DEPARTMENT OF THE AIR FORCE 

WASHINGTON, DC 

Office of the Assistant Secretary 

AFBCMR 97-03785 

MEMORANDUM FOR THE CHIEF OF STAFF 

Having received and considered the recommendation of the Air Force Board for Correction 
of Military Records and under the authority of Section 1552, Title 10, United States Code (70A 
Stat 116), it is directed that: 

records of the Department of the Air Force relating t- 
orrected to show that a new Physical Disqualification Review Board 
(PDRB) be convened in accordance with AFI 36-3209 to determine whether he should be 
administratively discharged; that he be provided the assistance of counsel different from the one 
who assisted him in March 1996; that he be notified in advance and given an opportunity to be 
heard before the PDRB makes its decision; and that the PDRB formally document its required 
determinations in accordance with AFI 36-3209. 

It is further directed that the results of the PDRB be forwarded to the Air Force Board for 

Correction of Military Records at the earliest practicable date so that all necessary and 
appropriate actions may be completed. 

Director 
Air Force Review Boards Agency 

U 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER: 9 7 - 0 3 7 8 5  
COUNSEL:  George E. Day 

HEARING DESIRED:  NO 

F E ~  1, zc 

' S Y ~  

APPLICANT REUUESTS THAT: 

The administrative discharge be  set  aside, he  be  reinstated in 
the US Air Force Reserves  (USAFR) ,  and that he be evaluated by a 
Physical Evaluation Board  (PEB) for a finding consistent with his 
physical impairments, and the Board order  ''correction of  all of 
his  reserve  records  which  are  inconsistent  with  Air  Force 
Instruct ions  ( AFIs )  . 

APPLICANT CONTENDS THAT: 

The USAFR improperly resolved his case by ruling that his medical 
condition existed prior to service (EPTS). The Air Force Reserves 
Surgeon General (AFRES/SG) improperly found that applicant's fall 
and injury while TDY on 13-17 February at Ft. Belvoir, VA, was a 
separate and distinct injury and not an aggravation or re-injury 
[of a previous  injury that occurred in Ecuador in Summer 1 9 9 3 1 .  
Neither of  the  findings are  supported by  the evidence and both 
are contrary to the findings of his treating orthopedic surgeons 
and reviewing doctors. He was separated from the USAFR without a 
disability rating, although the Veterans' Administration  (VA) and 
his treating physicians found his injury to be an aggravation of 
an  existing  injury, and  not  a  new  injury. The USAFR  failed  to 
follow AFI 3 6 - 3 2 0 9   and 3 6 - 3 2 1 2 .  
A copy of applicant's complete submission is attached at Exhibit 
A. 

STATEMENT OF FACTS: 

Relevant  facts pertaining  to this  application are  contained  in 
the letters prepared by the appropriate offices of the USAFR and 
in  the  official  documentation  submitted  by  the  applicant. 
Accordingly,  there  is  no  need  to  recite  these  facts  in  this 
Record of Proceedings. 

AIR FORCE EVALUATION: 

The  Acting  Chief,  Aerospace  Medicine  Division,  HQ  AFRC/SGP, 
provides  an undated  letter from HQ AFRES/JAS, a  letter from HQ 
AFRES/JAG, medical documents, and a letter from HQ AFRC/JAG.  The 
bottom  line  of  these  various  documents  apparently  is  that 
applicant's 1993  "In Line of Duty"  (LOD) injury did not result in 
disability or warrant disability processing and that his February 
1995  "EPTS---LOD  not  applicable"  (not LOD)  injury  resulted  in 
both 
his  disqualification  for  further  Reserve  duty  and  his 
ineligibility for disability processing, in accordance with  the 
applicable directives [AFI 36-2910 &  AFI 36-32121. 
A copy of the complete Air Force evaluation, with attachments, is 
at Exhibit C. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

A  complete copy of  the Air  Force  letter, with attachments, was 
forwarded to counsel. Counsel in turn provided  a  rebuttal  from 
the applicant.  Applicant argues' with the definition of EPTS and 
rebuts  various  comments  within  the  Air  Force  letter  and  its 
attachments. 

A  copy of  applicant's complete response, with attachments is at 
Exhibit E. 

ADDITIONAL AIR FORCE EVALUATION: 

The AFBCMR Medical Consultant reviewed the appeal and states that 
all evidence clearly indicates that the second injury in 1995 was 
a  new  injury  which  just  happened  to  occur  at  the  site  of  a 
previous  injury. By all  indications, complete resolution of  the 
initial injury was  achieved by  the  surgery. The  second  injury, 
while occurring  in the location of  the  first, was  a new event, 
one which  should not  permit  a  LOD  determination for disability 
reasons. All  conclusions reached  by  HQ  AFRC/SGP  are  valid  and 
disability  consideration  for  the  second  injury  should  not  be 
granted. 

A copy of the complete additional evaluation is at Exhibit F. 

The Chief, General Law Division, HQ USAF/JA, also evaluated the 
application  and  provides  a  six-page,  in-depth  discussion 
regarding  the  case.  The  Chief  concludes  that  the  applicant's 
contentions are without merit and recommends denial of the appeal 
on those grounds. However, the Chief also concludes the applicant 
was  denied procedural  due process---although not  in the manner 
alleged by  his  counsel. Contrary to AFI  36-3209,  the  applicant 
was  not  informed of  the physical  disqualification review board 
(PDRB) and his right to submit matters for consideration prior to 

2 

97-03433 

its  convening.  Also  noted  is  that  the  judge  advocate  (JA) 
detailed  to  assist  the  applicant  in  March  1996  was  the  same 
attorney who  authored  an  opinion  for  HQ  AFRES/JA  in  September 
1995  recommending  the  applicant's 1995  injury  be  found  EPTS. 
Nothing in the file suggests the applicant was informed of this 
attorney's prior  involvement. The  Chief  believes  the  applicant 
should  be  afforded  a  new  PDRB, with  notice  in  advance  and  an 
opportunity to be heard before the board makes its decision. When 
a  new  PDRB  is  convened, the  applicant  should  be  afforded  the 
assistance of a different counsel, or be  informed in writing of 
the JA's prior involvement and given the choice whether to accept 
her  services.  While  the  Chief  expects  no  different  result, 
fundamental  due  process,  as  well  as  Air  Force  regulations, 
requires  it.  The  new  PDRB  should  formally  document  its  two 
required determinations in accordance with AFI 36-3209. 

A  copy of  the complete additional evaluation, with attachments, 
is at Exhibit G. 

APPLICANT'S REVIEW OF ADDITIONAL-AIR FORCE EVALUATIONS: 

Counsel  responded  that  the  applicant  has  had  worsening  of his 
prior injury to the disc. He provides a rebuttal statement from 
the  applicant,  previously  submitted  letters  from  doctors,  and 
other  documents.  Counsel  advises  that  in  May  1998  the  VA 
increased the applicant's rating from 40% to 60%. 

Counsel's and  applicant's complete responses, with  attachments, 
are at Exhibit I. 

THE BOARD CONCLUDES THAT: 

1.  The applicant has exhausted all remedies provided by existing 
law or regulations. 

2.  The application was timely filed. 

3.  Insufficient  relevant  evidence  has  been  presented  to 
demonstrate  the  existence  of  probable  error  or  injustice  to 
warrant  granting  the  applicant's requested  relief.  Applicant's 
contentions  are  duly  noted;  however,  we  do  not  find  these 
uncorroborated  assertions,  in  and  by  themselves,  sufficiently 
persuasive to override the rationale provided by  the Air Force. 
We therefore agree with the recommendations of the Air Force and 
adopt the rationale expressed as the basis for our decision that 
the applicant has failed to sustain his burden of having suffered 
either an error or an injustice. In view of the above and absent 
persuasive evidence to the contrary, we find no compelling basis 
to recommend granting-the relief sought. 

3 

97-03433 

4.  However,  we  note  the  Chief,  General  Law  Division  of 
HQ USAF/JAG,  pointed  out  that  the  applicant  was  denied  due 
process---although not in the manner alleged by his counsel---and 
is therefore entitled to partial relief. The Chief advises that, 
contrary to AFI  3 6 - 3 2 0 9 ,   the applicant was  not  informed of  the 
PDRB and his right to submit matters  for consideration prior to 
its  convening.  While  the  Chief  expects  no  different  result, 
fundamental due process, as well  as regulation, requires a new 
PDRB. The Chief  also noted  that  the  judge advocate detailed to 
assist  the  applicant  in  March  1 9 6 6   was  the  same  attorney  who 
authored  an  opinion  for  HQ  AFRES/JA  in  September  1 9 9 5  
recommending the applicant's 1 9 9 5   injury be found EPTS.  We agree 
with the Chief's conclusion that the applicant should be afforded 
a new PDRB, with notice in advance and an opportunity to be heard 
before the PDRB makes its decision, afforded the assistance of a 
counsel different  from the  one who  assisted him  in March  1 9 9 6 ,  
and  that  the  PDRB  should  formally  document  its  required 
determinations  in  accordance  with  AFI  3 6 - 3 2 0 9 .   Therefore,  we 
recommend  the  applicant's  records  be  corrected  as  indicated 
below. 

THE BOARD RECOMMENDS THAT: 

The pertinent military records of the Department of the Air Force 
relating to APPLICANT, be  corrected to show that a new Physical 
Disqualification Review  Board  (PDRB) be  convened  in  accordance 
with  AFI  3 6 - 3 2 0 9  
to  determine  whether  he  should  be 
administratively discharged; that  he  be provided  the assistance 
of counsel different from the one who assisted him in March 1 9 9 6 ;  
that  he  be  notified  in advance  and  given an opportunity to be 
heard  before  the  PDRB  makes  its  decision;  and  that  the  PDRB 
formally document its required determinations in accordance with 
AFI 3 6 - 3 2 0 9 .  
It  is  further  recommended  that  the  results  of  the  PDRB  be 
forwarded  to  the  Air  Force  Board  for  Correction  of  Military 
Records  at  the earliest practicable date  so that  all necessary 
and appropriate actions may be completed. 

The following members of the Board considered this application in 
Executive Session on 7 January 1 9 9 9 ,   under the provisions of AFI 
3 6 - 2 6 0 3  : 

Mr. Thomas S. Markiewicz, Panel Chair 
Ms. Rita J. Maldonado, Member 
Ms. Peggy E. Gordon, Member 

All  members  voted  to correct the records, as recommended.  The 
following documentary'evidence was considered: 

4 

97-03433 

Exhibit A.  DD Form 149, dated 1 8   Dec 97, w/atchs. 
Exhibit B.  Applicant's Master Personnel Records. 
Exhibit C.  Letter, HQ ARC/SGP, dated 25 Mar 98, w/atchs. 
Exhibit D.  Letter, AFBCMR, dated 20 Apr 98. 
Exhibit E.  Letter, Counsel, dated 1 8   May 98,  w/atchs. 
Exhibit F.  Letter, AFBCMR Medical Consultant, dated 7  Aug 9 8 .  
Exhibit G.  Letter, HQ USAF/JAG, dated 26 Oct 98,  w/atchs. 
Exhibit H.  Letter, AFBCMR, dated 6 Nov 98. 
Exhibit I.  Letter, Counsel, 3 Dec 98,  w/atchs. 

THOMAS S. MARKIEWICZ 
Panel Chair 

5 

97-03433 

DEPARTMENT O f  THE AIR FORCE 

AIR FORCE RESERVE COMMAND 

23 Mar 98 

MEMORANDUM. FOR SGP 

I 

FROM: HQ AFRC/JAG 

Bldg 220,2d Street 
Robins AH3 GA 31098-1635 

1.  You’ve asked that we review your 13 March 98 written advisory to SAFMIBR 
regarding 1 application to correct his military records, seeking 
disability processing in connection with a back injury (more precisely, two back injuries). 
As explained below, I’ve reviewed your advisory and find it responsive and legally 
sufficient.  Moreover, I believe the evidence supports the conclusions previously reached by 
HQ AFRES/SGP (now, HQ AFRCBGP), explained fully below. 

2.  Facts: 

- 

a.  ,-buffered 

a back injury in August 1993 while deployed to 
and performing military duty in Arajuno, Ecuador.  Because this 1993 back injury was 
incurred ivhilepet$uming  m*lituty duty (with no suggestion of misconduct by 
it was indisputably incurred %I  Line of Duty.”  In January 1994 -underwent 
surgery for this 1993 “In Line of Duty” back injury. 

 

-

,

b.  There is evidence which can support the conclusion -anuary 

1994 
surgery fully resolved his 1993 back injury, leaving him qualified for worldwide resewe 
military duty. [However, -as 
now asserted that he continued to experience 
back pain and discomfort following the January 1994 surgery intended to correct his 1993 
“In Line of Duty’’ back injury.] 

- 

c.  In February of 1 9 9 5 m i n j u r e d  (or re-injured)  his back when he fell at his 

non-military, civilian job.  I’ll address 
back injury, for reasons I bdieve will become obvious. 

1995 back injury first, then his 1993 

3. 

Feb 1995 Lniurv/Re-Iniurv to His Back Was Not LOD/Was EPTS: 

a.  An LOD Determinntion Wm Not Appropriate:  AFI 36-2910,  “Line o r  Duty 

(Misconduct) Determination” declares at paragraph  1.2.2.  that a “LOD” (Line of Duty) 
determination is appropriate when members of the U.S. Air Force Reserve “incur or 
E r a v a t e  an injury, illness, or disease while performing active duty for training [ADT] or 

9703785 

. . . . . .  . . . 

while on inactive duty training [IDT], including while traveling to or from such duty.’’  In 
other words, the relevant inquiry is temporal:  “Was the member performing duty at the 
time the event which caused the injury (or the event which aggravated the injury) 
occurred?”  Here, there is no question that as a factual matter, -was 
neither 
performing ADT nor performing IDT at the time he fell while at his civilian, non-military 
job in Feb 1995 and injured his back (nor was he traveling to or from such duty.) 
Therefore, an LOD determination was not appropriate as to the Feb 1995 injury to MSgt 
=back 

resulting from that Feb 1995 fall. 

2 

c.  Ineligible for Disability Processing: 

b.  “Existed Mor to Service” (EPTS) Determination Was Appropriate:  AFI 36-29 10, 

Atch 1, Sec.  C. “Terms” shows the meaning of the term “Existed Prior to Service” (and the 
acronym, “EPTS.”) Both refer to “a disease or injury, or the underlying condition causing 
it, [which] existed before the member’s entry into military service, or between periods of 
service, and was not aggravated by service.”  To the extent that-injury, 
disease, or the underlying condition following his Feb 1995 fall was caused by his Feb I995 
fall while on his civilian, non-mizitary job (and not caused while he was performing military 
duty), any such injury, disease, or underlying condition was appropriately declared to be 
“EPTS-LOD  not applicable”, as explained fully in AFI 36-2910, para 1.6.1.1. 
(Added)(AFRES Supplement.)  Put another way,  all injuries and resulting medica1 
conditions caused or aggravated by- 
because they were not caused or aggravated while -as 
duty on the day of his Feb 1995 fall. 

Feb 1995 fall are necessarily “EPTS” 
performing military 

- 
- 
- 
- 

Feb 1995 back injury led to an 11 

d.  As explained,-Feb 

1995 injury which was caused or aggravated by his 
Feb 1995 fall at his civilian, non-military job was not In Line of Duty and did not render 
- 1993 back injury, which was incurred “In Line of Duty”, warrant disabiIity processing?” 
him eligible for disability processing.  The only remaining question is:  “Did 

disputes.)  However, the rules governing Reserve 

Mar 96 determination by HQ AF’REWSGP (now, HQ AFRC/SGP) that l-vas 
both medically disqualified for worldwide duty and ineligible for disability processing (the 
latter determination-now 
members who are eligible for disability processing are consistent with those governing Line 
of Duty determinations.  IAW AFX 36-3212, “Physical Evaluation for Retention, 
Retirement, and Separation”, Chapter 8, para 8.2.,  only Reservists ‘’who have impairments 
which were incurred in line of  duty are eligible for disability processing.”  As shown above, 
any injury, condition, or “impairment” which resulted from 
was “not I n  Line of Duty.”  Therefore, 
processing”, but oniy as to any such, “not In Line of Duty” injury caused by his Feb 1995 
fall. 

was “ineligible for disability 

Feb 1995 fall 

4. 

1993 Back Iniurv/1994 Suwew: 

a.  -1993 

January  1994.  Your written advisory’s  44Background” section summarizes the facts which 
ultimately led to a 22 Oct 94 post-surgery determination (four months before 

“In Line of Duty” back injury was followed by surgery in 

9703785 

. . ._ . ._ - 

3 

Feb 1995 “not In Line of Duty” injury) that -was 
military duty.  Your advisory then concludes, “The member’s military records show he 
never indicated to mititary medical authorities that he was having significant back 
problems until M a y  95”  (three months after his Feb 1995 civilian, “not in Line of Duty” 
injury), after which he was still qualified to participate “in a limited status” until 
September 1995.  [My legal opinion of 27 Mar 96 fully explores the documents describing 
back 
-1994 
injury, which I’D not repeat here.] 

surgery, its aftermath, and contrasts it with -1995 

medically qualified for 

b.  Following- 

I993 back injury and January 1994 surgery, there were 

- 

a

 

then no indications that his recovery from surgery was anything but normal.  Even 
following his Feb 1995 civilian, “not In Line of Duty” injury, he continued to participate in 
Reserve duty until 19 Sep 95.  These facts support the concIusion that at least prior to his 
normally from his 1994 surgery 
Feb 1995 fall on his civilian job,-ecovered 
and was physically qualified to perform Reserve duty.  That fact, of course, explains why 
m
indication after his 1993 injury and 1994 surgery that any physical condition impaired his 
ability to perform his Reserve duty. 

not processed for disability after his 1994 surgery:  there was no 

s

c.  Finally here, the file contains a July 6,1995 letter from -M.D. 

(apparentiy,- 
attached to which are severaI pages of “Progress Notes” printed on “06/04/96”. 
among 
Duty” injury at his civilian job, are these two 
3/30/95 and 4/13/95: 

treating physician) of the West Florida Medical Center Clinic, 
Included 
et,  1995 ‘‘not In Line of 

progress notes, written after 

dated, respectively, 

(1) -did 

occasional burning in his left foot until a fall on 2/17/95” [the date of his civilian, “not In 
Line of Duty” injury];  and, 

well except for occasional back discomfort and had 

(2) “The patient’s present problem is clearly related to the disc space below the old 

“not In Line of Duty” injury.] 

one and is therefore new and totally a result of his slip and fall on 2/17/95”  [The date of 
-civilian, 
5.  CONCLUSION: I believe there is ample support for your prior and cument 
T n  Line of Duty” injury did not result in disability or 
conclusions that -1993 
warrant disability processing and that his Feb 1995 “EPTS-LOD  not applicable” injury 
(‘‘not In Line of Duty”) resulted in both his disqualification for further Reserve duty and 
his ineligibility for disability processing, in accord with the applicable directives identified 
above.  If you think it might be helpful, you are free to provide this legal review (and my 
prior review) to the Board along with your advisory opinion. 

9703785 
-  -  . . . . . . . . . . 

'  I .  

' 

.I. 

4 

6.  Please contact me at 7-1579 should you have any questions regarding this memo. 

Philip D, Donohoe 
Director, General Law 

9703785 
. -  . . . - . -. . 

August 7, 1998 
9 7-03785 

MEMORANDUM FOR AFBCMR 

FROM:  BCMR Medical Consultant 

1535 Command Drive, EE Wing, 3rd Floor 
Andrews AFB MD  20762-7002 

SUBJECT:  Application for Correction of Militarv Records 

Applicant‘s entire case file has been reviewed and is forwarded with the following findings, 

conclusions and recom mend at ions. 

REQUESTED ACTION:  The applicant, a traditional reservist, seeks relief for his claim that 

a back injury in 1995 while at his civilian employment was an aggravation of a previous LOD 
injury suffered in 1993.  The BCMR requests review of medical opinions rendered in this case. 

FACTS: The applicant suffered a herniated disc while deployed in his reserve capacity in 

1993.  Medical evaluation showed a marked disc protrusion at the L5-SI spinal level which was 
surgically corrected  in early 1994 with no apparent residual limitations or symptoms.  At the 
time the applicant had an annual physical examination performed in October 1994, he reported 
no symptoms referable to his back and was cleared for continued reserve participation. In 1995 
he suffered another injury to his back, this time while at his civilian employment which he claims 
is an aggravation of his earlier LOD injury. 

DISCUSSION: All evidence clearly indicates that the second injury in 1995 was a new in- 

jury which just happened to occur at the site of a previous injury.  The applicant’s post-operative 
course and reports following the initial injury, and, indeed, his own statement on a subsequent 
physical examination for continued military duty, indicate complete resolution of symptoms and 
findings relating to the original injury.  By all indications, complete resolution of the initial injury 
was achieved by the surgery.  The second injury, while occurring in the location of the first,  was 
a new event, one which should not permit a LOD determination for disability reasons.  As an 
analogy, one might consider a broken arm, which, after complete healing, is re-broken at a later 
date.  The latter incident, obviously, has no relationship to the former, and the same reasoning 
applies in the case under consideration. All  conclusions reached by HQ AFRClSGP are valid, 
and disability consideration for the second injury should not be granted. 

RECOMMENDATION: The BCMR Medical  Consultant is of the opinion that no change in 

the records is warranted and the application should be denied. 

FREDERICK W. HORNICK, Col., USAF, MC, FS 
Chief Medical Consultant, AFBCMR 
Medical Advisor SAF Personnel Council 

DEPARTMENT OF THE AIR FORCE 
HEADQUARTERS UNITED STATES AIR FORCE 

WASHINGTON, DC 

MEMORANDUM FOR AFBCMR 

FROM:  HQ USAF/JAG 

1420 Air Force Pentagon 
Washington DC  20330-1420 

* SUBJECT:  Application o

f

c
Docket 97-03785) 

 

The applicant, a non-extended active duty (non-EAD) reservist, was transferred to the 

Retired Reserve for physical disqualification.  He seeks instead to continue processing in the 
disability evaluation system so he may meet a physical evaluation board and be medically retired 
for disabaty.  You have asked for our review and comments on two aspects of the subject 
application:  HQ AFRC/JA’s (formerly AFRES) interpretation of the term “existed prior to 
service (EPTS)” and the applicant’s contention that he was denied due process in violation of 
A m s  36-3209, Separation Procedures for Air Force Reserve and Air National Guard Members, 
and 36-32 12, Physical Evaluation for Retention; Retirement, and Separation.  We agree with 
IIQ AFRC/JA’s interpretation of “EPTS” but conclude the applicant was denied due process 
(although not in the manner alleged by his counsel) and is therefore entitled to partial relief as 
described be10 w. 

Background 

The applicant’s militky organization was the 
In August  1993, while deployed to Ecuad 

Civil Engineering Squadron, 

back carrying a heavy ladder.  The injury was diagnosed via magnetic resonance imaging (MRI) in 
December 1993 as an L4-5 midline to left posterior large disc protrusion and an L5-S1 midline to 
right posterior disc herniation.  The applicant underwent surgery in January 1994 for the disc 
herniation and his recovery appeared to be satisfactory.  (The latter point he disputes; see below.) 
On 6 October 1995, a formal line of duty and misconduct determination was approved finding the 
injury “in line of duty.” 

On  17 February 1995, while TDY 
Fort Belvoir in this capacity, he slipped on ice and fell, injuring his back again.  Upon his return 

The applicant is also a civilian employee at-. 
AFB, a military physician examined him and prescribed bed rest and motrin for pain. 

to 
to 
Five weeks later his private orthopedist, Dr. Hooper, ordered another MRI.  This MRI showed 
inild scar tissue mid posterior LA-5, and a midline to right disc protrusion at L5-S1 (the site of his 
previous surgery).  Dr. Hooper planned to treat the applicant with steroids, but canceled them 
about two months later because the applicant’s condition improved.  (Documents in the frle refer 
to a third injury on 11 July 1996, but no details are provided.  The applicant had surgery again in 
October 1996 to correct an L5-S 1 disc herniation.) 

Golden Legacy, Boundless Future.. . Your Nation’s rl ir Force 

G 

2 

Following the February 1995 injury, the applicant continued to perform both his civilian 
and Reserve jobs, although he complained of back and leg pain.  In May 1995, he was placed on a 
P3 profde, which allowed continued Reserve participation but restricted him from heavy lifting. 
The profile was changed to P4 (disqualified for worldwide duty) in September 1995 and the 
applicant’s case was referred to a medical evaluation board (MEB) under Am 48-123, Medical 
Examination and Standards.  The MEB in November 1995 established the diagnosis, “chronic 
low back pain with persistent LA-5 herniated nucleus pulposus; status post L5-S1 discectomy; 
recurrent L5-S 1 small disc herniation,” and recommended permanent disqualification from 
worldwide duty and referral to the USAF Physical Evaluation Board (PEB).  The MEB report 
(AF Form 618, block 23) states the injury’s date of origin was August 1993, that it was incurred 
while entitled to basic pay, and that it did not exist prior to service. 

HQ AFRES/SGP reviewed the MEB report in December 1995 and rejected the 

recommendation to refer the case to a PEB. SGP determined “the [disquallfvmg] medical 
condition existed prior to service” and therefore the applicant was “not entitled to disability 
processing.”  HQ AFRES then convened a physical disquahfkatioddischarge review board under 
AFI  36-3209, which found the appropriate medical authority made the medical disqualification 
determination and recommended administrative discharge.  The applicant was informed of his 
right to request transfer to the Retired Reserve (under the then-current early retirement program) 
in lieu of discharge.  After a delay of several months, during which he attempted unsuccessfully to 
convince SGP he should meet a PEB, he applied for transfer to the Retired Reserve and his 
application was approved.  (His completed application is not in the file, but it must have been 
submitted and approved before the order, issued 3 October 1996 with an effective date of 
31 October, was published.) 

Meaning of “EPTS” 

The applicant contends HQ AFREYSGP “improperly resolved his case by first ruling that 

his medical condition existed prior to service.”  His argument equates “service” with “term of 
enlistment” (or consecutive enlistments).  He asserts that because he had no history of back 
trouble before  1981, the date from which he has continuously been a member of the Air  Force 
Reserve, his current service-disquawing back problems cannot be said to have existed prior to 
his Reserve “service.”  Further, he says the 1995 injury was “simply an aggravation” of the 1993 
injury, not a new or separate injury, and therefore it must retain the same character as the earlier 
injury, which was indisputably “in the line of duty” (i.e., not EPTS).  Finally, he asserts 
HQ AFRES/SGP had neither the authority nor the expert qualifications needed to render a 
decision that the 1995 injury existed prior to service. 

HQ AFRUJAG’s March 1998 opinion concluded the EPTS determination was 

appropriate.  They read the definition of EPTS in AFI 36-2910, Line of Duty (Misconduct) 
Determination, to exclude from the LOD process an injury incurred when the applicant was 
performitlg his civilian job (i.e., not performing military duties), even though he was a member of 
the Reserve at the time.  The opinion cites AFI 36-2910/AFRES Supplement, para  1.6.1.1 
(added), which provides: 

3 

. . . EPTS conditions include chronic diseases, illnesses, injuries, and illnesses or 
diseases with an incubating period that would rule out a finding that they were 
incurred during a unit training assembly (UTA), active duty for training (ADT) .or 
tour of active duty.  If the medical condition is EPTS, the next consideration is 
whether it was aggravated by military service.  If it was, an AF Form 348, Line of 
Duty Determination, is accomplished.  If not, an administrative LOD determination 
is appropriate with the determination “EPTS-LOD not applicable.” 

We agree with HQ AFRUJAG.  The LOD process is used for a number of purposes.  One 

purpose is to determine qualification for retirement or separation for disability under 
10 USC Chapter 61 (sections 1201-1221). Those statutory provisions restrict disability-based 
retirement or separation of reserve component members not on EAD to those whose disability is a 
result of (a) performing active duty or inactive-duty training, (b) traveling directly to or from such 
duty, or (c) an injury, illness, or disease incurred or aggravated while remaining overnight 
between .successive periods of inactive-duty training.  10 USC 1204.  A disability not meeting one 
of those criteria may be the basis for administrative separation for physical disqualification under 
10 USC 12644, but not disability-based retirement or separation (with attendant benefits) under 
Chapter 61.  AFRES’s supplement to AFI  36-2910 and HQ AFRC/JAG’s opinion ensure 
consistency between the meaning of the term “EPTS,” which is a creature of AFI 36-2910, and 
Chapter 61, where that term does not appear.  (AFI 36-3209, paragraph 4.14.3.5, uses the phrase 
“not incident to service” for this purpose.) 

The applicant’s focus on whether the 1995 injury is labeled an “aggravation” or “re-injury” 

of the 1993 injury versus a “new” or “separate” injury misses the mark.  Even if it was an 
aggravation of a previous injury, such aggravation did not occur during a period of time that 
qualifies him for disability retirement under 10 USC 1204. 

The real issue is whether his condition immediately prior to the  1995 injury was already 

service disqualifying, so that he would have been entitled to disability processing even if the  1995 
injury had never occurred.  On this issue HQ AFRES/SGP clearly found against him, and on the 
record you provided for our review that finding appears reasonable.  HQ AFRES/JAG’s 
27 March 1996 opinion quoted Dr. Hooper’s 3 February 1994 post-surgery assessment thus: 
“[The applicant’s] maximum date of medical improvement will be on or about February 21,  1994. 
I anticipate no restriction on his activities at that time.  His prognosis is good for complete 
recovery.”  A 6 March 1994 Physical Profile Serial Report remarked, “Uneventful recovery from 
disc surgery L-5 area-no  restrictions,” and gave the applicant a P1 profile.  In his 22 October 
1994 periodic physical, the applicant noted his back surgery but denied recurrent back pain.  He 
was found fit for worldwide duty and given a P1 profile.  Five days after the  1995 injury, the 
examining physician’s report stated there was “no” concurrent or pre-existing injury, disease, or 
physical impairment, and “Pt had surgery lower back 94 Jan [with] complete resolution.’’ 
Dr. Hooper’s progress note of 30 March 1995 said “[The applicant] did well except for 
occasional back discomfort and had occasional burning in his left foot until a fall on 2/17/95.” 
Finally, the MEB narrative, written in November  1995 after a review of the applicant’s medical 
record, said that following surgery, the applicant had “initial resolution of the radiating pain to the 
lower extremity, and marked improvement of his low back pain.”  The narrative continues, “The 

patient reinjured his back in February 1995.  The reinjury. . . fail[ed] to resolve . . . and [the 
applicant] has remained disabled since the injury.”  (In an earlier paragraph, the MEB narrative 
says the applicant’s 1993 injury resulted in his inability to return to duty and his contiquous 
disqualification from worldwide duty since that time.  This assertion lacks support in the record 
we reviewed; indeed, it is directly contradicted by the documents we cited above.) 

Denial of Due Process, Part I 

4 

The applicant’s second main contention is that AFRES violated AFIs 36-3209 and 

36-32 12 by making a “medical determination” that was reserved by regulation to either the doctor 
who examined the applicant for the MEB 
quotes the following provision in AFI 36-3209 (October 1995 version), paragraph 4.14.3.5: 

or the MEB itself.  The applicant 

Ctanding Physical Disqualification Review Boards. . . convened in physical 
disqualification cases are not a physical evaluation board nor are they a board of 
inquiry.  Thus, the board is not qualified or authorized to make medical 
determinations. . . . The functions and duties of the board are limited to making 
findings and recommendations concerning whether the appropriate surgeon has 
made a medical determination of disqualification evidenced in the manner 
prescribed by m 4 8 -  123 and that the disquawication was not incident to service. 
If the disqualification is incident to service, processing is prescribed by AFI 
36-32 12, Physical Evaluation for Retention, Retirement, and Separation. 

The applicant contends that when Dr. 

‘recommended that [he] meet a PEB for 
his physical condition andfound [him] unfit for worldwide duty” (emphasis in original), that this 
“amounted to a finding by a surgeon (per AFI 36-3212) that [he] had a duty incurred disabling 
injury, and that he needed to go to an MEB and then a PEB” (emphasis added).  Under the 
applicant’s theory, neither HQ AFRES/SGP nor the physical disqualification review board (nor 
the MEB, for that matter) had the authority to reject that finding and divert the applicant’s case 
from the disability evaluation system to the administrative discharge process. 

In our opinion the applicant misinterprets the instructions.  To begin with, neither the 

surge02 who performs the examination and reviews the member’s medical records nor the MEB 
itself can make a frnal determination that the member is unfit for duty.  The MEB can fmd him fit, 
but in the disability evaluation system unfitness is for the PEB to decide.  Although the instruction 
is not a model of clarity, AFI 36-3212, Table 8.1, outlines the MEB’s three possible findings as 
follows:  “physically qualified” with return to duty recommended; “questionable” physical 
qualification, with referral to a PEB; and “questionable” physical qualification with EPTS 
disability, with referral to a PEB unless the member waives it.  It appears the MEB in this case 
chose the second course, citing the  1993 injury as the onset of the applicant’s condition.  (The 
MEB’s failure to note the  1995 injury as EPTS may have resulted from Dr. 
failure to 
address the applicant’s military duty status at the time of the  1995 injury.)  Thus, the applicant is 

wrong when he asserts no one could overrule Dr. w’ “finding.” 

5 

More important, the applicant ignores AFI 48-123, paragraph 7.1.3, which vests authority 
in “the appropriate ARC [air reserve component] surgeon” to determine “medical qualification for 
continued military duty in the reserve components for members not on EAD and not eligible for 
disability processing” (emphasis added).  Per paragraph 14.5 of that AFI, “HQ AFRES/SGP is 
the final authority in determining the medical qualifications for Unit-Assigned Reservists.”  This 
means an MEB on a unit-assigned reservist such as the applicant must be reviewed by 
HQ AFRES/SGP, and if it is determined the member is not eligible for disability processing, 
HQ AFRES/SGP is the “appropriate” surgeon to make the fmding of physical disqualification pre 
AFI 36-3212, paragraph 4.14.3.5. 

Of course, this analysis doesn’t address the applicant’s real concern, which is not the 

identity of the doctor making the physical disqualification determination but the substance of the 
determination that his condition doesn’t qual@  for disability processing and the identity of the 
official who makes that decision.  (After all, he does not contest the determination of physical 
disqualification for duty.)  For that we must look again at AFI 36-3209, paragraph 4.14.3.5. 
Under that paragraph, the two-member physical disqualifkation review board (PDRB) considers 
two issues:  fKst, did the appropriate surgeon make a medical determination of disqualification 
evidenced in the manner prescribed by AFI 48-123?; second, is the disqualification incident to 
suvice (i. e., is it the result of an injury, illness, or disease incurred or aggravated during a 
quawing period under 10 USC 1204)? 

A.t a cursory glance, the documents in the fde might suggest that HQ AFRESISGP, not the 
PRDB, made the final determination that the applicant didn’t qualify for disability processing. 
SGP’s 1 I.  March 1996 letter to the PRDB says, “3.  Disability processing in accordance with AFI 
36-3612 [sic, should be 32121 is not authorized” and the board member’s indorsements include no 
express findings on this issue.  However, the board could not have recommended the applicant be 
“administratively discharged for physical disqualification” without frrst concluding disability 
processing was inapplicable.  While it would have been more appropriate for SGP to phrase his 
position as a recommendation with supporting rationale, and for the board members to make 
express findings on the issue, we do not consider the practice used here to be fatally defective. 

Denial of Due Process, Part II 

Our review of the case fde, and of documents from the applicant’s personnel records 

provided by HQ ARPC (attached), revealed a significant due process violation.  Contrary to AFI 
36-3209, the applicant was not informed of the PRDB and his right to submit matters for 
consideration prior to its convening.  (The board members recorded their decisions on 11 and  19 
idarch 1996.  HQ AFRESDPM notified the applicant by letter dated 21 March  1996 that “A 
[PRDB] has also reviewed your case and has concurred with this disqualification action. . . . 
[Sleparation action has been initiated . . . . You will [be discharged] unless you apply for transfer 
to the Retired Reserve.”) 

Putting aside the question whether the PRDB would likely have reached a different result 

even with the applicant’s input, this failure to provide notice and an opportunity to be heard is 
such a fmdamental violation of due process as to require the convening of a new PRDB. 

6 

We also note that the judge advocate detailed to assist the applicant in March 1996 was 

the same attorney who authored an opinion for HQ AFRESIJA in September 1995 reqommending 
the applicant’s 1995 injury be found EPTS.  Nothing in the file suggests the applicant was 
informed of this attorney’s prior involvement.  When a new PRDB is convened, the applicant 
should bc afforded the assistance of a different counsel, or should be informed, in writing, of 

prior involvement and be given the choice whether to accept her services. 

Conclusion 

We fmd the applicant’s contentions without merit and recommend denial of his application 

on those grounds.  However, we conclude he was denied procedural due process and must be 
afforded a new PRDB, with notice in advance and an opportunity to be heard before the board 
makes its decision.  While we expect no different result, fundamental due process, as well as our 
own regulations, requires it.  The new PRDB should formally document its two required 
determinations in accordance with AFI 36-3209. 

HARLAN G. WILDER 
Chief, General Law Division 
Office of The Judge Advocate General 

Attachments: 
1.  Case File 
2.  Additional records (49 pgs)