RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-03167
		INDEX CODE:  110.01

		COUNSEL:  NONE

		HEARING DESIRED: YES

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APPLICANT REQUESTS THAT:

He be placed back on active duty effective 15 April 2000 until the disposition of his back injury is resolved.  He receive all back pay and allowances from 15 April 2000, the date he was released from active duty, until now.  Additionally, he requests a 50% disability rating for a ruptured disc, 30% disability rating for a compressed neck, and 20% disability rating for problems with his left knee.  He requests a medical retirement from the Air National Guard (ANG). 

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APPLICANT CONTENDS THAT:

Applicant states he was activated from 1 May 1999 to 15 April 2000 in support of Operation Allied Force in Bosnia.  During his active duty tour he injured his back.  Military doctors initially listed his back injury as existed prior to service (EPTS) but on 12 June 2001, it was changed to a line of duty (LOD) injury.  He states he was involuntarily released from active duty on 15 April 2000.  He still suffers from the back injury and it has prohibited him from working at his old civilian job.  He believes he should have been allowed to remain on active duty until his back injury was resolved and would like to return to active duty for that purpose.  

Applicant states he has a ruptured disc, a compressed neck that has led to neck pain and numbness in his right arm.  He states he has problems with his left knee that, in turn, has led to problems with his right knee.  Applicant states that should he receive the active duty time he requested he would have 17 good years towards a Reserve retirement at age 60.  To that end, he believes he should be granted a medical Reserve retirement.

In support of his appeal, the applicant has provided an excerpt from Air Force Instruction (AFI) 36-3212, Physical Evaluation for Retention, Retirement, and Separation, copies of National Guard Bureau (NGB) Form 348, Line of Duty Determination, a page from his military treatment record, a letter to his representative, a letter to his unit personnel officer requesting a medical evaluation board (MEB), two letters to State representatives, pertinent copies of the results of a magnetic resonance imaging (MRI), a letter from the Office of Policy and Liaison to his representative, pertinent letters from his State regarding his LOD status, a letter from his civilian employer stating why they cannot reemploy him, a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty, and a letter from his local Veteran’s Service Office.

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

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STATEMENT OF FACTS:

The applicant, a former member of the XXXXXX Air National Guard (XXANG), was called to active duty on 1 May 1999 in support of Operation Allied Force.  On 17 June 1999, while on active duty in Bosnia, he injured his back.  He was diagnosed with degenerative disk disease and received physical therapy.  A line of duty (LOD) determination was performed by his unit and on 18 February 2000, his injury was recommended LOD.  When the recommendation was passed to HQ ANG/SG, the LOD was denied and on 14 March 2000, his injury was listed as existed prior to service (EPTS) with service aggravation and he was authorized 120 days of physical therapy.  He was released from his active duty tour on 15 April 2000.  On 26 March 2001, applicant applied to the AFBCMR to have his injury changed from EPTS with service aggravation to LOD.  On 7 December 2001, HQ ANG approved his request and his records were changed to reflect LOD.  On 9 June 2003, he met a medical evaluation board (MEB) at Wright-Patterson AFB that found an L3/L4 disc herniation incurred while entitled to basic pay and was LOD.  On 9 September 2003, applicant applied to the AFBCMR requesting to be placed back on active duty beginning 15 April 2000 until his back injury was resolved.  On 8 October 2003, he met an informal physical evaluation board (IPEB) at Lackland AFB.  The IPEB recommended discharge due to medical disqualification with 10% disability rating and severance pay.  A formal PEB (FPEB) upheld the IPEB’s recommendation.  On 20 October 2003, the applicant appealed the decision to SAF/PC asking for a permanent retirement with a 40% disability rating.  On 18 December 2003, SAF/PC found the applicant’s condition did not reach the threshold for a 40% disability rating and concurred with the previous findings of the IPEB and FPEB.  On 20 January 2004, applicant was honorably discharged by reason of physical disability with entitlement to receive severance pay in the grade of SSgt.  At the time of discharge, he had served a total of 17 years, 3 months, and 24 days of combined active and Reserve service.

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AIR FORCE EVALUATION:

ANG/DPP notes the inordinate amount of time it has taken to process this application and states the applicant’s lack of action on two occasions contributed to the amount of time taken thus far.  In accordance with AFI 36-3212 wherein it states “Air Reserve Component (ARC) members who incur or aggravate an injury, illness, or disease in the line of duty while on orders for more than 30 days are not involuntarily released from those orders until final disposition of their disability case.  These members’ entitlement to full pay and allowances and benefits continue to the same extent provided by law or regulation to regular component members.”  Therefore, since he was maintained in an active status and incapacitation pay status until 30 August 2000 and not 12 September 2000, when the PEB found him medically disqualified, DPP recommends he receive incapacitation pay from 31 August 2000 until 12 September 2000.

DPP’s complete evaluation, with attachments, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant rejects the ANG advisory’s claim that the delay of his case is due to his lack of action on two occasions.  He also rejects several other factual inaccuracies.  First, he contends his initial date of injury was in May, not June 1999.  The second error was the misdiagnosis of the severity of his injury.  After a month of physical therapy and three months from the date of his injury, an MRI revealed the true problem: two herniated discs.  After more physical therapy he was sent back to the ANG for duty to see if he experienced any more problems.  He reinjured his back and was put on a 10 lbs limit.  The ANG then tried to return him to his civilian employer who refused to put him back to work because of his injury.  He tried to get an LOD for his injury but the ANG made it very difficult.  His LOD was partially approved in June 2001, but he only found out about the approval by accident in November 2001.

He contends the ANG has been ruthless in its efforts to keep his injury in EPTS status.  After an investigation by the state Air Surgeon found no existence of a preexisting back condition, the ANG was asked to clarify their position.  In June 2004, the ANG changed his injury status to EPTS, however aggravated by service.  He has not been officially notified of this decision and consequently asks for copies of medical records and/or physicals that were used to support this diagnosis.  Additionally, he asks why the requested information was never provided to his state Air Surgeon or his civilian doctors who never found a preexisting back condition.  

He states prior to his active duty injury, he was perfectly healthy and had two careers.  Now, as a result of service, he is disabled and had lost both careers and their associated retirement benefits. 

Applicant’s complete rebuttal, with attachments, is at Exhibit E.

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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 regarding applicant’s request for pay and allowances between 15 April 2000 and 18 December 2004.  In this regard, we note that it took several years for a determination to be made that his injury was in the line of duty and several years for him to actually meet a medical board.  As a result, he incurred medical expenses and experienced financial hardship during the period 2000 through 2003. Air National Guard Instructions allow members on orders for a period of 31 days or more, who are incapacitated or hospitalized beyond the original termination point of their orders, to remain on active duty until a final disposition of the member’s case is determined.  It is apparent the applicant was entitled to and should have had a complete medical evaluation prior to being released from active duty.  However, the applicant was erroneously released from active duty prior to the final disposition of his case.  Therefore, we recommend that the records be corrected as indicated below.

4.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice regarding his request he be awarded a medical retirement with 100% compensable disability rating.  Applicant was processed through the Disability Evaluation System (DES) and received a 10% disability rating along with severance pay.  Evidence has not been provided which would lead us to believe that the applicant’s disability processing and the rating he received at final disposition was contrary to the governing Air Force instruction and the law. Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting medical retirement with 100% disability rating.

5.  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.

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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. On 15 April 2000, he was not released from active duty but on that date he continued to serve until 19 January 2004.  

		b. On 20 January 2004, he was transferred to the Retired Reserve, eligible for Reserve retired pay at age 60 under the provisions of Title 10, U.S.C., Section 12731, rather than accepting discharge for physical disability with severance pay.

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The following members of the Board considered this application in Executive Session on 28 September 2004, under the provisions of AFI 36‑2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 9 Sep 03, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ANG/DPP, dated 9 Jun 04, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 25 Jun 04.
    Exhibit E.  Letter, Applicant, dated 21 Jul 04, w/atchs.

                                   

DEPARTMENT OF THE AIR FORCE
WASHINGTON DC

Office Of The Assistant Secretary

AFBCMR BC-2003-03167

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 APPLICANT, be corrected to show that:

		a. On 15 April 2000, he was not released from active duty but on that date he continued to serve until 19 January 2004.  

		b. On 20 January 2004, he was transferred to the Retired Reserve, eligible for Reserve retired pay at age 60 under the provisions of Title 10, U.S.C., Section 12731, rather than accepting discharge for physical disability with severance pay.