RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-02850
		INDEX CODE:  128.14

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

Special Order ---, dated 17 Feb 98, be rescinded and his active duty status be reinstated with full pay and benefits, ending with his date of separation on 22 May 01.

By amendment, his records be corrected to reflect that he was entitled to incapacitation pay from 7 Apr 98 to 6 Oct 98; and, from 1 Apr 99 to 22 May 01.

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APPLICANT CONTENDS THAT:

The special order was in violation of Air Force Instruction 3001, Section 1.5.  This order removed him from active duty after it was determined that he injured both of his knees in the line of duty (LOD), which resulted in his incapacitation.  This was done without his consent.

In support of his appeal, the applicant provided an expanded statement, and extracts from his military personnel records, to include the findings of a Formal Physical Evaluation Board (FPEB), Special Order ---, and an LOD.

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

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 5 Dec 88.  He was released from active duty on 7 May 97 under the provisions of AFI 36-3208 (Intradepartmental Transfer).  He was credited with 8 years, 5 months, and 3 days of active duty service.

On 8 May 97, the applicant enlisted in the Air National Guard for a period of 4 years and 3 months.

By Special Order ---, dated 1 Dec 97, the applicant was ordered to active duty from 17 Dec 97 through 10 Mar 98 for the purpose of attending Ground Combat and Security Forces training courses.  

On 13 Jan 98, the applicant went to sick call because of pain and swelling in both of his knees.  On 15 Jan 98, he was taken to sick call when he could not complete a “ruck” march.  After completing two more follow-up appointments, he was referred to Orthopedics.  At this time, he was told that he would need physical therapy to recover, and was sent back to Kulis ANGB, Alaska.

By Special Order ---, dated 17 Feb 98, Special Order ---, dated 1 Dec 97, was amended to show that the applicant was ordered to active duty from 16 Dec 97 to 13 Feb 98.  Special Order --- was subsequently amended to show that the applicant was ordered to active duty from 16 Dec 97 to 6 Apr 98.

On 19 Sep 98, the applicant went into the ---th Medical Squadron (176 MDS) and requested a consult for Orthopedics.  He complained that he was having problems with his knee again.  On 7 Oct 98, he was seen by an orthopedic specialist, who recommended to the applicant that he would benefit from a temporary change in his duties.  He stated that the applicant’s job activities aggravated his knee pain and he did not expect this condition to improve unless he took time off.

On 20 Oct 98, the medical authority certified that the applicant had been declared incapacitated to perform normal military duty and recommended that a determination be made that his injury was LOD.  The Commander, ---th Security Forces Squadron (-- SFS), certified that the applicant was in a duty status at the time of the injuries which could result in entitlement to pay and/or benefits, which was concurred with by the Medical Corps commander.

On 4 Aug 99, the approval authority determined that the applicant injuries were not LOD, but existed prior to service (EPTS) with service aggravation.  He indicated that conservative therapy for 60 days was authorized.

On 11 Dec 00, a Medical Evaluation Board (MEB) convened and rendered a diagnosis of bilateral patellofemoral chondromalacia with resultant bilateral anterior knee pain.  The MEB recommended that the applicant’s case be referred to an Informal Physical Evaluation Board (IPEB).  It also indicated that nonmilitary hospitalization was required.

On 2 Feb 01, an IPEB convened and rendered a diagnosis of patellofemoral syndrome.  The IPEB found that the applicant was unfit because of physical disability, that the disability was incurred while the applicant was entitled to receive basic pay, that the disability was incurred in the line of duty, that the disability was ratable under VA Diagnostic Codes 5003-52999 at 10 percent, and that the disability might be permanent.  The IPEB recommended that the applicant be discharged with severance pay.  

On 21 Feb 01, the applicant disagreed with the findings and recommended disposition of the IPEB.

On 12 Apr 01, a Formal PEB (FPEB) convened and rendered a diagnosis of patellofemoral syndrome.  The FPEB found that the applicant was unfit because of physical disability, that the disability was incurred while the applicant was entitled to receive basic pay, that the disability was incurred in the line of duty, that the disability was ratable under VA Diagnostic Codes 5003-52999 at 10 percent, and that the disability might be permanent.  The FPEB recommended that the applicant be discharged with severance pay.  

On 12 Apr 01, the applicant disagreed with the findings and recommended disposition of the FPEB.

On 2 May 01, the Secretary of the Air Force directed that the applicant be separated for physical disability under the provisions of 10 USC 1203, with severance pay.

Applicant was relieved from his assignment and was honorably discharged from the Air National Guard and as a Reserve of the Air Force, effective 22 May 01, with severance pay.

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AIR FORCE EVALUATION:

ANG/DPFP indicated that this case was mishandled based on the conduct of both the applicant and the state of ---.  The applicant left the state of --- in the middle of his Medical Evaluation Board (MEB) process, which caused some delay.  The state of --- could have requested a waiver to continue incapacitation pay when it originally expired in Apr 99, instead of waiting nine months. Since the request was delayed, the absence of incapacitation pay from May 99 to Oct 99 contributed to the applicant’s decision to move out of the state in Dec 99.

In accordance with DoD Directive 1241.1, Reserve Components Incapacitation Benefits and DoD Instruction 1241.2, Reserve Components Incapacitation System, the applicant, within his rights, refused to attend MEB appointments without being on active duty.  Those appointments were rescheduled, causing further delay.  At which time, the --- Air National Guard (--ANG) placed the applicant on active duty.

ANG/DPFP believes that the applicant should receive back pay from 30 Oct 99 to 22 May 01, as if he had been allowed to collect incapacitation pay.

A complete copy of the ANG/DPFP evaluation, with attachments, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant indicated that when he left --- in late Dec 99, it was with the understanding that a legitimate MEB had been performed.  He had kept every appointment that the --- MDS had made for him.  Further investigation on his part later revealed the MEB that was conducted was fraudulent and a new MEB was ordered.  The --ANG and the --- MDS were totally responsible for all of the delays, inconsistent actions, and broken promises that have occurred since these injuries took place.  The LOD was delayed, improperly handled, and deceptively originated.  The MEB should have taken place in Feb 98, or in July 1999 when the Guard Bureau directed the ---th MDS to initiate it.  The --- MDS should not have refused examination or treatment of his injuries from Mar 98 until Sep 98.  The constant misrepresentations and manufactured documents have done nothing but deceive reviewing authorities and create misconceptions in the actual sequence of events.

Applicant indicated that he was unclear regarding the dates of 30 Oct 99 to 22 May 01.  He was removed from active duty on 17 Feb 98 (made retroactively effective 13 Feb 98) by Special Order ---- (this order has since been extended to 6 Apr 98).  He was also paid incapacitation pay from 07 Oct 98 to 30 Mar 99. He should receive back pay from 07 Apr 98 until 06 Oct 98 and from 01 Apr 99 to 22 May 01.

Applicant’s complete response is at Exhibit E.

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ADDITIONAL AIR FORCE EVALUATION:

HQ USAF/JAG indicated that, in summary, the applicant’s principle complaint that the ANG was dilatory in handling his medical situation and disability processing appears, on its face, to have some merit.  The ANG should have initiated an interim LOD in Feb 98, within seven days of his injury, instead of delaying almost nine months.  Had the LOD been accomplished on time, the issue whether applicant should have been considered incapacitated from the date of his injury through October 98 would be clearer. Since one was not accomplished, the Board will need to examine applicant’s medical records and other evidence and make its own determination whether applicant should have been considered incapacitated during that period.  If so, then the applicant would be entitled to pay for the period 7 Apr 98 to 6 Oct 98.  Likewise, the Board should examine the available evidence to determine whether during the period of May 99 through Sep 99, the applicant contributed to the delay in processing of his MEB to the extent that he should be denied pay for that period.  If not, then the Board may conclude that there is an error in applicant’s military records and he should also receive pay for the entire period from 1 Apr 99 to 22 May 01. Otherwise, the Board may follow ANG/DPFP’s recommendation that applicant be paid only for the period 30 Oct 99 to 22 May 01.

A complete copy of the HQ USAF/JAG evaluation is at Exhibit F.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

In his response, the applicant indicated that when he sustained injuries to both of his knees, he was not able to perform the duties of his Air Force Specialty Code (AFSC) and should have been deemed incapacitated at that point.  From 7 Apr 98 to 31 Oct 98, he was never released by an orthopedic specialist or any other qualified doctor from the restrictions originally placed upon him.  If an LOD had been done within the required seven days of his return in Feb 99, and an MEB had been accomplished, the gap of time would not have occurred because a monthly medical evaluation by the ---th MDS would have been required.  The negligence of the ---th MDS and their refusal to evaluate him monthly should not preclude him from the active duty status and the incapacitation pay that he has the right to receive.  Furthermore, the --- MDS falsely reported that he did not provide documentation for medical certification from May 99 to Sep 99.  As evidenced by the documentation provided, he did everything that was required of him and followed the directives of the --- Air National Guard and the ---th MDS.

Applicant’s complete response, with attachments, is at Exhibit H.

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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.  The evidence of record indicates that in Jan 98, while on active duty orders attending a training course, the applicant injured his knees.  His active duty status was subsequently terminated on 6 Apr 98, when the ANG determined that he was cleared to return to ANG duty.  As a result of his injuries, the applicant was eventually found unfit for continued military service and discharged with severance pay in May 01.  He contends that he has been incapacitated since Jan 98 and should have received incapacitation pay from 7 Apr 98, after his active duty status was terminated, until 22 May 01, his date of separation from the ANG.  We note that the applicant did receive incapacitation pay from 7 Oct 98 to 30 Mar 99.  Thus, the only periods in dispute for incapacitation pay are 7 Apr 98 to 6 Oct 98 and 1 Apr 99 to 22 May 01.  Concerning the period of 7 Apr 98 to 6 Oct 98, we are not inclined to favorably consider the request because no evidence has been presented which has shown to our satisfaction that the applicant was considered incapacitated during this period of time.  Despite his contentions that he was incapacitated from the time he injured his knees, the evidence available before us indicates that during the subsequent months after his return to ANG duty in Apr 98; i.e., May 98 to Jul 98, he participated and was paid for drill attendance.  It appears that it was in Aug 98 when he again started to complain of knee problems.  We note that in Oct 98, some nine months after he was injured, an LOD was conducted regarding the applicant’s knee injuries certifying he was incapacitated, resulting in his entitlement to incapacitation pay for the period 7 Oct 98 to 30 Mar 99.  After that, the applicant’s incapacitation pay was not extended pending an MEB.  However, we note that the MEB was preceded by an inordinate delay.  Both the applicant and the ANG blame the other for the delay.  In our view, the record was insufficient for a determination as to where the responsibility truly lies.  It would appear that there may be enough blame to go around.  Nonetheless, what we do know is that the ANG mishandled the applicant’s case by failing to initiate an LOD in the time required after he was injured.  At the very least, an interim LOD should have been initiated seven days after the applicant was injured, not after nine months.  Had this occurred, it might have brought some clarity regarding the issue of his incapacitation.  Although the applicant left the state of --- during the MEB process, it appears that he did so because of the hardship caused by the termination of his incapacitation pay.  Furthermore, in light of the applicant’s ultimate separation for a physical disability that was determined to have occurred in the line of duty, it would seem to us that he remained incapacitated until he was finally discharged.  In view of the above, we are inclined to give the applicant the benefit of the doubt concerning his request for incapacitation pay from 1 Apr 99 to 22 May 01.  Accordingly, we recommend that the applicant’s records be corrected as set forth below.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that a Line of Duty (LOD) Determination was initiated on 20 Oct 98 because of his medical condition of patellofemoral syndrome and competent authority thereafter determined that his medical condition was incurred while in the Line of Duty; and, that competent authority determined he was incapacitated from 1 Apr 99 through 22 May 01, and was entitled to pay and benefits.

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The following members of the Board considered AFBCMR Docket Number 01-02850 in Executive Session on 3 Dec 02, 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 4 Oct 01, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, ANG/DPFP, dated 21 Mar 02, w/atchs.
     Exhibit D.  Letter, SAF/MRBR, dated 5 Apr 02.
     Exhibit E.  Letter, applicant, dated 1 May 02.
     Exhibit F.  Letter, HQ USAF/JAG, dated 22 Oct 02, w/atchs.
     Exhibit G.  Letter, AFBCMR, dated 30 Oct 02.
     Exhibit H.  Letter, applicant, dated 24 Nov 02, w/atchs.

                                   

AFBCMR 01-02850

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to be corrected to show that a Line of Duty (LOD) Determination was initiated on 20 Oct 98 because of his medical condition of patellofemoral syndrome and competent authority thereafter determined that his medical condition was incurred while in the Line of Duty; and, that competent authority determined he was incapacitated from 1 Apr 99 through 22 May 01, and was entitled to pay and benefits.