RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-03539 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. She be reinstated onto active duty with pay and allowance benefits from 14 April 2006 until completion of her Medical Evaluation Board (MEB). 2. AF Form 469, Duty Limiting Condition Report, dated 19 November 2009, be removed from her records. ________________________________________________________________ APPLICANT CONTENDS THAT: 1. While on orders, she injured her back and a Line of Duty (LOD) determination was initiated. She was released from active duty on 13 April 2006 before the LOD could be completed, which was a violation of Department of Defense Instruction (DODI), Reserve Incapacitation Systems Management; Air Force Instruction (AFI) 36-2910, Line of Duty (Misconduct) Determination; and Title 37, United States Code, Pay and Allowances of the Uniformed Services. 2. She should have been retained on active duty until completion of her processing through the disability evaluation system (DES) which, as of the date of the applicant’s submission, had not yet been completed. In support of her appeal, the applicant provides an expanded statement and copies of her DD Forms 214, Certificate of Release or Discharge from Active Duty; AFRC Forms 348, Informal Line of Duty Determination; AF Form 469, Duty Limiting Condition Report; and electronic mail correspondence related to the matter under review. The applicant's complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant’s military personnel records indicate that she enlisted in the Air Force Reserve on 27 September 2004 in the grade of technical sergeant (E-6) and was progressively promoted to the grade of senior master sergeant, effective and with a date of rank of 1 November 2008. On 17 October 2005, the applicant was ordered to active duty under the provisions of 10 USC 12302 (Partial Mobilization) in support of Operation NOBLE EAGLE/ENDURING FREEDOM. She was released from active duty on 13 April 2006 and was credited with 5 months and 27 days of active service. On 12 June 2006, the applicant was ordered to active duty under the provisions of 10 USC 12302 (Partial Mobilization) in support of Operation NOBLE EAGLE/ENDURING FREEDOM. She was released from active duty on 28 March 2007 and was credited with 9 months and 17 days of active service. On 1 December 2008, the applicant was ordered to active duty (voluntary) and was released from active duty on 30 September 2009 and credited with ten months of active service. On 30 November 2009, the applicant was ordered to active duty (voluntary) and was released from active duty on 31 May 2010 and credited with six months and one day of active service. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force, which is attached at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: AFRC/SGP recommends denial, indicting there is no evidence of an error or injustice. The applicant is requesting her records be corrected to reflect she was not released from active duty on 14 [sic] April 2006, but retained on active duty for medical continuation until completion of her medical evaluation board (MEB), which is still in progress. During the applicant’s active duty tour, she sought treatment for lower back pain on 6 March 2006. An LOD determination was initiated in accordance with AFI 36-2910, Line of Duty and Misconduct Determinations. However, the LOD determination was not processed through AFRC/RMG until March 2010 and was completed with a finding of Existed Prior to Service (EPTS) – Service Aggravated on 2 June 2010. In accordance with DoDI 1241.2, Reserve Component Incapacitation System Management, Reserve Component members on orders for 31 days or more who incur a condition that renders them unfit for military duty must be maintained on active duty orders. There is no indication the applicant was unfit for military duty at the time of her release from orders on 13 April 2006. The first profile identifying her as unfit for military duty presented with the applicant’s submission is 19 November 2009. There is nothing provided in the case file indicating the condition warranted anything more than an LOD determination at the time of her release from active duty in April 2006. Additionally, a request for medical continuation orders for the applicant was submitted to HQ AFRC, but was returned without action pending updated medical information. No return request was ever submitted. The complete AFRC/SGP evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: The applicant again states her LOD should have been completed before she was released from active duty. She was deemed unfit for duty by AFRC in 2006, and the LOD was initiated before she was released from active duty. The regulation clearly states that a Reserve member who incurs or aggravates an injury while in a duty status is authorized pay and allowances while the LOD is being conducted. Her profile from 21 April 2009 shows a code 37 MEB required. She was told by the captain that an MEB should have been initiated when the injury occurred. Furthermore, the email from the Superintendent, RMG/SG stated “The member is showing in PIMR as having a condition that is medically disqualifying.” The PIMR was updated with her profile in 2009. In the same email, an inquiry was sent to her command inquiring about her medical condition and asking if it was duty related. The response indicated she had an LOD and was injured in 2006. On 19 November 2009, the superintendent initiated the profile which stated “Member has a non-duty related medical condition that requires a Worldwide Duty Evaluation (WDE) and has been placed in a “Not Present for Duty Status.” The AF Form 469, dated 19 November 2009, also states “Member is not authorized to participate for pay and points until final disposition of the WDE. Her LOD was first completed on 29 April 2010 with a finding of Existed Prior to Service (EPTS) – Service Aggravated (SA). She disagreed with the EPTS finding because the wording in the medical section was changed by the superintendent, who was not a medical officer, which prejudiced the results of the LOD. She filed a formal request for reinvestigation and the LOD was changed on 2 June 2010. The medical wording was changed again and the staff judge advocate changed his findings. However, it appears the LOD Board and Legal Review were not notified of the changes, as evidenced by the April dates on the digital signature. The final disposition of the LOD was EPTS-SA. She never received a request from AFRC requesting that she provide updated medical information. On 1 June 2010, she received an email from AFRC RMG/CD stating that AFRC/SG refused to approve her medical continuation orders based on the fact her injury occurred in 2006. The regulations do not state that AFRC can refuse to keep a member on active duty because of the date of injury or a pending request for medical information. She was on active duty for over 30 days on war time support orders when the original injury occurred. If the LOD had been conducted when the original injury occurred a determination would have made if an MEB was needed or if she could have been returned to duty. In May 2010, she had been on active duty orders for 181 days. Her MEB was initiated in December 2009 and she was denied benefits a second time when AFRC denied keeping her on active duty during the MEB process. The applicant believes the regulations are clear; and she should not have been released from active duty until the LOD was completed and the final disposition of her injury was determined. She further states her MEB has not been completed. The applicant’s complete response, with attachments, is at Exhibit E. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice warranting the applicant’s retention on active duty since her line of duty (LOD) injury in 2006. The applicant contends that her LOD injury rendered her unfit to perform her duties and, thus, she should have been retained on active duty until completion of her processing through the disability evaluation system (DES). After a thorough review of the evidence of record and the applicant’s complete submission, we do not find the documentation presented sufficient to conclude that she should have been retained on active duty for the more than five years since her release from active duty in 2006. While it is clear the applicant was released from the active duty tour in question prior to the LOD determination being completed, the evidence presented is insufficient to convince us that she would have been found unfit due to this injury and retained on active duty. In this respect, we note the applicant continued to perform her duties in the months and years following her injury and was, in fact, called to active duty on at least four occasions through 2009. We also note the applicant was promoted twice since her injury, actions that could not have taken place if she were unfit as she contends. Therefore, in view of these facts, we find no basis to conclude that competent authority should have declared her unfit for duty in 2006. Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice with respect to the applicant’s LOD determination. In this respect, we note the applicant’s LOD determination was initiated on 20 April 2006, but, for whatever reason, was not completed until 2 June 2010. Therefore, we believe it appropriate to correct the record to reflect that her LOD determination for her lower back injury, with a finding of EPTS-SA, was concluded on 20 April 2006, rather than 2 June 2010. Furthermore, we believe it appropriate to correct the record to reflect the applicant was not released from active duty on 13 April 2006, but was retained on active duty until the conclusion of her LOD determination on 20 April 2006. Finally, as regards to her contention on rebuttal that she should not have been released from active duty in 2010 as she was unfit for duty, we note the applicant has not exhausted all of her administrative remedies. In this respect, we note the applicant also contends that she is currently undergoing a medical evaluation board (MEB), presumably to ascertain her fitness for duty. Accordingly, it would be inappropriate for this Board to consider this aspect of her request, unless and until the MEB has made their determination. Therefore, 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 the APPLICANT be corrected to show she was not released from active duty on 13 April 2006, but rather, she was continued on active duty until 20 April 2006, the date her original Line of Duty determination was initiated. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-03539 in Executive Session on 14 June 2011, 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-2010-03539 was considered: Exhibit A. DD Form 149, dated 23 Sep 10, w/atchs. Exhibit B. Applicant's Master Military Records. Exhibit C. Letter, AFRC/SGP, dated 28 Oct 10. Exhibit D. Letter, SAF/MRBR, dated 4 Mar 11. Exhibit E. Letter, Applicant, dated 20 Mar 11, w/atchs.