RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-03449

						COUNSEL:  

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

The authority for her permanent disability retirement be 10 U.S.C. § 1201, instead of 10 U.S.C. § 1204.

She be granted the travel and transportation entitlements pursuant to 10 U.S.C. § 1201 and the Joint Travel Regulation (JTR).
 
Any other relief the Board deems appropriate.  

APPLICANT CONTENDS THAT:

Counsel, on behalf of the applicant, states AFI 36-3212, Physical Evaluation for Retention, Retirement and Separation, requires retirement pursuant to 10 U.S.C. § 1201 and associated eligibility for travel and transportation entitlements.  She should have been entitled travel and shipment of Household Goods (HHG) to her home of selection under the JTR.   

She was on an Extended Active Duty (EAD) tour in the Active Guard and Reserve (AGR) program from January 2010 to November 2014.  In September 2014, an Informal Physical Evaluation Board (IPEB) recommended she be retired for permanent disability due to two preexisting medical conditions.  She was retired with a combined disability rating of 60 percent effective 1 December 2014.  Her disability retirement was the result of an unfitting medical condition aggravated during a period of active duty service of more than 30 days, thus, AFI 36-3212 requires the statutory basis for retirement be designated as 10 U.S.C. § 1201.  However, the Air Force erroneously categorized her retirement pursuant to 10 U.S.C. § 1204 which applies only to members of the Armed Forces whose unfitting condition was incurred or aggravated while on active duty orders for a period of less than 30 days.  The Air Force has denied her travel and transportation entitlements at government expense from her last permanent duty station to her Home of Record (HOR) rather than to a Home of Selection (HOS) of her choice.  

On 10 April 1999, while performing Inactive Duty Training (IDT), she was involved in a motor vehicle accident which resulted in neck pain and migraine headaches.  These injuries did not prevent the applicant from performing her military duties over the next 13 years.  

In 2013, the applicant was serving on an EAD tour when her medical condition deteriorated as her neck pain and migraine headaches worsened.  The applicant was referred to a Medical Evaluation Board (MEB) which convened on 31 January 2014.  The IPEB concluded the applicant’s unfitting conditions were incurred while she was entitled to receive basic pay.  Although the IPEB found that each condition Existed Prior to Service (EPTS), the IPEB determined that each condition had been aggravated by the applicant’s military service and the disability incurred in the Line of Duty (LOD).  The IPEB recommended the applicant be retired with a combined disability rating of 60 percent but failed to note the statutory authority for the disability retirement.

Pursuant to Special Order Number ACD-00101, dated 14 October 2014, the applicant was retired effective 1 December 2014 in the grade of major (O-4).  The remarks section of the orders erroneously noted her retirement was pursuant to 10 U.S.C. § 1204 rather than 10 U.S.C. § 1201 as required by Rule 6 of AFI 36-3212.  The AF Form 100, Request and Authorization for Separation, erroneously reflects in Item 1 that the applicant was relieved from active duty and reverting to the Air Force Reserve, rather than being permanently retired.  The AF Form 100 also states that she would proceed to her HOR instead of her HOS.  Item 19 of the AF Form 100 reflects the applicant was entitled to transportation pursuant to paragraph U5125 of the former JFTR which is now paragraph 5066 of the JTR.  Paragraph 5066 relates to the transportation entitlements for a separation from service or relief from active duty rather than retirement which is covered by paragraph 5068 of the JTR.  Consequently, the Air Force erroneously denied her the benefits to which she was entitled as a result of her disability retirement relating to her transportation and travel as well as the shipment and storage of her HHG at government expense.  The Air Force advised the applicant that she was entitled only to transportation and travel and HHG transportation either to her HOR in Toledo, Ohio or her place of entry on active duty in Aurora, Colorado and that she was authorized non-temporary storage (NTS) of her HHG for only 180 days.  On 4 August 2015, the Joint Personal Property Shipping Office, North Central (JPPSO-NC) extended the applicant’s non-temporary storage of her HHG from 180 days to one year from the date of her retirement stating that the original 180 day storage entitlement had been based on the belief that she had been separated from the military rather than retired.

Two provisions of Chapter 61 of 10 U.S.C. authorize the Secretaries of the Military Departments to place a member of the Armed Forces in a permanent disability status, 10 U.S.C. § 1201 and 1204.  A member eligible for retirement under 10 U.S.C. § 1201 is one whose covered permanent disability resulted when they were serving in a Regular component of the Armed Forces entitled to basic pay or when serving as a member of a Reserve component entitled to basic pay who was ordered to active duty for a period of more than 30 days.  On the other hand, 10 U.S.C. § 1204 applies only to a member of the Reserve component whose covered disability arose during IDT training or while the member was ordered to active duty for a period of 30 days or less.  

DODI 1332.38, Physical Disability Evaluation, dated 14 November 1996 tracks the language of 10 U.S.C. § 1201 by providing that a member with a covered disability is eligible for disability retirement if the disability was incurred or aggravated while serving in a Regular component of the Armed Forces or when a member of a Reserve Component who was called or ordered to active duty for a period of more than 30 days.  

AFI 36-3212, Table 3.1, Rule 6 indicates 10 U.S.C. § 1201 is the proper disposition where a member of the Reserve component on an EAD or on active duty orders for more than 30 days and the disability was incurred while the applicant was entitled to basic pay.  

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

STATEMENT OF FACTS:

The applicant was retired effective 1 December 2014 for permanent disability in the grade of major with compensable percentage of physical disability of 60 percent.  The applicant was credited with 14 years, seven months and three days of active service for retirement.  

Per Special Order AB-0031 dated 22 January 2010, the applicant was on an EAD tour from 29 January 2010 to 31 January 2014 in accordance with 10 U.S.C. § 10211.  

AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, dated 14 August 2014, reflects the IPEB recommended the applicant be permanently retired for unfitting conditions of migraine headaches and chronic cervicalgia with radiculopathy bilateral upper extremities with a combined compensable rating of 60 percent.   

AF Form 356, dated 15 September 2014 reflects addition of “EPTS with service aggravation” for the unfitting conditions.     

Per AF Form 1180, Action on Physical Evaluation Board Findings and Recommended Disposition, dated 17 September 2014, the applicant agreed with the findings and recommendations of the IPEB and waived her rights to a Formal PEB (FPEB).  

Per the AFPC/DPFDD memorandum dated 1 October 2014, the Secretary of the Air Force directed the applicant be permanently retired under the provisions of 10 U.S.C. § 1204.  

Special Order Number ACD-00101 dated 14 October 2014 reflects the applicant was retired for permanent disability effective 1 December 2014 and includes remarks which state “10 U.S.C. 1204.”

The remaining relevant facts pertaining to this application are contained in the memorandums prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits D thru F.    

AIR FORCE EVALUATION:

AFPC/DPFDD recommends denial.  The applicant’s injuries were incurred while on active duty orders for a period of less than 30 days.  Therefore, 10 U.S.C. § 1204 is the appropriate law for retirement.

The applicant was referred to the IPEB for Disability Evaluation System (DES) processing in January 2014 for the unfitting conditions of migraine headaches and chronic neck pain.  The initial case was received without a LOD and orders for the 1999 motor vehicle accident in which the applicant initially incurred her conditions.  The IPEB found the applicant unfit and recommended permanent retirement with a combined disability rating of 60 percent.  

Upon a case quality control review, an error was found on the AF Form 356 dated 15 September 2014 which was corrected to show the conditions as EPTS in absence of a 1999 LOD and orders.  On 22 September 2014, the applicant reviewed the corrected AF Form 356 and informed DPFDD that she was on active duty during the motor vehicle mishap and provided the LOD and orders for the 1999 period.  DPFDD found the determination should be kept as recorded and retirement orders were published under law 10 U.S.C. § 1204, which is in accordance with the IPEB, in the LOD and active duty orders for a period less than 30 days.  

A complete copy of the AFPC/DPFDD evaluation is at Exhibit D.

The BCMR Medical Consultant recommends approval.  However, the Medical Consultant concedes the final recommendation in the applicant’s case has little or nothing to do with medical expertise or advice as the case is a matter of proper application and interpretation of the law.  Having said that, if there is no finding of error, the Medical Consultant opines the apparent flaw in distinguishing between benefits given to the full active duty force and those offered to the applicant who became disqualified during an extended period of active service may constitute a probable injustice.  A military legal review and opinion may be appropriate.  

Noting the dissention between AFPC/DPFDD and the applicant’s counsel, the key issue under argument is to determine whether the applicant was serving in a period of 30 days or less when she was first injured should take precedence over the fact that her condition became unfitting while serving on a period of more than 30 days.  Applicant’s counsel directs attention to the alternative terms in the law, “incurred or aggravated” to justify eligibility under 10 U.S.C. § 1201, under presumption that aggravation of an EPTS condition would qualify.  DODI 1332.18, Disability Evaluation Systems, contains verbiage that may be considered in reaching a fair assessment, under Evidentiary Standards for Determining Compensability of Unfitting Conditions; which illustrates the variety of actions designated for Reserve component members who become unfit while on orders specifying a period of more than 30 days; particularly with a reference to the requirement for “clear and unmistakable evidence” to determine that a disease was not aggravated by their current period of military service.  This becomes relevant if the Board accepts that the presumed worsening of the applicant’s clinical presentations in 2013 represented permanent aggravation of a condition that became unfitting, while performing a subsequent period of active service; and whether such “aggravation” can be used to qualify the applicant for retirement under 10 U.S.C. § 1201 or whether it can be interpreted as a “physical disability incurred while entitled to basic pay.”  

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

AFPC/JA recommends denial of the applicant’s requests.  The corrected AF Form 356 which reflects the findings of the IPEB on AF Form 356 dated 14 August 2014 is legally sufficient to determine (in consideration of the LOD determination), the applicant’s contentions lack merit.  Consequently, there was no error in retiring the applicant under 10 U.S.C. § 1204 given that her injury was incurred (originated) while in the LOD and when she was serving fewer than 30 days on duty.  The travel arrangements she received were justified under this characterization.  Furthermore, the advisory opinion written by DPFDD correctly reflects the facts, analysis and recommended action.  In connection with her retirement under 10 U.S.C. § 1204, the government only authorized payment for the travel and transportation of her HHG to her HOR in Toledo, Ohio and non-temporary storage for only 180 days.  

The applicant argues the Air Force erroneously characterized her retirement pursuant to 10 U.S.C. § 1204 which applies only to a member whose unfitting condition was incurred or aggravated while on active duty orders for a period of 30 days or less.  Specifically, the applicant cites the IPEB’s recommendation in the AF Form 356 dated 15 September 2014 where her condition was found EPTS but with “service aggravation” during her service on EAD for a period of four years.  According to 10 U.S.C. § 1201(c)(1)(1)-(2), a member eligible for retirement under 10 U.S.C. § 1201 is one whose covered permanent disability resulted when he or she was serving in a Regular component of the Armed Forces or when he or she was serving as a member of a Reserve component ordered to serve for a period of more than 30 days.  The BCMR Medical Consultant’s memorandum was also premised upon the mistaken belief that the AF Form 356 dated 15 September 2014 was the basis of the applicant’s medical retirement.  The DPFDD determination was appropriate because the new evidence rendered the findings of the IPEB legally sufficient and negated the possibility of her condition being classified as EPTS per the AF Form 356 dated 15 September 2014.  

The applicant was referred to the IPEB for DES processing in January 2014 for the unfitting conditions of migraine headaches and chronic neck pain.  These two conditions are long-standing injuries initially incurred (originated) during an 11 April 1999 motor vehicle accident, at a time when the applicant was performing IDT (orders for less than 30 days).  However, the IPEB did not have a LOD determination until 22 September 2014.  Consequently, two different AF Forms 356 were generated during the DES processing.  Specifically, the IPEB drafted AF Form 356 dated 14 August 2014, recommending the member be permanently retired at a combined disability rating of 60% in the line of duty without knowledge the applicant had a LOD with respect to the 1999 motor vehicle accident.  Upon a case quality control review, an error was found because the IPEB did not have a legal basis to find the applicant incurring an injury in the LOD.  Consequently, generating an amended AF Form 356 was determined necessary in order to account for the absence of an LOD determination.  On 15 September 2014, again without benefit of a LOD determination, the IPEB drafted a new AF Form 356 which resolved the matter in favor of the applicant by recommending her condition as “EPTS with service aggravation.”  Nothing in the remarks indicates how the particular rigors of military service (as compared to working as a medical provider in the civilian world) permanently aggravated the applicant’s condition.  “Staring at computer screens” is not justified by the remarks as a rigor of military service and the applicant would certainly have been looking at computer screens if she had worked exclusively as a medical technician within a civilian medical career path.  On 22 September 2014, the applicant provided the LOD determination that had been generated in response to the 1999 motor vehicle accident.  This would be the first time the DES became aware that there was a LOD during her motor vehicle accident in which the applicant incurred her disabilities.  Per this LOD determination, the applicant was found in the LOD while on a drill weekend.  Given this new evidence previously unavailable to the IPEB, AFPC/DPFDD decided to use the AF Form 356 dated 14 August 2014 and set aside the one dated 15 September 2014.  Retirement orders were published under 10 U.S.C. § 1204 in accordance with the IPEB, AF Form 356, dated 14 August 2014.

A complete copy of the AFPC/JA evaluation is at Exhibit F.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel, on behalf of the applicant, states the Board should disregard the AFPC/DPFDD and JA advisory opinions.  Each reflects analysis and conclusions that are inconsistent with DODI 1332.38.  As determined by the IPEB, during a period of EAD service from January 2010 until August 2014, the applicant’s migraine headaches and cervical spine conditions were aggravated by service causing them to be found unfitting.  AFPC/JA erroneously ignored the finding of service aggravation in violation of DODI 1332.38, which establishes a presumption of service aggravation in circumstances absent clear and unmistakable evidence to the contrary.  Instead, they chose to look back 15 years to 1999 by determining the applicant incurred her disability as result of a motor vehicle accident while on IDT, ignoring that the disability did not become unfitting until 2013 or 2014, after 14 years of successful service.

The BCMR Medical Consultant recommends the Board grant full relief to the applicant.  In sharp contrast, he properly recognizes DODI 1332.18 establishes a presumption that the applicant’s unfitting conditions were aggravated by service during her final period of active duty service.  The Board should follow the recommendation of its Medical Advisor which more accurately recites the applicable DOD regulatory standard.  

In conclusion, the Board should order the correction of the applicant’s record to reflect the statutory basis for her permanent disability retirement was 10 U.S.C. § 1201 and order the Air Force to provide the applicant her full travel and transportation benefit associated with permanent disability retirement, including but not limited to personal transportation and travel allowances and the shipment of her HHG at government expense from her last permanent duty station to the HOS of her choice and any other relief the Board deems appropriate.  

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

ADDITIONAL AIR FORCE EVALUATION:

AF/JAA states the applicant’s request should be granted and the appropriate authority is 10 U.S.C. § 1201.  The applicant’s pre-existing medical conditions were aggravated while she was on active duty for more than 30 days.  The applicant’s initial injury occurred while she was serving on an IDT and on active duty for a period of less than 30 days; however, her conditions were aggravated while she was on active duty for a period of more than 30 days.  

Members of a Reserve component who were entitled to basic pay and ordered to service for a period of more than 30 days are eligible for permanent disability retirement under 10 U.S.C. § 1201 if they are deemed unfit for military service as a result of a medical condition incurred or aggravated during service per 10 U.S.C. § 1201, DODI 1332.38, Physical Disability Evaluation, E3.P.4.1.1.1 and AFI 36-3212, Physical Evaluation for Retention, Retirement and Separation, paragraph 3.22.4 and Table 3.1, Rule 6.   Reserve component members are retired under 10 U.S.C. § 1204 if they are not serving on active duty for a period of more than 30 days when the condition  was incurred or became aggravated under 10 U.S.C. § 1204, AFI 36-3212. Table 3.2.  A number of presumptions in favor of service members permeate the physical evaluation and related processes.  Members are entitled to the presumption that the aggravation of an EPTS medical condition was due to military service under DODI 1332.38, E3P4.5.2, AFI 36-3212, paragraph 3.22.4 and Wollman v. United States, 116 Feb C1. 419 (2014); Reese v. United States, 180 Ct, C1. 932 (1967); Frederick v. United States, 150 C1.Ct 769 (1960).  Members are also presumed to be in “sound physical and mental condition upon entering active duty.”  These presumptions can only be overcome by “competent medical evidence establishing by a preponderance of evidence that the condition was clearly not aggravated while serving on active duty.  To overcome these presumptions, the PEB must make “specific findings” that the aggravation was the natural progression of the preexisting defect or condition.   

The facts are clear.  The applicant was initially injured during a period of military service of less than 30 days.  After serving continuously on active duty for eight years without any issues, MEBs or PEBs, she experienced severe migraines and neck pain.  She was then deemed unfit for military service and medically retired.  Following the accident, the applicant continued to serve and was essentially on continuous active duty from 2005 until 1 January 2014.  She accrued 365 points (1 point per day) for active duty service each year from 26 January 2006 thru 26 January 2014.  The applicant was also on Active Guard and Reserve (AGR) orders from 29 January 2010 thru 31 March 2015. 

On 26 February 2016, the BCMR Medical Consultant recommended the applicant’s request be granted.  He based his recommendation on the case file indicating the applicant’s EPTS conditions were aggravated during a period of active duty greater than 30 days.  On 29 April 2016, AFPC/JA recommended denial because the original cause of the applicant’s medical condition was the 1999 car accident, which occurred during a period of active duty less than 30 days.  The initial cause of the applicant’s medical conditions is not relevant.  What is relevant is that her conditions became aggravated while she was serving on active duty for more than 30 days.  Such service creates the presumption that the aggravation was service related.  To rebut this presumption, the PEB must have specifically found that the aggravation was the “natural progression” of the applicant’s condition.  The PEB did not make any such findings.  Rather, the PEB specifically found the applicant’s conditions were “EPTS with service aggravation.”  Given that such aggravation occurred while the applicant was serving on active duty for more than 30 days, the applicant should have been permanently medically retired under 10 U.S.C. § 1201.  

A complete copy of the AF/JAA evaluation is at Exhibit J.  

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Counsel states the AFBCMR should adopt the recommendation of the advisory opinion that the applicant be granted the full relief she requested.   The AF/JAA advisory opinion recognizes that the initial cause of the applicant’s medical condition is not relevant but what is relevant is that her conditions became aggravated while she was serving on active duty for more than 30 days.  It is noteworthy the AF/JAA opinion expressly concurs with the recommendation of the BCMR Medical Consultant and rejects the recommendation made by AFPC/JA

A complete copy of the applicant’s submission is at Exhibit L.  

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 an error or injustice.  After a thorough review of the evidence of record and the applicant’s complete submission, we believe the applicant is the victim of an error or injustice.  We note AFPC/DPFDD and AFPC/JA recommend denial indicating the applicant’s disability retirement in accordance with 10 U.S.C. § 1204 is correct given her initial LOD injury in 1999 occurred while serving on a period of active duty of less than 30 days.  However, based on the preponderance of the evidence, we are persuaded her conditions which were found unfitting by the IPEB on 15 September 2014 while serving on an EAD tour greater than 30 days should be considered EPTS with service aggravation.   Therefore, we agree with the opinions and recommendations of AF/JAA and the BCMR Medical Consultant and adopt the rationale expressed as the basis for our conclusion that the applicant has been the victim of an error or injustice to warrant correcting the applicant’s record to reflect to reflect her disability retirement on 1 December 2014 was pursuant to 10 U.S.C. § 1201, rather than 10 U.S.C. § 1204 and she receive the associated entitlements and benefits.  Therefore, we recommend the applicant’s records be corrected as indicated below.  

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that  Special Order, Number ACD-00101, dated 14 October 2014, Remarks, reflect 10 U.S.C. § 1201, instead of 10 U.S.C. § 1204.

The following members of the Board considered AFBCMR Docket Number BC-2015-03449 in Executive Session on 7 July 2016 and 18 April 2017 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 5 August 2015, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, Counsel, dated 4 January 2016.
	Exhibit D.  Memorandum, AFPC/DPFDD, dated 8 February 2016.
	Exhibit E.  Memorandum, AFBCMR Medical Consultant, dated
			  26 February 2016.
	Exhibit F.  Memorandum, AFPC/JA, dated 29 April 2016.
	Exhibit G.  Letter, AFBCMR, dated 23 May 2016.
	Exhibit H.  E-mail, Counsel, dated 27 June 2016.
	Exhibit I.  Letter, Counsel, dated 27 June 2016, w/atchs.
	Exhibit J.  Memorandum, AF/JAA dated 22 March 2017.  
	Exhibit K.  Letter, AFBCMR, dated 10 April 2017.
	Exhibit L.  Letter, Counsel, dated 10 April 2017.  

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.