RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-02498 

 COUNSEL: NONE 

 HEARING DESIRED: NO 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

His records be corrected to reflect that he was medically 
retired. 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

He was found to be not medically qualified for worldwide duty and 
was returned to duty in a non-mobility position. At that time 
non-mobility positions were doubled/triple slotted. 
Consequently, there was no position for him to fill due to his 
medical condition. 

 

In support of his request, the applicant provides copies of a DD 
Form 294, Application for a Review by the Physical Disability 
Board of Review (PDBR) of the Rating Awarded Accompanying a 
Medical Separation from the Armed Forces of the United States, 
various medical and service records, and documentation relating 
to his claim with the Department of Veterans Affairs (DVA). 

 

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

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The relevant facts pertaining to this application, extracted from 
the applicant’s military records, are contained in the letters 
prepared by the appropriate offices of the Air Force. 
Accordingly, there is no need to recite these facts in this 
Record of Proceedings. 

 

_________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

NGB/A1PS recommends denial. The Subject Matter Expert (SME) 
states the applicant’s request to change his retirement to a 
medical retirement is not determined by the National Guard Bureau 
(NGB). The Air Force Disability Evaluation System (DES) 
evaluates Air Reserve Component (ARC) members who meet the basic 
requirements for disability benefits under 10 United States Code 
(10 USC), Chapter 61. 


 

According to the advisory prepared by the SME, the applicant was 
injured while on active duty orders while providing 
administrative support at the New York Air Surgeon’s Conference 
held on 26-27 Feb 99. On his way home on 26 Feb 99, he was 
involved in an automobile accident in which he was rear-ended by 
the vehicle behind him. At the time, the applicant did not note 
any injuries; however, later that day he experienced a “popping” 
sensation in his neck. On 13 Jun 99, a line of duty 
determination (LOD) was initiated, confirming his injury occurred 
in the line of duty. The applicant was granted a 40 percent 
disability rating from the DVA for his service connected low back 
disability. The applicant signed a statement to enter into the 
Disability Evaluation System (DES) for a fitness determination. 
The Informal Physical Evaluation Board (IPEB) found the applicant 
fit and recommended he be returned for duty. However, members of 
the Air National Guard (ANG) must be qualified for worldwide 
deployment to remain in the ANG. The applicant was not medically 
deployable and was disqualified for worldwide duty, and had 
enough satisfactory service to retire. He retired effective 
2 Dec 06. 

 

The complete A1PS evaluation, with attachment, is at Exhibit C. 

 

_________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

The applicant states that it would appear that simple logic would 
dictate in this period of high tempo ops and deployment that an 
individual meeting the requirements of being medically qualified 
and fit for duty would automatically and reasonably be synonymous 
with being world-wide-deployable. 

 

The injuries barring him from being world wide qualified were all 
related to his military career, which should be taken into 
consideration. 

 

The applicant's complete response is at Exhibit E. 

 

_________________________________________________________________ 

 

ADDITIONAL AIR FORCE EVALUATION: 

 

The BCMR medical Consultant recommends denial of the applicant’s 
request to change the record to reflect that he was medically 
retired. 

 

The BCMR Medical Consultant acknowledges the applicant’s 
assertion that “an individual meeting the requirements of being 
medically qualified and “fit for duty,” in the context of the 
high operations tempo and deployments, “would automatically and 
reasonably be synonymous with being worldwide qualified.” 


However, although reportedly returned to duty fit by the IPEB, 
the ANG/SG retained the authority to either issue a waiver for 
continued military service or to administratively separate an 
individual when there is no position available compatible with 
the duty restrictions imposed. 

 

The Medical Consultant states that in order for an individual to 
be eligible for a medical separation/retirement, under the 
provisions of AFI 36-3212, Physical Evaluation for Retention, 
Retirement, and Separation, the condition must, first be 
considered unfitting, it must be considered service incurred or 
aggravated, and it must rate at least 30 percent for retirement 
eligibility. A significant requirement for the Reserve component 
to qualify for entering the military DES is the condition must 
also be considered to have occurred in-line-of-duty (ILOD). No 
evidence is provided to reflect the applicant’s chronic lumbar 
pain, the likely reason for his disqualification, was ILOD; 
notwithstanding the service connection (from 1976) established by 
the DVA. The narrative advisory from the HQ NGB letter and the 
applicant appears to connect the applicant’s 1999 ILOD vehicular 
accident with the reason for disqualification. However, the 
record shows the applicant had a longer-standing (from 1976) 
chronic lumbar condition that, although periodic exacerbations of 
pain occurred over a 3-decade period (from 1976), none 
significantly interfered with his ability to perform his 
designated military duties. Likewise, although service connected 
from 1976, the evidence suggests the escalating disability 
ratings assigned by the DVA represented the expected natural 
progression of lumbar degenerative disc disease over time; and 
not specifically worsened by his sedentary administrative 
military duties. 

 

The evidence supplied shows the applicant was found disqualified 
due to a medical condition which, implicitly, was considered NOT 
ILOD. The applicant willfully entered the DES for a fitness-only 
assessment, under paragraph 3.14.7 above, and was successful in 
his bid for being returned to duty by the IPEB. Had the 
applicant not appealed the disqualification, he more likely than 
not would still have been administratively released from his 
assignment and transferred to the Retired Reserve list. 

 

The Medical Consultant found no nexus between the applicant’s 
ILOD injury of 1999 and his chronic lumbar condition, and noted a 
lack of evidence to demonstrate a chronic impediment to duty 
specifically due to a cervical impairment (described as 
“whiplash” in the record) resulting from the 1999 ILOD accident; 
notwithstanding the X-ray evidence of degenerative disc disease 
at C6-C7 identified on 3 Mar 99. 

 


Finally, the Medical Consultant empathizes with the applicant’s 
line of logic, but found that the discharge authority acted 
within established Air Force policies to terminate his assignment 
and to transfer him to the Reserve Retired list as a viable 
option. With reference to the applicant’s 40 percent disability 
rating, the DVA, operating under Title 38 USC, is authorized to 
offer compensation for any medical condition it finds service 
connected, without regard to its impact upon an individual’s 
fitness to serve or the narrative reason and authority for 
release from military service. Moreover, the DVA is also 
empowered to conduct periodic re-evaluations for the purpose of 
adjusting the disability rating (decrease or increase), as the 
level of impairment from a given medical condition may vary 
(improve or worsen) over the lifetime of the veteran. The 
applicant has not met the burden of proof of an error or 
injustice that warrants the desired change of the record. 

 

The complete BCMR Medical Consultant evaluation is at Exhibit F. 

 

_________________________________________________________________ 

 

APPLICANT’S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION: 

 

The applicant states his VA rating was service connected and 
exceeded the required 30 percent. It should be noted the 
increase from 20 to 40 percent was the result of an in-house VA 
review and not anything he requested or solicited. 

 

In lieu of not honoring his request to change his retirement 
status to medically discharged, he humbly requests that his rank 
at retirement be upgraded to the pending grade of E-7 (master 
sergeant), which would have been his rank at the time he was 
scheduled to deploy. 

 

This request is based on the conflicting medical advisories 
listed in the summary of his case, where changes occurred in a 
matter of 2 days (May 15-17, 2005) and due to the change in plans 
to reevaluate him from upon return to prior to deploying. Had he 
been allowed to deploy, it would have been at the rank of E-7 and 
his duties would have mostly been supervisory in nature, with a 
minimum of physical taskings. 

 

The applicant's complete response is at Exhibit H. 

 

_________________________________________________________________ 

 

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 error or injustice. We took notice 
of the applicant's complete submission to include his rebuttal 
submissions in judging the merits of the case; however, we agree 
with the opinions and recommendations of the Air Force offices of 
primary responsibility and adopt their rationale as the basis for 
our conclusion that the applicant has not been the victim of an 
error or injustice. We note the applicant’s request to change 
his retirement rank to E-7; however, we find no evidence which 
would persuade us that his records should be corrected to show he 
was promoted to any grade higher than that reflected in his 
military records. Therefore, we conclude that the applicant has 
failed to sustain his burden of proof that he has been the victim 
of an error or injustice. In the absence of evidence to the 
contrary, we find no basis to recommend granting the relief 
sought in this application. 

 

_________________________________________________________________ 

 

THE BOARD DETERMINES THAT: 

 

The applicant be notified that the evidence presented did not 
demonstrate the existence of material error or injustice; that 
the application was denied without a personal appearance; and 
that the application will only be reconsidered upon the 
submission of newly discovered relevant evidence not considered 
with this application. 

 

_________________________________________________________________ 

 

The following members of the Board considered Docket Number 
BC-2011-02498 in Executive Session on 29 Mar 12, under the 
provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 24 Jun 11, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, NGB/A1PS, dated 19 Aug 11, w/atch. 

 Exhibit D. Letter, SAF/MRBR, dated 9 Sep 11. 

 Exhibit E. Letter, Applicant, dated 14 Sep 11. 

 Exhibit F. Letter, BCMR Medical Consultant, dated 1 Feb 12. 

 Exhibit G. Letter, SAF/MRBC, dated 5 Mar 12. 

 Exhibit H. Letter, Applicant, dated 10 Mar 12. 

 

 

 

 

 Panel Chair