RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02663
		INDEX CODES:  128.14, 135.02

		COUNSEL:  NONE

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His records be corrected to reflect he was entitled to incapacitation pay during the period 1 Jul 94 to 30 Sep 94, and that he be credited with service points for this period.

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APPLICANT CONTENDS THAT:

He was denied incapacitation pay for injuries he incurred in the line of duty (LOD) because a determination was made he could work light duty with restrictions, even though he was not authorized to work by the Hospital Commander.  He disagreed with that decision and filed an Inspector General (IG) complaint because of the mistreatment and handling of his situation.

In support of his appeal, the applicant provided an expanded statement, and documentation pertaining to the IG report and LOD determination.

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

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STATEMENT OF FACTS:

Available documentation indicates the applicant was an Individual Mobilization Augmentee (IMA) who volunteered for and was put on a 60-day Military Personnel Appropriation (MPA) tour from 13 Oct 93 to 11 Dec 93 at Cannon AFB.  He sustained an injury to his knee on or about 13 Nov 93 while moving boxes of medical records.  He subsequently obtained medication for pain and emergency treatment at the Cannon AFB Clinic.  An investigation found the injury to be in the line of duty, however no legal review was conducted at the time, and the commander did not sign the initial AF Form 348.  The applicant underwent further evaluation on 11 Dec 93 and the results indicated he needed surgery.

Surgery was performed to repair a medial meniscal tear in the applicant’s right knee at Tinker AFB Hospital on 8 Jun 94.  In addition to the meniscal tear, there was surface cartilage damage.  He experienced complications upon his initial release from the hospital and was readmitted.  He was placed on convalescent leave after his subsequent release until 28 Jun 94.  His rehabilitation continued through Jul 94, Aug 94, and Sep 94 and included three days of physical therapy each week and two consultations per month with his physician.

The first report of the injury was from the applicant to Lieutenant Colonel B--- (ARPC/SGP) on 10 Jul 94, after the surgery.  Technical Sergeant (TSgt) B---, who manages the administrative requirements for IMAs assigned to the 9019 ARS, told him which documents were required to process the continuation of pay (COP).  On 13 Jun 94, the applicant telephoned Staff Sergeant (SSgt) D--- L---, ARPC/MSPPC-2 (Special Actions).  SSgt L--- also advised the applicant of the required documentation, to include an AF Form 348, Line of Duty Determination, necessary to establish entitlement to COP.  The applicant sent the documentation, to include medical information, to SSgt L--- via overnight delivery which SSgt L--- immediately delivered to ARPC/SG for review and advice.

ARPC/SG determined that the AF Form 348 was incomplete, so on 24 Jun 94, the LOD package was returned to the 27th Medical Group at Cannon AFB, and they were instructed to complete the reverse of the AF Form, to include the unit commander's signature and a legal review and signature.  The completed AF Form 348 was not received by SSgt L--- until 12 Aug 94.  While the AF Form 348 was at Cannon AFB, SSgt L--- and TSgt B--- followed-up with Airman H‑‑‑ and Airman N--- of the Cannon AFB Clinic regarding its status, and were told the package was awaiting the legal review.

While the AF Form 348 was pending, SSgt L--- was unable to provide the applicant a decision on his request for COP.  After receipt of all the required medical documentation, Master Sergeant (MSgt) D--- S---, Chief, Physical Standards Section, HQ ARPC/SGS, sent a memorandum, dated 17 Aug 94 to ARPC/MSPPC-2, authorizing incapacitation pay for the applicant from 8 Jun 94 to 30 Jun 94.  This period covered the surgery and recuperation from the surgery.  Another memorandum was sent to ARPC/MSPPC-2 on 1 Sep 94, stating that as of 1 Jul 94, the applicant was fit for duty and no additional incapacitation pay was authorized.  ARPC/SG explained the applicant was entitled to COP for the time he was disabled, which was from the time of the operation to the day he was released to light duty which was 30 Jun 94.  The fact he was still receiving outpatient care did not prevent him from working with the recorded restrictions.  ARPC/SG stated that the applicant was fit to perform the duties of his Air Force Specialty Code (AFSC) during Jul 94, Aug 94, and Sep 94, and was therefore not entitled to COP.  To be eligible for COP, a member must have a physical profile of T-4/L-4, the only profile that makes the military member not worldwide deployable or fit for return to full military duty.  The applicant was an L-3.

Major B--- (physician) confirmed the applicant was partially disabled during Jul, Aug, and Sep but indicated on the AF Forms 1971 for Jul 94 and Aug 94, that he was returned to a "light duty" status.  The physical profile, AF Form 422, completed by Major B--- only restricted the applicant to no running or aerobics, and no cycle ergometry.  Although the AF Form 1971, dated 9 Sep 94, showed the member was not released and is entitled to continued disability, and even though Major B--- testified he did not think the applicant was fit for duty or worldwide deployable during Jul 94, Aug 94, or Sep 94, no change was made to the physical profile accomplished on 30 Aug 94 because the AF Form 422 took precedence over the AF Form 1971.

On 19 Aug 94, the Denver Reserve Pay Office authorized an advance of $1500.00 to the applicant.  This is not normally done, but was a humanitarian decision based on Tinker AFB personnel who had interceded on the applicant’s behalf since he had no income at that time.  The amount of incapacitation pay he actually received after all deductions did not equate to the advance, so he incurred a debt on his record.  The first actual incapacitation paycheck was issued on 31 Aug 94, and the second on 15 Sep 94. His total debt equated to $343.42.

On 17 Oct 94, an IG inquiry was conducted regarding the applicant’s allegations of inappropriate handling by ARPC personnel of his request for continuation of pay due to his LOD injury and surgery, and the assertion of his entitlement to incapacitation pay beyond 30 Jun 94 through Sep 94.  The IG found that the ARPC personnel did process his LOD and his request for incapacitation pay appropriately, and he received the continuation of pay to which he was entitled.

Information extracted from the Personnel Data System (PDS) indicates that at the time of his appeal, the applicant was serving on active duty in the grade of senior master sergeant, having been promoted to that grade on 1 Mar 98.  He had a date of separation (DOS) of 15 Dec 04 and an Expiration of Term of Service (ETS) of 31 Dec 04.

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AIR FORCE EVALUATION:

ARPC/DPRFQ recommended denial noting that an IG investigation was initiated regarding the applicant’s complaint and found no basis for the applicant’s claim.  Furthermore, the applicant’s request that he be credited with service points for the period for incapacitation pay is not applicable.  According to ARPC/DPRFO, members do not receive points while receiving incapacitation pay other than normal points awarded for duty training if applicable.

A complete copy of the ARPC/DPRFQ evaluation is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the advisory opinion and furnished a response indicating his understanding of the governing instruction is that members on active duty orders for a specified period of 31 days or more are not involuntarily released from their orders if they incur an LOD medical condition.  His injury was incurred while he was on active duty and an LOD was completed and he was on continuous treatment until the end of Sep 94.

Applicant’s complete response, with attachment, is at Exhibit D.

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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 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 office of primary responsibility (OPR).  No evidence has been presented which has shown to our satisfaction he was entitled to incapacitation pay during the period 1 Jul 94 to 30 Sep 94, or that he should be credited with service points for this period.  In view of the foregoing, and in the absence of sufficient evidence to the contrary, we agree with the recommendation of the OPR and adopt their rationale as the basis for our decision that the applicant has failed to sustain his burden of establishing 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.

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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.

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The following members of the Board considered AFBCMR Docket Number BC-2004-02663 in Executive Session on 25 Jan 05 and 10 Feb 05, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 24 Aug 04, w/atchs.
    Exhibit B.  Letter, ARPC/DPRFQ, dated 29 Sep 04.
    Exhibit C.  Letter, SAF/MRBR, dated 30 Sep 04.
    Exhibit D.  Letter, applicant, dated 19 Oct 04, w/atch.