RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-02433

XXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

 Her pending medical disability discharge be overturned and she be returned to duty (RTD).

APPLICANT’S CONTENTIONS

She has medical documentation that proves she does not have the medical condition for which she was referred to the Integrated Disability Evaluation System (IDES) but the 42nd Medical Group would not accept it.  Her attempt to have the test redone by the military but was denied.  The Physical Evaluation Boards (PEB) found her unfit for continued service in violation of DoDI 1332.18, Disability Evaluation System (DES), Appendix 2 to Enclosure 3, paragraphs 2(a) and 6(a); and 3) as there was inconsistent cause for her IDES referral.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an honorably discharged Air Force captain (O-3).

Dated 25 Mar 21, AF IMT 618, Medical Board Report, indicates the applicant was referred to the Informal Physical Evaluation Board (IPEB) for Non-Compliance with Other Medical Treatment and Regimen High Grade Squamous Intraepithelial Lesion (HGSIL) on Cytologic Smear of Cervix.

26 Apr 21, the Department of Veterans Affairs (DVA) proposed a 0 percent disability rating for her unfitting medical condition of HGSIL Cytologic Smear of Cervix which was found not service connected. 

On 27 Apr 21, AF Form 356, Informal Findings and Recommended Disposition of USAF Physical Evaluation Board (IPEB), indicates the applicant was found unfit due to her medical condition of Cervical Dysplasia with a disability compensation rating of 0 percent with a recommendation of “Discharge with Severance Pay (DWSP).”

On 21 May 21, AF Form 1180, Action on Physical Evaluation Board Findings and Recommended Disposition, indicates the applicant disagreed with the findings and recommended disposition of the IPEB and requested a formal hearing.  

On 11 Jun 21, AF Form 356, Formal Findings and Recommended Disposition of USAF Physical Evaluation Board (FPEB), indicates the applicant was found unfit due to her medical condition of Cervical Dysplasia with a disability compensation rating of 0 percent with a recommendation of “Discharge with Severance Pay (DWSP).”  

Dated 21 Jun 21, a letter of appeal from the applicant’s counsel indicates she disagreed with the findings of the FPEB by not making a RTD determination and requested a Quality Assurance review due to an abuse of discretion by the FPEB.

On 29 Jun 21, DPF-QA found the FPEB did not abuse its discretion in its adjudication of the applicant’s appeal, and declined to take action to set aside the FPEB decision or remand the case for further action.  

On 5 Jul 21, the applicant emailed AU/IG, submitting a complaint stating she was being medically separated for a condition she did not have and was not given the opportunity to prove otherwise.  On 16 Jul 21, it was determined that this case would be an assist to Military Treatment Facility (MTF), stating the medical issue needs to be addressed by the Medical Group (MDG).  

Dated 11 Aug 21, AF IMT 100, Request and Authorization for Separation, indicates the applicant was honorably discharged from the Air Force effective 31 Oct 21.

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

AIR FORCE EVALUATION

AFPC/DPFDD recommends denying the applicant’s request finding no error, injustice, abuse of authority, or violation of policy during the processing of her disability case with the PEBs but defers recommendation regarding the applicant’s request of her diagnosis and referral to the IDES, which rests within the referring medical authority’s purview.  Medical diagnosis and treatment is within the purview of a service member’s treating physicians, and it would be improper for the FPEB to render an opposing diagnostic opinion.  Further, referral to the IDES is a Medical Evaluation Board decision.  The Physical Evaluation Boards are charged with evaluating the evidence in the record, medical and otherwise, to determine the personnel utilization impact, as well as the medical risk and/or burden of the referred condition(s), to render a fitness for duty determination.  The IPEB and FPEB found the evidence sufficient for adjudication of the applicant’s fitness for duty.

The applicant was referred to the IDES on 10 Feb 20 for the condition of Non-Compliance with Other Medical Treatment and Regimen HGSIL on Cytologic Smear of Cervix.  On 27 Apr 21, the IPEB found her unfit for continued service and recommended Discharge with Severance Pay at a zero percent disability rating.  She appealed the IPEB decision and requested a formal hearing of her case, contending she was fit for duty and should be returned to duty, or her case should be returned without action for clarification of diagnosis.  After review of the evidence and the applicant’s testimony, on 11 Jun 21, FPEB upheld the IPEB finding for Discharge with Severance Pay.  On her behalf, the applicant’s attorney request Quality Assurance review of the applicant’s case by AFPC/DPF-QA.  DPF-QA on 29 Jun 21 found the FPEB did not abuse its discretion in its adjudication of the applicant’s appeal and declined to take action to set aside the FPEB decision or remand the case for further action.  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, includes the member’s ability to deploy.  The applicant’s referred condition did not impact her ability to perform her daily duties or fitness and she had strong command support for retention.  However, in its untreated state, her condition rendered her non-deployable, and a scheduled 365-day deployment was ultimately cancelled.  As a Warfighter Communications Operations Officer (17D3), the applicant’s ability to deploy was an important factor in the reasonable performance of the duties.  DoDI 1332.18, A2.E3.6(a) states the Service “shall cite objective evidence in the record, as distinguished from personal opinion, speculation, or conjecture, to determine a member is unfit because of disability.”  In the applicant’s case, the FPEB cited the medical assessment by her military providers of the laboratory results, the applicant’s medical diagnosis, and the medical risk to the health of the applicant as documented in the 19 Mar 20 Narrative Summary Addendum in the case file.  In that discussion, the physician discussed the additional records submitted by the applicant and the reasons these records were considered incomplete and contradictory. As a result, there was no change to the treating diagnosis and disability evaluation processing continued.  When there has been a significant change in a Service member’s referred condition, including a change in diagnosis, a military treatment facility may request to recall the case under procedures outlined in AFI 36-3212, Physical Evaluation for Retention, Retirement and Separation, paragraph 2.8, which reads the referring MTF commander may request to recall a case if a major change in the member’s condition occurred or a new condition is discovered.  In the applicant’s case, a recall request was not submitted for AFPC/DPFD approval. 

The complete advisory opinion is at Exhibit C.

AFBCMR Medical Advisor recommends partially granting the application.  Under the presumption of regularity, the Military Department got it right in the discharge action.  However, given the applicant was denied a repeat Pap test and biopsy by the Military Department, due to the normal civilian Pap results, which were not entrusted by the PEB as accurate, it is recommended, the applicant be returned to duty, without action, so that she and her military providers be given the opportunity for a re-determination and confirmation of her health status and worldwide qualification.  However, the applicant is advised, this interim administrative remedy, if accepted by the Board, is not automatically determinative of her fitness to serve or the longevity of her service.  It is only for the purpose of assuring she receives due process, with full reconsideration of all available medical evidence, either not previously accepted, not verified, or not verifiable as accurate, at or about the time of her PEB proceedings.

The Air Force has entrusted its credentialed healthcare providers to practice within accepted medical standards for their given medical specialty.  Thus, while the medical literature offers alternatives to treatment in a certain population, the applicant was forewarned that her abnormal Pap test and biopsy results, which if left untreated, would place her in a nondeployable status; code “37” on an AF Form 469, Duty Limiting Condition Report, requiring MEB/PEB processing and vulnerability for discharge.  On 19 Feb 19, the applicant stated she “will not be having the procedure, even if it means she has to get out of the military.”  Cancellation of a PCS or curtailment of a deployment due to mental health or medical reasons are among causes for initiation of the MEB process, via an initial DAWG (Deployment Availability Working Group) review, per AFI 48-123, Medical Examinations and Standards, AFI 10-203, Duty Limiting Conditions, and AFI 41-210, TRICARE Operations and Patient Administration.  The PEBs found the applicant unfit, at least in part due to her non-deployability, with the belief that the disability also “imposes unreasonable requirements on the military to maintain or protect the Service member.”  Additionally, there was some refutable evidence that the results of the applicant’s most recent Pap smear and cervical biopsy conducted by a civilian provider, were of uncertain validity.  Accordingly, the record indicates that the applicant sought an appointment with a military provider to conduct a reassessment.  Unfortunately, after cancellation of an appointment and inability to receive another timely appointment, after being told that a repeat Pap was not necessary, the discharge process continued.  The Medical Advisor concedes there are potentially perceived subjective factors that may have played into the applicant’s discharge.  The Medical Advisor could not corroborate any malicious intent on the part of the Military Department.  Indeed, it appears that the applicant’s military healthcare providers made every effort possible to accommodate the referral needs and desires of the applicant.  However, her continued refusal to receive treatment, the cancellation of deployment, and the resultant MEB and referral to the PEBs were beyond the scope of further influence by the healthcare provider(s); notwithstanding the Telephone Consultation, dated 17 Jul 19, wherein the provider documented, “Please ensure that her profile got updated to Code 31 [to this reviewer, an indicator she would not require MEB/PEB processing, as would be required if coded “37”] after the DAWG discussion last week as well.”  Additionally, while the applicant’s counsel may argue the applicant’s medical condition does not impose unreasonable requirements on the military to maintain or protect the Service member, the fact that she had a history of a significantly abnormal Pap smear, requires close monitoring and access to the appropriate clinical specialist; which is not available in every conceivable geographic assignment, requiring either periodic aeromedical evacuation or restricted assignments. Additionally, the applicant’s failure to receive the recommended treatment, in the implicit decision of the FPEB, also posed an unreasonable risk to the health of the member; albeit not effecting the safety and welfare of others.  While the Military Department cannot force an individual to comply with a certain recommended treatment, there is an expectation that recommended treatments will be followed.  Accordingly, in their charge to maintain a fit and vital fighting force, the PEBs acted within their authority to find the applicant unfit, when it is believed to be in the best interest of the Air Force; albeit in this case causing no immediate discernable physical impediment to duty, except for the inability to be utilized as a Total Force deployable asset.

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 24 Aug 21 for comment (Exhibit E), 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 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 substantiates the applicant’s contentions in part.  Specifically, the applicant has provided medical documentation, which is sufficient to justify granting the applicant’s request for an extension of her current active duty tour so she can have medical testing re-accomplished to present to the PEB.  If the PEB finds her fit for duty, she should be returned to duty, if not, she should be discharged in accordance with the PEB findings.  Therefore, the Board recommends correcting the applicant’s records as indicated below.

4.  The applicant alleges she has been the victim of reprisal and has not been afforded full protection under the Whistleblower Protection Act (Title 10 U.S.C. Section 1034).  The Board noted the applicant filed an IG complaint to the AU/IG; the AU/IG determined that this case would be an assist to Military Treatment Facility (MTF), stating the medical issue needs to be addressed by the Medical Group (MDG). Based on the authority granted to this Board pursuant to Title 10 U.S.C. Section 1034, we reviewed the complete evidence of record to reach our own independent determination of whether reprisal occurred.  Based on our review, we agreed with the decision of an assist, whereas the IG provides the complainant with information that allows him or her to engage with an outside agency or alternate grievance channel to address their concerns. The IG may facilitate assistance by making phone calls, asking questions, or soliciting helpful information from appropriate offices or agencies and providing that information to the complainant.  Therefore, in the absence of persuasive evidence to the contrary, we do not find that the applicant has been the victim of reprisal, pursuant to Title 10, U.S.C. Section 1034.

5.  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 pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that on 31 Oct 21, she was not released from the active duty, but on that date she continued to serve on active duty to accomplish the appropriate medical process and for her case file to be returned to the Formal Physical Evaluation Board for adjudication within 90 days of reinstatement to active duty.

However, regarding the remainder of the applicant’s request, the Board recommends informing the applicant, the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

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-2021-02433 in Executive Session on 15 Sep 21, 21 Sep 21 and 25 Sep 21:

, Panel Chair
, Panel Member
, Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 14 Jul 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFDD, dated 3 Aug 21.
Exhibit D:	Advisory opinion, AFBCMR Medical Advisor, dated 23 Aug 21.
Exhibit E:	Notification of advisory, SAF/MRBC to applicant, dated 24 Aug 21.
Exhibit F:  Report of Investigation – WITHDRAWN. 

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.