RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00273
		INDEX CODE:  110.03

		COUNSEL:  NONE

		HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

He be placed on active duty from 3 March 2001 to 19 August 2003 with all back pay and entitlements as well as point credit for the days towards his retirement.

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APPLICANT CONTENDS THAT:

While on active duty for 31 days he was diagnosed as having suffered a heart attack and was subsequently hospitalized.  He was improperly discharged from active duty on 2 March 2001 after being incapacitated on active duty.  His unit did not keep him on active duty until resolution of his case as is required by Air Force Instruction 36-3212.  As a result of his complaints, his unit agreed to some additional benefits and completed a line of duty (LOD) determination.  He contends no further action was taken for over two years after the LOD was accomplished.  In May 2003, he was given a complete cardiac examination and on 19 August 2003, was returned to duty with an assignment limitation code of “C”.  He contends from the time the LOD was written to his return to duty, he repeatedly tried to get his unit to complete the medical evaluation process and to compensate him in accordance with applicable Instructions.  In October 2003, after many attempts to obtain compensation, he was told the AFBCMR was his only remaining course of action.  He believes Air National Guard Instruction (ANGI) 36-3001 clearly shows he was entitled to remain on active duty until the final disposition of his medical case.

In support of his appeal, the applicant has provided personal statements, and a chronology, along with copies of his active duty order, pertinent pieces of his medical record, an LOD determination, several pieces of correspondence between the applicant and his representatives as well as others, notes from his LOD/MEB determinations, pertinent email trails, and applicable ANG/AF Instructions.

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

STATEMENT OF FACTS:

The applicant, a member of the Arizona Air National Guard (AZANG), was ordered to active duty and deployed to France for the period 31 January 2001 to 1 March 2001.  While deployed, on 27 February 2001, he experienced a heart attack and was hospitalized on 28 February 2001 whereupon he was diagnosed as having experienced a myocardial infarction.  On 28 February 2001, an Air Force Form 1042, Medical Recommendation for Flying or Special Operational Duty, was completed medically restricting the applicant from further flying duties.  He was released from the hospital on 1 March 2001 and after his orders were extended for one day, flown back to Arizona on 2 March 2001.  His orders expired on 2 March 2001.

On 5 March 2001, he wrote to his representative asking for assistance in obtaining a positive line of duty (LOD) determination from his unit.

On 12 March 2001, the applicant underwent cardiology testing with a civilian provider the results of which were all found to be within normal limits.  

On 20 March 2001, applicant was notified that his LOD had been approved.  His heart attack was considered LOD, but was also considered as existed prior to service (EPTS) with service aggravation.

On 4 April 2001, the Arizona Adjutant General (AG) responded to the applicant’s representative with a letter wherein he stated the applicant had received a favorable LOD.  The AG also noted the applicant’s unit had agreed to pay for further diagnostic testing of up to $2500.  Since extensive testing to date indicated no evidence of coronary disease, the State’s flight surgeon concluded his heart attack was stress-induced and he was therefore entitled to the LOD with related benefits.  The AG notes the applicant indicated his pleasure with this outcome although he would not be entitled to incapacitation pay as he was on paid leave from his civilian employer.  The AG stated he would be eligible for reimbursement of related medical care.

On 23 January 2002, he underwent another physical where the physician indicated applicant was in good health.  Subsequently, on 29 January 2002, he requested to be reinstated to flying duties.  On 5 March 2002, an order was published medically disqualifying him from further flight duties effective 28 February 2002.  On 17 July 2002, he wrote a letter to his wing commander asking that an MEB be accomplished, that he be returned to active duty and entered into the Disability Evaluation System (DES), that he be provided all back pay to the point he was released from active duty and that he remain on active duty until the disposition of his case was finalized.

On 29 April 2003, the wing commander ordered a Command Directed Investigation (CDI) wherein the investigating officer was tasked with identifying any facts and circumstances surrounding applicant’s LOD determination, medical evaluation board (MEB) and all other associated actions.  The CDI found the preponderance of the evidence indicated his LOD was not initially processed in accordance with any ANG or Air Force Instructions.  The CDI concluded the applicant did not experience a myocardial infarction and, as a result, had his LOD been properly processed he could feasibly have been returned to full military duty.  Finally, the CDI concludes the applicant is entitled to some military pay and benefits however, since the timeline for his LOD has far exceeded the six months allowed by regulations, SAF approval would have to be granted.  

On 6 August 2003, applicant requested, via email to his commander, that Incapacitation benefits be initiated.  On 19 August 2003, the Air Force Personnel Center (AFPC) Medical Standards Branch directed the applicant be returned to duty; however, with an Assignment Limitation Code of “C”.  AFPC found the applicant’s medical condition to be restricting and that he was not mobility qualified pending further review.  On 15 October 2004, applicant’s commander notified NGB that the applicant had exceeded his mandatory separation date (MSD) and should be scheduled for retirement at the earliest possible date.

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AIR FORCE EVALUATION:

ANG/DPPI states this case file does not have sufficient evidence to prove either the States claim or the member’s.  That notwithstanding, DPPI contends the applicant should have remained on active duty until the final disposition of his disability case.  However, according to the State, the applicant was returned to duty with limitations during the period and returned to his civilian employment.  Additionally, there is evidence indicating the applicant was pleased with the outcome of his LOD determination and while his medical coverage would be reimbursed he was not eligible to receive incapacitation pay for lost wages as he was on paid leave from his civilian employer.  

DPPI recommends the applicant be granted relief for any medical expenses that are related to the LOD injury and with the proper documentation reimbursed for any loss of wages associated with said injury.

DPPI’s complete evaluation, with attachment is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded to the ANG advisory and asks the Board for a 30-day delay that he may obtain and present three pieces of evidence he needs to clarify the facts in his response.  He has asked his state to provide him a copy of the Command Directed Investigation (CDI) into his situation, he as asked the NGB for clarification of a statement made in their advisory regarding reimbursement of medical costs and incapacitation pay, and he as asked the NGB clarify the statement made in their advisory regarding his release from active duty prior to the disposition of his case.

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

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ADDITIONAL APPLICANT REVIEW OF AIR FORCE EVALUATION:

Applicant states the 161st Air Refueling Wing (ARW) and the AZANG not only failed to follow the regulations but also was repeatedly negligent in the handling of his case.  Instead of facing up to their obligation to him, they have sought to obfuscate and ignore their responsibility.  He notes it has been over four years since he was wrongfully released from active duty.  He presents the following five examples:

		a. His Wing Commander failed to follow regulations and improperly discharged him from active duty.

		b. The AZANG and the Adjutant General (AG) both misapplied regulations in his case even after he had asked for assistance from his Congressman.

		c. After a year, he researched the regulations and pointed out the AZANG’s responsibility to him and noting nothing was done to resolve his case.

		d. Another year went by and the Investigating Officer (I/O) of the CDI noted the unit did not process his case correctly, nor did they respond to his repeated pleas for compensation.  

		e. He notes the ANG took over a year to respond to his rebuttal and when they did they failed to consider the CDI.  

Applicant’s complete evaluation, with attached CDI, is at Exhibit F.

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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 applicant was originally ordered to active duty for 30 days.  When his orders were amended to extend the length of the orders by one day, the applicant was considered injured in the line of duty while on orders for 31 days.  By law and regulation he was eligible to remain on active duty until the final disposition of his case.  However, he was released from active duty on expiration of his orders.  In this regard, we note the applicant was injured on 27 February 2001 and while an LOD determination was accomplished on 20 March 2001, it was not until 19 August 2003 that he was determined to be fit to return to duty albeit with an assignment limitation code rendering him ineligible for worldwide duty.  Consequently, the majority of the Board agrees with his contention he should have remained on active duty from 3 March 2001 until 19 August 2003.  In regards to medical expenses incurred from 3 March 2001 until 19 August 2003, applicant should provide any medical bills, with appropriate documentation, to DFAS for possible reimbursement.  In view of the above, the majority of the Board recommends that the records be corrected as indicated 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 he was not released from active duty on 2 March 2001, but on that date, he continued on active duty until 19 August 2003.

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The following members of the Board considered this application in Executive Session on 10 May 2005, under the provisions of AFI 36‑2603:

By a majority vote, the Board voted to grant the request.  Ms. X voted to deny the applicant’s request in its entirety and elected to submit a minority report (see Exhibit G).  

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 23 Jan 04, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ANG/DPPI, dated 10 Jan 04, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 14 Jan 05.
    Exhibit E.  Letter, APPLICANT, dated 24 Jan 05, w/atchs.
    Exhibit F.  Letter, APPLICANT, dated 21 Mar 05, w/atchs.

                                   
                                   Panel Chair

 DEPARTMENT OF THE AIR FORCE
WASHINGTON DC

Office Of The Assistant Secretary

AFBCMR BC-2004-00273

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 he was not released from active duty on 2 March 2001, but on that date, he continued on active duty until 19 August 2003.

                                                                            Director
                                                                            Air Force Review Boards Agency