RECORD OF PROCEEDINGS 

 AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-05001 

 

 COUNSEL: 

 

 HEARING DESIRED: NO 

 

________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

1. His retirement order be corrected to show he was released from 
active duty on 15 April 2009, instead of 24 September 2003 and he 
receive back-pay, bonuses, and accrued leave for entire period. 

 

2. Correct AF Form 356, Findings and Recommended Disposition of USAF 
Physical Evaluation Board (PEB), dated 9 March 2009 as follows: 

 

 a. Item 10, Additional Findings, Parts C and D, be corrected 
respectively to reflect his disability was a result of armed conflict 
or war and in the line of duty during a period of war and was a direct 
result of a combat related injury. 

 

 b. Item 9A, Diagnosis, be corrected to include Depressive Disorder 
and Post Traumatic Stress Disorder (PTSD) as part of his diagnosis and 
rating. 

 

3. He be reimbursed for out-of-pocket medical expenses for he and his 
family incurred during the period from 2003 through 2009. 

 

4. Direct promotion to the grade of Lieutenant Colonel, (O-5). 

 

5. He be eligible to transfer his Post-9/11 GI Bill educational 
benefits to his dependents. 

 

________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

1. His case was mishandled by authorities failing to provide the 
required orders continuing or placing him retroactively on active duty 
after a line of duty (LOD) determination revealed that his aircraft 
crash, subsequent medical condition, treatment and rehabilitation were 
a continuing linked chain of events leading to his current disability. 

 

2. In a combined 13 page brief of counsel and the applicant’s summary 
the following contentions are made: 

 

 

 a. His initial injury and complaints originated back to 1994, when 
he was injured in the line of duty, when his aircraft crashed during a 


combat mission. He was evaluated by a psychiatrist, cleared, and 
returned to flying status, four months after the aircraft crash, with 
complaints of back pains. Survivor’s guilt and post-traumatic stress 
disorder symptoms were noted in this evaluation. 

 

 b. Squadron flight logs reflect the 1994 mission logged as combat 
sortie, in a combat zone. Further active duty service during 
Operation ENDURING FREEDOM also occurred in a combat zone, where every 
mission flown into Afghanistan was logged as combat time in the log 
books. However, PEB findings erroneously concluded that: 

 

 (1) his disability was NOT a result of armed conflict or war and 
in the line of duty during a period of war 

 

 (2) his disability was NOT a direct result of a combat related 
injury. 

 

 c. A 17 February 2009, Medical Evaluation Board (MEB) summary shows 
a diagnosis of a history of depressive disorder and post-traumatic 
stress disorder. These diagnoses are listed as numbers one and two, 
respectively, of eleven additional diagnoses. Nevertheless, 
depressive disorder and PTSD were excluded from the PEB diagnoses of 
unfitting conditions. These conditions need to be included in the 
diagnoses. 

 

 d. He was improperly discharged from active duty in September 2003. 
In spite of repeated verbal and written complaints his unit took no 
action. Had an MRI, which was ordered in June 2003, been done, his 
tumor would have been discovered and treated while he was on active 
duty. As a result of not being continued on active duty and having an 
MRI, he experienced the following: 

 

 (1) continued significant increase in symptoms over time to the 
point that it interfered with his flying abilities at his civilian 
job. 

 

 (2) eventually ended up in the care of a civilian neurologist 
who discovered a spinal tumor thought to be malignant but, during 
surgery, was discovered to be benign. 

 

 (3) complicated surgery, followed by a very painful and extended 
recovery period. 

 

 (4) loss of his civilian job 

 

 (5) assumed the financial burden of paying out of pocket medical 
expenses not covered by his civilian insurance. 

 

 (6) Failed his annual USAF physical as a result of the extreme 
post surgery physical debilitation rendering him unable to perform any 
reserve duties. He was unable to: 

 


 (a) continue his professional education course 

 

 (b) take further responsibilities leading to eventual 
promotion. 

 

 (c) be competitive for promotion amongst his peers. 

 

 (d) pursue actions that might lead towards a positive light 
on his career. 

 

 (7) As a result of the failed physical he underwent an almost 
two-year Line of Duty determination process. 

 

 (8) Underwent MEB and PEB processes which found him to be unfit 
for further service and led to a recommendation for permanent 
retirement with a disability compensable rating of 80 percent. 

 

 e. The LOD determination was found to be “in line of duty” (ILOD) 
for a condition which existed at the time of his aircraft combat crash 
in 1994. A letter from his oncologist stated that the tumor was 
likely present as far back as 1994. Had he been continued on active 
duty in 2003, the military medical system could have provided 
evaluation, care and rehabilitation for his condition. He is entitled 
to be reimbursed for out-of-pocket- medical expenses incurred during 
the period from 2003 through 2009. 

 

 f. His career as a commissioned officer was dramatically affected 
by the mishandling of this situation. He was never placed on active 
duty orders and consequently was never considered for promotion while 
on active duty, amongst his active duty peers. Had his situation been 
handled properly and he were continued on active duty in 2003; and 
based on his performance and military records; he would likely have 
been eligible for promotion consideration to the grade of Lieutenant 
Colonel in the fiscal year (FY) 2004 or 2005 promotion cycles. 
Therefore, consideration should be given to amend his rank to reflect 
the logical progression of a 22-year officer to the grade of 
Lieutenant Colonel. 

 

 g. He lives with constant pain 24/7, 365 days a year. As a result 
of the constant pain: 

 

 (1) He takes round the clock medication to handle the nerve pain. 

 (2) He underwent further surgery to implant a spinal cord 
stimulator to cope with the pain. 

 

 (3) He is unable to return to his commercial flying job and not 
able to hold any other job with routine hours. 

 

 (4) Most days he handles walking and usually requires a 
cane/staff later in the day as he gets tired. 

 


 (5) He lacks feeling in both legs and his waist and as a result, 
on a routine basis, stumbles while walking. 

 

 h. These conditions have significantly and permanently affected his 
life, marriage, relationships, and his perspective on life. During 
the entire period, neither side; active duty nor reserve personnel, 
handled his case correctly because of its confusing chronology of 
events, multiple transitions between active and reserve duty status, 
unclear paths of responsibility, past medical history and the aircraft 
crash. 

 

In support of his request, the applicant provides his counsel’s brief 
with attachments. 

 

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

 

________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

According to copies of his DD Form 214s, and documents extracted from 
his Military Personnel Record (MPR) the applicant is a former 
commissioned officer of the Regular Air Force and Air Force Reserves. 
He served in the Regular Air Force from 7 August 1988 through 5 
January 1997. He was progressively promoted to the grade of Captain, 
(O-3), with an Effective Date of Pay Grade of 25 June 1992. He served 
in the Air Force Reserves from 6 January 1997 until his disability 
retirement on 16 April 2009. He was progressively promoted to the 
grade of Major (O4) with an Effective Date of Pay Grade of 
1 October 2000. During his reserve service, the applicant completed 
two active duty tours; from 3 February 1997 through 3 June 1997 and 1 
March 2002 through 24 September 2003. 

 

On 9 March 2009 an informal PEB convened to review and consider the 
applicant’s case. The final findings were, 40 percent rating for 
Neuropathic pain and weakness of right lower extremity, 40 percent for 
Neuropathic pain and weakness of left lower extremity, 10 percent for 
Neurogenic bladder with obstructive symptoms and 10 percent for 
Neurogenic bowel with chronic constipation. The combined compensable 
rate for the four conditions was 76 percent rounded up to 80 percent. 
The PEB concluded the applicant was unfit for further service because 
of physical disability incurred in the line of duty in time of war or 
national emergency or after 14 September 1978, however, they 
determined his disability was not a direct result of armed conflict, 
was not caused by an instrument of war and incurred in the line of 
duty during a period of war, nor was it a direct result of a combat 
related injury. The PEB further concluded, although the applicant had 
a documented history of symptoms of depression and PTSD, there was no 
medical documentation (narrative summary) stating these were unfitting 
conditions. On 13 March 2009, the applicant agreed with the findings 


and recommendation of the informal PEB and waived his right to a 
formal PEB hearing. 

 

Effective 16 April 2009, the applicant was permanently, disability 
retired in the grade of Major with a compensable percentage for 
physical disability of 80 percent. He was credited with 10 years, 11 
months and 25 days of active service for retirement and 20 years, 11 
months and 2 days of service for basic pay. 

 

________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFMOA/SGHI recommends approval. SGHI states the applicant was never 
offered medical continuation orders which should have happened after 
his deployment to Afghanistan which ended on 24 September 2003, even 
though he still complained of pain in his back. SGHI recommends the 
applicant’s record be corrected to show that his pay and points did 
not end on 24 September 2003 but continued until his permanent 
disability retirement date of 15 April 2009. 

 

The complete AFMOA/SGHI evaluation is at Exhibit C. 

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

In their response, the applicant and his counsel indicate they 
consider the AFMOA/SGHI recommendation to be positive and agree with 
the advisory to that extent. However, they further submit, the 
approval and changes, if accepted by the Board, must go beyond the pay 
and points corrections recommended. Had the applicant’s case been 
properly handled in 2003, he would have been afforded time and 
opportunity to make choices not then properly afforded to him as he 
was forced to deal with circumstances as they presented themselves. 
The application submitted specifically, and by implication, contained 
the following additional requests: 

 

 1. All out of pocket medical expenses for the applicant’s 
service connected disability as well as other routine and normal 
medical services for the applicant and his family be covered for the 
time between 2003 and 2009 when he was not on active duty. 

 

2. His records reflect he is eligible to transfer his Post-9/11 
GI Bill benefits to his dependents. 

 

 3. He receive a direct appointment to the grade of Lieutenant 
Colonel, O-5. 

 

4. Correct AF Form 356, Findings and Recommended Disposition of 
USAF Physical Evaluation Board, dated 9 March 2009, to reflect the 
applicant’s injury occurred in a time of war. 


 

These are the additional elements of the application not specifically 
addressed in the Air Force advisories. 

 

The complete response is at Exhibit E. 

 

________________________________________________________________ 

 

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 error or injustice. After considering the totality of 
the evidence before us, we are persuaded that relief is warranted. In 
this regard, we note that in accordance with DoDI 1241.2 Reserve 
members on orders for 30 days or more, who incur a condition in the 
line of duty which renders them unfit for military duty, will be 
retained on active duty orders until they are either found fit for 
duty or separated via the disability evaluation system (DES). In view 
of this and since the applicant’s 14 March 1994 initial injury, as a 
result of an aircraft crash, was determined to be ILOD, he should have 
been retained on active duty on 24 September 2003, until the final 
disposition of his disability retirement processing occurred. The 
AFMOA/SGHI recommendation is noted and we believe continuance on 
active duty orders until such time as his ILOD medical condition was 
resolved provides full and fitting relief. Therefore, the applicant’s 
record should be corrected as indicated below. With regard to the 
applicant’s request for a direct promotion to the rank of lieutenant 
colonel, we note that officers compete for promotion under the whole 
person concept whereby a multitude of factors are carefully assessed 
by the selection board members prior to scoring the record. In 
addition, they may be qualified but- in the judgment of selection 
board members vested with discretionary authority to score their 
records – may not be the best qualified of those available for the 
limited number of promotion vacancies. Consequently, a direct 
promotion should be granted only under extraordinary circumstances; 
i.e., a showing that the officer’s record cannot be reconstructed in 
such a manner so as to permit him/her to compete for promotion on a 
fair and equitable basis; a showing that the officer exercised due 
diligence in pursuing timely and effective relief; lastly, that had 
the original errors not occurred, the probability of this being 
selected for promotion would have been extremely high. We do not find 
these factors in this case. Nevertheless, we are persuaded the 
constraints of his disability processing, through no fault of the 
applicant, may have deprived him of full and fair promotion 
consideration. Therefore, in order to resolve any potential promotion 
consideration injustice to the applicant, the Board believes he should 


be considered for promotion to the grade of lieutenant colonel by all 
appropriate Special Selection Boards. 

 

4. Notwithstanding our determination above, insufficient relevant 
evidence has been presented to demonstrate the existence of error or 
injustice with regard to the applicant’s request to correct items 9A 
and 10 of the AF Form 356, Findings and Recommended Dispositions of 
the USAF Physical Evaluation Board (PEB) to reflect that his injuries 
occurred in a time of war. In this respect, we note that although the 
evidence of record indicates that his injuries were incurred on 14 
March 1994, when his C-130 aircraft lost engine power and crashed in 
the waters off Somalia, we find no evidence the Air Force’s 
determination this did not occur during a time of war is in error or 
unjust. We find no evidence of error in this case and after 
thoroughly reviewing the documentation that has been submitted in 
support of applicant's appeal, we do not believe he has suffered from 
an injustice. With respect to the applicant’s request for eligibility 
to transfer Post 9-11 GI Bill benefits to his dependents; after a 
thorough review of the evidence of record and applicant's submission, 
we believe that relief is not warranted. The applicant was retired 
effective 16 April 2009. However, the Transfer of Educational 
Benefits (TEB) system did not begin accepting applications until 27 
June 2009, with an effective date no earlier than 1 August 2009. 
Lastly, due to the Board granting the applicant continuance on active 
duty orders until 15 April 2009, his request for all out-of-pocket 
medical expenses for the time between 2003 and 2009 is moot, as he 
will be provided an opportunity to submit such expenses once his 
records have been corrected. Therefore, in the absence of evidence to 
the contrary, we find no basis to recommend granting this portion of 
the relief sought in this application. 

 

5. 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 issue(s) 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 APPLICANT be corrected to show that he was not released 
from active duty on 24 September 2003, but on that date, he was 
continued on active duty until 15 April 2009. 

 

It is further recommended that he be considered for promotion to the 
grade of Lieutenant Colonel, (O-5) by Special Selection Boards for the 
Calendar Years, CY04B (12 Jul 04) (P0504B) in-the-promotion zone 
(IPZ), CY05A (6 Jul 05) (P0505A) above-the-promotion zone (APZ), CY06A 
(13 Mar 06) (P0506A) APZ, CY06C (28 Nov 06) (P0506C) APZ, CY07B (27 
Nov 07) (P0507B) APZ, CY08B (8 Sep 08) (P0508B) APZ, Lieutenant 
Colonel Line Central Selection Boards. 

 

________________________________________________________________ 


 

The following members of the Board considered this application BC-
2011-05001 in Executive Session on 16 October 2012, under the 
provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 9 December 2011, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFMOA/SGHI, dated 11 June 2012. 

 Exhibit D. Letter, AFBCMR, dated 6 September 2012. 

 Exhibit E. Letter, Counsel, dated 1 October 2012, w/atch. 

 

 

 

 

 Panel Chair