RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-03940 

 

 COUNSEL: NO 

 

 HEARING DESIRED: NO 

 

 

________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

His official records be corrected to show that: 

 

1. He was found unfit for duty by the Informal Physical 
Evaluation Board (IPEB) on 20 Oct 09. 

 

2. His military disability rating be changed to 80 percent to 
match his Department of Veteran Affairs (DVA) Compensable 
Disability Rating in order to qualify him for medical 
retirement. 

 

________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

The IPEB determined he was fit for duty utilizing the 
“presumption of fitness” rule incorrectly (AFI 36-3212, 
paragraph 3.17). However, he was not fit for duty; he was not 
performing his duty satisfactorily during the 12 months prior to 
his separation. Had he remained on active duty, he would not 
have been able to continue to perform the duties of his flying 
position. His commander had him performing administrative 
duties until the completion of this Disability Evaluation System 
(DES) process. 

 

The Department of Veteran Affairs (DVA) awarded him a 
compensatory disability rating of 80 percent. This should be 
enough to overcome the IPEB’s presumption of the fit for duty 
determination. 

 

In support of his appeal, the applicant provides an expanded 
statement and copies of documents from his Medical Evaluation 
Board (MEB), his medical records, his DVA Disability Rating 
Decision, multiple orders, and his DD Forms 214, Certificate of 
Release or Discharge from Active Duty. 

 

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

 

________________________________________________________________ 

 


STATEMENT OF FACTS: 

 

The applicant served as a command pilot with the Florida Air 
National Guard. 

 

On 19 Apr 09, he reported to the medical clinic with symptoms of 
a sleep disorder, and a sleep study was recommended. 

 

On 24 Apr 09, in response to his previous request for a length 
of service retirement, he was provided retirement orders 
reassigning him to the retired reserve, effective 31 Oct 09. 

 

On 11 May 09, his sleep study was completed, confirming that he 
had Obstructive Sleep Apnea (OSA) and use of a Continuous 
Positive Airway Pressure (CPAP) was recommended. 

 

On 17 Jun 09, he was placed in Duty Not to Include Flying (DNIF) 
status. 

 

On 7 Jul 09, he was evaluated by the Physical Exams section of 
the Medical Clinic because of his planned retirement. The 
evaluation determined he was physically qualified to retire, and 
stated “which means that no medical condition has been noted 
that disqualifies you from the performance of your duties or 
warrants disability evaluation system processing.” 

 

On 10 Jul 09, an Informal Line of Duty (LOD) determination was 
initiated to evaluate the applicant’s OSA for service connection 
and his OSA was ultimately determined to be in the LOD. 

 

On 26 Aug 09, his Group Commander submitted a Memorandum for 
Medical Evaluation Board (MEB), in which he wrote, “His medical 
condition was brought to my attention after he told the unit 
that he was planning to retire and after he had submitted his 
application for retirement.” 

 

On 18 Sep 09, the MEB referred his case to the IPEB with a 
recommendation that the applicant be “returned to duty.” 

 

On 9 Oct 09, the IPEB determined the applicant’s medical 
condition did not prevent him from reasonably performing the 
duties of his office, grade, rank, or rating. The IPEB summary 
noted he was within one year of his approved retirement date and 
indicated his medical condition did not overcome the presumption 
of fitness, and recommended he be returned to duty. On 
26 Oct 09, the applicant acknowledged that he agreed with the 
IPEB findings by signing the Form 1180, Action of Informal 
Physical Evaluation Board Findings and Recommended Disposition, 
on 29 Oct 09. 

 

On 20 Oct 09, the applicant’s original retirement orders were 
revoked, pending the completion of his medical evaluation. 

 


On 10 Nov 09, a new retirement order was issued directing the 
applicant’s transfer to the retired reserve, effective 
30 Apr 10. 

 

The remaining relevant facts pertaining to this application are 
described in the letters prepared by the Air Force offices of 
primary responsibility, which are included at Exhibits C and D. 

 

________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFPC/DPPD recommends denial, indicating there is no evidence of 
an error or injustice. The applicant requests the IPEB’s 
recommended finding that his OSA was not unfitting and the 
recommendation that he be returned to duty be changed so he can 
qualify for medical retirement. His commander noted in this 
letter: “His medical condition was brought to my attention 
after he told the unit that he was planning to retire and after 
he had submitted his application for retirement.” The IPEB 
noted: “Your medical condition does not prevent you from 
reasonably performing the duties of your office, grade, rank, or 
rating. Your sleep apnea is controlled on CPAP with resolution 
of oxygen desaturation. Your commander states you are 
accomplishing administrative duties due to your being DNIF and 
have not missed any work due to your condition. The Board notes 
you are within one year of your approved retirement date of 
30 Oct 09. In accordance with AFI 36-3212, Physical Evaluation 
for Retention, Retirement, and Separation, paragraph 3.17, the 
Board applied the Presumption of Fitness, and has determined 
your medical condition does not overcome the presumption, and 
recommends you be returned to duty.” On 26 Oct 09, the 
applicant signed that he concurred with these findings. 

 

The Department of Defense (DoD) and DVA Disability Evaluation 
Systems operate under separate laws. Under Title 10 USC, 
Physical Evaluation Boards must determine if a member’s 
condition renders them unfit for continued military service 
relating to their office, grade, rank or rating. The fact that 
a person may have a medical condition does not mean that the 
condition is unfitting for continued military service. To be 
unfitting, the condition must be such that it alone precludes 
the member from fulfilling their military duties. Disability 
boards must rate disabilities based on the member’s condition at 
the time of evaluation. In contrast, the DVA may rate any 
service-connected condition based upon further employability or 
reevaluate based on changes in the severity of a condition. 
This often results in different rating by the two agencies. 

 

A complete copy of the AFPC/DPPD evaluation is at Exhibit C. 

 

The AFBCMR Medical Consultant recommends denial, indicating 
there is no evidence of an error or injustice. The applicant 
contends that the IPEB incorrectly determined that he was fit 
for duty, “Utilizing the presumption of fitness incorrectly,” 


and states that he was not performing duties befitting of his 
experience in the office, grade, rank, or rating. On 7 Jul 09, 
a memorandum from the Physical Exams Section of his Medical 
Clinic states: “You have been evaluated because of your planned 
separation or retirement from active duty status. You have been 
found physically qualified to separate or retire, which means 
that no medical condition has been noted that disqualifies you 
from the performance of your duties or warrants disability 
evaluation systems processing.” In a memo from the applicant’s 
commander to the MEB, he wrote: “Member was planning on retiring 
and had submitted his retirement request prior to his diagnosis 
being brought to our attention.” The contemporary approach to 
OSA has been to retain individuals whose OSA has been otherwise 
brought under good control and does not preclude retention under 
certain assignment restrictions or in the performance of 
military duties. The Medical Consultant opines that the imposed 
flying restrictions need not have been permanent and did not 
automatically equate with an unfit finding and a medical 
separation action. The applicant expressed his desired outcome 
of an unfit finding and an implicit medical retirement with [at 
least] a 30 percent rating well in advance of any fitness 
determination by the Physical Evaluation Board. 

 

The Medical Consultant agrees the presumption of fitness rule is 
applied only to an individual with an approved retirement date, 
who then undergoes an MEB within the 12 months of said date of 
retirement, and is thus presumed fit. However, DoD Instruction 
1332.38, Physical Disability Evaluation, paragraph E3.P3.5.1., 
states: “Service members who are pending retirement at the time 
they are referred for physical disability evaluation enter the 
DES under a rebuttable presumption that they are physically fit. 
The DES compensates disabilities when they cause or contribute 
to career termination. Continued performance of duty until a 
Service member is approved for length of service retirement 
creates a rebuttable presumption that a Service member’s medical 
conditions have not caused career termination.” 

 

Operating under a different set of laws than the DoD, the DVA is 
authorized to offer compensation for any medical condition 
determined service connected, independent of its proven or 
demonstrated impact upon a service member’s retainability, 
fitness to serve, or narrative reason for release from military 
service. This is the reason why a member may be released from 
service for one reason, but later receive a compensation rating 
from the DVA for a condition that was not militarily unfitting 
at the time of release from service. The Medical Consultant 
opines the IPEB would still have likely found the applicant fit, 
even if his case was processed under the Integrated Disability 
Evaluation System (IDES), wherein the DVA Compensation & Pension 
evaluation and recommendation rating are conducted early and the 
results were available to the PEB prior to the termination of 
the DES process. Finally, DoDI 1332.38, paragraph E3.P3.3.3. 
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.” The preponderance of the evidence in his case shows the 
applicant was indeed able to perform his military duties until 
he was diagnosed with OSA and referred to the DES, whereupon he 
was found fit for continued military service. 

 

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

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

In response to the AFPC/DPPD advisory, the applicant submits a 
statement repeating the basic contention from this original 
application. In addition, he adds that on Jun 09, based upon 
his diagnosis of OSA, he was assigned administrative duties 
normally assigned to a junior enlisted airman, not those of a 
command pilot and instructor pilot on flying status. At no time 
following the 10 Jul 09 completion of the LOD determination for 
OSA was he examined by a military physician. The IPEB decided 
that a presumption of fitness was to apply to his case and he 
was to return to duty. Yet, he was not returned to the duties 
of his office, grade, rank, or rating. At the time of his 
separation from active duty, he was still Duty Not to Include 
Flying (DNIF) and not worldwide deployable. When he signed the 
IPEB findings, he had no knowledge and had received no briefings 
on his future DVA disability rating to aide him in making an 
informed decision. He received his VA disability rating of 80 
percent on 30 Mar 10, while he was still an assigned member of 
the ANG. The new Integrated Disability Evaluation System (IDES) 
that was started as a pilot program before the time of his case 
and grew into the IDES would have used his DVA medical 
evaluation and rating of 80 percent disabled as a starting point 
in determining his fitness for duty. He asks that this be 
applied to his case. 

 

________________________________________________________________ 

 

THE BOARD CONCLUDES THAT: 

 

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

 

2. The application was timely filed. 

 

3. Insufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice. We took 
notice of the applicant’s complete submission, including his 
response to the Air Force advisory opinions, in judging the 
merits of the case; however, we agree with the opinions and 
recommendations of the Air Force office of primary 
responsibility (OPR) and the AFBCMR Medical Consultant and adopt 


their rationale as the basis for our conclusion the applicant 
has not been the victim of an error of injustice. In 
particular, we concur with the position of the AFBCMR Medical 
Consultant that the imposed flying restrictions due to OSA need 
not have been permanent and did not automatically equate with an 
unfit finding and a medical separation, and that the IPEB would 
still have likely found the applicant fit, even if his case was 
processed under the Integrated Disability Evaluation System 
(IDES). Therefore, 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 the evidence presented did not 
demonstrate the existence of material error or injustice; the 
application was denied without a personal appearance; and 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 AFBCMR Docket 
Number BC-2011-03940 in Executive Session on 12 Jul 12, under 
the provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 26 Sep 11, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFPC/DPPD, dated 18 Oct 11. 

 Exhibit D. Letter, SAF/MRBR, dated 28 Oct 11. 

 Exhibit E. Medical Consultant Memo, dated 4 Jun 12. 

 Exhibit F. Letter, SAF/MRBC, dated 4 Jun 12. 

 Exhibit G. Letter, Applicant, dated 30 Jun 12. 

 Exhibit H. Letter, Applicant, dated 21 Nov 11. 

 

 

 

 

 

 Panel Chair