RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:		DOCKET NUMBER:  BC-2007-03663
		INDEX CODE:  110.00
	XXXXXXX				COUNSEL:  NONE
					HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1.  The date of her Line of Duty determination (LOD) be corrected.

2.  She receive back pay and allowances.

3.  She receive retirement points.

4.  She receive out-of-pocket reimbursement for medical bills.

5.  Her military leave be reinstated. 

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APPLICANT CONTENDS THAT:

She should have been continued on active duty orders until a medical board determined her fitness for duty.  Her LOD was issued after her release from active duty.  After returning from Iraq, she complained of the problems she was experiencing.  Her appointments were cancelled for various reasons.  She did not see a doctor, psychologist, psychiatrist or anyone asking what was wrong.  She was only asked if she was suicidal.  After returning to her civilian job, she visited with a psychiatrist on six ocassions.  In November 2004, her physician advised her that she could not use her medicine or participate in military duties.  She was placed on a medical profile of “4” which denotes "disqualified for worldwide service" not receiving pay or points.  She was not provided instructions on what to do next.  In May 2006, she discovered a letter dated 6 November 2005, stating she was qualified for worldwide duty.  Had she been aware of this letter, she could have been participating from November 2005 until May 2006.  On 16 June 2006, a LOD determination was made.  This determination should have been done prior to her release from active duty in 2004.  On 22 July 2006, she attended her first Unit Training Assembly (UTA) after being cleared for duty.  She was subsequently placed on profile “3” which denotes "Significant defect(s) or disease(s) under good control.”  While on profile “4” she was charged for life insurance premiums.  Had she been informed/attended the out-processing briefing after being placed on medical profile “4,” she could have suspended her life insurance payments.  Between 26 September 2006 and 11 October 2006, she was hospitalized in Kansas City for Post Traumatic Stress Disorder (PTSD).  She was again hospitalized for PTSD From 14-26 April 2007 and was given electroconvulsive therapy (ECT) treatments.  Since her first hospitalization in October 2006, she has worked on an intermediate basis with the Kansas City Police Department (KCPD).  After her hospitalization in April 2007, she has not worked at her civilian job.  In July 2007, she returned to work on a limited basis.  On 23 Oct 07, the KCPD informed her they were in the process of medically retiring her due to her illness.

In support of her request, the applicant submits a personal statement, copies of her AF Forms 422, her out-of-pocket expense summary, explanation of benefits, patient prescription records, medical receipts, pay statements, and documentation extracted from her Department of Veteran Affairs (DVA) medical and military personnel records. 

Her complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Data extracted from available records reflect the applicant initially entered the Air Force Reserves on 17 May 1990.  

On 24 Sepember 2003, she deployed in support of Operation Enduring Freedom and returned on 21 November 2003.

On 6 November 2004, an AF Form 422, Physical Profile Serial Report rendered her ineligible to perform military duties.  On 7 May 2006, an informal Line of Duty (ILOD) determination was initiated.  On 6 June 2006, her unit commander stated she was suffering from PTSD related to activation and deployment for Operation Iraqi Freedom and recommended an ILOD.  On 16 Jun 06, the ILOD request was approved.

On 10 Feb 04, she was released from active duty with service characterized as honorable. 

She served a total of 15 years of satisfactory service.

On 28 Jun 08, the 442 Fighter Wing (FW), Whiteman AFB, Staff Judge Advocate (SJA) stated the objective of an LOD determination is to protect the interests of both the member and the U. S. Government when a service member sustains an injury, disease or death.  The SJA stated to meet this objective, it would have been appropriate for the 442 FW to initiate LOD proceedings earlier than they were initiated.  The LOD proceedings may have been started based upon the commander’s discretion as early as 3 May 2004 (or earlier) if a commander or medical officer had been aware of the circumstances and certainly should have been initiated by 6 November 2004 when a profile was started on the member. 

On 1 July 2008, the 442FW/CC submitted a letter requesting her LOD date be changed stating that due to various internal mistakes her LOD determination was not initiated until 2 May 2006.

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AIR FORCE EVALUATION:

The AFRC/CV recommends partial correction.  CV states that in accordance with SAF/AA memorandum dated 8 December 2006, her entitlement for return to active duty is based upon the medical diagnosis rendering an individual unable to perform military duties and (ILOD) determines the injury/illness was incurred or aggravated in the performance of military duty.  This is what initiates the member’s entitlement, not when the injury occurred or when the airman was released from active duty.  Therefore, she is entitled to be placed on active duty for the period 16 June 2006 through 28 Jun 2006, at which time she was able to perform military duties with restrictions.  She may have an entitlement for incapacitation pay for the period of 29 June 2006 until she returned to work with her civilian place of employment and can demonstrate a loss of earned civilian income.  Her military record should be corrected to reflect points and pay from 16 June 2006 through 28 June 2006.  AFRC/SG has determined that reimbursement is appropriate for out-of-pocket costs for all Tricare Health related expenses incurred as a result of this LOD injury.

The complete CV evaluation, with attachments, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant's commander provided a response on the applicant's behalf stating various internal mistakes delayed an LOD determination until 2 May 2006.  The Military Treatment Facility did not fulfill it's responsibly to provide appointment assistance or to follow through with her after cancelling her appointment.  Had their internal process worked correctly, the LOD would have been initiated in May 2004, and she would not be in this position of trying to correct errors in her record which are due to issues beyond her control.

The complete response, with attachments, is at Exhibit E. 

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BCMR MEDICAL CONSULTANT EVALUATION:

The BCMR Medical Consultant recommends approval.  The Medical Consultant states there is sufficient evidence of record to indicate that the delays in processing the applicant’s case were not within her span of control.  There is objective evidence that she required continued treatment of an unresolved medical disorder, from her initial Medical Evaluation Board (MEB) until the date she was placed on the Temporary Disability Retirement List (TDRL).  Her TDRL date was confirmed with the Disability Division.  Therefore, the BCMR Medical Consultant finds it reasonable to conclude that she should receive the pay she would have received had she been retained to complete the Disability Evaluation Process (DES); a process that has unfortunately been quite lengthy.  She should also be considered for recomputation of her points towards retirement to reflect a continuation of active service through 9 June 2008.  The BCMR Medical Consultant opines that the applicant’s ILOD determination should be made effective 9 February 2004, the day prior to the date of her initial release from active duty status. The BCMR Medical Consultant recommends granting the relief by restoring her active duty status, effective 10 February 2004 and that such status should be continued to the date she was placed on the TDRL.  In addition, pay reimbursements and a recomputation of the applicant’s leave accrued and points towards retirement should also be completed.

The complete BCMR Medical evaluation is at Exhibit F.

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APPLICANT'S REVIEW OF BCMR MEDICAL CONSULTANT EVALUATION:

A copy of the Medical Consultant's evaluation was forwarded to the applicant on 19 September 2008 for review and comment within 30 days.  As of this date, this office has received no response (Exhibit G).

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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 an error or injustice warranting corrective action.  In this respect, the applicant was identified by medical authorities as requiring medical treatment and was placed on a medical profile for her condition of PTSD.  However, contrary to established guidance dictating that she remain on an active status until processed through the disability evaluation system, she was demobilized from active duty.  Further, it appears that through no fault of her own, the LOD determination, which should have been initiated in May 2004, was not initiated until May 2006.  Accordingly, it is our opinion that in order to resolve the injustices she has suffered as a result of these errors her record should be corrected to show that she remained in an active status until such time as she was placed on the TDRL.  We do not believe it is necessary to change the date of her LOD determination as she is requesting, because the rights and entitlements which she was denied can be corrected regardless of the date of the LOD determination.  It appears that competent authority has made the determination that she is entitled to reimbursement of certain medical expenses and may be entitled to incapacitation pay.  Reimbursement of those expenses is not within our authority; therefore, she must submit the appropriate documentation to the appropriate agency.  In view of the above, we recommend 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 she was not released from active duty on 10 February 2004, but was continued on active duty until 9 June 2008.

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The following members of the Board considered AFBCMR Docket Number BC-2007-03663 in Executive Session on 4 Dec 08, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2007-03663 was considered:

Exhibit A.  DD Form 149, dated 7 Nov 07, w/atchs.
Exhibit B.  Available Master Military Personnel Records.
Exhibit C.  Letter, AFRC/CV, dated 28 Feb 08, w/atchs.
Exhibit D.  Letter, SAF/MRBR, dated 7 Mar 08.
Exhibit E.  Letter, BCMR Medical Consultant, dated 17 Sep 08. 
Exhibit F.  Letter, SAF/MRBR, dated 19 Sep 08.