RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-02351 

 

 COUNSEL: 

 

 HEARING DESIRED: YES 

 

 

________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

His records be corrected to reflect that: 

 

1. He served on active duty from 15 Sep 07 to 20 Jun 08, with 
entitlement to back pay and entitlements for this period. 

 

2. He was medically retired and placed on the Permanent 
Disability Retirement List (PDRL) with a disability rating of 50 
percent on 20 Jun 08, with entitlement to retroactive disability 
retired pay. 

 

 

________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

He was diagnosed with service connected obstructive sleep apnea 
(OSA) and diabetes mellitus (DM) while serving a period of 
active duty for more than 30 days. He should have been retained 
on active duty until the Disability Evaluation System (DES) 
determined his fitness for duty, rather than separated and 
denied the right to return. 

 

He was inappropriately released from active duty during his 
Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB) 
processing. Thus, he was unjustly denied pay and allowances 
between 15 Sep 07 and the date he should have been medically 
retired from active duty. 

 

At the time of his separation, he was not fit for duty, as 
evidenced by the Department of Veteran Affairs (DVA) rating of 
50 percent disability for his OSA and 20 percent for his DM. If 
the Air Force had properly applied the governing regulations, he 
would have been found at least 50 percent disabled and placed on 
the temporary or permanent disability retired list. Thus, he has 
been unjustly denied medical retirement pay from the date he 
should have been medically retired. 

 

Additionally, he was denied his right to appeal the findings of 
the PEB. On 27 May 09, he disagreed with the determination of 
the Informal MEB that he was fit for duty, and requested a 


Formal Board. He was told he needed to submit a letter of 
justification; however, he was not given a suspense date for the 
submittal. On 6 Jun, he submitted his justification, only to 
find out that his Board had already made a determination on his 
case. 

 

In support of his request, the applicant provides an expanded 
statement, copies of his DD Form 214, Certificate of Release or 
Discharge from Active Duty, two AFRC IMTs 348, Informal Line of 
Duty (LOD) Determination, an AF Form 422, Physical Profile 
Serial Report, letters related to his Congressional and 
Inspector General inquiries, his Medical Evaluation Board (MEB) 
results and associated e-mails, and his Department of Veteran’s 
Affairs (DVA) decision on his claim for service connected 
compensation. 

 

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

 

________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

According to the documentation submitted by the applicant, he 
was an Air Force Reservist serving on active duty from 31 Jan 07 
to 15 Sep 07. 

 

On 4 May 07, he was initially treated for sleep related 
problems, and then on 22 May he was found to have Diabetes 
Mellitus. On 22 Jul 07, he underwent a sleep study which 
resulted in a diagnosis of obstructive sleep apnea (OSA), and on 
29 Aug 07 he received a physical profile of 4T barring him from 
worldwide service, mobility status, or temporary duty (TDY). 

 

On 15 Sep 07, he was released from active duty. 

 

On 30 Jan 08, the LOD Approving Authority determined the 
applicant’s medical conditions were in the line of duty; on 20 
Jun 08, the Formal Physical Evaluation Board (FPEB) determined 
the applicant was fit for continued military duty and he was 
placed on Assignment Limitation Code C-2. 

 

On 8 Jul 09, the DVA issued their decision on the applicant’s 
claim for service-connected compensation, granting him a 50 
percent disability rating for OSA and a 20 percent disability 
rating for diabetes, both effective 20 Mar 09. 

 

AFI 36-3212, dated 2 Feb 06, Chapter 4, paragraph 4.4. Control 
of Member During PEB Processing states, “Once in disability 
channels, the following restrictions apply to ensure the member 
is available for necessary disability processing actions: 4.4.3. 
The MPF will not reassign the member, except for emergency 
reasons, until receiving notification of the final 
determination;” and, paragraph 4.5. Control of Member After PEB 
Action states, “The MPF will not retire, discharge, nor release 


a member from active duty before receiving the final decision in 
the form of retirement orders or instructions from HQ AFPC/DPPD 
directing disposition.” 

 

The remaining relevant facts pertaining to this application are 
contained in the letter prepared by the appropriate office of 
the Air Force, which is attached at Exhibit C. 

 

________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

The AFBCMR Medical Consultant recommends denial of the 
applicant’s request for medical retirement indicating there is 
no evidence of error or injustice. The Military Disability 
Evaluation System (DES), can, by law, only offer compensation 
for and when a service-incurred illness, disease, or injury 
rendered a member unfit for continued service and was the cause 
for career termination; and then only for the degree of 
impairment present at the “snap shot” time of release from 
military service and not based on future changes or events. On 
the other hand, the DVA is authorized to offer compensation for 
any medical condition determined service-incurred or aggravated 
without regard to its impact upon a service member’s 
retainability, fitness to serve, or narrative reason for release 
from military service. This is the reason why an individual may 
be released from military service with certain medical 
conditions and sometime thereafter receive a compensation rating 
from the DVA for conditions that were not military unfitting at 
the time of release from military service. 

 

A medical condition that is considered disqualifying, or one 
which requires an MEB, does not automatically render a member 
unfit for further military service. Department of Defense (DoD) 
Instruction 1332.38 states: “If the evidence establishes that 
the Service member adequately performed his or her duties until 
the time the Service member was referred for physical 
evaluation, the member may be considered fit for duty even 
though medical evidence indicates questionable physical ability 
to continue to perform duty,” and “regardless of the presence of 
illness or injury, inadequate performance of duty, by itself, 
shall not be considered as evidence of unfitness due to physical 
disability unless it is established that there is a cause and 
effect relationship between the two factors.” In the case under 
review, the applicant’s OSA and DM, although both required MEBs, 
were not the cause of termination of his career, noting both 
were well controlled under treatment, and that neither was the 
cause of inadequate duty performance. In addition, both of the 
applicant’s medical conditions were identified while in active 
duty status, both were found in the line of duty, both occurred 
during a period of active service of 31 days or more, that he 
was assigned a “P4’ profile, he underwent an MEB, and his case 
was referred through the DES to determine whether he should be 
returned to duty or separated by a Physical Evaluation Board 
(PEB); whereupon it was indeed determined he was fit and was 


returned to duty. The Medical Consultant firmly believes that 
had the applicant appealed this finding to a Formal PEB, and 
subsequent review by the Secretary of the Air Force Personnel 
Council (SAFPC), the “fit” determination would, more likely than 
not, have been upheld. 

 

However, concerning the applicant’s claim that he should not 
have been released from active duty, the Medical Consultant does 
believe that consideration should be made for extending the 
applicant’s active duty orders, with applicable pay, from the 
date following their termination on 15 Sep 07 to his actual date 
of return to duty fit on 20 Jun 08. Department of Defense (DoD) 
Instruction 1241.2 reads: “A Reserve component member on active 
duty under a call or order to active duty specifying a period of 
31 days or more, who incurs or aggravates an injury, illness, or 
disease in the line of duty shall, with the member’s consent, be 
continued on active duty upon the expiration of call or order to 
active duty until the member is determined fit for duty or the 
member is separated or retired as a result of a Disability 
Evaluation System (DES) determination.” 

 

The complete AFBCMR Medical Consultant evaluation is at 
Exhibit C. 

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

Counsel respectfully disagrees with the Medical Consultant’s 
opinion as presented in his advisory, and restates the original 
argument. The applicant’s condition did impact his military 
duties. While the applicant’s commander did provide an opinion 
regarding the applicant’s abilities, it was based on 
speculation. The commander clearly states that others have to 
cover the applicant’s workload, but attributes this to the 
applicant’s stress not his medical condition. If the applicant 
had been allowed to appeal his case he would have been able to 
demonstrate that his medical condition not his “stress” impacted 
his ability to perform his duties (Exhibit E). 

 

________________________________________________________________ 

 

THE BOARD CONCLUDES THAT: 

 

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

 

2. The application was not timely filed; however, it is in the 
interest of justice to excuse the failure to timely file. 

 

3. Insufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice concerning 
the applicant’s request for retroactive medical retirement, with 
back pay. We took notice of the applicant’s complete 


submission, including his response to the AFBCMR Medical 
Consultant advisory opinion, in judging the merits of the case; 
however, we agree with the opinion and recommendation of the 
AFBCMR Medical Consultant and adopt his rationale as the basis 
for our conclusion the applicant has not been the victim of an 
error or injustice with respect to the outcome of his fitness 
determination. In particular, we note the physical evaluation 
board (PEB) determined he was fit and returned him to duty, and 
thus, his two evaluated medical conditions were not the cause of 
termination of his career. Therefore, in the absence of 
evidence to the contrary, we find no basis to recommend granting 
the applicant’s request for a medical retirement. 
Notwithstanding the above, sufficient relevant evidence has been 
presented to demonstrate the existence of an error or injustice 
concerning the applicant’s contention that he should have 
remained on active duty orders, with applicable pay and 
entitlements, pending a final determination through the 
Disability Evaluation System (DES) in compliance with the 
guidance set forth in Department of Defense Instruction (DODI) 
1241.2. In this respect, we note the applicant was injured 
while on orders for 31 days or more and contrary to DoDI 1241.2, 
was erroneously released from active duty prior to being 
processed through the DES. We also note that if the applicant 
had remained on active duty while processing through the DES as 
required, he would have obtained 20 years of satisfactory 
service and thus qualified for transfer to the retired reserve 
and retirement pay at age 60. Therefore, we believe the 
applicant’s records should 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: 

 

 a. On 15 September 2007 he was not released from active 
duty, but on that date he was continued on active duty for the 
purpose of medical continuation until 20 June 2008. 

 

 b. On 5 January 2009, he was not discharged from the Air 
Force Reserve, but continued to serve in an active status until 
7 January 2009, at which point he submitted an application for 
transfer to the Retired Reserve, which was accepted by competent 
authority, and he was transferred to the Retired Reserve, 
effective 7 January 2009, with service characterized as 
“Honorable,” authority and reason for separation as 


“Retirement,” with the appropriate reenlistment eligibility and 
separation program designator (SPD) code. 

 

 c. As regards to the election of Reserve Component 
Survivor Benefit Plan (RCSBP) options, the record will be 
corrected in accordance with his subsequently 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-2011-02351 in Executive Session on 24 Apr 12, 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 14 Jul 11, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFBCMR Medical Consultant, dated 

 30 Jan 12. 

 Exhibit D. Letter, SAF/MRB, dated 3 Feb 12 

 Exhibit E. Letter, Counsel, dated 4 Mar 12. 

 

 

 

 

 

 

 Panel Chair