RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-04716 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His official records be corrected to show he was on medical continuation orders from 1 Mar 10 to 6 Oct 11. ________________________________________________________________ APPLICANT CONTENDS THAT: He was on active duty orders for over 31 consecutive days when he was injured in a motor vehicle accident, after which an Informal Line of Duty Determination (LOD) determined his injuries were in the LOD. From 1 Mar 10 to 6 Oct 11, he should have been on medical continuation (MEDCON) orders for his injuries. An administrative error occurred in the LOD processing and caused the continual denial of MEDCON orders. As a result, he was unjustly placed on a P4 profile which did not allow him to receive points or pay until 7 Oct 11. In support of his request, the applicant provides copies of his DD Form 214, Certificate of Release or Discharge from Active Duty; letter from his Congressman in response to his Congressional Inquiry; several AF Forms 938, Request and Authorization for Active Duty Training/Active Duty Tour; and several AF Forms 469, Duty Limiting Conditions Report. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The following facts were extracted from the information provided by the applicant: The applicant is a member of the Air Force Reserve who was serving on active duty orders during the period 1 Apr 09 through 30 Sep 09, when he was involved in a motor vehicle accident, sustaining injuries to his neck and back. He continued to serve on active duty through 28 Feb 10. On 3 Mar 10, he reported his injuries to the medical clinic. An Informal LOD determination was initiated on 31 Mar 10 upon receipt of the police report documenting the accident. On 2 Jul 10, the applicant underwent surgery for injuries he sustained in the accident, and subsequently applied for MEDCON Orders on 6 Jul 10. According to SAF/LL correspondence provided by the applicant, an administrative error caused his LOD determination to be inadvertently closed, halting continued processing through to the Air Force Reserve LOD Board. On 7 Jan 11, the processing of the applicant’s LOD determination resumed and the Air Force Reserve LOD Board found the applicant’s injuries to be in the LOD and he was placed on a medical profile on 1 Apr 11, which included mobility restrictions on 1 Apr 11. The member received MEDCON orders beginning on 7 Oct 11. The remaining relevant facts pertaining to this application are described in the letter prepared by the Air Force office of responsibility which is included at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: AFMOA/SGHI recommends denial, indicating there is no evidence of an error or injustice. The Command Man-day Allocation System (CMAS) authorizations indicate the member was on continuous active duty orders from 1 Apr 09 through 30 Sep 09, 1 Oct 09 through 30 Jan 10, 3 Feb 10 through 28 Feb 10, and MEDCON orders from 7 Oct 11 through 3 Apr 12. There is no documentation in the member’s records between 17 Sep 09 and 2 July 10 to indicate the member was unable to return to work. CMAS also shows the initial MEDCON request was submitted on 6 Jul 10. Per SAF/AA Memo, Return to Active Duty of Air Force Reserve Component Members Unable to Perform Military Duties, dated 8 Dec 06, “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.” In this instance, the surgical date would be considered the date the member was unable to perform military duties. However, if the member elects to have a surgical procedure prior to being placed on MEDCON orders, the orders are started the day after the surgery. The initial request for MEDCON orders, dated 6 Jul 10, and subsequent requests were declined due to an incomplete LOD determinations on multiple occasions, and then were declined by the Allocation staff on 31 Jan 11 with the following statement as justification: “A medical impairment or physical defect standing alone does not constitute a physical disability. To constitute a physical disability, the medical impairment or physical defect must be of such a nature and degree of severity as to interfere with the member’s ability to adequately perform his or her duties;” and further states, “Inability to perform the duties of his or her office, grade, rank, or rating in every geographical location and under every conceivable circumstance will not be the sole basis for a finding of unfitness.” Having a medical condition or an LOD does not constitute sole eligibility for MEDCON man-days. As an alternative, also IAW DODD 1241.1, Reserve Component Medical Care and Incapacitation Pay and Line of Duty Conditions, and DoDI 1241.2, Reserve Component Incapacitation System Management, Incapacitation (INCAP) pay is appropriate when a member can perform military duties but cannot return to their civilian job due to their duty related injuries. As such, INCAP Pay would be a more appropriate remedy. 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 24 Feb 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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. The applicant contends he should have been placed on active duty for medical continuation (MEDCON) orders until his medical condition was resolved. After a thorough review of the evidence of record and the applicant’s complete submission, we believe a preponderance of evidence indicates he should have been placed on MEDCON orders as early as 3 Mar 10. In this respect, we note the applicant was injured while on active duty orders for 31 days or more, and properly reported his injuries on 3 Mar 10. Based upon the letter to the applicant’s Congressman from the Office of the Secretary of the Air Force for Legislative Liaison, an administrative error inadvertently closed his LOD case, delaying a final determination until 7 Jan 11. The error in completing his LOD determination resulted in his request for MEDCON orders initially being denied, and orders cannot be backdated to cover the period he should have been in an on order status. As a result, his MEDCON orders did not begin until 7 Oct 11. We note the comments of the Air Force office of primary responsibility (OPR) indicating that a medical condition incurred in the LOD alone does not constitute the sole basis for entitlement to MEDCON orders. However, in view of the inexplicable delay in processing his LOD determination, and noting that the applicant has presented evidence that he underwent corrective surgery and an extensive recuperative period, we believe it is more likely than not the applicant’s LOD injury rendered him unfit for duty during the period immediately following his active duty tour and, thus, formed the basis of his entitlement to MEDCON orders. Therefore, to preclude the possibility of an injustice we believe it appropriate to resolve any doubt in the applicant’s favor and recommend his records be corrected as 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 that on 3 March 2010 he was placed on active duty for the purpose of medical continuation and remained on active duty through 6 October 2011. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-04716 in Executive Session on 5 Jun 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 22 Nov 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFMOA/SGHI, dated 15 Feb 12. Exhibit D. Letter, SAF/MRBR, dated 24 Feb 12.