RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-02286

XXXXXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

He be given a medical retirement.

APPLICANT’S CONTENTIONS

He was honorably discharged due to force shaping and should have been medically retired.  His service-connected disabilities prevented him from being deployed numerous times while on active duty and have worsened since his discharge.  His latest Department of Veterans Affairs (DVA) disability rating is 100 percent for his service-connected disabilities to include cancer, gastrointestinal issues, periodontal disease, severe migraines, and asbestos-respiratory problems.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force major (O-4). 

On 29 Jan 08, DD Form 214, Certificate of Release or Discharge from Active Duty, reflects the applicant was honorably discharged in the grade of major (O-4) after serving 14 years, 6 months, and 4 days of active duty.  He was discharged, with a narrative reason for separation of “Force Shaping.”

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

AIR FORCE EVALUATION

The AFBCMR Medical Advisor recommends denying the applicant’s request for a medical retirement.  However, should the Board disagree and determine the applicant should have been medically retired, noting the DVA’s assigned 10 percent disability rating for his post-operative paraesophageal hiatal hernia, a 10 percent disability rating for sinusitis, and a10 percent disability rating migraine headaches, finding the aforementioned medical conditions individually unfitting would result in eligibility for permanent retirement with a combined disability rating of 30 percent.  Under DoDI 1338.38, General Criteria for Making Unfitness Determinations, paragraph E3.P3.2.1,  a Service member shall be considered unfit when the evidence establishes that the member, due to physical disability, is unable to reasonably perform the duties of his or her office, grade, rank, or rating (hereafter called duties) to include duties during a remaining period of Reserve obligation.   The applicant’s exemplary Officer Performance Reports (OPR) show that he was more than reasonably able to perform the duties of his office, grade, rank, or rating throughout his period of service.  Accordingly, under DoDI 1332.38, paragraph E3.P3.3.3. Adequate Performance Until Referral, states if the evidence establishes that the Service member adequately performed his or her duties until the time the Service member was referred for physical evaluation, the member may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duty.  Additionally, AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation, paragraph 8.20, also states the sole standard to be used in making determination of unfitness due to physical disability shall be unfitness to perform the duties of the member's office, grade, rank or rating because of disease or injury.  The aforementioned policy statements are not intended to dissuade the Board from considering the applicant’s petition, but only to point out that the mere existence of a medical diagnosis does not automatically determine unfitness and eligibility for a medical separation or retirement.  Per AFI 36-3212, paragraph 1.3, how the aforementioned policies are executed rests with the responsible treating providers and oversight authorities within the medical treatment facility (MTF); following applicable Air Force policies, e.g., the introduction of profile restrictions utilizing the AF Form 422, Physical Profile Serial Report, to depict any condition affecting deployability and/or performance components of the Fitness Assessment and its duration.   A brief overview of the legacy profiling system, as extracted from AFI 48-123, Medical Examinations and Standards, version in effect at the time of the applicant’s discharge, for the Board’s familiarization is as follows.  On any copies of the legacy AF Form 422, the reader will note the letters PULHES, which represent major body functions, with the P representing a general physiologic or systemic condition, the U for the upper extremity, L representing lower extremity and back, H representing Hearing, E representing the eyes or a vision function, and the S representing psychiatric or mental status.   A single numeral, choice of 1 through 4, is then assigned to each functional category applicable to the medical condition’s impact on deployability at the time.   Now directing attention to an extract from AFI 10-248, Fitness Program, paragraph 4.2.7.2, states members who are physically unable to participate in a fitness-exercise program for greater than 1 year due to medical conditions should be presumed to be non-deployable, non-assignable and Medical Evaluation Board (MEB) processing will be initiated no later than 1 year after the first profile for the affecting condition per AFI 48-123, Medical Examination and Standards.

In the case under review, on 24 Aug 05, “4” is entered for functional category P, which indicates that the applicant was not deployable for a 12-month duration, with an expiration date of 29 Aug 06.   Thereafter, the applicant received three “P3” profiles, two of which were one month in duration, and were designated as worldwide qualified.  The latter “P3” profile, which was initiated on 9 Nov 06, for a duration of two months, rendered him non-worldwide qualified, which expired on 8 Jan 08.   Excluding the profile document initiated on 24 Aug 05, all three subsequent profile restrictions exempted the applicant from performing components of the Fitness Assessment for a four month total duration.  Additionally, the applicant’s military duties were not degraded due to his medical conditions, although they periodically impacted his deployability, the Medical Advisor also provides the following extract from DoDI 1332.38, Physical Disability Evaluation, paragraph E3.P34.1.3, in effect at the time of the applicant’s discharge, which in part reads inability to perform the duties of his or her office, grade, rank, or rating in every geographic location and under every conceivable circumstance will not be the sole basis for a finding of unfitness.  The Medical Advisor is aware that DoD later adjusted its position on this phrase, which was amended to read “may be” a basis for an unfit finding.  Nevertheless, re-addressing the applicant’s petition for a medical retirement, under a proposal that he should have received the MEB and referral to a Physical Evaluation Board (PEB), he would also require a minimum combined disability rating of 30 percent to achieve retirement eligibility.  

Based upon clinical evidence, or lack thereof, to include the DVA Rating Decisions released on 18 May 08, the Medical Advisor noted there was no evidence that the applicant’s sinusitis and migraine headaches limited his ability to perform the duties of his office, grade, rank, or rating; nor was he issued profile restrictions due to these conditions.  That leaves the applicant’s post-operative paraesophageal hiatal hernia and his recurring basal cell carcinomas as the sole potentially unfitting conditions; for which he received an initial 10 percent rating for the former and a 0 percent rating for the latter.   The applicant also received a 0 percent rating for his umbilical cyst and no specific rating decision for the surgically treated elongated uvula; both which were surgically resolved.   Observing the significant increase in disability ratings issued on 31 Dec 19, the applicant and Board are advised that, operating under Title 38, Code for Federal Regulations (C.F.R), the DVA is authorized to offer compensation for any medical condition determined service-connected, without regard to its proven or demonstrated impact upon a service member’s retainability, fitness to serve, or narrative reason for separation.  The DVA is also empowered to adjust disability ratings, as the level of impairment from a given medical condition may vary [improve or worsen] over the lifetime of the veterans; whereas the Military Department, operating under Title 10, United States Code, only assigns compensation ratings for conditions that are the cause for career termination, and then only to the degree of severity present at the time of discharge, and not based upon post-service progression of injury of disease.

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 5 Apr 22 for comment (Exhibit D), and the applicant replied on 27 Apr 22.  In the response, it is implied that due to the applicant’s medical conditions, he should have been processed through the MEB/PEB and found unfit to perform his military duties.  The medical professionals should have foreseen the early onset of his disease and should have taken into consideration the future effects of the illnesses that would have resulted in a medical retirement.  The applicant submitted his current DVA disability rating dated 14 Mar 22 in which he is receiving 100 percent disability rating for his recurring basal cell carcinomas.

The applicant’s complete response is at Exhibit E.
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 AFBCMR Medical Advisor and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The mere existence of a medical diagnosis does not automatically determine unfitness and eligibility for a medical separation or retirement.  The applicant’s military duties were not degraded due to his medical conditions, although they periodically impacted his deployability.  A Service member shall be considered unfit when the evidence establishes that the member, due to physical disability, is unable to reasonably perform the duties of his or her office, grade, rank, or rating. 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).  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-2021-02286 in Executive Session on 27 Apr 22 and 16 May 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 4 Sep 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFBCMR Medical Advisor, dated 4 Apr 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 5 Apr 22.
Exhibit E:	Applicant’s Response, w/atch, dated 27 Apr 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.