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.