ADDENDUM TO 

RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

DOCKET NUMBER:  BC-1999-00390 
COUNSEL:  NONE 
HEARING DESIRED:  NO 

 
 
IN THE MATTER OF: 
 
   
 
   
 
________________________________________________________________ 
 
APPLICANT REQUESTS THAT: 
 
The  applicant  submits  DD  Forms  149  (four),  with  attachments, 
requesting the following: 
 
1.  His  injuries  be  reflected  as  a  result  of  a  combat-related 
event,  instrumentality  of  war,  hazardous  service  or  simulated 
combat  service  and  he  receive  combat  pay  and  other  allowances 
payable to the date of his retirement.  
 
2.  His  compensable  disability  rating  be  increased  to  80  or 
100 percent based on unemployability. 
 
3.  The  Physical  Evaluation  Board  (PEB)  be  rendered  invalid 
because a Reserve officer was not a member. 
 
________________________________________________________________ 
 
STATEMENT OF FACTS: 
 
In  Apr  94,  an  Informal  Physical  Evaluation  Board  (IPEB) 
diagnosed the applicant with neck pain (minor) arm with weakness 
and  numbness,  status  post  October  1992,  C5  –  C6  discectomy  and 
fusion,  and  Jun  93,  C5  corpectomy  and  C4  -  C6  fusion  and 
instrumentation.    They  recommended  the  applicant’s  name  be 
placed  on  the  Temporary  Disability  Retired  List  (TDRL)  with  a 
compensable  disability  rating  of  30  percent.    The  applicant 
nonconcurred  and  requested  his  case  be  referred  to  the  Formal 
Physical  Evaluation  Board  (FPEB).    The  FPEB  recommended  the 
applicant  name  be  placed  on  the  TDRL,  with  a  compensable 
disability rating of 60 percent and a diagnosis of neck pain and 
right  (minor)  arm  pain  with  weakness  and  numbness,  status  post 
Oct 92 C5-6 discectomy and fusion and Jun 93 C5 corpectomy and 
C4-6 fusion and instrumentation.   
 
The applicant’s name was placed on the TDRL, on 2 Aug 94, in the 
grade  of  major,  with  a  compensable  disability  rating  of 
60 percent, under the provisions of Title 10, United States Code 
(USC), Section 1202. 
 

Under the case, AFBCMR Docket No. BC-1994-00335, the applicant’s 
record was corrected to reflect the following: 
 
1.  His  AF  Form  356,  Findings  and  Recommended  Disposition 
 
of  the  Physical  Evaluation  Board  (PEB),  dated  27  May  94,  was 
changed as follows: 
 

a.  Item 9B reflect “Yes” rather than “NA.” 
b.  Item 9C reflect “Yes” rather than “NA.” 
c.  Item 9D reflect “NA” rather than “YES.” 
d.  Item 10B reflect “YES” rather than “NA.” 

 

 

b.  The Action of the Reviewing Authority Section now 

3.  AF  Form  261,  Line  of  Duty  Report  of  Investigation, 

4.  On  1  Jul  94,  he  was  recalled  to  active  duty  by 

 
 
2.  AF  Form  348,  Line  of  Duty  Determination  (LOD),  dated 
9 Jul 93, was changed to reflect “Aggravation of Spinal Injury” 
rather than “Pain, Left Foot.” 
 
 
dated 4 Aug 93, was changed as follows: 
 
a.  The  basis  for  Findings  Section  now  reflects  a 
 
medical diagnosis of “Aggravation of Spinal Injury” rather than 
“Strain of left foot.” 
 
 
reflects “Approved,” rather than “Disapproved.” 
 
 
competent authority. 
 
 
5.  On 1 Aug 94, he was found unfit to perform the duties 
of his office, rank, and grade or rating by reason of physical 
disability  incurred  while  entitled  to  receive  basic  pay;  that 
the  diagnosis  in  his  case  was  neck  pain  and  right  (minor)  arm 
pain  with  weakness  and  numbness,  status  post  Oct  92  C5  -  C6 
discectomy  and  fusion  and  Jun  93  C5  corpectomy  and  C4  -  C6 
fusion  and  instrumentation,  further  surgery  was  pending, 
occasional bladder incontinence, disability rating of 60 percent 
VA  code  5299-5293;  that  the  disability  was  permanent;  that  the 
disability  was  not  due  to  intentional  misconduct  or  willful 
neglect; that the disability was not incurred during a period of 
unauthorized absence; that the disability was incurred during a 
period  of  national  emergency;  and  that  the  disability  was  not 
received in line of duty as a direct result or armed conflict. 
 
6.   He  was  permanently  retired  by  reason  of  physical 
 
disability,  effective  2  Aug  94,  under  the  provisions  of  Title 
10,  USC  Section  1202,  with  entitlement  to  home  of  selection 
travel and transportation allowances. 
 
Under  the  case,  AFBCMR  Docket  No.  BC-1999-00390,  the  applicant 
requested  that  his  record  be  corrected  to  reflect  that  his 
compensable  disability  rating  of  60  percent  be  changed  to 
75 percent  on  the  basis  of  unemployability.    However,  after 

 

2 

considering the available evidence, the Board found insufficient 
evidence of error or injustice. 
 
Under  AFBCMR  Docket  No.  BC-2007-00345  the  Board  corrected  the 
applicant’s  record  to  extend  his  separation  travel  and 
transportation  allowances  to  31  Jan  02,  based  on  his  medical 
condition at the time of his disability retirement. 
 
For an accounting of the facts and circumstances surrounding the 
applicant’s  disability  retirement,  and,  the  rationale  of  the 
earlier  decisions  by  the  Board,  see  the  Records  of  Proceedings 
at Exhibit F. 
 
The  applicant  submits  a  request  for  reconsideration  contending 
that  he  has  been  totally  disabled,  with  multiple  surgeries, 
since  1991.    According  to  The  Department  of  Veterans  Affairs 
(DVA)  and  the  Social  Security  Administration  (SSA)  he  is 
permanently  and  totally  disabled  with  a  compensable  disability 
rating of 100 percent for unemployability. 
 
His injuries were caused by or aggravated by wartime service in 
the  Area  of  Responsibility  (AOR)  as  a  crewmember  of  a  C-130 
aircraft (weapons system), simulated combat training and wearing 
other  combat  gear.    He  was  injured  and  reaggravated  previous 
injuries while serving in the Persian Gulf War. 
 
His  disability  rating,  at  retirement,  should  be  changed  to 
100 percent due to unemployability, which can be granted by the 
service. 
 
In  support  of  his  appeal,  the  applicant  provides  a  personal 
statement and copies of extracts from his disability evaluation, 
including  documentation  that  he  believes  was  not  available  at 
the time of separation. 
 
The  applicant’s  complete  submission,  with  attachments,  is  at 
Exhibit G. 
 
________________________________________________________________ 
 
THE AIR FORCE EVALUATION: 
 
The  AFBCMR  Medical  Consultant  recommends  denial  of  the 
applicant's request for designating his cervical spine injury as 
Combat-related  or  the  result  of  an  Instrumentality  of  War,  and 
denial  of  assignment  of  a  100  percent  total  disability  rating 
retroactive to the date of his unfit finding.   
 
The Medical Consultant has provided an extensive factual history 
to  facilitate  the  Board's  decision  of  whether  to  grant 
Instrumentality  of  War  and/or  to  grant  a  100  percent  total 
disability rating from the time of the applicant's initial unfit 
finding  (1994)  or  at  the  time  of  his  removal  from  the  TDRL 
(1996).    The  applicant  has  presented  a  plausible  argument 

 

3 

rating, 

the 

Medical 

disability 

supporting the establishment that he sustained a cervical spine 
injury or worsening of a previous cervical spine injury in 1991 
after  tumbling  from  a  military  unique  vehicle  (or  uniquely 
configured  or  deployed  for  military  use),  which  the  Consultant 
concedes was an Instrumentality of War.   
 
The  question  confronting  the  Board  is  whether  the  applicant's 
injury was the direct result of the Instrumentality of War.  In 
the  case  under  review,  the  applicant  reportedly  turned  his 
vehicle off-road to allow the passage of a convoy, whereupon the 
vehicle assumed a tilted position, following which he exited the 
downward  side  door  of  the  vehicle,  fell,  and  injured  himself.  
One  could  argue  that  it  was  the  applicant's  error  in  judgment 
not  the  Instrumentality  of  War  that  caused  the  fall; 
particularly  since  the  vehicle  was  no  longer  in  motion  at  the 
time.    With  reference  to  the  applicant's  contention  for  a 
100 percent 
Consultant 
acknowledges  the  reference  of  record  made  to  a  questionable 
reason why the Department of Veterans Affairs (DVA) has a higher 
statistical  award  of  total  disability  ratings  when  compared  to 
Military  Departments.    However,  the  allegation  is  not  proof  of 
an  error  or  injustice  that  invalidates  the  decision  of  the 
military rating agency at the time of adjudication. 
 
The Medical Consultant is aware of the policies governing  total 
disability  ratings,  as  outlined  in  38  C.F.R,  also  known  as  the 
Veterans  Administration  Schedule  for  Rating  Disabilities 
(VASRD),  and  the  variety  of  means  of  obtaining  such  a  rating 
decision.  While the applicant implicitly alleges the Department 
of  Defense    (DOD)  rarely,  if  ever,  considers  awarding  total 
disability ratings, this option was indeed available to military 
physical  evaluation  boards  (PEBs),  as  pointed  out  by  the 
applicant  in  a  submitted  extract  from  the  since  rescinded  DoD 
Instruction  (DODI)  1332.39,  showing  the  award  is  made  when  a 
medical condition "renders it impossible for the average person 
suffering  the  same  medical  condition  to  engage  in  a 
substantially  gainful  civilian  occupation:  In  the  case  under 
review,  neither  PEB  considered  the  applicant's  cervical  spine 
condition  and  unilateral  upper  extremity  neurological  deficit 
rendered  it  "impossible"  to  engage  in  substantially  gainful 
employment, given his proven cognitive skills in leadership and 
training, and the accommodations available to him under Title I 
of the Americans With Disabilities Act of 1990.  Likewise, there 
are  no  objective  evidence  supplied  to  show  the  DVA  assigned 
separate disability ratings for other specific conditions, other 
than the 60 percent rating, until 6 Oct 09. 
 
Redirecting  attention  to  the  applicant's  TDRL  re-evaluation 
reflecting  increased  incontinence,  several  times  during  each 
day,  the  Consultant  opines  consideration  should  have  been  for 
formally  assessing  this  as  either  a  separate  unfit  finding  or 
designating  it  as  NOT  unfitting  with  its  own  disability  rating 
code on the AF Form 356.  However, both the Military Department 
and  the  DVA  appear  to  have  subsumed  the  sequelae  of  the 

 

4 

applicant's  cervical  spine  injury  (at  the  maximum  rating  of 
60 percent)  under  the  unifying  rating  code  for  Intervertebral 
Disc Syndrome; although we see the DVA has ultimately assigned a 
separate  disability  ratings  for  bowel  incontinence,  urinary 
incontinence, and for lumbar degenerative disc disease as recent 
as 2009.  The Consultant opines there is insufficient objective 
evidence  supplied  to  show  these  were  individually  unfitting 
conditions  at  the  time  of  placement  and  release  from  the  TDRL; 
as  would  have  been  best  reflected  through  physical  profile 
documents,  intervening  medical  progress  notes,  or  their 
inclusion  on  the  applicant's  AF  Form  618,  Medical  Board  Report 
document as disqualifying medical conditions. 
 
In  conclusion,  the  Medical  Consultant  opines  the  applicant  has 
not  met  the  burden  of  proof  that  his  cervical  spine  injury, 
believed to have first occurred in 1989 [errantly diagnosed as a 
shoulder  injury)  and  which  was  aggravated  in  1991,  was  the 
direct result of an Instrumentality of War.  With respect to the 
determination  of  the  requested  total  disability  rating,  the 
Consultant  opines  that  the  DVA  decision,  that  of  the  Social 
Security  Administration,  and  that  made  by  the  PEBs  are  not 
binding  upon  each  other.    The  Board  nevertheless  has  the 
authority to grant the applicant a 100 percent total disability 
rating  and/or  find  his  cervical  spine  injury  either  Combat-
related  or  the  result  of  an  Instrumentality  of  War  independent 
of the advisory opinion provided.   
 
The  complete  AFBCMR  Medical  Consultant  evaluation  is  at 
Exhibit H. 
 
________________________________________________________________ 
 
APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: 
 
EXAMINER’S  NOTE:  The BCMR Medical Consultant evaluation, dated 
24 Mar 11 was mailed to the applicant on 5 Oct 11.  However, the 
applicant provided additional documents for review prior to this 
mailing.  The applicant responded to the 24 Mar 11 evaluation by 
the BCMR Medical Consultant and his response with the previously 
submitted  documentation  was  provided  to  the  BCMR  Medical 
Consultant for review. 
 
In  the  additional  documentation,  the  applicant  maintains  that 
servicemembers are entitled to protection in their retirement by 
an  award  of  unemployability;  therefore,  he  is  entitled  to  a 
70 percent level of compensation. 
 
He  notes  that  Air  Force  officials  (BCMR  Medical  Consultant  has 
briefed  the  President,  Veterans  Affairs  Disability  Benefits 
Commission (VADBC) on the subject of unemployability, explaining 
the  differences  in  numbers  of  awards  by  the  Air  Force  and  the 
DVA.  He notes in his briefing that the BCMR Medical Consultant 
explained the variances of awards by the two organizations were 

 

5 

a matter of “different physician training.”  However, he did not 
state the Air Force does not actually make such awards.  In this 
respect,  the  applicant  notes,  in  researching  this  through 
Freedom  of  Information  Act  (FOIA)  requests,  he  has  found  out 
that the BCMR Medical Consultant did not tell the VADBC that the 
Air Force actually does not make any findings of unemployability 
for servicemembers at all.  A statistically insignificant number 
of  around  just  12  members  in  over  a  decade  has  received  this 
protection, yet he has provided adequate proof that he qualifies 
for this protection. 
 
In  addition,  through  his  FOIA  request,  he  was  not  provided  any 
record of the Board’s consideration of unemployability for total 
disability,  nor  any  written  information  or  guidance.    However, 
he  did  find  two  briefings  of  the  last  two  AFBCMR  Training 
Conferences,  where  the  word  “unemployability”  does  not  even 
appear  and  if  the  response  to  the  FOIA  is  accurate  these  two 
briefings appear to be the only guidance to the Board, so, he is 
unaware  as  to  how  servicemembers  can  be  protected  by  the 
provisions of this law, if the subject of unemployability is not 
even mentioned. 
 
While  he  understands  the  difference  between  the  two  laws 
governing the Military Disability Evaluation Systems (MDES) and 
the  DVA,  how  can  both  agencies  differ  so  widely  in  their 
evaluation  of  the  same  “snapshot  in  time,”  at  the  time  of 
retirement? (Exhibit I) 
 
In addition, the applicant submitted supporting documentation to 
corroborate his contentions that his LOD injuries were worsened 
by the care he received from the VA and the inadequacies of the 
first  surgery  at  Bethesda.    He  maintains  that  these  findings 
should  have  been  reflected  in  his  Air  Force  medical  evaluation 
for  permanent  and  total  disability  and  should  have  been 
separately rated at the PEB.   
 
Additionally,  the  applicant  submitted  further  documentation  to 
corroborate  his  contentions  for  combat-related  injuries  and 
illness associated with Agent Orange; and amended his request to 
include acute peripheral neuropathy due to an instrumentality of 
war. 
 
He  respectfully  disagrees  with  several  recommendations  of  the 
Advisory  Opinion  and  notes  that  it  makes  no  objection  to  the 
backdating of the requested relief, which he maintains should be 
backdated to the date of his original retirement because he was 
clearly  totally  and  permanently  disabled  at  that  time  and  the 
Air  Force  failed  to  allow  the  PEB  and  AFBMCR  to  be  even 
superficially  informed  regarding  the  unemployability  rating  and 
his eligibility for it. 
 
Additionally, he notes that the evaluation: 
 

 

6 

-Fails  to  address  several  of  the  issues  for  which  relief 
was sought, specifically, Agent Orange exposure and its related 
illnesses, plus other injuries and illnesses.   

-Ignores justifications detailed in his appeal.   
-Is in factual error regarding numerous conclusions.   
-Concludes  that  his  appeal  has  enough  justification  to 

permit the Board to give him the benefit of the doubt.   
 
Further, he notes, that because of his duties during deployments 
and  the  Gulf  War,  he  maintains  that  his  cervical  spine  injury 
was  aggravated  and  post-surgical  and  DVA  medical  care  worsened 
his injuries and illnesses.  The aircraft and previous fall from 
a military vehicle are evidence that his disabilities should be 
combat-related,  because  they  are  instrumentalities  of  war.    He 
maintains  that  the  Air  Force’s  record  with  consideration  of 
unemployability  is  inconsistent  with  law  and  policy  and  he 
should be granted a compensable disability rating of 100 percent 
based on unemployability. 
 
The  applicant’s  complete  responses,  with  attachments,  are  at 
Exhibit K. 
 
________________________________________________________________ 
 
ADDITIONAL AIR FORCE EVALUATION: 
 
The  BCMR  Medical  Consultant  recommends  granting  the  applicant 
relief by amending the record to reflect that he was placed on 
the  Temporary  Disability  Retired  List  (TDRL),  effective 
2 Aug 94,  with  a  60  percent  disability  rating  and  remained  so 
until he was removed from the TDRL and permanently retired with 
the assignment of a total [100 percent] disability rating under 
the  individual  unemployability  provision  of  38  C.F.R.  and  the 
provision  of  the  since  rescinded  DoDI  1332.39,  paragraph  6.5, 
Total  Disability  Rating,  effective  28  Mar  96.    He  notes  that 
this  supplemental  advisory  analysis  is  in  response  to  the 
applicant's  rebuttal  letter  to  the  Board.    The  applicant 
maintains that he should have received a 100 percent disability 
rating  due  to  unemployability  backdated  to  his  date  of 
retirement  and  that  his  medical  condition(s)  be  determined  to 
have  been  the  direct  result  of  an  Instrumentality  of  War. 
Setting  the  stage  of  the  applicant's  petition  is  evidence 
supplied to him via FOIA which demonstrated that the Air Force, 
in  a  disproportionate  manner,  has  granted  far  fewer  total 
disability  rating  awards  for  unemployability,  as  compared  with 
the DVA.   
 
The  BCMR  Medical  Consultant  notes  that  fundamentally,  the 
applicant's petition for a total disability rating appears to be 
largely  based  upon  the  "unemployability"  decisions  previously 
rendered  by  other  federal  agencies,  the  DVA  and  the  Social 
Security Administration (SSA); and the implicit allegation that 
the  Military  Department  failed  to  do  so  because  it  "[does]  not 
like issuing  unemployability ratings," or words to that effect.  

 

7 

The Medical Consultant concedes the opinions from other sources 
supporting  the  applicant's  petition  are  compelling  that  he  may 
have been reasonably unemployable during the timeframe from 1994 
to  1996  (the  latter  date  when  he  was  removed  from  the  TDRL).  
However,  the  Medical  Consultant  would  prefer  to  reach  a 
consensus  via  an  independent  review  of  the  applicant's  actual 
service  medical  documentation,  e.g.,  MEB  narrative  summary, 
applicable  progress  notes  leading  to  the  MEB  and  the  assigned 
military  profile  restrictions,  notwithstanding  the  reputable 
sources of the opinions provided [National Naval Medical Center, 
a  VA  Medical  Center,  Johns  Hopkins  and  Massachusetts  General 
Hospital] and his military TDRL reevaluation.  For this reason, 
the Consultant opines that the collective probative value of the 
VA  determinations  coupled  with  the  clinical  assessment  at  the 
time  of  TDRL  re-evaluation  should  be  taken  into  consideration 
for granting the unemployability rating under the aforementioned 
provision of DoDI 1332.39 and existing provisions under Title 38 
Code  of  Federal  Regulations  (C.F.R.),  at  the  time  of  release 
from the TDRL.   
 
We  now  know  that,  as  a  result  of  NDAA  2008  and  the  current 
Integrated Disability Evaluation System, the Military Department 
relinquishes  all  rating  determinations  to  the  DVA,  is  required 
to  follow  only  VA  or  mutually  agreed  upon  guidelines  in  rating 
determinations,  but  still  only  applies  the  disability  rating 
decision  to  those  conditions  found  unfitting  for  further 
military  service.    This  remedy  has  removed  the  opportunity  for 
future  disparities  between  VA  and  Military  Departmental  rating 
decisions  when  evaluating  the  same  patient,  with  the  same 
reported disabilities, although operating under the same VASRD; 
but  bearing  in  mind  that  the  DVA  assigns  disability  ratings  to 
all conditions found service connected, without regard to their 
impact  upon  a  member's  retainability,  fitness  to  serve,  or  PEB 
determinations.    Based  upon  a  preponderance  of  evidence,  to 
include the applicant's reported worsening incontinence and the 
emergence  of  an  intervening  secondary  affective  disorder  [and 
the  failure  of  medical  officials  to  obtain  a  recommended 
psychiatric  evaluation],  which  likely  contributed  to  his  level 
of  overall  functional  impairment,  the  Consultant  finds  it  fair 
to change the rating at the time of the applicant's release from 
the  TDRL  and  to  apply  the  total  disability  rating  due  to 
unemployability. 
 
The  Medical  Consultant  opines  the  Service  evidence  does  not 
adequately  support  a  total  disability  rating  at  initial  TDRL 
placement;  particularly  in  the  context  of  the  applicant's 
demonstrated  performance  history  during  Service  and  prior  to 
initial TDRL placement.  Addressing the applicant's concern for 
failing  to  address  other  medical  conditions  reportedly  present 
in  his  service  treatment  record,  unlike  the  DVA,  the  MDES, 
operating  under  Title  10,  U.S.C.,  is  established  to  maintain  a 
fit  and  vital  fighting  force  and  can  by  law,  only  offer 
compensation  for  those  service  incurred  diseases  or  injuries 
which specifically rendered a member unfit for continued active 

 

8 

service or were the cause for career termination; and then only 
for  the  degree  of  impairment  present  at  the  time  of  separation 
and  not  based  on  future  changes  or  worsening;  unless  such 
changes occurred in the condition(s) previously found unfitting, 
while  in  TDRL  status.    Although  the  applicant  contends  other 
medical conditions were not considered in his disability rating 
computation,  which  were  reportedly  documented  in  his  service 
treatment record, there is insufficient evidence to demonstrate 
that  any  of  these  reported  additional  clinical  symptoms 
interfered with his ability to perform assigned military service 
of  a  sufficient  sustained  level  of  restriction,  e.g.,  "P4T"  or 
"L4T"  profile  and  duration  [as  would  have  been  reflected  on  AF 
Form  422,  Physical  Profile  Serial  Reports]  to  warrant 
independent bases for separate unfit findings for termination of 
his military service. 
 
In  conclusion,  the  Medical  Consultant  opines  the  applicant  has 
raised  reasonable  doubt  in  his  favor,  that  he  should  have  been 
considered  for  the  total  disability  rating  for  individual 
unemployability  at  the  time  of  removal  from  the  TDRL  and  that 
his cervical spine injury, that occurred after falling out of a 
military  vehicle  and  which  required  two  surgeries,  was  the 
direct  result  of  an  Instrumentality  of  War.    Should  the  Board 
agree  with  this  analysis,  the  reader  is  advised  that  this  does 
not  establish  a  precedent,  but  would  be  based  solely  on  the 
unique  characteristics  of  the  applicant's  disabilities  and 
evidence  provided  reflecting  both  significant  mental  and 
residual  physical  impairments  that  adversely  affected  his 
employability. 
 
The complete BCMR Medical Consultant evaluation is at Exhibit L. 
 
________________________________________________________________ 
 
ADDITIONAL APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: 
 
The  applicant  concurs  with  and  accepts  the  recommendations  and 
offers 
opinion’s 
characterization  of  his  service  prior  to  being  placed  on  the 
TDRL.  He notes that, in fact, documents submitted to the Board 
establish that he was for nearly two years on Incapacitation Pay 
status,  itself  a  disability  situation  for  which  he  had  to  be 
unemployable  to  qualify.    Further,  he  wish  to  offer  another 
minor  observation  that  the  opinion  discusses  justification  for 
providing  an  Instrumentality  of  War  finding  and  seems  to 
recommend that such a finding “could reasonably be considered.” 
However,  no  later  discussion  of  this  is  made  in  the 
Recommendation section of page 5, so he concurs and accepts this 
opinion  if  that  is  actually  its  recommendation.    Additionally, 
he notes, that some of the points raised in his appeal (such as 
not  having  a  Reserve  Component  officer  as  a  PEB  board  member) 
have not been touched upon but it now seems that all the total 
relief he could hope for has been recommended in the opinion.   

observation 

regarding 

a 

minor 

the 

 

9 

 
The applicant’s complete response is at Exhibit N.   
 
________________________________________________________________ 
 
THE BOARD CONCLUDES THAT: 
 
Sufficient  relevant  evidence  has  been  presented  to  demonstrate 
the  existence  of  error  or  injustice  warranting  corrective 
action.  After careful consideration of the applicant’s complete 
submission,  including  his  responses  to  the  BCMR  Medical 
Consultant’s  evaluations  and  based  on  the  preponderance  of 
evidence, we recommend partial relief.  In this respect, we note 
the  BCMR  Medical  Consultant  has  conducted  an  exhaustive  review 
of  the  available  evidence  and  we  are  in  agreement  with  his 
opinion  and  recommendation  that  the  additional  documentation 
provides  a  reasonable  basis  to  conclude  that  the  applicant 
should  be  entitled  to  a  compensable  disability  rating  of  100 
percent for individual unemployability subsequent to his release 
from the TDRL. 
 
However,  in  considering  the  applicant’s  request  that  his 
conditions  be  reflected  as  a  result  of  a  combat-related  event, 
instrumentality  of  war,  hazardous  service  or  simulated  combat 
service;  that  his  PEB  be  rendered  invalid  based  on  the  make-up 
of the board’s membership, we found no evidence that the PEB was 
conducted inappropriately or was not administered in accordance 
with  the  governing  Air  Force  instructions  and  policy.  
Additionally,  in  our  view,  while  we  note  the  comments  of  the 
BCMR  Medical  Consultant,  we  are  not  convinced  that  the 
applicant’s  injuries  were  a  direct  result  of  a  combat-related 
event  or  an  instrumentality  of  war.    Accordingly,  we  recommend 
the applicant’s record be corrected only to the extent indicated 
below.   
 
________________________________________________________________ 
 
THE BOARD RECOMMENDS THAT: 
 
The  pertinent  military  records  of  the  Department  of  the  Air 
Force relating to APPLICANT, be corrected to show that: 
 
 
1.  On  2  August  1994,  he  was  not  permanently  retired  by 
reason  of  disability  under  the  provisions  of  Title  10  USC 
Section  1202,  but  his  name  was  placed  on  the  Temporary 
Disability  Retired  List  (TDRL),  with  a  compensable  disability 
rating of 60 percent. 
 
2.  On 28 March 1996, his name was removed from the TDRL and 
 
he was permanently retired by reason of physical disability with 
a compensable disability rating of 100 percent.   
 
________________________________________________________________ 

 

10 

 
The  following  members  of  the  Board  considered  AFBCMR  Docket 
Number  BC-1999-00390  in  Executive  Session  on  21  February  2012, 
under the provisions of AFI 36-2603: 
 
All  members  voted  to  correct  the  records,  as  recommended.    The 
following documentary evidence was considered: 
 
     Exhibit F.  Record of Proceedings,  
                 dated 30 Aug 00, w/exhibits. 
     Exhibit G.  DD Forms 149, dated 22 Oct 10, w/atchs. 
     Exhibit H.  Letter, AFBCMR Medical Consultant,  
                 dated 24 Mar 11. 
     Exhibit I.  Letters, Applicant, dated  
                 27 Apr and 18 May 11, w/atchs. 
     Exhibit J.  Letter, AFBCMR, dated 5 Oct 11. 
     Exhibit K.  Letter, Applicant, dated 23 Oct 11, w/atchs. 
     Exhibit L.  Letter, AFBCMR Medical Consultant, 
                 dated 6 Jan 12. 
     Exhibit M.  Letter, AFBCMR, dated 10 Jan 12. 
     Exhibit N.  Letter, Applicant, dated 31 Jan 12. 
 
 
 
 
                                   Panel Chair 

 

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