ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2008-00458
		COUNSEL:                    
	                	HEARING DESIRED:  YES

________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His record be corrected to reflect he was medically retired 
for his condition of Obstructive Sleep Apnea (OSA) with a 50 
percent disability rating.  

2.  He be entitled to a hearing by the National Guard and the 
Disability Evaluation System (DES) for his condition of OSA.  

3.  He be entitled to medical and dental care until a 
determination has been made on his case.  

4.  He be promoted to the grade of captain (O-3).  

________________________________________________________________

APPLICANT CONTENDS THAT:

He was first diagnosed with OSA after approximately 17 months of 
continuous active duty while training to be a C-130 Navigator 
for the Michigan Air National Guard (ANG).  In spite of 
competent medical evidence to the contrary, including a Medical 
Evaluation Board (MEB), a subsequent line of duty (LOD) 
determination concluded his condition of OSA had existed prior 
to service (EPTS), and as such, was considered not in the line 
of duty (NILOD).  Ultimately his condition was found by the ANG 
Surgeon General’s (ANG/SG) office to be disqualifying from 
aircrew duties and retention.  Despite the clear medical 
evidence of disability onset while on active duty, he was 
separated from the ANG without the DES processing he had sought 
to obtain.  After his discharge, he was not afforded entitlement 
to Incapacitation (Incap) Pay and was required to bear the 
expenses of on-going medical care for his disabling condition.  

In support of his appeal, the applicant’s counsel provided an 
Applicant’s Brief with 28 attachments.  

The applicant’s complete submission, with attachments, is at 
Exhibit A

________________________________________________________________

?
STATEMENT OF FACTS:

On 15 April 2009, the Board considered and partially granted the 
applicant’s requests to reverse his LOD finding that his 
condition of OSA was EPTS, to expunge previous findings as to 
any LOD determinations, to grant a medical retirement for his 
condition of OSA, to grant Incapacitation (Incap) Pay for the 
period following his release from active duty, that he be 
reimbursed for any out-of-pocket expenses related to his 
condition of OSA, he be returned to active duty to undergo DES 
evaluation, and he be considered for promotion to the grade of 
captain (O-3) with all associated pay and allowances that would 
normally be due him.  The Board approved the applicant’s LOD 
finding to reflect his condition of OSA was in the line of duty 
(ILOD); and, that he be continued on active duty with the 
Michigan ANG from the date he was released from active duty 
until his discharge on 22 November 2006.  The Board denied the 
applicant’s requests for further processing with the DES, 
medical retirement for his condition of OSA, award of Incap Pay, 
reimbursement of out-of-pocket health care expenses related to 
his condition of OSA; and, a direct promotion to the grade of 
captain (O-3).  

For an accounting of the Board’s earlier decision, see the 
Directive and Record of Proceedings at Exhibit B.

On 11 January 2012, the applicant filed suit in the United 
States Court of Federal Claims.  

On 26 August 2013, the Court remanded the case to the Board for 
further inquiry, reconsideration and findings.  The Court 
directs the Board to consider whether the DES procedures for Air 
Reserve Component (ARC) members were properly followed in the 
plaintiff’s case.  

A complete copy of the Court’s Opinion and Order is attached at 
Exhibit C.  

________________________________________________________________

BCMR MEDICAL CONSULTANT EVALUATION:

BCMR Medical Consultant recommends partial approval.  The BCMR 
Medical Consultant states that even though MEB officials 
recommended the applicant be returned to duty, the ANG/SG 
officials acted within their authority to disqualify and 
separate the applicant, without a Physical Evaluation Board 
(PEB) review, for what was determined to be a non-duty related 
condition without eligibility for compensation from the Military 
Department.  However, since the applicant’s NILOD finding has 
since been reversed by the Board to ILOD, there remains a false 
assumption he would have been found unfit by a PEB and gained 
eligibility for disability compensation, under Air Force 
Instruction (AFI) 36-3212 and applicable Department of Defense 
(DoD) policies.  Based upon clinical experience and knowledge of 
the applicant’s medical condition, noting his favorable response 
to treatment, a PEB could have found him fit (in 2006 and, more 
so, today) and recommended returning him to duty with an 
Assignment Limitation Code (ALC), if appropriate.  However, the 
applicant’s medical condition was specifically disqualifying for 
Class II flying physical requirements in his chosen aviation 
career field, making an ALC and retention an unlikely viable 
option at the time.  

Since the applicant’s medical condition has been found ILOD by a 
previous Board action, then if follows that the applicant has 
gained eligibility for review of his case via PEB, in accordance 
with AFI 36-3212, not just for a fitness determination.  
Acknowledging that disqualification does not automatically equal 
unfitness, since the applicant’s career was cut short due to his 
now service-incurred medical condition, to correct an injustice 
should require assignment of an appropriate disability rating.  
Therefore, it is recommended the applicant be found unfit for 
further military service and to process his release from service 
under AFI 36-3212 and DoD Instruction 1332.38, Physical 
Disability Evaluation, and apply the appropriate disability 
rating.  In determining the proper disability rating for OSA, it 
should be noted that prior to the National Defense Authorization 
Act (NDAA) of 2008, OSA, if found unfitting, would have been 
rated under criteria outlined in the now defunct DoD Instruction 
1332.39, Enclosure 2, paragraph E2.A1.2.2.1, in effect at the 
time of the applicant’s service.  

The applicant would have likely to have been assigned a 
0 percent rating, or at best a 30 percent rating under these 
criteria, noting he continued to report excessive somnolence, 
e.g., unable to drive for an hour without excess sleepiness.  
Since the NDAA 2008 also included establishment of a Board to 
review the disability rating of individuals discharged with less 
than 30 percent disability rating and not eligible for 
retirement, who were separated from 11 September 2001 through 
31 December 2009, the applicant would have been eligible for 
this review, if he was issued a disability rating of less than 
30 percent.  Following the NDAA 2008, the Military Department 
would have been compelled to strictly adhere to the Veterans 
Affairs Schedule for Rating Disabilities (VASARD), which, for 
sleep apnea, reads:  

6847. Sleep Apnea Syndromes (Obstructive, Central, 
Mixed): Chronic respiratory failure with carbon 
dioxide retention of cor pulmonale, or; requires 
tracheostomy – 100 percent  

Requires use of breathing assistance device as 
continuous airway pressure (CPAP) machine – 50 percent

Persistent day-time hypersomnolence - 30 percent

Asymptomatic but with documented sleep disorder 
breathing – 0 percent 

The BCMR Medical Consultant indicates that after considering all 
the facts and evidence in the applicant’s case, while exercising 
caution on setting precedent, the fact the applicant’s medical 
condition was the cause for cutting short his military career, 
coupled with the fact that it was found to be ILOD, should 
entitle him to the disability compensation attendant with his 
diagnosis.  Therefore, the BCMR Medical Consultant recommends 
the Board consider granting relief by retiring the applicant 
permanently with a 50 percent disability rating due to OSA, 
under VASRD Code 6847, effective 22 November 2006.  

With respect to the applicant’s request for a direct promotion 
to the grade of captain, the BCMR Medical Consultant notes that 
the applicant would have been retired at the rank held at the 
time of entering the DES and his subsequent release from 
military service.  Therefore, the BCMR Medical Consultant 
recommends denial for this portion of his requests.  

A complete copy of the BCMR Medical Consultant evaluation is at 
Exhibit D.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 16 December 2013, a copy of the BCMR Medical Consultant’s 
evaluation was forwarded to the applicant for review and comment 
within 30 days (Exhibit E).  As of this date, this office has 
received no response. 

________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice.  We took 
notice of the applicant's complete submission in judging the 
merits of the case and believe that partial relief is warranted.  
In this case, even though the medical MEB officials recommended 
the applicant be returned to duty, ANG/SG officials acted within 
their authority to disqualify and separate the applicant, 
without a PEB review, for what was determined at the time to be 
a nonduty-related condition without eligibility for compensation 
from the military department.  However, since the previous Board 
found the applicant’s medical condition of OSA to be ILOD, then 
he would have gained eligibility for review of his case by a PEB 
to determine his fitness to remain on active duty.  Although the 
PEB could have found the applicant fit and recommended returning 
him to duty with an ALC, his condition was specifically 
disqualifying for Class II flying physical requirements, making 
an ALC and retention an unlikely viable option at the time.  
Therefore, we find the applicant career was cut short due to his 
service-incurred condition; and, as a result, should require 
assignment of an appropriate disability rating.  After 
considering the totality of the evidence before us, we agree 
with the opinion and recommendation of the BCMR Medical 
Consultant that the applicant’s condition of OSA, at the time of 
his separation, warranted a 50 percent disability rating.  
Therefore, in view of the foregoing, we recommend his records be 
corrected as indicated below.  

4.  Insufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice in regard to 
the applicant’s request for promotion to the grade of captain.  
We note that had he been retired as a result of a PEB, he would 
have been retired at the last rank held at the time he entered 
into the DES and his subsequent release from military duty.  
Therefore, we are unable to favorable considered this portion of 
his request.  

5.  The applicant's case is adequately documented and it has not 
been shown that a personal appearance with or without counsel 
will materially add to our understanding of the issues involved.  
Therefore, the request for a hearing is not favorably 
considered.


________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air 
Force relating to APPLICANT be corrected to show that:

      a. On 18 May 2006, the diagnosis in his case was 
Obstructive Sleep Apnea, requiring use of a breathing assistance 
device such as continuous airway pressure machine, under the 
Veterans Affairs Schedule for Rating Disabilities (VASRD) Code 
6847, rated at 50 percent.  
      
      b. His name was placed on the Permanent Disability Retired 
List, effective 22 November 2006.  
      
      c. His election of Survivor Benefit Plan option(s) will be 
corrected in accordance with his expressed preferences and/or as 
otherwise provided for by law or the Code of Federal 
Regulations.   

________________________________________________________________

?
The following members of the Board considered AFBCMR Docket 
Number BC-2008-00458 in Executive Session on 28 January 2014, 
under the provisions of AFI 36-2603:

				                     , Panel Chair
				                     , Member
				                     , Member

All members voted to correct the records as recommended.  The 
following documentary evidence was considered in conjunction 
with AFBCMR Docket Number Bc-2008-00458:

	 Exhibit B.  Record of Proceedings, dated 26 May 09, with 
		Exhibit A plus attachments.
	 Exhibit C.  Court Remand documents. 
	 Exhibit D.  Letter, BCMR Medical Consultant, dated 16 Dec 13.
	 Exhibit E.  Letter, SAF/MRBC, dated 16 Dec 13.
	




                      
	Panel Chair