RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2010-02769 

 

 COUNSEL: 

 

 HEARING DESIRED: YES 

 

 

________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

1. His records be corrected to reflect: 

 

 a. That he was retained on active duty for medical hold, 
effective 28 Dec 04, until he was permanently retired for 
physical disability on 27 May 10, or 

 

 b. That he was retained on active duty for medical hold, 
effective 11 Mar 08, until he was permanently retired for 
physical disability on 27 May 10. 

 

2. He be reimbursed for all civilian medical expenses related 
to the treatment of the injuries he incurred in the line of duty 
(LOD). 

 

________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

1. He should have been retained on active duty after incurring 
his initial LOD injuries during his 5 Sep 04 through 28 Dec 04 
deployment. Instead, he was inappropriately released from 
active duty. 

 

2. His LOD injuries were aggravated during an active duty tour 
in Feb 07 when his supervisor did not honor his duty limiting 
profile. As a result, he underwent extensive treatment for the 
aggravation of his LOD injury at his own expense. 

 

3. Despite his consistent requests to be placed on active duty 
for medical continuation in accordance with the law and AFI 36-
3212, Physical Evaluation for Retention, Retirement, and 
Separation, he was repeatedly deprived of the pay and allowances 
to which he would have been duly entitled had he been retained 
on active duty from the onset of his injuries until his case was 
resolved. 

 

 

 


 

In support of his request, the applicant provides a statement 
from counsel and copies of excerpts of his military personnel 
records and civilian and service medical records pertaining to 
his LOD Determination, Medical Evaluation Board (MEB), Physical 
Evaluation Board (PEB), and subsequent permanent retirement for 
physical disability. 

 

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

 

_________________ ______________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant’s military personnel records indicate he served in 
the Air Force Reserve in the grade of technical sergeant prior 
to the matter under review. 

 

On 31 Aug 04, the applicant was ordered to active duty in 
support of Operation ENDURING FREEDOM. On 16 Jan 05, he was 
released from active duty and reverted to his traditional part-
time status as a member of the Air Force Reserve. 

 

In accordance with AFH 41-114, Military Health Services System, 
Reserve Component members who incur or aggravate an injury or 
illness in the LOD are entitled to the medical or dental care 
appropriate for treatment of the condition including 
hospitalization or re-hospitalization until the resulting 
disability cannot be materially improved by further treatment. 

 

Notwithstanding the above, a SAF/AA Policy Memorandum, Return to 
Active Duty of Air Reserve Component Members Unable to Perform 
Military Duties, dated 8 Dec 06, provides that members who are 
released from active duty, but subsequently become unable to 
perform military duty as a result of an LOD condition, will be 
voluntarily returned to active duty until they are fit for duty 
or separated from the service via the Disability Evaluation 
System (DES). To be eligible under this policy, Airmen shall 
have a medical diagnosis rendering them unable to perform 
military duties and a LOD determination documenting the 
condition was incurred or aggravated in the LOD. Entitlement 
under this policy shall begin when the condition renders the 
Airman unable to perform military duties; not when the injury 
occurred or when the Airman was released from active duty. 

 

According to information provided by the applicant, an 
AF Form 469, Duty Limiting Condition Report, was issued on 
2 Aug 08, which restricted the applicant’s ability to deploy or 
perform his in-garrison duties. 

 

 

 

 


 

On 5 Sep 08, an informal LOD determination was initiated to 
evaluate the applicant’s 30 Oct 04 back injury, which was 
apparently aggravated during his Feb 07 active duty tour, for 
service connection. On 11 Jan 09, the investigating officer 
recommended the applicant’s condition be found to be in the LOD 
and the appointing authority concurred with the finding of in 
the LOD on 21 Jan 09. 

 

On 29 Dec 09, a Medical Evaluation Board (MEB) was convened to 
determine the applicant’s continued fitness for duty. The Board 
recommended the applicant’s case be referred to the Informal 
Physical Evaluation Board (IPEB) for a fitness determination. 

 

On 26 Apr 10, the IPEB found the applicant unfit for continued 
military service and recommended he be permanently retired with 
a combined compensable disability rating of 50 percent. On 
5 May 10, the applicant acknowledged receipt of the action, 
accepted the findings and recommendations of the IPEB, and 
waived his right to appeal to the Formal Physical Evaluation 
Board (FPEB). 

 

On 5 May 10, the Secretary of the Air Force directed the 
applicant be permanently retired for physical disability under 
the provisions of 10 USC 1201. 

 

On 28 May 10, the applicant was permanently retired for physical 
disability in the grade of technical sergeant (E-6). He was 
credited with 16 years, 1 month, and 15 days of reserve service, 
which included 3 years, 10 months, and 19 days of total active 
service. 

 

________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFRC/SGP indicates that the case file reveals the applicant 
incurred the back injury that would lead to his medical 
retirement in Feb 07 while on annual tour. According to the 
profile history presented, the applicant was identified as unfit 
for military duty on 2 Aug 08 and remained so until his medical 
retirement on 27 May 10. 

 

A complete copy of the AFRC/SGP evaluation is at Exhibit C. 

 

AFRC/A1K recommends denial, concurring with the AFRC/SG 
evaluation. 

 

A complete copy of the AFRC/A1K evaluation is at Exhibit D. 

 

________________________________________________________________ 

 

 

 


 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

The applicant contends his unit did not follow procedures 
according to AFI 36-3212, which indicates that reserve component 
members who incur or aggravate an injury, illness, or disease in 
the LOD are not involuntarily released from orders until final 
disposition of their disability case. In support of his 
response, the applicant provides an expanded statement and 
copies of an excerpt of AFI 36-3212, his AF Form 469, Duty 
Limiting Condition Report, and a variety of electronic 
correspondence related to the matter under review. 

 

A complete copy of the applicant’s response, with attachments, 
is at Exhibit F. 

 

The applicant’s counsel also responded, indicating that neither 
of the advisory opinions addresses the essential issue—the 
applicant was unfit to perform his duties when he was released 
from his active duty tour in 2004 and therefore he was entitled 
to medical continuation orders. The extent of the applicant’s 
injuries from the 2004 incident is amply demonstrated by the 
fact that the narrative summary prepared in his PEB case notes 
that he was in a duty limiting profile and was non-deployable 
since 2004. While the advisory opinions reference the findings 
of the applicant’s commander in the LOD Determination, 
indicating the applicant healed from his initial injury in 2004, 
this was simply the Commander’s opinion and this statement was 
directly contradicted by the medical officer’s entry in Block 
five of the LOD Determination. Therefore, the advisory opinion 
does not accurately reflect the findings of the medical officer 
and, thus, is unsupported by the evidence of record. Since 
there is no evidence contradicting the applicant’s position that 
he was rendered unfit by his 2004 injury and that he should have 
been retained on active duty for processing through the PEB 
system, Counsel respectfully requests the applicant’s request be 
granted. 

 

Counsel’s complete response is at Exhibit G. 

 

________________________________________________________________ 

 

THE BOARD CONCLUDES THAT: 

 

1. The applicant has not 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. The 
applicant contends that his 2004 LOD injury rendered him unfit 
to perform his duties and, thus, he should have been retained on 


active duty until he was retired for physical disability. After 
a thorough review of the evidence of record and the applicant’s 
complete submission, we believe the applicant has been the 
victim of an error or injustice. However, while the evidence of 
record indicates that he did incur an injury in the LOD, and 
such injury eventually resulted in him being found unfit and he 
was subsequently retired for physical disability, we do not find 
the documentation presented sufficient to conclude that he 
should have been retained on active duty for the more than five 
years between his release from active duty in Jan 05 and his 
eventual disability retirement in May 10. In this respect, we 
note the comments of AFRC/SGP indicating the applicant could 
have been unfit as early as 2 Aug 08, and therefore should have 
been eligible to be brought to active duty for the evaluation 
and treatment of his unfitting condition at that time. While we 
note the applicant sought medical care for his LOD injury as 
early as 2007, we do not find the evidence provided sufficient 
to determine he should have been found unfit at this time. In 
this respect, we note that he continued to perform his military 
duties throughout this period. While it is clear that the 
applicant was under certain duty restrictions during this 
period, the evidence does not support that competent authority 
should have declared the applicant unfit for duty prior to 2 Aug 
08. We note Counsel’s argument on rebuttal indicating that 
relief should be granted since there is no evidence 
contradicting the applicant’s contention that he was rendered 
unfit by his 2004 injury and he should have been retained on 
active duty; however, Counsel is reminded that the burden of 
proof of an error or injustice lies with the applicant. In our 
view, the evidence only supports correcting the record to 
reflect the applicant was ordered to active duty for medical 
continuation on 2 Aug 08. As regards to his request to be 
reimbursed for his civilian medical expenses, we note the 
applicant has not exhausted all of his administrative remedies. 
In this respect, we note there is no evidence that he sought 
reimbursement of these expenses through the Military Medical 
Support Office (MMSO), Great Lakes, MI. Therefore, unless and 
until the applicant exhausts his administrative remedies, it 
would be inappropriate for the Board to consider this aspect of 
his request. Therefore, in the absence of evidence to the 
contrary, we recommend the applicant’s records be corrected to 
the extent indicated below. 

 

4. 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 the APPLICANT be corrected to show that on 
2 August 2008, he was ordered to active duty (voluntary) for the 
period 2 August 2008 through 27 May 2010, under the provisions 
of Section 12301(h) of Title 10, United States Code, for the 
purpose of medical continuation. 

 

________________________________________________________________ 

 

The following members of the Board considered AFBCMR Docket 
Number BC-2010-02769 in Executive Session on 5 Jan 12, under the 
provisions of AFI 36-2603: 

 

 

 

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

 

 Exhibit A. DD Form 149, dated 7 Jul 10, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFRC/SGP, dated 28 Oct 10. 

 Exhibit D. Letter, AFRC/A1K, dated 1 Feb 11. 

 Exhibit E. Letter, SAF/MRBR, dated 4 Mar 11. 

 Exhibit F. Letter, Applicant, undated, w/atchs. 

 Exhibit G. Letter, Counsel, 4 Apr 11. 

 

 

 

 

 

 Chair