RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-02507 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected to reflect he was retained on active duty for the purposes of Medical Continuation (MEDCON) during the period 17 May 10 through 30 Aug 10. ________________________________________________________________ APPLICANT CONTENDS THAT: He was unjustly denied Medical Continuation (MEDCON) orders during the period in question. While he was serving an active duty tour of greater than 31 days, he fell and injured his shoulder. The injury (torn labrum) was determined by an Informal Line of Duty determination to be “In the Line of Duty (LOD),” and ultimately required surgery. The surgery was not elective. Based upon the promise of MEDCON orders starting 17 May 10 prior to his 24 May 10 surgery, he voluntarily terminated his active duty orders on 16 May 10. When the MEDCON orders did not arrive prior to surgery, he attempted to postpone the surgery, but was ordered to have the surgery as scheduled. He did not receive his MEDCON orders until 10 Aug, 11 weeks after the surgery, during which time he was not able to return to his civilian job, and his family went without a paycheck, resulting in a financial hardship. It normally takes five to six months to fully recover from the type of surgery he had. After six weeks with no income, the flight surgeon authorized him to participate in “light duty” at Dover AFB only (near his home). However, based upon the doctor’s note authorizing “light duty,” his MEDCON orders were limited to only 38 days. He is aware of another individual who underwent the same surgery and received six months of MEDCON orders. During his recovery period, he followed the local policies for service members on MEDCON orders, even though he had not received them. He eventually filed a complaint with the Air Force Reserve Command Inspector General (AFRC/IG) against the two medical personnel primarily involved in handling of his LOD determination and MEDCON orders. In support of his request, the applicant provides an expanded statement and copies of excerpts from his service and civilian medical records, excerpts from AFI 36-3212 and AFRCI 36-3004, and his Point Credit Accounting Summary (PCARS) report. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 4 Feb 09, while on active duty orders, the applicant fell and injured his shoulder. He was treated at the base medical facility, and completed his tour. He completed ensuing tours from 16 Mar 09 to 19 Mar 09, and 15 Jan 10 to 16 May 10. On 2 Nov 09, an MRI revealed a torn labrum in his shoulder. On 14 Jan 10, his civilian physician recommended surgery in a letter addressed to the flight surgeon. The surgery was subsequently scheduled for 24 May 10. On 24 May 10, his civilian physician accomplished his shoulder surgery. On 24 Jun 10, the applicant filed a complaint with the Air Force Reserve Command Inspector General (AFRC/IG) alleging that medical personnel did not complete his LOD Determination in a timely manner and that he was improperly denied MEDCON orders following his shoulder surgery. On 30 Jun 10, six weeks after surgery, the Flight Surgeon authorized him “Light Duty” at Dover AFB, near his home. On 1 Jul 10, an Informal LOD determination found his injury to be “In the Line of Duty.” On 30 Jul 10, the applicant was ordered to active duty for the purpose of MEDCON for 38 days, beginning retroactively on the date of his surgery on 24 May 10. On 18 Aug 10, the applicant was placed on limited duty with mobility restrictions. On 27 Sep 10, HQ AFRC/IGQI responded to the applicant, stating in part that “these allegations fall outside the scope of the Inspector General Complaints Resolution Program.” However, after conferring with AFRC/SG, AFRC/IGQI acknowledged that his requests for his MEDCON orders were forwarded to AMC/A1RM on 16 Jul 10, and “evidence indicates they were not acted upon.” On 11 Oct 11, the applicant filed a complaint with the AFRC/IG alleging that he was the victim of reprisal by the two primary medical personnel associated with his case. On 26 Oct 11, AFRC/IG notified the applicant that they had not found evidence of reprisal. 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: AFMOA/SGHI recommends denial, indicating there is no evidence of an error or injustice. The applicant was injured on 4 Feb 09 while on Title 10 Active Duty orders. Treatment was received and the applicant returned to duty without further known complications, completing his current tour. The medical provider recommended surgery at that time and the applicant indicated, per provider note, he would “think all this over and talk to military individuals and then get back to us regarding scheduling this electively.” A request for MEDCON orders was submitted on 10 May 10 for surgery scheduled for 24 May 10, and was allocated on 30 Jul 10 with a start date of 24 May 10, the date of the surgery. IAW guidance provided in SAF/AA memo, dated 8 Dec 06, the surgical date is the day the member was rendered unable to perform his duties. The applicant was denied a MEDCON extension on 30 Jul 10, but was recommended to apply for Incapacitation Pay based on the guidance in DoDD 1241.1, dated 28 Feb 04, Reserve Component Medical Care and Incapacitation Pay for Line of Duty. This guidance defines Military Duties as “The duties of a Service member’s office and grade, and not necessarily the specialty or skill qualification held by the member prior to incurring or aggravating an injury, illness, or disease in the line of duty,” and the policy states “The Military Department shall provide pay and allowances to a member who is fit to perform military duties, but experiences a loss of earned income because of an injury, illness, or disease incurred or aggravated in the line of duty.” The complete AFMOA/SGHI 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 10 Jan 12 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D). ________________________________________________________________ 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. The applicant contends he should have remained on active duty on medical continuation orders until his medical condition was resolved. After a thorough review of the evidence of record and the applicant’s complete submission, we believe he has raised sufficient doubt as to whether he should have been released from active duty. In this respect, we note the applicant was injured in the line of duty (LOD) while on orders for 31 days or more and a request for medical continuation orders was apparently initiated prior to his scheduled release from active duty. However, through no fault of his own, it appears the request was not acted upon and the applicant was released from active duty just days prior to undergoing surgery related to the noted LOD injury. While we note the comments of the Air Force office of primary responsibility (OPR) indicating the applicant’s injury did not necessarily render him unfit as his inability to perform the duties of his specialty or skill qualification did not necessarily constitute unfitness, we believe the fact the applicant’s injury, which required surgery and a subsequent recovery period, more than likely rendered him unfit during the period requested, regardless of his ability to convince his leadership to allow him to perform a period of active duty (with limitations) during his recovery period. Therefore, we believe it appropriate to resolve any doubt in the applicant’s favor and recommend his records be corrected as 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 17 May 10, he was not released from active duty, but on that date he was continued on active duty for the purpose of medical continuation until 30 August 10. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-02507 in Executive Session on 15 May 12, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the records as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 29 Jul 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFMOA/SGHI, dated 9 Jan 12, w/atchs. Exhibit D. Letter, SAF/MRBR, dated 10 Jan 12. Panel Chair