RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-01204

xxxxxxxxxx	COUNSEL: NONE

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

He be given a medical retirement.

APPLICANT’S CONTENTIONS
 
While he was on Title-10 Hurricane Relief Orders at XXXXXXXX, he sustained a knee injury.  This injury led to multiple operations that left him unable to continue military service.  The Department of Veterans Affairs (DVA) rated him 100 percent disabled due to his various medical conditions.  His leadership approved In the Line of Duty (ILOD) paperwork which was elevated to the National Guard Bureau (NGB) for final approval but was denied.  The NGB determined his injury was found not in the line of duty (NILOD) due to pre-existing conditions.  This is incorrect, however, and his medical records prove otherwise.  He was discharged honorably but left without any needed severance pay or benefits.  All levels of authority at his guard unit agreed that his injury was ILOD.  Once the package was sent to NGB for final approval, it was denied without regard to factual, documented information.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air National Guard staff sergeant (E-5).

From 23 Oct 17 to 21 Feb 19, DD Form 214, Certificate of Release or Discharge from Active Duty, reflects the applicant was honorably discharged after serving 1 year, 3 months, and 29 days of active service.  The remarks section shows the applicant served in support of HURRICANE SUPPORT IAW 10, USC 12301(D) from 23 Oct 2017 to 15 Feb 2018 and 10, USC 12301(H) from 16 Feb 2018 to 21 Feb 2019.  He was discharged, with a narrative reason for separation of “Completion of Required Active Service.”

On 10 Mar 18, AF Form 348, Line of Duty Determination, indicates the applicant was evaluated for a line of duty determination for his left knee pain with cracking.  In the details, block 12 section, it is noted that the magnetic resonance imagining (MRI) revealed status post anterior cruciate ligament (ACL) reconstruction.  In block 14, it is indicated that the applicant’s condition existed prior to service (EPTS) but was not service aggravated.  This form was signed by the military medical provider on 11 Mar 18.  On 14 Mar 18, his immediate commander indicated the injury was ILOD to which the Wing Staff Judge Advocate and the Appointing Authority concurred on 13 and 14 Feb 19, respectively.  In March 2019, part VI of the form indicates the Air Reserve Component (ARC) LOD determination Board Review was done and it was determined the applicant’s injury was found NILOD; the injury EPTS and was not service aggravated.

On 10 Jun 19, the Air National Guard Readiness Center Commander considered and denied the applicant’s request to have his knee injury found ILOD noting the original LOD recommended findings and reasoning is as follows “As applicant was not performing any undue physical activity or any activity related solely to military service, simply walking up a flight of stairs, this is a “natural progression” of the underlying, previously existing disease process.”

On 12 Nov 19, the applicant was entered into the non-duty related Disability Evaluation System (DES) process for fitness determination only, to which the applicant agreed to this on 12 Sep 19 as indicated on Attachment 8, Statement of Selection.

On 14 Nov 19, AF Form 356, Informal Findings and Recommended Disposition of USAF Physical Evaluation Board, indicates the applicant was found unfit due to his medical condition of internal derangement of left knee which was found to have EPTS without service aggravation with a recommendation of “Unfit.”  His other condition of anxiety disorder, unspecified was rated as Category II, a condition that can be unfitting but is not currently unfitting.

On 7 Dec 19, AF Form 1180, Action on Physical Evaluation Board Findings and Recommended Disposition, indicates the applicant agreed with the findings of the board and waived his rights for any further appeal.

On 31 Dec 19, NGB Form 22, National Guard Bureau Report of Separation and Record of Service, reflects the applicant was honorably discharged from the Air National Guard after serving 11 years, 3 months, and 21 days of total service for pay.  He was discharged, with a narrative reason for separation “Physical Disqualification.”

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

APPICABLE AUTHORITY/GUIDANCE

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.  To the contrary, the DVA, operating under a different set of laws, Title 38, U.S.C., is empowered to offer compensation for any medical condition with an established nexus with military service, without regard to its impact upon a member’s fitness to serve, the narrative reason for release from service, or the length of time transpired since the date of discharge. 

AIR FORCE EVALUATION

NGB/SGP recommends denying the application finding no evidence of an error or injustice to the applicant’s NILOD determination or the specific facts and circumstances in the Informal Physical Evaluation Board (PEB) final medical discharge decision.  On 10 Mar 18, the applicant’s left knee pain and cracking was found NILOD.  The applicant appealed the NILOD determination and it was disapproved by NGB.  The applicant was afforded the option to enter the non-duty DES which he elected on the “Statement of Selection” to enter the DES process with the understanding that his case was non-duty related and it would be for fitness determination only.  The applicant’s case was referred to the Informal PEB for processing.  The Informal PEB completed their evaluation accordingly and rendered their disposition.  The applicant’s NILOD determination for his left knee pain and cracking was substantiated by medical documentation within the applicant’s medical record concluding the condition EPTS without Service Aggravation.  The Informal PEB found the applicant’s Internal Derangement of the left knee condition prevented him from reasonably performing the duties of his office, grade, rank or rating; was subject to activity related exacerbations and degenerative progression; and limited the applicant from performing common military tasks, deploying worldwide, and meeting physical fitness requirements.  Thus, the Informal PEB found the applicant’s condition was incompatible with the rigors of military service and unfitting.  As for the anxiety disorder, the Informal PEB found the condition not to have reached the maximum medical benefit and did not prevent the reasonable performance of duties long term, did not impose unreasonable requirements to maintain or protect the applicant’s health, and did not represent a medical risk, therefore this condition was determined not currently unfitting.  On 7 Dec 19 the applicant signed the AF Form 1180 agreeing with the findings and recommended disposition of the Informal PEB and waived his rights for any further appeal.  

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 6 Dec 21 for comment and again on 1 Feb 22 via U.S. mail and DoD Safe when he claimed he did not receive the original email (Exhibit D), 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 NGB/SGP and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Specifically, the applicant’s NILOD determination for his left knee pain and cracking was substantiated by medical documentation within the applicant’s medical record concluding the condition EPTS without service aggravation.   It was noted on his AF Form 348 that the MRI revealed his knee pain was status post ACL reconstruction, EPTS, but was not service aggravated.  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-2021-01204 in Executive Session on 26 Jan 22 and 1 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 30 Mar 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, NGB/SGP, w/atchs, dated 25 Aug 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 6 Dec 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.