RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-02769 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His records be corrected to reflect: a. That he was retained on active duty for medical hold, effective 28 Dec 04, until he was permanently retired for physical disability on 27 May 10, or b. That he was retained on active duty for medical hold, effective 11 Mar 08, until he was permanently retired for physical disability on 27 May 10. 2. He be reimbursed for all civilian medical expenses related to the treatment of the injuries he incurred in the line of duty (LOD). ________________________________________________________________ APPLICANT CONTENDS THAT: 1. He should have been retained on active duty after incurring his initial LOD injuries during his 5 Sep 04 through 28 Dec 04 deployment. Instead, he was inappropriately released from active duty. 2. His LOD injuries were aggravated during an active duty tour in Feb 07 when his supervisor did not honor his duty limiting profile. As a result, he underwent extensive treatment for the aggravation of his LOD injury at his own expense. 3. Despite his consistent requests to be placed on active duty for medical continuation in accordance with the law and AFI 36- 3212, Physical Evaluation for Retention, Retirement, and Separation, he was repeatedly deprived of the pay and allowances to which he would have been duly entitled had he been retained on active duty from the onset of his injuries until his case was resolved. In support of his request, the applicant provides a statement from counsel and copies of excerpts of his military personnel records and civilian and service medical records pertaining to his LOD Determination, Medical Evaluation Board (MEB), Physical Evaluation Board (PEB), and subsequent permanent retirement for physical disability. The applicant’s complete submission, with attachments, is at Exhibit A. _________________ ______________________________________________ STATEMENT OF FACTS: The applicant’s military personnel records indicate he served in the Air Force Reserve in the grade of technical sergeant prior to the matter under review. On 31 Aug 04, the applicant was ordered to active duty in support of Operation ENDURING FREEDOM. On 16 Jan 05, he was released from active duty and reverted to his traditional part- time status as a member of the Air Force Reserve. In accordance with AFH 41-114, Military Health Services System, Reserve Component members who incur or aggravate an injury or illness in the LOD are entitled to the medical or dental care appropriate for treatment of the condition including hospitalization or re-hospitalization until the resulting disability cannot be materially improved by further treatment. Notwithstanding the above, a SAF/AA Policy Memorandum, Return to Active Duty of Air Reserve Component Members Unable to Perform Military Duties, dated 8 Dec 06, provides that members who are released from active duty, but subsequently become unable to perform military duty as a result of an LOD condition, will be voluntarily returned to active duty until they are fit for duty or separated from the service via the Disability Evaluation System (DES). To be eligible under this policy, Airmen shall have a medical diagnosis rendering them unable to perform military duties and a LOD determination documenting the condition was incurred or aggravated in the LOD. Entitlement under this policy shall begin when the condition renders the Airman unable to perform military duties; not when the injury occurred or when the Airman was released from active duty. According to information provided by the applicant, an AF Form 469, Duty Limiting Condition Report, was issued on 2 Aug 08, which restricted the applicant’s ability to deploy or perform his in-garrison duties. On 5 Sep 08, an informal LOD determination was initiated to evaluate the applicant’s 30 Oct 04 back injury, which was apparently aggravated during his Feb 07 active duty tour, for service connection. On 11 Jan 09, the investigating officer recommended the applicant’s condition be found to be in the LOD and the appointing authority concurred with the finding of in the LOD on 21 Jan 09. On 29 Dec 09, a Medical Evaluation Board (MEB) was convened to determine the applicant’s continued fitness for duty. The Board recommended the applicant’s case be referred to the Informal Physical Evaluation Board (IPEB) for a fitness determination. On 26 Apr 10, the IPEB found the applicant unfit for continued military service and recommended he be permanently retired with a combined compensable disability rating of 50 percent. On 5 May 10, the applicant acknowledged receipt of the action, accepted the findings and recommendations of the IPEB, and waived his right to appeal to the Formal Physical Evaluation Board (FPEB). On 5 May 10, the Secretary of the Air Force directed the applicant be permanently retired for physical disability under the provisions of 10 USC 1201. On 28 May 10, the applicant was permanently retired for physical disability in the grade of technical sergeant (E-6). He was credited with 16 years, 1 month, and 15 days of reserve service, which included 3 years, 10 months, and 19 days of total active service. ________________________________________________________________ AIR FORCE EVALUATION: AFRC/SGP indicates that the case file reveals the applicant incurred the back injury that would lead to his medical retirement in Feb 07 while on annual tour. According to the profile history presented, the applicant was identified as unfit for military duty on 2 Aug 08 and remained so until his medical retirement on 27 May 10. A complete copy of the AFRC/SGP evaluation is at Exhibit C. AFRC/A1K recommends denial, concurring with the AFRC/SG evaluation. A complete copy of the AFRC/A1K evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant contends his unit did not follow procedures according to AFI 36-3212, which indicates that reserve component members who incur or aggravate an injury, illness, or disease in the LOD are not involuntarily released from orders until final disposition of their disability case. In support of his response, the applicant provides an expanded statement and copies of an excerpt of AFI 36-3212, his AF Form 469, Duty Limiting Condition Report, and a variety of electronic correspondence related to the matter under review. A complete copy of the applicant’s response, with attachments, is at Exhibit F. The applicant’s counsel also responded, indicating that neither of the advisory opinions addresses the essential issue—the applicant was unfit to perform his duties when he was released from his active duty tour in 2004 and therefore he was entitled to medical continuation orders. The extent of the applicant’s injuries from the 2004 incident is amply demonstrated by the fact that the narrative summary prepared in his PEB case notes that he was in a duty limiting profile and was non-deployable since 2004. While the advisory opinions reference the findings of the applicant’s commander in the LOD Determination, indicating the applicant healed from his initial injury in 2004, this was simply the Commander’s opinion and this statement was directly contradicted by the medical officer’s entry in Block five of the LOD Determination. Therefore, the advisory opinion does not accurately reflect the findings of the medical officer and, thus, is unsupported by the evidence of record. Since there is no evidence contradicting the applicant’s position that he was rendered unfit by his 2004 injury and that he should have been retained on active duty for processing through the PEB system, Counsel respectfully requests the applicant’s request be granted. Counsel’s complete response is at Exhibit G. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has not 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. The applicant contends that his 2004 LOD injury rendered him unfit to perform his duties and, thus, he should have been retained on active duty until he was retired for physical disability. After a thorough review of the evidence of record and the applicant’s complete submission, we believe the applicant has been the victim of an error or injustice. However, while the evidence of record indicates that he did incur an injury in the LOD, and such injury eventually resulted in him being found unfit and he was subsequently retired for physical disability, we do not find the documentation presented sufficient to conclude that he should have been retained on active duty for the more than five years between his release from active duty in Jan 05 and his eventual disability retirement in May 10. In this respect, we note the comments of AFRC/SGP indicating the applicant could have been unfit as early as 2 Aug 08, and therefore should have been eligible to be brought to active duty for the evaluation and treatment of his unfitting condition at that time. While we note the applicant sought medical care for his LOD injury as early as 2007, we do not find the evidence provided sufficient to determine he should have been found unfit at this time. In this respect, we note that he continued to perform his military duties throughout this period. While it is clear that the applicant was under certain duty restrictions during this period, the evidence does not support that competent authority should have declared the applicant unfit for duty prior to 2 Aug 08. We note Counsel’s argument on rebuttal indicating that relief should be granted since there is no evidence contradicting the applicant’s contention that he was rendered unfit by his 2004 injury and he should have been retained on active duty; however, Counsel is reminded that the burden of proof of an error or injustice lies with the applicant. In our view, the evidence only supports correcting the record to reflect the applicant was ordered to active duty for medical continuation on 2 Aug 08. As regards to his request to be reimbursed for his civilian medical expenses, we note the applicant has not exhausted all of his administrative remedies. In this respect, we note there is no evidence that he sought reimbursement of these expenses through the Military Medical Support Office (MMSO), Great Lakes, MI. Therefore, unless and until the applicant exhausts his administrative remedies, it would be inappropriate for the Board to consider this aspect of his request. Therefore, in the absence of evidence to the contrary, we recommend the applicant’s records be corrected to the extent indicated below. 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. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that on 2 August 2008, he was ordered to active duty (voluntary) for the period 2 August 2008 through 27 May 2010, under the provisions of Section 12301(h) of Title 10, United States Code, for the purpose of medical continuation. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-02769 in Executive Session on 5 Jan 12, 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 7 Jul 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFRC/SGP, dated 28 Oct 10. Exhibit D. Letter, AFRC/A1K, dated 1 Feb 11. Exhibit E. Letter, SAF/MRBR, dated 4 Mar 11. Exhibit F. Letter, Applicant, undated, w/atchs. Exhibit G. Letter, Counsel, 4 Apr 11. Chair