ADDENDUM TO 
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2011-03453

						COUNSEL:  YES

	HEARING DESIRED:  YES

APPLICANT REQUESTS THAT:

Through counsel, the Board reconsider his request to:

1. Correct his record to reflect he is permanently medically retired at 60 percent (or more) effective 4 Sep 06;

2. Receive back pay from the above date of retirement and he and his family be reimbursed for all medical bills from the effective date of his permanent retirement; and, by amendment, 

3. Be placed on active duty orders and afford him the opportunity to enter a military health facility at the Air Force’s expense for further medical rehabilitative evaluation and treatment.  

RESUME OF THE CASE:

On 28 Feb 13, the Board considered and denied the applicant’s requests.  The applicant contends he was ordered to run, contrary to Air Force Reserve policy, when his unit medical staff knew he had high blood pressure, and subsequently, the Air Force failed to properly process him through the military medical and physical disability evaluation systems after he suffered an acute left basal ganglion cerebral vascular accident (stroke) with Dysarthria and a right Hemiparesis secondary to uncontrolled hypertension.  The Board took notice of the applicant's complete submission in judging the merits of the case; however, found no evidence that he was the victim of an error or injustice.  The Board noted his assertion that the Air Force failed to properly address his medical status prior to clearing him to participate in the Self-Paced Fitness Improvement Program (SFIP).  However, other than his own assertions, the Board determined the evidence he provided was insufficient to show that his substantial rights were violated, his case wan not properly processed, or he was miscounseled in any way.  For an accounting of the facts and circumstances surrounding the applicant’s original request and the rationale of the earlier decision by the Board, see the AFBCMR Letter and Record of Proceedings at Exhibit G.  

On 3 Jul 13, the applicant submitted a request for reconsideration (Exhibit H).  In his request, he provided evidence from his physicians, commanders, and his unit’s customer support section NCOIC.  He contends he suffered from undiagnosed homocysteinemia, which irritates arteries and can cause spasms during vigorous exercise.  He further contends he was performing Inactive Duty Training by exercising in the SFIP when the stoke occurred, should have had a Line of Duty (LOD) performed, and (subsequently) should have been placed on orders, received per diem while receiving medical treatment, and received a disability retirement.  

On 11 Aug 14, the AFBCMR Executive Director determined the applicant’s request did not meet the criteria for reconsideration stating reconsideration is authorized only where newly discovered relevant evidence is presented which was not provided when the application was submitted (Exhibit I).  

On 13 Oct 17, the U.S. District Court issued a Memorandum Opinion and Final Order directing the AFBCMR to reconsider the applicant’s case (Exhibit J) within 120 days in light of the new evidence provided by both parties.  The order states that both parties submitted supplemental declarations of relevant witnesses to include the Department of Veterans Affairs-provided servicemember treatment record and USAF medical records.  The examination of these new witnesses and relevant records warrants review and reconsideration by the AFBCMR (see Exhibit J - attachments).

AIR FORCE EVALUATION

The AFBCMR Medical Advisor recommends denial of the applicant’s petition to supplant his separation for his “non-duty related” medical disqualification with award of a 60 percent or greater disability rating, medical retirement, back pay, and reimbursement of medical expenses, effective 4 Sep 06.  

The Medical Advisor acknowledged the medical opinion from a doctor of osteopathy who conceded that a program of exercise is appropriate as an adjunct to weight-loss and non-pharmacologic treatment of hypertension.  The same doctor also believes the applicant was “negligently cleared” to the exercise program, allegedly “with no apparent thought of modification and no documented plan for medical treatment,” referring to the lack of the aforementioned actions as medical “neglect.”  

Nevertheless, the Medical Advisor places significant responsibility on the applicant’s civilian health care practitioners who, at least by record, identified the need to initiate pharmacologic treatment of his hypertension, which by history and supplied records, did not take place until after the stroke.

The Military Department relies upon records of treatment from a member’s civilian practitioner, in order to implement appropriate actions and policies, e.g., establish profile restrictions or initiate a Worldwide Duty Evaluation.  For the traditional Reservist, rarely, if ever, is treatment or work-up of a medical condition authorized or rendered during Unit Training Assemblies (UTAs); unless emergent intervention is needed.  Therefore, the Medical Advisor does not attribute the failure to treat to the applicant’s military provider.

The Medical Advisor also noted one of the applicant’s civilian providers believed the applicant’s elevated blood pressure may have been precipitated by use of a prescribed and or over-the-counter medication, commonly includes a sympathomimetic, used in treating an upper respiratory tract infection and sinusitis.  Additionally, although reportedly consuming a small amount of alcohol [reportedly 2 beers] while socializing with friends on the night of overt stroke symptom-onset, greater amounts of chronic alcohol consumption poses additional potential negative effects on blood pressure via multiple mechanisms, e.g., central nervous system, sympathetic nervous system, and the renin-angiotensin-aldosterone system.

Nevertheless, in 20/20 hindsight, the Medical Advisor agrees that earlier intervention, e.g., either introduction of pharmacologic treatment of the applicant’s hypertension by his civilian provider(s), an earlier medical disqualification, if blood pressure measurements were inconsistent with retention standards, and/or exempting performance of the 1.5 mile run might have averted the occurrence of the applicant’s stroke.  Moreover, the fact that the applicant had failed 3 previous Fitness Assessments and was at risk for administrative discharge had he failed a fourth time in a 24 month period, there was likely additional pressure put upon him to meet fitness standards.

The Medical Advisor opines that, had the civilian records presented in this review been available to Air Force medical officials the applicant should have been placed on, at least temporary profile restrictions, e.g., exempting the aerobic component of the Fitness Assessment until his blood pressures were reliably controlled or were within normal limits.  Doing so, however, would still not have guaranteed a passing score.

The Medical Advisor opines, while it may have been incumbent upon the military provider to place the applicant under restricted activity due to his hypertension, it was also incumbent upon the applicant’s civilian providers to conduct the necessary work-up and to initiate appropriate pharmacologic treatment.  The Medical Advisor opines that had the applicant’s civilian physician and the applicant fulfilled the recommendation for pharmacologic treatment, the applicant may not have experienced the stroke.

The Medical Advisor finds it plausible that the applicant’s participation in vigorous training for his Fitness Assessment, during the 12-hour cycle of time between his alleged running activity and onset of stroke symptoms, contributed to the occurrence of a stroke on or about 4 Sep 06.  However, in order for the applicant’s stroke to be considered In the Line of Duty, as a traditional Reservist, serving a period of 30 days or less, it must be determined it was the proximate result of performing military service, occurred traveling to/from his place of duty, or remaining overnight enroute to/from his place of duty.  

The Medical Advisor defers to a legal review of the applicant’s petition, for comment on whether or not the applicant’s participation in the SFIP represented an “order” to perform a duty warranting a Line of Duty determination and whether the Military Department’s alleged failure to restrict the applicant’s activities under the SFIP or to consider him at high risk for a cardiovascular or cerebrovascular event, warrants the remedy he desires.

A complete copy of the AFBCMR Medical Advisor evaluation is at Exhibit K.

AFRC/JA recommends denial, indicating they find no support in law or policy that the applicant was lawfully ordered to participate in SFIP in civilian status or that he was in an IDT status when he did so.  The applicant's contention is that because he was ordered to participate in the SFIP between UTAs, his compliance with that order placed him in an IDT period as defined by 10 USC 101 (d)(7)(B).  The commanders' and other witness statements provided by the applicant do state the applicant was ordered to comply with the SFIP even when not in status.  However, the portion of the order requiring participation while in a non-duty status was illegal and contrary to Air Force Regulations, Policy and Guidance.  As a matter of law, reservists are not subject to the Uniform Code of Military Justice when not in status.  Thus, orders issued to reservists by their commanders are legal and enforceable when the reservist in military status.  Adherence to orders issued while in military status is not legally enforceable when in civilian status and violation of a commander's order while in civilian status is not punishable under the UCMJ.  There is no jurisdiction.  Thus, the order to the applicant to participate in SFIP in his non-duty status was illegal and the applicant was not required to comply with it.

Further support to show the order was illegal is found in the language of AFI l0-248 where it specifically states reservists in a non-duty status cannot be ordered [emphasis added] to perform physical training and the SFIP is only a tool to help commanders document progress.  The applicant contends AFI 10-248, AFRC SUP I, did not prohibit ordering reservists to perform specified fitness program exercises, but that is an erroneous interpretation.  There is no ambiguity in the language of either the AFI or the AFRC SUP that only AGRs and activated reservists could be ordered to participate in SFIP as part of a unit-based program.  AFI l0-248 and the AFRC SUP I are consistent that participation in the SFIP could be mandated only when in a duty status, and participation in a non-duty status was simply encouraged and not mandated.  Only when the applicant was in status, could he be legally ordered to participate in SFIP exercises. 

With regard to the applicant's contention that SFIP done between UTAs amounted to IDTs, as defined in 10 USC 101 (d)(7)(B), IDTs may be special additional duties authorized for Reserves by an authority designated by the Secretary concerned and performed by them on a voluntary basis in connection with the prescribed training or maintenance activities of the units to which they are assigned.  Although on its face it might seem as though applicant's participation in SFIP between UTAs could qualify as IDTs under this provision, it doesn't.  IDTs are an authorized period of service for a specified duration of at least 4 hours, and must be compensated by either pay, points or both.  IDTs cannot be done without pay or points, even if voluntary, because that amounts to illegal government acceptance of voluntary services.  The commander's order could have been legal if the member was placed in either a pay and points, or points only status, for his participation in SFIP between UTAs.  There is no evidence over the almost two years the applicant participated in SFIP in civilian status that he ever requested to be placed in IDT status for pay or points or that his commander ever attempted to put him in an authorized IDT status.

Simply because the applicant was enrolled in SFIP does not mean he was in IDT status when he complied with SFIP in a non-duty status.  As stated above, adherence to SFIP could only be legally mandated when the applicant was in status.  SFIP training is no different than any other daily routine to maintain fitness between UTAs.  Continued adherence to any daily fitness routine, including SFIP, while in civilian status, is highly encouraged by the Air Force Reserve, but cannot be, and is not mandated.  To agree with the applicant’s contention is to agree with the proposition that 10 USC 101(d)(7)(B) means that all reservists engaging in fitness activities in a non-duty status are performing IDTs simply because they are maintaining their fitness to meet Air Force fitness standards.  Such an interpretation is not only overbroad, but misconstrues the statute.

A complete copy of the AFRC/JA evaluation is at Exhibit L.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant refutes virtually every point made by the OPRs and argues the Board should disregard their recommendations.  The advisory opinions concede the applicant suffered a permanently disabling condition during exercising on orders from his command for which he would be entitled to a disability retirement if those orders were IDT orders.  The opinions fail to recognize the applicant had no choice to participate in the SFIP because the medical squadron not only neglected to respond to the applicant’s hypertension diagnosis, but actively sought to conceal it – a condition that would have exempted him from the SFIP.  It is unclear the Medical Advisor possessed the pertinent new medical records when rendering his recommended denial.  The applicant is entitled to disability retirement because his hypertension was aggravated in the line of duty.  The Medical Advisor notes his high blood pressure developed during his active service and was aggravated during reserves status.  Additionally, the Department of Veterans Affairs has already made a line of duty determination for high blood pressure.  There is no question his stroke occurred during the SFIP run and the Medical Advisor is in no position to call into question the credibility of the applicant and others.  The Medical Advisor’s opinion, despite failing to review the entirety of the documents as required by the remand, still admits the applicant was improperly treated and should have been exempted from the SFIP.  

As for the JA Advisory Opinion, it is founded on inapplicable regulations and a misunderstanding of the IDT definition.  The JA cites an AFI provision (AFI 10-248, Fitness Program) enacted on 25 Sep 06, despite the fact the applicant received his SFIP orders and had his stroke before the AFI was amended.  The version in effect at the time did not prohibit ordering reservists to perform physical training.  The JA cites to this regulation that was amended after the fact to make it appear to the Board that the applicant’s command was somehow prohibited from ordering his SFIP, when in fact, the AFI did not prohibit such orders at all.  Notably, the JA does not contest the applicant received orders from his command to participate in the SFIP; however, JA relies on the arguments that the orders were illegal.  The JA suggests that because a service member is not subject to the UCMJ when acting under illegal orders that such orders cannot be considered IDT.  JA is simply wrong as this is an erroneous interpretation of the law.  The opinions provided incorrect reading of the statutory definition of IDT that erroneously excludes non-compensated orders from command, relied on regulations that did not exist during the relevant time period, and misconstrue what the Judge has already found.  Counsel provides several court decisions that reflect orders, like the SFIP that the applicant received, have been recognized as IDT under the definition by other competent military authority.

In further support of his request, the applicant’s counsel provides copies of several court documents and decisions, medical records, a Department of Justice Employment Rights of the National Guard and Reserve guidance.

A complete copy of the applicant’s rebuttal is at Exhibit N.

THE BOARD CONCLUDES THAT:

1.  After again reviewing his reconsideration application, the court documents, and the evidence provided in support of his appeal, we remain unpersuaded the evidence presented demonstrate the existence of an error or injustice and agree with the previous Board’s decision.    While the Board notes the Medical Advisor found it plausible that the applicant’s participation in vigorous training for his fitness assessment may have contributed to the occurrence of his stroke, the Board further notes in order for the applicant’s stroke to be considered in the line of duty as a traditional Reservist, it must be determined it was the proximate result of performing military service.  In this regard, the Board slightly differs from the AFRC/JA opinion that the applicant was actually ordered to participate in the SFIP; however, the Board does agree with AFRC/JA that the applicant was never lawfully ordered to participate in SFIP while in civilian status nor that he was in an IDT status when he did so participate.  The Board further agrees with the AFRC/JA opinion that adherence to SFIP could only be legally mandated when the applicant was in a duty status and that SFIP training is no different than any other daily routine to maintain fitness between drilling UTAs.  Continued adherence to any fitness routine while in civilian status is highly encouraged, but cannot be and is not mandated.  The Board agrees with AFRC/JA and finds the contention that all reservists should be in a duty status when they are maintaining their fitness to meet Air Force fitness standards not only overbroad, but misconstrues the statute.  Therefore, the Board determines the applicant’s disability processing was done in accordance with the applicable regulations and instructions at the time as the applicant was not in an official military duty status.  While the Board notes the applicant’s counsel contends the AFRC/JA advisory should be disregarded since it referenced the wrong Air Force Instruction (AFI) and AFRC Supplement, the Board reviewed the applicable AFIs and found no material differences.  Additionally, the Board determined the AFRC supplement referenced was in effect at the time of the applicant’s stroke and it clearly states member participation in a non-duty status is encouraged.  As stated above, participation in a fitness program could only be legally mandated when the applicant was in a duty status, and at the time of the applicant’s stroke, he was not.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

2.  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 DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

The following members of the Board considered AFBCMR Docket Number BC-2011-03453 in Executive Session on 11 Apr 18 under the provisions of AFI 36-2603:

The following documentary evidence was considered:

	Exhibit G.  Record of Proceedings, dated 28 Feb 13 w/
Exhibits A through F. 
	Exhibit H.  Reconsideration Request, dated 3 Jul 13,
  w/atchs.
	Exhibit I.  Letter, AFBCMR, dated 11 Aug 14.
	Exhibit J.  Memorandum and Order, U.S. Court of Federal
  Claims, dated 13 Oct 17, w/atchs.  
Exhibit K.  Memorandum, AFBCMR Medical Advisor, dated 
  14 Dec 17.
Exhibit L.  AFRC/JA Advisory, dated 1 Feb 18.
Exhibit M.  Letter, AFBCMR, dated 2 Feb 18.
Exhibit N.  Applicant’s Rebuttal, dated 2 Mar 18, w/atchs.
Exhibit O.  Miscellaneous Documents, AFIs 10-248 and AFRC
  supplement.
				
Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.