RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-01957

xxxxxxxxxxxxxx	COUNSEL: XXXXXXXXXXXX

	HEARING REQUESTED: YES	

APPLICANT’S REQUEST

1.   He be given constructive service credit to allow him to complete 20 years of service.

2.  In the alternative, he be allowed to complete the last 8 months of 20 years of service or finish out his contract term and receive all attendant back pay and allowances.

APPLICANT’S CONTENTIONS

He was erroneously and unjustly separated from the service as a result of his medical conditions when he should have been retained until the end of his service contract.  He was transferred to a position of high physical impact even though the military was aware of his medical conditions.  His separation was the result of his wrist pain and largely as a result of his commander’s less than truthful statement about him being permanently decertified from weapons loading made during the Medical Evaluation Board (MEB) process.  Before the Physical Evaluation Board (PEB) made their decision, his Commander and the Flight Chief were replaced.  Their replacements did not want to disturb the process started by their predecessors, as is normal when a new command comes in, but assured the applicant that if he was retained, they had a position for him that would not put his wrists at further risk of harm if any more slip ups by other crew members happened.  The applicant’s knowledge, quick learning attitude, and adaptability would have permitted him to continue his service while allowing the Air Force to leverage his years of experience to its advantage.  Since he was within two years of reaching 20 years of service, he was within the sanctuary period and should not have been involuntarily separated under 10 U.S.C. § 1176(a).  Additionally, the PEB failed to fulfill its purpose properly; he should have been placed on the Temporary Disability Retired List (TDRL) because his pain had not reached a point of stability in degree.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a medically retired Air Force technical sergeant (E-6).

On 22 May 19, AF IMT 618, Medical Board Report, indicates the applicant was referred to the Informal Physical Evaluation Board (IPEB) for bilateral hand and wrist pain.

On 8 Jul 19, the Department of Veterans Affairs (DVA) proposed a disability rating for his Category I unfitting medical conditions of Carpal Tunnel Syndrome and very mild Ulnar Neuropathy affecting the right and left wrist, right and left thumb, right and left index finger, and right and left long finger at 10 percent each with a combined rating of 60 percent.  The left and right little finger and left and right ring finger were found as service-connected but rated at zero  percent.

On 12 Jul 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 Chronic Bilateral hand and wrist pain which the DVA rated as Carpal Tunnel Syndrome and very mild Ulnar Neuropathy of the wrist and fingers with a combined disability compensation rating of 60 percent with a recommendation of “Permanent Retirement.”  His other conditions of Carpal Tunnel Syndrome and very mild Ulnar Neuropathy of the left and right little finger and left and right ring finger were rated as Category II conditions that can be unfitting but are not currently unfitting.  In the remarks, the Board notes the applicant had a long history of wrist and hand pain which he had been intermittently seen for since 2007.

On 25 Jul 19, 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 contending he is fit for duty.

On 1 Aug 19, AF Form 1180 indicates the applicant, after further consideration from counsel, requested to waive his rights to a formal hearing but requested a one-time reconsideration of the DVA disability rating for the conditions found unfitting by the IPEB.

On 19 Aug 19, the applicant withdrew his request for a one-time reconsideration of the DVA disability rating stating he could not obtain the medical documentation for DVA reconsideration.

Dated 30 Aug 19, Special Order XXXXXX, indicates the applicant was permanently disability retired in the grade of technical sergeant with a compensable percentage for physical disability of 60 percent, effective 29 Dec 19.

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

Sanctuary under Title 10 U.S.C. § 1176 (a) states a regular enlisted member who is selected to be involuntarily separated, or whose term of enlistment expires and who is denied reenlistment, and who on the date on which the member is to be discharged is within two years of qualifying for retirement under section 7314 or 9314 of this title, or of qualifying for transfer to the Fleet Reserve or Fleet Marine Corps Reserve under section 8330 of this title, shall be retained on active duty until the member is qualified for retirement or transfer to the Fleet Reserve or Fleet Marine Corps Reserve, as the case may be, unless the member is sooner retired or discharged under any other provision of law.

AIR FORCE EVALUATION

AFPC/DP2SSR recommends denying the applicant’s request for a length of service, 20-year retirement vice a medical retirement; finding no error or injustice.  The applicant was medically retired on 29 Dec 19 with 19 years and 4 months of active military service.  Per AFI 36-3203, Service Retirements, dated 18 Sep 15, table 2.1, rule 5, indicates that a service member is ineligible to apply for voluntary (length of service) retirement while pending a MEB or PEB.  The table also explains that the member remains ineligible for a voluntary retirement until the MEB/PEB process is completed and the member is found fit for continued service.  Legal requirements for a length of service retirement are outlined in 10 U.S.C. § 09314, Twenty to Thirty years; Regular Enlisted Members, dated 1 Feb 19, states under regulations to be prescribed by the Secretary of the Air Force, an enlisted member of the Air Force who has at least 20, but less than 30 years of service computed under section 9325 of this title may, upon his request, be retired.  Since the applicant did not complete the 20 years of active service required by law, the applicant cannot be retired under the provisions of 10 U.S.C. § 09314. 

The complete advisory opinion is at Exhibit C.

AFPC/DPFDD recommends denying the applicant’s request to overturn his permanent disability retirement and granting constructive credit for his service; finding no error or injustice occurred during the processing of his disability case.  The PEB must determine whether an airman’s medical condition renders them unfit for continued military service relating to their office, grade, rank or rating regardless of time in service.  Per DoDI 1332.18, Disability Evaluation System (DES), A2.E3.2(a), service members will be considered unfit when evidence establishes the member is unable to reasonably perform the duties of their office, grade, rank and rating. Reasonable performance of duties, according to paragraph 4 of DoDI, 1332.18, E3.A2, includes the member’s ability to deploy.  On 12 Jul 19, the Informal PEB found member unfit for Chronic Bilateral Hand and Wrist Pain, DVA rated as Carpal Tunnel Syndrome and Very Mild Ulnar Neuropathy with a 60 percent disability rating and recommended permanent disability retirement.  In accordance with AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation, paragraph 3.15, the PEB must determine if a member’s condition is stable.  The PEB reviews the medical evidence of each unfitting condition to determine if the condition is stable and/or permanent. A disability will be determined stable when a preponderance of medical evidence indicates the severity of the condition will probably not change.  The applicant had a longstanding history of chronic bilateral hand and wrist pain with numbness in his hands which supported the IPEB’s permanent disability retirement decision.  Despite ongoing treatment including medications, physical therapy, occupational therapy, wrist splint, and injections without sustained relief, he was unable to fully perform the duties of his Air Force Specialty Code (AFSC) and required prolonged and extensive duty, fitness, and mobility restrictions over multiple years.  Medical records indicate the applicant had been seen for these conditions intermittently since Mar 2007.  The MEB Narrative Summary noted after multiple extensive work ups, no source of pain or numbness had been found but he continues to report subjective pain and limitations in duty.  He is unable to be fully qualified for his job with no recovery expected since he denies any improvement over the last 11 years.  On 25 Jul 19, he disagreed with the IPEB’s decision and appealed to the Formal PEB.  His FPEB contention shows that he was requesting to be found fit for duty, however, on 7 Aug 19 he elected to waive his FPEB hearing and indicated that he instead elected to request a one-time DVA disability rating reconsideration.  However, on 19 Aug 21 he notified his Disability Counsel that he could not obtain additional medical documentation to support a DVA reconsideration request.  Additionally, he also stated that he would not be submitting a Limited Assignment Status (LAS) application.  In accordance with AFI 36-3212, Chapter 7, the LAS program allows members with 15 to 19 years of service who have been found unfit by the PEB to apply for continued military service.  The objective of the LAS program is to conserve manpower by keeping needed experience and skills the Air Force can economically use and deemed in the best interest of the Air Force.  Paragraph 7.2.3. further states Service members deemed unfit for duty without restriction do not have a legal or vested right to retention in LAS, and the Air Force does not guarantee retention for any specified period of duty.  Note: It is not the intent of the program to retain a service member solely to increase benefits or allow the service member to complete a period of service.

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 27 Jan 22 for comment (Exhibit E), and the applicant replied on 21 Feb 22.  In his response, the applicant’s counsel contends the applicant’s retirement was based on a flawed MEB/PEB process which included an evaluation from his squadron commander – an officer who was fired from her subsequent command assignment due to a loss of confidence in her ability to lead and take care of the airmen under her command.  In addition, he received ineffective assistance from his appointed attorney during the process, as she rushed the applicant to make irrevocable decisions without complete information regarding the consequences and their impact.  He has requested he receive constructive service credit to give him 20 years of service or, in the alternative, reinstate him to active duty to allow him to complete his enlistment.  The advisory opinion from HQ AFPC/DPFDD simply quotes the MEB Narrative Summary but does not include any analysis to refute the applicant’s claim of instability for his medical condition. Yet, evidence in the file clearly indicates that his condition was not stable.

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 recommendation of AFPC/DP2SSR and AFPC/DPFDD and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Specifically, the Board finds that no error or injustice occurred during the processing of his disability case, therefore finds no reason to overturn his permanent disability retirement.  The applicant had a longstanding history of chronic bilateral hand and wrist pain with numbness in his hands which supported the IPEB’s permanent disability retirement decision.  The Board also notes the applicant remained ineligible for a voluntary retirement until the MEB/PEB process was completed and he was found fit for continued service.  Since the IPEB found the applicant unfit and medically retired him, sanctuary under Title 10 U.S.C. § 1176 does not apply.  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-2021-01957 in Executive Session on 23 Feb 22 and 8 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 12 May 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DP2SSR, dated 27 Oct 21.
Exhibit D:	Advisory Opinion, AFPC/DPFDD, w/atchs, dated 22 Nov 21.
Exhibit E:	Notification of Advisory, SAF/MRBC to Applicant, dated 27 Jan 22.
Exhibit F:	Applicant’s Response, dated 21 Feb 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.