RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-00488 INDEX CODE: 108.00 XXXXXXX COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. While the applicant’s request is not readily apparent, it appears he is requesting a disability retirement, instead of his reserve retirement. 2. By amendment, he requests that his DD Form 214, Certificate of Release or Discharge from Active Duty, be corrected to reflect he was retained on active duty for medical hold until his adjusted mandatory separation date (MSD) of 15 Feb 10, instead of 15 Dec 09. ________________________________________________________________ APPLICANT CONTENDS THAT: The Air Force failed to extend his MSD to allow for his medical condition to be properly evaluated. He should have been referred to a Medical Evaluation Board (MEB) for his fractured tibia, which was incurred in the line of duty (LOD). He should have been kept on active duty until he was medically discharged in accordance with paragraph 6.6.3.2 of DoD Instruction 1241.2, Reserve Component Incapacitation System Management. In support of his request, the applicant provides copies of his DD Form 214 and various excerpts of his military personnel and service medical records related to his injury and subsequent LOD determination. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: Available records indicate the applicant served in the Air Force Reserve in the grade of lieutenant colonel (O-5), effective and with a date of rank of 1 Oct 02. On 1 Jan 09, he commenced a tour of active duty. On 12 Aug 09, he was struck by an automobile while riding his bicycle and sustained multiple fractures to his leg. A Line of Duty (LOD) Determination was initiated on 28 Aug 09 and his injuries were found to be in the LOD. According to the applicant’s DD Form 214, he was released from active duty on 15 Nov 09. In accordance with paragraph 6.6.3.2 of DoD Instruction 1241.2, Reserve Component Incapacitation System Management, a Reserve component member on active duty under a call or order to active duty of 31 or more days who incurs or aggravates an injury, illness, or disease in the line of duty shall, with the member's consent, be continued on active duty until the member is determined to be fit for duty or separated or retired as a result of a Disability Evaluation System (DES) determination. On 6 Apr 10, pursuant to the applicant’s present request, ARPC/DPSVT notified him that they corrected his DD Form 214 to reflect he was released from active duty on 15 Dec 09, instead of 15 Nov 09. Information extracted from the Military Personnel Data System (MilPDS) indicates the applicant was transferred to the Reserve Retired List on 16 Feb 10. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force, which are attached at Exhibits C and E. ________________________________________________________________ AIR FORCE EVALUATION: AFRC/SGP recommends denial, indicating the applicant’s original request for medical hold was appropriately denied in accordance with the governing instructions. In accordance with AFI 41-210, Patient Administration Functions, medical hold is to be used for the purpose of DES processing and not appropriate for evaluating or treating chronic conditions or convalescence from non- emergent elective surgery. Medical hold is warranted when members overcome the presumption of fitness. This presumption can be overcome if an acute injury would prevent the member from performing further duty if he or she were not already retiring. The documentation submitted for medical hold consideration indicated that although the member would require physical therapy and was under temporary duty restrictions, he was expected to be returned to duty. Additionally, AFI 41-210 indicates the mere presence of a defect, in and of itself, does not provide justification for or entitlement to an MEB. While his last duty limiting condition report temporarily restricted him from mobility status, it did not indicate an MEB would be required. Ultimately, there was no indication that the injury was going to cause a permanent disability or require MEB processing following surgery and recovery; therefore, medical hold was denied by AFRC/SGP on 4 Dec 09. A complete copy of the AFRC/SGP evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 25 Jun 10 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D). ________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: The AFBCMR Medical Consultant recommends granting partial relief by approval of medical continuation orders to include the period 16 Dec 09 through 15 Feb 10, with the establishment of a new retirement date of 16 Feb 10. Notwithstanding the AFRC/SGP evaluation in this case, the AFBCMR Medical Consultant believes the applicant’s uncertain outcome and requirement for intensive physical therapy satisfies the criteria for a medical hold to allow for completion of the recommended treatment course. It would have been reasonable to extend the period of active service to include the six week period of intense physical therapy that occurred after his release from active duty. This option could have been utilized under medical hold, which is a method of retaining a service member beyond an established retirement or separation date for disability processing or for conditions where the presumption of fitness does not apply. In reference to his request for an MEB, he was under active treatment during the period of service. Hence, a determination of fitness for duty or residual disability would have been inappropriate. To assess whether a permanent functional impairment or inability to perform required duties exists, it is imperative to establish the level of functioning, as recommended by an MEB. However, the applicant has not presented evidence that he has been left with a residual functional impairment that would have precluded the performance of the duties of his office, grade, rank, and rating, were he not already retiring. The evidence indicates that his post-operative course was essentially uncomplicated and followed the predicted course of recovery. A complete copy of the AFBCMR Medical Consultant’s evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: The applicant refutes the position that he has not presented evidence that he has been left with a residual functional impairment precluding his return to duty if he were not retiring. The orthopedic surgeon who performed the reconstruction of his leg indicated that he will never be able to run on his right leg again. At the moment, he cannot even push on things. He is still in constant pain even ten months after surgery. Having been deployed to Afghanistan, he knows full well that he could not do the things he had to do while there, which included climbing, jumping, running, lifting, and pushing. There is no way he could be deployed or returned to duty. A complete copy of the applicant’s response is at Exhibit G. ________________________________________________________________ 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. After a thorough review of the evidence of record and the applicant’s complete submission, we are convinced the applicant should have been retained on active duty under the provisions of medical hold for the purpose of treatment and recovery from his LOD injury. In this respect, we note the comments by the AFBCMR Medical Consultant indicating the applicant’s requirement for intensive physical therapy and uncertain outcome satisfied the criteria for a medical hold. Notwithstanding the above, the evidence is not sufficient to convince us of the applicant’s entitlement to an MEB and subsequent referral into the DES. In this respect, we note the comments by the AFBCMR Medical Consultant indicating there is insufficient evidence to conclude the applicant would have been left with a residual functional impairment that would have precluded the performance of his duties were he not already retiring. We note the applicant’s argument in response to the AFBCMR Medical Consultant Evaluation that his condition precludes his world-wide deployment, thus rendering him unfit to perform his duties. Nonetheless, he has not provided sufficient evidence to convince us that his condition would have rendered him unfit to perform his duties, regardless of his ability to deploy. Therefore, we agree with AFBCMR Medical Consultant’s recommendation to correct the record to reflect he was retained on active duty under the provisions of medical hold until his transfer to the Retired Reserve List. In our view, this affords the applicant full and fitting relief. Accordingly, we recommend the applicant’s records be corrected to the extent indicated below. ________________________________________________________________ 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 15 December 2009, but remained on active duty until 15 February 2010, on which date he was relieved from active duty and transferred to the Retired Reserve List, effective 16 February 2010. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-00488 in Executive Session on 4 Nov 10, 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 2 Feb 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFRC/SGP, dated 23 Apr 10. Exhibit D. Letter, SAF/MRBR, dated 25 Jun 10. Exhibit E. Letter, AFBCMR Medical Consultant, dated 22 Sep 10. Exhibit F. Letter, SAF/MRBR, dated 29 Sep 10. Exhibit G. Letter, Applicant, dated 4 Oct 10.