlisted and was approved for TEB to the applicant, his dependent daughter.  On 8 Nov 10, the applicant received notice she was entitled to the Post-9/11 GI Bill and she last used her entitlement in 2012.  

In Aug 12, the former service member fell while using stairs and injured his right knee and aggravated his condition.  He began to experience pain when running and other high impact activities.  On 28 Sep 12, he failed his third FA by 52 seconds on the run.  He failed his fourth FA on 6 Dec 12 by 54 seconds on the run. 

In Mar 13, he was diagnosed by the orthopedic clinic with having an anterior impingement of the ankle and symptomatic fibular.  On 12 Apr 13, he was placed on a profile exempting him from the run component of the FA.  On 15 Apr 13, he failed his FA due to his volume for oxygen (VO2) reading.  

On 24 Jun 13, he was served a notification for a discharge board for his five FA failures.  On 15 Jul 13, he was placed on a profile exempting him from the run and the walk but failed his FA on 26 Jul 13 due to his abdominal circumference.  On 26 Jul 13, he was served an addendum to the discharge board notification.  

On 26 Aug 13, the evaluating doctor recommended he avoid all high impact activity and recommended delaying surgery.  It is likely his running efficiency and mechanics significantly impacted his ankles since 2004.  

On 4 Sep 13, he faced a discharge board for FA failures and the board recommended discharge.  

On 21 Oct 13, the Air Force changed AFI 36-2905, Air Force Physical Fitness Program, eliminating the VO2 maximum requirement of the walk test and established a 2-kilometer pass/fail walk test that did not count towards the composite FA score.  On 15 Apr 13, the former service member passed all components and based on his one mile walk time, he would have completed the 2 kilometer walk well under the requirement for his age.

On 29 Jan 14, his unit commander signed a selective reenlistment program consideration notice non-selecting him for reenlistment.  On 23 Jun 14, he was notified he was selected for forced early separation no later than 1 Oct 14, pursuant to the Dec 13 Quality Force Review Board (QFRB).  He was discharged on 16 Jul 14.  

The applicant used the Post-9/11 GI Bill to attend school.  She used a total of $55,574.64.  On 9 Aug 17, she received a recoupment notice for debt due to overpayment by the Department of Veterans Affairs (DVA) because her entitlement to the education benefits had changed.  She received a final notice on 11 Oct 17 and requested a waiver of indebtedness.  On 29 Nov 17, the DVA Committee on Waivers and Compromises denied the request to waive the collection.  The letter stated the obligation service date was 10 Aug 14 and that it was incumbent on her to know the service member’s obligation.  Because he separated 26 days prior to vesting, she is being held responsible for the entirety of the debt.  On 14 Feb 18, the DVA referred the balance to the Department of Treasury for Collection.  In Feb 19, the Treasury garnished her Internal Revenue Service (IRS) tax refund and turned over her debt to a collections agency for collection.  The total debt owed is now $69,131.85.

As a matter of propriety, the former service member should have been discharged for a condition, not a disability.  The discharge should be changed as a matter of equity because of the disproportionate and extreme hardship to the applicant.  Further, as a matter of equity, current policies and procedures regarding discharges due to physical conditions have changed, casting substantial doubt the former service member would have received the same type of discharge.  His discharge was improper.  

The applicant has suffered severe prejudice and hardship due to no fault of her own.  It is inequitable for her to be charged with the knowledge of her parent’s service obligation.  She was 20 years old when she used the GI Bill based on the entitlement letter she received.  Further, there was confusion around service obligations and the letter she received stated nothing about the service obligation date.  The former service member was one of a number of people to have experienced confusion about the status of the transfer upon separation and none of the separation documents explicitly stated what the active duty service commitment (ADSC) should have been or that he was affirmatively counseled about the deficiency.  

The revocation of the TEB resulted in the GI Bill benefits being restored to him.  It is absurd the 26 day deficiency in transfer results in the complete and total restoration of his full GI Bill eligibility while the applicant is left with over $70,000 in debt to repay.  It also stands to reason if his commander had known the date of separation would be short by 26 days for him to retain TEB, he would have been amenable to waiting a short time to avoid the situation.  The former service member was not discharged because he committed misconduct but due to FA failures.  It would have been reasonable to delay the discharge 26 days for the benefit of the applicant. Further, the former service member should have also been allowed to remain in service to have surgery and be discharged as unfit for duty.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is the daughter of the former service member who was a master sergeant (E-7) in the Air Force.   

The Post-9/11 GI Bill Transfer of Educational Benefits Statement of Understanding (SOU) dated 14 Sep 10, shows the former service member requested TEB and signed he understood he would incur a four year ADSC for approval of TEB.  

The former service member received a referral enlisted performance reports (EPR) for the reporting periods ending 13 Jan 13 and 30 Apr 13 for failed FA.  

On 4 Sep 13, an administrative discharge board convened and recommended the applicant be discharged in accordance with AFI 36-3208, Administrative Separation of Airmen, for failed FAs on 26 Mar 12, 22 Jun 12, 28 Sep 12, 6 Dec 12, 15 Apr 13 and 26 Jul 13, a LOR dated 11 Oct 12, with unfavorable information file (UIF), LOR on 12 Jul 12 and verbal counseling from his commander on 1 May 12.  

DD Form 2648, Pre-Separation Counseling Checklist, dated 30 May 13, shows the former service member requested counseling regarding education benefits, to include Post-9/11 GI Bill.  

Per the AF Form 418, Selective Reenlistment Program (SRB) Consideration for Airmen in the Regular Air Force/Air Force Reserve, dated 29 Jan 14, the former service member was not selected for reenlistment.  The reason for nonselection was his eight consecutive FA failures in the past two years.  

On 16 Jul 14, the former service member was honorably discharged from active duty, with a narrative reason for separation of “Physical Standards,” with corresponding SPD “GFT” and RE code “2C.”  He was credited with 17 years, 2 months and 3 days of active duty service.

On 16 Mar 21, the AFDRB denied the request for upgrade of the former service member’s discharge narrative reason for separation and RE code.  The AFDRB found no evidence of impropriety or inequity to warrant an upgrade of the discharge.  As a senior enlisted member, he was aware of the fitness requirements and consequences of failing them.  The board understood the unfortunate hardship the dependent incurred as a result of the discharge; however, it was not a matter of inequity or impropriety which would warrant an upgrade.  

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

AIR FORCE EVALUATION

AFPC/DP3SA recommends denial for TEB.  The former service member failed to complete the TEB obligation.  Further, he revoked all benefits allocated to the applicant prior to his separation.  Lastly, the dependent is no longer eligible to receive the TEB due to age.

The Defense Manpower Data Center (DMDC) records show the former service member was approved for TEB effective 11 Aug 10, with a service obligation of 10 Aug 14.  At the time, he allocated 30 months to his dependent, the applicant.  However, the DMDC reflects the former service member revoked all benefits allocated to the applicant on 19 Dec 12.

On 16 Jul 14, he received an administrative discharge due to unsatisfactory performance (failure to meet fitness standards).  In accordance with DoDI 1341.13, Post-9/11 GI Bill, Enclosure 3, and AFI 36-2306, Voluntary Education Program, members separated or released from the Armed Forces prior to completing the agreed upon service obligation will have their TEB revoked by the DVA.  Any benefits used are subject to recoupment by theD VA.  Additionally, in accordance with 38 U.S.C. § 3319 and AFI 36-2306, a dependent child may not use transferred benefits after attaining the age of 26 years.

The complete advisory opinion is at Exhibit C.

AFPC/DP2SSM states there is no evidence of an error or injustice with the circumstances of the applicant’s FA failures.  If there was a limiting condition, it should have been annotated on the AF Form 469, Duty Limiting Condition Report, and provided to the Fitness Assessment Cell prior to any FA.

The applicant was discharged from active duty due to six consecutive FA failures dated 26 Mar 12, 22 Jun 12, 28 Sep 12, 6 Dec 12, 15 Apr 13 and 26 Jul 13.  An administrative discharge board convened on 4 Sep 13, with documentation supporting four letters of reprimand (LOR).  Due to the former service member’s inability to meet Air Force physical fitness standards, adverse actions were provided by leadership.  There was no documentation provided stating the former service member was on a current AF Form 469 for exemptions due to a medical condition, nor did the former service member make mention of any during his fitness screening questionnaires during the period in question.   

The complete advisory opinion is at Exhibit D.

The AFBCMR Medical Advisor found no evidence of a medical error in the former service member’s discharge to warrant the desired change to the record.  However, as a matter of justice, given the clinical assessments, the Medical Advisor could not rule out factors, beyond the former service member’s voluntary control that contributed to one or more of his FA failures.  The Medical Advisor also opines the former service member should not be penalized for the FA failure during which he experienced an acute gastric muscle strain while participating in the mile and a half run.  Therefore, the Medical Advisor recommends consideration of changing the reason for discharge to “Secretarial Authority,” with awareness that if given the “3K” reentry code, the former service member may not meet accession standards should he seek to return to military service.  

The former service member’s treatment records indicate he had a history of multiple ankle sprains prior to entering military service.  On 28 Jan 98, he reported to the medical group for rolling his ankle while playing basketball.  It was determined there was no acute fracture and he was placed on a profile for one month.  Then on 1 Dec 03, he reported he had several years of bilateral ankle injuries and complained of his ankles giving out and pain with frequent running.  On 24 Feb 04, his provider opined he had a probable chronic non-union of the distal fibular epiphysis as well as chronic osteochondral lesion at the lateral talar dome.  A magnetic resonance imaging (MRI) on 10 Mar 04 demonstrated a lesion/fracture of the left ankle; however, there was no evidence of establishment of duty or mobility restrictions.  On 29 Apr 04, he was diagnosed with arthropathy, bilateral ankles, a surgeon documented a plan for left ankle arthroscopy, with the opinion he did not think the right ankle was symptomatic nor did he have mechanical systems that warranted arthroscopy on that side.  On 31 Aug 04, the former service member had a consult for surgery but stated he did not want to have surgery and wore ankle braces.   

Fast forward to 2007 to 2009, the medical documentation, to include his periodic health assessments (PHAs) show he reported no problems with ankles, shins and feet.  On his 15 Apr 09, initial medical clearance for assignment to Osan Air Base, Korea he reported no chronic or acute illnesses, indicated he was on no waivers or profiles and exercised regularly.  Then on 24 Aug 11, he presented for his PHA and reported he experienced pain when running for two months.  He was diagnosed with hip sprain, hamstring insertion and was referred to physical therapy.  The series of unsatisfactory FAs began in 2012.   

The Medical Advisor agrees the former service member’s health care providers, primarily flight surgeons, had good intentions by sparingly assigning duty limiting condition profiles, to the unfortunate detriment to the former service member, without protest from the former service member at the time.  Based upon clinical evidence as early as 2004, there was reason to consider duty limiting profiles based on known radiographic abnormalities of his ankles; except, his medical condition did not interfere with his ability to perform the duties of his office, grade, rank or rating; the criterion for determining fitness or unfitness.  Moreover, fitness testing methods at the time did not interfere with achievement of a passing score, despite the radiographic abnormalities of his ankles or feet.

The former service member also consistently checked “No” to experiencing concerns for any medical conditions on the Screening Fitness Assessment Questionnaire for the purpose of self-identification of any potential impediment to safe participation in the FA.  As a result of the FA failures, he received disciplinary actions in the form of LORs and placement on the control roster.  Even while on a trajectory for separation, he continued to participate in FAs.  He also made statements perhaps he should not have continued to suffer and receive profiles that could have resulted in a medical evaluation board (MEB).  It was likely due to his otherwise superior duty performance, his commander offered him another FA to save his reenlistment opportunity.  However, it was unfortunately met with a final failure on 28 Jan 14. 

The complete advisory opinion is at Exhibit E.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant on 28 Jan 22 for comment (Exhibit F), 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 notes the AFBCMR Medical Advisor found no evidence of an error in the former service member’s discharge but recommended the Board consider, in the interest of justice, granting the request for change of the narrative reason for discharge and RE code.  However, the Board concurs with the rationale and recommendations of AFPC/DP3SA and AFPC/DP2SM and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  In this respect, the Board finds the former service member’s six failed FAs, LORs and referral EPRs were sufficient reasons for the former service member’s commander to deny him reenlistment and recommend discharge.  Further, the Board notes the applicant’s discharge was duly considered by an administrative discharge board on 4 Sep 13 and the discharge board recommended he be discharged.  Further, on 16 Mar 21, the AFDRB considered the request for change of the RE code and narrative reason for separation and found no evidence of impropriety or inequity to warrant the requested upgrade.  With respect to the applicant’s request for waiver of the former service member’s service obligation for TEB and that her eligibility for benefits be restored, the Board finds insufficient evidence to grant the requested relief.  While the Board empathizes with the applicant for the debt for recoupment of Post-9/11 GI Bill transfer of education benefits by the DVA, the Board does not find it in the interest of justice to waive the service obligation to provide a benefit that was not earned through service.  Further, as pointed out by AFPC/DP3SA, the former service member on 19 Dec 12 revoked the benefits for the applicant.  Therefore, the Board 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 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-2021-00647 in Executive Session on 23 Mar 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 27 Nov 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DP3SA, w/atchs, dated 9 Aug 21.
Exhibit D: Advisory Opinion, AFPC/DP2SSM, dated 18 Oct 21.
Exhibit E: Advisory Opinion, BCMR Medical Advisor, dated 28 Jan 22.
Exhibit F:	Notification of Advisory, SAF/MRBC to Applicant, dated 28 Jan 22.

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.