RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-02006

	 	COUNSEL:

	 	HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His total active military service be corrected to include the period 14 Sep 98 to 25 Mar 99 as a period he was entitled to be on active duty orders pending the processing of the Line of Duty (LOD) determination required by AFI 36-2910.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The cited authority requires a commander to initiate an LOD investigation in those instances where the servicemember is absent from duty for a specified period due to illness or injury.  The failure of his then commander to follow proper procedure, coupled with the significant incapacity he suffered, resulted in a lengthy period of time that elapsed between the date of onset of his injury and his subsequent placement on orders pending both Medical and Physical Evaluation Board (PEB) determinations to place his name on the Permanent Disability Retired List (PDRL).

In support of his appeal, the applicant provided a personal statement, copies of his military personnel records, to include the LOD determination, MEB, Informal PEB, Military Personnel Appropriations (MPA) and retirement orders, point credit summary, and separation documents.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant was appointed a second lieutenant, Reserve of the Air Force, on 14 Feb 86 and voluntarily ordered to extended active duty.  

On 31 Dec 92, he was voluntarily released from active duty and transferred to the Air Force Reserve in the grade of captain.  He was promoted to the grade of major effective 12 Aug 97, with a date of rank (DOR) of 6 Mar 97.

An AF Form 938, Request and Authorization for Active Duty Training/Active Duty Tour, indicates that the applicant was to perform active duty training (MPA tour) for the period 12 Sep 98 to 13 Sep 98.  While on active duty, he became ill with a headache.  He was subsequently diagnosed with subarachnoid hemorrhage resulting from multiple cerebral aneurysms.

On 26 Mar 99, the applicant was placed on active duty orders for a medical evaluation.

On 29 Mar 99, the applicant’s commander recommended that the applicant’s medical condition be found in the line of duty, which was approved on 8 Apr 99.

On 29 Nov 99, the applicant was relieved from active duty and permanently retired by reason of a physical disability, effective 30 Nov 99, in the grade of major, with a disability rating of 30 percent.

_________________________________________________________________

AIR FORCE EVALUATION:

ARPC/JA recommended denial indicating that nothing in the Air Force Instruction (AFI) cited by the applicant, nor any other AFI of which they are aware, required that the applicant be placed on continuing orders for an LOD determination.  In many instances, continuing orders are executed based on the medical and commander’s recommendations, but they are not required.  In the record that was before them, there was no evidence the military knew, or should have known in Sep 98, of the seriousness of the applicant’s medical condition.  He, in fact, was placed on orders in Mar 99 until final determination was made in Nov 99.  According to ARPC/JA, the applicant received a lengthy period of evaluation on orders, which could have commenced in Sep 98 or Mar 99 with the same expected result to him.  In any event, there was no entitlement to be placed on orders for LOD processing as proposed by the applicant.

A complete copy of the ARPC/JA evaluation is at Exhibit C.

AFPC/DPPD indicated that having reviewed the mechanics of the Air Force Disability Evaluation System (DES) process concerning this case, they found no injustice, discrepancies, or errors during the applicant’s MEB/PEB that required any change to those records.  Since ARPC/JA is the office of primary responsibility (OPR) for LOD issues, they accept ARPC/JA’s findings and recommendation concerning this matter.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel reviewed the advisory opinions and furnished a response indicating that the entire basis for the applicant’s amendment to his service record hinges on the time lapse between the disabling event and LOD that established that fact.  In his view, much of the aggravation of the LOD process could have been avoided had the applicant’s chain of command not failed him at the outset.  In the end, he has been treated fairly, but he maintains it is speculation that had the process begun in Sep 98, it would have concluded approximately six months sooner, resulting in the same length of service calculation.

Counsel’s complete response is at Exhibit F.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

HQ USAF/JAA recommended denial indicating that there was no statutory or regulatory requirement to place the applicant on active duty orders during the LOD process and the applicant’s counsel agreed.  In addition to agreeing that the discretionary issuance of continuing orders cannot be challenged, counsel also offered that the applicant, in the end, had been treated fairly.  Consequently, it was clear that the applicant has failed to demonstrate the existence of any error or present facts and circumstances supporting an injustice.

A complete copy of the HQ USAF/JAA evaluation is at Exhibit G.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Counsel reviewed the additional advisory opinion and furnished a response indicating the applicant’s contention is based more on a mistake, in that his commander knew the degree of his incapacitation long before the ultimate initiation of the LOD.  While the issuance of orders may have been discretionary on the part of the commander, it is hard for them to imagine why such orders would not have been issued in the applicant’s case.  Counsel indicated that the applicant views the time lag as a failure of command and believes that he was penalized by what could only be characterized as a mistake or an abuse of discretion.

Counsel’s complete response is at Exhibit I.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  The applicant's complete submission was thoroughly reviewed and his contentions were duly noted.  However, we do not find the applicant’s assertions and the documents provided in support of his appeal sufficiently persuasive to override the rationale provided by the Air Force offices of primary responsibility (OPRs).  We note that there was no statutory or regulatory requirement to place the applicant on active duty orders during the LOD process.  Furthermore, no evidence has been presented which has shown to our satisfaction that the failure to do so was an abuse of discretionary authority.  In view of the foregoing, and in the absence of sufficient evidence to the contrary, we agree with the recommendations of the OPRs and adopt their rationale as the basis for our decision that the applicant has failed to sustain his burden of establishing that he has suffered either an error or an injustice.  Accordingly, we find no compelling basis to recommend granting the relief sought in this application.

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 issues involved.  Therefore, the request for a hearing is not favorably considered.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-2003-02006 in Executive Session on 10 Feb 04, under the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFBCMR Docket Number BC-2003-02006 was considered:

    Exhibit A.  DD Form 149, dated 2 Jun 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ARPC/JA, dated 30 Jul 03.
    Exhibit D.  Letter, AFPC/DPPD, dated 21 Aug 03.
    Exhibit E.  Letter, SAF/MRBR, dated 29 Aug 03.
    Exhibit F.  Letter, counsel, dated 25 Sep 03.
    Exhibit G.  Letter, HQ USAF/JAA, dated 26 Nov 03.
    Exhibit H.  Letter, AFBCMR, dated 5 Dec 03.
    Exhibit I.  Letter, counsel, dated 23 Dec 03.