RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2010-04572 

 

 COUNSEL: NONE 

 

 HEARING DESIRED: NO 

 

 

________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

While it is not readily apparent, it appears as though the 
applicant is requesting that her lower back pain condition be 
determined to be in the line of duty (LOD). 

 

________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

It appears as though the applicant contends she sustained an LOD 
injury while on active duty in 2000; however, her command did 
not initiate a request for an LOD determination until several 
years later (2008). She submitted sufficient documentation to 
substantiate her injury was line of duty (ILOD); however, much 
of it was completely ignored in violation of the requirements of 
AFI 36-2910, Line of Duty (Misconduct) Determinations, and DoD 
Instruction 1332.38, Physical Disability Evaluation. As a 
result, her condition was erroneously determined to not be LOD - 
existed prior to service (EPTS). Furthermore, the approving 
authority ignored the requirements of 10 USC 1207a, also known 
as the eight-year rule, which provides that an airman on active 
duty for over 30 days, who has at least eight years of active 
service, will be compensated for all unfitting disabilities, 
even if the unfitting disabilities were not incurred or 
aggravated while entitled to basic pay (i.e. not in the line of 
duty). 

 

In support of her request, the applicant provides a voluminous 
submission which includes copies of active duty orders; point 
credit summaries; excerpts of her military and civilian medical 
records; excerpts of DoDI 1332.38, AFI 36-2910, and other 
pertinent directives; an ARPC/JA memo describing the tenets of 
the “eight-year Rule;” and various e-mail communiqués pertaining 
to the matter under review. 

 

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

 

_________________ ______________________________________________ 

 


STATEMENT OF FACTS: 

 

Information extracted from the Military Personnel Data System 
(MilPDS) on 8 Sep 11 indicates the applicant is currently 
serving in the Air Force Reserve in the grade of chief master 
sergeant (E-9), effective and with a date of rank of 1 Mar 04. 
As of 27 Oct 10, the close-out of her most recent 
retention/retirement (R/R) year, the applicant has been credited 
with 29 years of satisfactory reserve service, of which 13 years 
and 9 days is active service. 

 

Title 10, United States Code (USC), Section 1207a provides that 
a member with at least eight years of active service who would 
be covered by section 1201, 1202, or 1203 of Title 10 
(disability evaluation provisions) but for the fact that the 
member’s disability is determined to have been incurred before 
the member became entitled to basic pay in the member’s current 
period of active duty, the disability shall be deemed to have 
been incurred while the member was entitled to basic pay and 
shall be so considered for purposes of determining whether the 
disability was incurred in the LOD. 

 

The remaining relevant facts pertaining to this application are 
contained in the letters prepared by the Air Force office of 
primary responsibility (OPR) and the AFBCMR Medical Consultant, 
which are attached at exhibits C and E. 

 

________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFRC/SGP recommends denial, indicating there is no evidence of 
an error or injustice. While the applicant’s request is 
unclear, it appears as though she is concerned about the 
findings and notification of multiple LOD determinations. She 
had five such determinations completed. The first was for 
Asthma and was completed in Oct 09 with a finding of ILOD. The 
second was for Lumbar Disc Herniation and was completed on 3 Mar 
10 with a finding of EPTS – LOD N/A. A thorough review of her 
case file indicated a long history of back pain predating 
entrance onto status with no specific injury and nothing more 
than natural progression to support a service aggravation. The 
third was for major depression and was completed on 23 Feb 10 
with a finding of ILOD of duty in accordance with 10 USC 1207a 
(eight-year rule). The fourth was for a right meniscal tear and 
patellofemoral syndrome and was completed on 6 Apr 10 with a 
finding of in the ILOD. The fifth was for obstructive sleep 
apnea and was completed on 6 Feb 11 with a finding of EPTS – LOD 
N/A. In this case, the eight-year rule did not apply as it only 
applies to disabling conditions. No requests for LOD 
reinvestigations have been submitted in accordance with 
AFI 36-2910, Line of Duty (Misconduct) Determinations. 

 

 

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

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

A copy of the Air Force evaluation was forwarded to the 
applicant on 4 Mar 11 for review and comment within 30 days. As 
of this date, no response has been received by this office 
(Exhibit D). 

 

________________________________________________________________ 

 

ADDITIONAL AIR FORCE EVALUATION 

 

The AFBCMR Medical Consultant recommends the applicant’s record 
be corrected to reflect that her chronic recurrent low back pain 
was service-incurred and ILOD. The applicant supplied a 
personal chronology of her medical history and official medical 
documentation reflecting evaluations and treatment she received 
for chronic recurrent low back pain, presumably originating from 
a reported injury in Sep 2000, and lasting at least through 
9 Mar 10, the date of the notification of not in the line of 
duty. The documentation provided describes the extensive 
treatment she received over the span of several years, which are 
punctuated with recurrences of lower back pain and lower left 
leg pain and numbness, referrals for physical therapy and other 
specialty treatments, radiographic studies, etc. Of note is an 
incident in Feb 07 where she presented with back pain times one 
week, stating that she had mopped a floor and developed some 
pain. Another is an incident in Oct 08 where she was involved 
in a motor vehicle accident which resulted in her being admitted 
to the emergency room and diagnosed with a “sprained back.” The 
AFRC/SGP evaluation noted the applicant’s “long history of back 
pain predating entrance onto status with no specific injury and 
nothing more than natural progression to support a service 
aggravation,” and the resultant finding of EPTS – LOD N/A. The 
Medical Consultant concedes, in the absence of a discernable 
injury, the presence of lumbar degenerative disc disease is 
likely a product of the natural aging process over time. 
Therefore, a recommendation to overturn the findings of 
HQ RMG/SG and the LOD approving authority is not taken lightly; 
however, given the applicant’s lengthy service and greater than 
eight years of active service (IAW 10 USC 1207a), albeit not 
continuous, the applicable extract from AFI 36-2910, paragraph 
3.4.1.2.3, and the HQ ARPC/JA policy directive of 31 Aug 04, the 
Medical Consultant opines, whether emanating from her 7 Sep 00 
gym workout, aggravated by mopping a floor in Feb 07, by her 
motor vehicle accident in Oct 08, worsened by her continued 
efforts to comply with fitness requirements, that there is a 
greater than 50 percent probability that her back condition was 
permanently aggravated through her military service. This was 
the position taken by the initial evaluating physician and LOD 


appointing authority; and is the current position of the Medical 
Consultant. Should the Board determine the applicant’s 
recurring lumbar pain condition should have been determined to 
be service incurred, one might consider this condition may have 
also been unfitting and included in her disability computation. 
According to AFPC/DPSD (USAF Physical Disability Division) a 
decision was made, on or about 30 Jun 11, to place the applicant 
on the TDRL with a combined disability rating of 50 percent; 
which consisted of a 30 percent disability rating for Asthma and 
a 30 percent disability rating for Major Depression. Noting the 
applicant’s predominant spine range of motion present in the 
supplied documentation and the absence of sufficient 
incapacitating episodes, the Medical Consultant believes that no 
greater than a ten percent disability rating would likely have 
been awarded for the applicant’s low back pain under the general 
rating formula for rating disabilities. 

 

A complete copy of the AFBCMR Medical Consultant evaluation is 
at Exhibit E. 

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 

 

A copy of the Air Force evaluation was forwarded to the 
applicant on 11 Jul 11 for review and comment within 30 days. 
As of this date, no response has been received by this office 
(Exhibit F). 

 

________________________________________________________________ 

 

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. The 
applicant contends that her lower back pain should have been 
found to be in the line of duty (LOD). After a thorough review 
of the evidence of record and the applicant’s complete 
submission, we believe corrective action is warranted. While we 
note the comments of AFRC/SGP indicating the applicant has a 
long history of back pain with no specific injury and nothing 
more than natural progression to support a service aggravation, 
we believe that a preponderance of evidence indicates the 
applicant’s back injury should have been determined to be in the 
LOD. In this respect, we note the comments of the AFBCMR 
Medical Consultant indicating the applicant’s condition is 
unfitting and there is at least a 50 percent probability the 
applicant’s back injury was aggravated by her military service. 


Furthermore, we note that 10 USC 1207a (eight-year rule) 
provides that an unfitting condition that existed prior to the 
current period of service (such as the case with the applicant) 
shall be deemed to have been incurred while in a duty status in 
the case of a member who has served more than eight years of 
active duty and is currently serving on active duty for over 
30 days. Therefore, in view of the AFBCMR Medical Consultant 
opinion that her lower back injury is unfitting and in light of 
the applicant’s lengthy service, we believe the records should 
be corrected to reflect that her lower back injury was incurred 
in the line of duty under the provisions of 10 USC 1207a (eight-
year rule). 

 

________________________________________________________________ 

 

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 
3 March 2010, her chronic recurrent lower back pain was found to 
be in the Line of Duty (LOD) under the provisions of Title 10, 
United States Code, Section 1207a. 

 

________________________________________________________________ 

 

The following members of the Board considered AFBCMR Docket 
Number BC-2010-04572 in Executive Session on 15 Sep 11, 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: 

 

 Exhibit A. DD Form 149, dated 29 Nov 10, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFRC/SGP, dated 24 Feb 11. 

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

 Exhibit E. Letter, AFBCMR Medical Consultant, 

 dated, 6 Jul 11. 

 Exhibit F. Letter, SAF/MRBR, dated 11 Jul 11. 

 

 

 

 

 

 Panel Chair