AFBCMR Decision

[sbur101]

I'll try and keep this as short as possible but not leave out anything relevent to my case.

I was on Title 10 Statutory tour assigned to AFNORTH/A6, Tyndall AFB, FL. While on orders I sustained fractures in both ankles and damage to my wrist that required surgery. The surgery on my right ankle went flawlessly. The surgery on my left ankle was anything but. After two surgeries, I still have pain and swelling in my left ankle after just moderate walking. I had multiple appointments, which I had to be sent to Eglin to see the specialist who performed the surgeries and had another appointment after my orders were ended. I know according to AFI-36-3208, Administrative Seperation of Airman, par. 2.6 states -- retain Airmen beyond ETS with their consent for medical treatment or evaluation when their attending physician feels they are not medically qualified for retirement or seperation.

I recently received a response from Chief, Review Boards Support Office, Division Chief, ARC Case Management and Chief, Clinical and Operational Medicine NGB Office of the Air Surgeon. I attached those reponses.

It was recommended to me to have an LOD done before leaving AD. I was told by NGB that I ddin't need an LOD because it is presumed my injury was in the LOD because I was on orders at the time. Base Medical said I needed it because they had me coded as being a National Guardsmen on orders. I was miscoded in the base system. I was and have a copy of my Title 10 AD orders. The LOD wasn't completed due to the Med Grp commander telling my 1st Sgt that I didn't have a condition that warrants an MEB. My orders also ended an hour after this comment was made.

As far as the question about an MEB is concerned, according to the REG, if you miss 4 components in a 24 month period, then you should be referred to the DAWG who in turn determines if you need an MEB. I have 10 exemptions in a 18 month period and was never referred to the DAWG because again, the Med Grp thought I was ANG and not Active Duty.

Attached are the responses I have so far. I have until the end of this month the rebutt those letters.

 

[scoutCC]

I don't think a LOD is an issue. Your LOD paperwork was FUBAR so they asked the NGB to confirm, which they did.

Its the NGB letter than needs a response. They noted two reasons to keep you on orders, which seems accurate as far as I know. My take and what I would respond with:

1) Need continued treatment. NGB said Physical therapist said you were done, so they decided you didn't need anymore treatment. If you have evidence that more was actually needed that would be good to present as evidence that they processed you out prematurely. The BCMR noted you missed a follow-up on the 30th, this may provide contradiction to the idea that physical therapy's determination alone was sufficient for your release. Something from a doc saying the treatment is still ongoing and unresolved does a great deal to counter the idea that a note from a physical therapist was a sufficient evaluation.

2) Need a MEB. They stated the only restrictions the ankles placed on you was fitness testing, which doesn't rise to the level of interfering with your actual job. If you have evidence that they caused larger issues, that's what they need. Something that interfered with performance of duty or mobility issues beyond restrictions from fitness testing. Submitting something from your docs saying you can only walk with a cane or some other way of quantifying and maybe proving the "pain and swelling after walking a moderating distance". Something from someone you worked with that speaks to what you couldn't do maybe? Sounds like you were separated right away for other reasons though, so they may not be able to provide that.

I can't comment too much on the bit about reference to DAWG if you miss 4 components. If that is true, its may be a good point to bring up. They can come back and say the DAWG would have denied the MEB anyway, so ultimately more is likely needed. I will also say that from my reading of AFI 48-123 and the medical standard directory I don't think that is a true statement that missing 4 components requires a DAWG referral, but I may be missing a reg that applies.

 

[sbur101]

Thank you scoutcc for your response.

I agree about the LOD. The ball was dropped with it. It does bring up anpther interesting thought though. AFI 36-2910 2.2.3 mentions -- not seperating or retiring any airman while an LOD is pending.

The physical therapist left out some details of our conversation when updating my records. The majority of my PT was for the surgery on my wrist that I had just gotten the cast removed. I told him I was good to go that PT wasn't doing anything for me in regards to my wrist. I also told him to not reschedule me for anymore appointments due to the fact that this was the 22nd of August and the next available appointment wouldn't be until after the 29th when my orders ended. The appointment on the 30th was with the Podiatrist at Eglin. He was the same doc that performed all my surgeries. I did try to reach out to him some time later but was unsuccesful in reaching him. I do have a letter from my VA doc limiting my activities due to degenerative joint damage in my ankles that was written in 2013. I do plan on sending it with my reply. I was allowed to resign from my position after having my security clearance suspended. I had gone through a brutal divorce and had to file bankruptcy. My security clearance has been reinstated since this started.

The DAWG/MEB process is from 36-2905, 5.2.2. I understand that I may not have something that is considered MEB criteria, but the AFI's and REG's start out by saying "COMPLIANCE WITH THIS PUBLICATION IS MANDATORY."

I have yet to see where NGB/A1 provided their input. It reads to me like the investigation and input from the Case Manager is unfinished but yet they have pushed this on for AFBCMR to make a decision.

Anyway, thank you again for your response and input. I will definitely use your advise.

 

[scoutCC]

Reading over this again, I think I see a bigger problem. I'm a little concerned you're not being clear about what you want fixed. The requested actions are confusing because of this.

The BCMR states (memo 2) that you want your record to reflect you were on active duty orders when the injury occurred. Why? Its a LOD injury, the VA should be paying for and treating it. Are they not?

The NGB (memo 3) thinks you want to be returned to active duty to complete treatment. They say no, the VA should treat you.

Its not enough to simply say, this and this reg wasn't followed. Ok, so they didn't, they make mistakes following regs all the time. What do you want done about it? A simple fix to the LOD paperwork? Do you want it to act as a delaying process so you were in medical hold for the 12 months it took to regain your security clearance and then never discharged?

My instinct says you want a MEB and a disability discharge. I think that needs to be clarified.

 

[sbur101]

Sorry ... I should of uploaded the DD FORM 149. Memo 3 is correct in what I requested and to be put back in AD Status and have my medical issues corrected.

Yes, there are mistakes following AFI/REG's all the time and when there are mistakes made, they are usually corrected. I know far too many people and have read far too many cases of folks going through the same ordeal I'm going through.The following of AFI/REG's are "Mandatory" and this is why I am going through this process .. to correct these mistakes made. The LOD and MEB processes are just added mistakes that were made on top of not following the Seperation AFI which is the biggest injustice here.

Of course there are benefits for me and my family. Anyone that files for a correction to military records would be telling a lie if they said it wasn't benefiting themselves in some way or another. For me, it means the difference in a Guard retirement and an AD retirement. I have over 17 years on AD and 20 years in the Guard.

Bottom line .. being released from AD with an on-going medical condition is not in accordance with AF directive and should be corrected. I just want them to do what's right.

 

[scoutCC]

I don't think my earlier comment would be the right path to getting what you want. While I can't disagree that they did things wrong, the way the BCMR fixes things when they were done wrong is generally just change the paperwork, not change your duty status. I can't say I've seen an example of what you want happening, the most I've seen is them change paperwork so that you gain the eligibility to enlist. I believe what you want is in the realm of possibility, but I think finding a good path to get what you want would take someone far smarter than me.