RECORD OF PROCEEDINGS 

 AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2012-02357 

 COUNSEL: 

 HEARING DESIRED: YES 

 

________________________________________________________________ 

 

THE APPLICANT REQUESTS THAT: 

 

1. He be medically retired and placed on the Permanent 
Disability Retired List (PDRL) as of 15 Feb 11. 

 

2. He receive back pay from the effective date of his medical 
retirement. 

 

3. In the alternative, he be processed through the Disability 
Evaluation System (DES) and his case be reviewed by a Medical 
Evaluation Board for a disability determination. 

 

________________________________________________________________ 

 

THE APPLICANT CONTENDS THAT: 

 

Through counsel, he contends that he should be afforded a 
medical retirement in accordance with (IAW) Title 10 United 
States Code (USC) 1207a and AFI 36-2910, Line of Duty 
(Misconduct) Determination, under the Eight Year Rule. 

 

He was on active duty from 1982 to 1992; in addition, in Apr 05, 
he was on a 30-day or more extended active duty tour when he was 
diagnosed with osteoarthritis of his hips, which subsequently 
led to his Reserve retirement. 

 

His command determined that his condition was not incurred in 
the line of duty (ILOD); however, his Physical Evaluation Board 
Liaison Officer (PEBLO) agreed that he qualified for a medical 
retirement and protested the decision. 

 

In support of his appeal, the applicant provides copies of LOD 
documents and various other documents associated with his 
request. 

 

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

 

________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

Based on the available records, the applicant served on active 
duty, from 13 Oct 82 to 29 Oct 92 and was transferred to the Air 


Force Reserve. He was credited with over 10 years of active 
duty service. 

 

He was recalled to extended active duty from 17 Jan to 
10 Aug 05 and was released from active duty, for completion of 
required active duty training. He was credited with 6 months 
and 24 days of active duty service. 

 

On 8 Jan 12, the applicant was transferred to the Retired 
Reserve, awaiting pay at age 60. 

 

Other 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. 

 

________________________________________________________________ 

 

THE AIR FORCE EVALUATION: 

 

AFRC/SG states that there is no injustice in the decision 
rendered by the AFRC LOD board’s medical opinion of Existed 
Prior to Service/LOD/Not applicable (EPTS/LOD NA), thus no 
relief is necessary. They note, the applicant is petitioning 
the BCMR for relief and retirement for his disqualifying 
condition of total hip arthroplasty that was found unfit by the 
Informal Physical Education Board (IPEB). His contention is 
that SGP should have applied 10 U.S.C. 1207a, also known as the 
"Eight-year rule" in adjudicating his LOD. However, SGP cannot 
legally apply this rule as it is clear that the law gives that 
legal authority to the Secretary of the Air Force (SAF) for Air 
Force Reservists. SGP does not carry Secretarial authority to 
determine disability. This is first conferred at the Physical 
Evaluation Board (PEB). Thus, the determination of LOD IAW 10 
U.S.C. 1207a lies with the Informal PEB/Formal PEB (IPEB/FPEB) 
or the Secretary of the Air Force Personnel Council (SAFPC). 

 

The medical opinion is correct and consistent with good medical 
practice and is unaffected by decisions that may be applied 
administratively by the Secretary involved, that are 
administrative in nature and may be legally required to 
disregard the medical facts of onset, causes of worsening of 
degenerative processes or service connection. 

 

The complete SG evaluation is at Exhibit B. 

 

AFRC/A1K recommends denial, stating, in part, there is nothing 
submitted for the Command's review that indicates the PEB made a 
determination, and until such a 1207a determination is made by 
the SAF or the PEB, AFRC is without authority. Once the PEB 
unfit determination is made, the PEB is required to look at a 
member's orders status as of that date and the overall term of 
service. Summarily, in the case of the applicant, he requested 


transfer to the Retired Reserve, prior to the initiation of 
administrative discharge due to physical disqualification, non-
duty related. The applicant subsequently requested a 
reinvestigation of the LOD, relative to this AFBCMR claim. His 
request for an LOD reinvestigation was disapproved by AFRC/CV, 
in that, there was no new or significant information provided 
which supported a reinvestigation. The original LOD decision 
EPTS LOD Not Applicable (N/A) remains unchanged. 

 

The complete A1K evaluation is at Exhibit C. 

 

The BCMR Medical Advisor recommends the applicant be placed on 
the Permanent Disability Retired List (PDRL), effective 13 Jun 
11, with back pay and the Veterans Affairs Schedule for Rating 
Disabilities (VASRD) code be changed to 5054 for Prosthetic 
replacement of the head of the femur or of the acetabulum, with 
a compensable rating of 30 percent, the minimum rating for 
prosthetic joint replacement. 

 

There is no question the applicant has over 20 "good" years, and 
is eligible for an Air Force Reserve retirement. In addition, 
the findings and decision of the IPEB support a condition that 
is unfit for continued military duty. The issues in this case 
appear to center around the application, interpretation, and 
authorities, as related to the "Eight Year Rule" and "Line of 
Duty" determinations. In reviewing the evidence provided there 
are numerous conflicting opinions and statements within the file 
which need clarification. 

 

First, the applicant was on active duty from 01 Jan 05 to 
10 Aug 05, thus the applicant was clearly on "active Duty orders 
for greater than 31 days" when diagnosed with his illness. 
Secondly, the applicant's record reflects 10 years of 
consecutive service. This represents nearly 60 percent of the 
applicant's career being spent in an active duty role. The 
applicant obviously has greater than "eight years active duty 
service." The applicants condition is one which classically 
develops over time and may well have existed for years prior to 
the actual diagnosis. The reviewing members of the LOD board 
rendered varying recommendations on the LOD status from "In Line 
of Duty,” to "Service Aggravated,” to EPTS-LOD-N/A. The Medical 
Consultant believes this lends credence to the complexities, and 
uncertainties of this case. A LOD determination is based upon 
the onset of the disease, illness or injury process, not the 
existence of symptoms. AFRC/SG discoveries, (existed prior to 
2005), coupled with the facts that the applicant previously 
served on active duty for 10 years consecutively, the insidious 
and quiescent process of the applicant's condition (degenerative 
joint disease), and the conflicting recommendations of the LOD 
members, attest to the ambiguity of this case. The Medical 
Consultant opines that "clear and unmistakable evidence" does 
not exist to overcome the likelihood that the applicant's onset 
of disease occurred during a period of active duty or at least 
that it was "service aggravated.” Based on a memorandum from 


the SAF, members of the Air Reserve Component (ARC) who have a 
disabling condition that existed before their current period of 
active duty will have that condition deemed to have been 
incurred while they were entitled to basic pay. They must have 
eight years of active service and have been on active duty 
orders for more than 30 days at the time the condition became 
unfitting, as subsequently determined by the PEB, and meet all 
other requirements set forth under the law and governing Air 
Force instructions. 

 

The complete BCMR Medical Consultant evaluation is at Exhibit D. 

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: 

 

Copies of the Air Force evaluations were forwarded to the 
applicant on 11 Feb 13 for review and comment within 30 days. 
As of this date, no response has been received by this office 
(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 warranting 
corrective action. We note the comments from the Air Force 
Reserve offices of primary responsibility (OPRs) stating they 
are without authority to make a disability determination; 
nonetheless, the BCMR Medical Consultant has conducted an 
exhaustive review of the issues presented by the applicant and 
we are in agreement with his opinion and recommendation. 
Therefore, we recommend the applicant’s record be corrected as 
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 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: 

 


 a. On 12 Jun 11, he was found unfit to perform the duties 
of his office, rank, grade, or rating by reason of physical 
disability, incurred while he was entitled to receive basic pay; 
that the diagnosis in his case was Prosthetic replacement of the 
femur head or acetabulum, VASRD code 5054, rated at 30 percent; 
that the total compensable percentage was 30 percent; that the 
degree of impairment 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; and that the disability was not received in the line of 
duty as a direct result of armed conflict or caused by an 
instrumentality of war. 

 

 b. On 13 Jun 11, his name was placed on the Permanent 
Disability Retired List. 

 

 c. He was not transferred to the Reserve Retired List on 
8 Jan 12. 

 

________________________________________________________________ 

 

The following members of the Board considered AFBCMR Docket 
Number BC-2012-02357in Executive Session on 19 Mar 13, 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 27 May 12, w/atchs. 

 Exhibit B. Letter, AFRC/SG, dated 15 Oct 12. 

 Exhibit C. Letter, AFRC/A1K, dated 18 Dec 12. 

 Exhibit D. Letter, BCMR Medical Consultant, 

 dated, 9 Feb 13. 

 Exhibit E. Letter, SAF/MRBR, undated. 

 

 

 

 

 Panel Chair