RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-02683 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected to show that he was given service credit points, to include back pay and entitlements, for the period of 1 Jan 11 through 28 Sep 13. ________________________________________________________________ APPLICANT CONTENDS THAT: He should not have been discharged from active duty with unresolved medical issues and a Line of Duty (LOD) determination should have been initiated prior to his release from active duty. If a LOD was initiated, he would not have been separated under a Reduction in Force (RIF), but maintained on active duty until his medical issues were resolved. At the time of his discharge, he had two major medical issues, a torn rotator cuff and sleep apnea, but was denied the opportunity to stay on active duty orders to complete treatment. In further support of his request, the applicant provides various letters. He specifically requests the Board to read a letter from his former supervisor dated 20 Nov 12, in its entirety. He also provides a copy of his Medical Board Report which he believes substantiates the long standing issues. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 15 Nov 90, the applicant enlisted in the Air National Guard (ANG) in the grade of senior airman (E-4). On 31 Dec 10, the applicant was honorably discharged due to an involuntary RIF in the grade of chief master sergeant (E-9). According to documentation provided by the applicant, on 15 Apr 11, a Line of Duty (LOD) determination was conducted for a right shoulder rotator cuff tear the applicant suffered on or around 1 Mar 07. On 18 May 11, the injury was found to be In the Line of Duty (ILOD) and was incurred while on active duty orders. According to documentation provided by the applicant, on 15 Apr 11, a LOD determination was conducted for possible Obstructive Sleep Apnea, first diagnosed in Nov 10. On 13 May 11, this condition was found to be ILOD. On 7 Jun 12, the applicant was issued an AF Form 469, Duty Limiting Condition Report, that indicated he was restricted from lifting more than 20 pounds, could not deploy, and was undergoing a Medical Evaluation Board (MEB). On 13 Nov 12, a MEB evaluated the applicant’s case after being diagnosed with Obstructive Sleep Apnea and a right shoulder rotator cuff tear. The MEB recommended his case be referred to an Informal Physical Evaluation Board (IPEB). On 22 Apr 13, the applicant’s BCMR case was administratively closed per the applicant’s request. On 18 Jun 13, an IPEB found the applicant’s OSA and right shoulder rotator cuff tear was unfitting and recommended permanently retirement with a combined disability rating of 60 percent. On 1 Jul 13, the applicant requested his case be reopened and provided a cover letter from his Senator, a two-page expanded statement, a new DD Form 149, dated 1 Jul 13, copies of the PEB results, LOD determinations, medical record review, various character letters and his DD Forms 214. On 3 Jul 13, the Secretary of the Air Force (SECAF) determined the applicant physically unfit for continued military service and directed he be permanently retired from active service for physical disability. According to Special Order Number ACD-02882, dated 31 Jul 13, the applicant was relieved from active duty on 27 Sep 13 and on 28 Sep 13, he was permanently retired for physical disability with a combined disability rating of 60 percent. He was credited with 15 years, 8 months, and 16 days of total active service. ________________________________________________________________ AIR FORCE EVALUATION: NGB/A1PS recommends denial of the applicant’s request for MEDCON orders indicating there is no evidence of an error or an injustice. An airman may be eligible for MEDCON orders when an injury, illness, or disease is incurred or aggravated while serving on orders and that condition renders the Airman unable to perform military duties. MEDCON eligibility requires a Line of Duty (LOD) determination and a finding by a credentialed military health care provider that the airman has an unresolved health condition requiring treatment and renders the Airman unable to meet retention standards. Not all conditions that restrict deployment or mobility establish MEDCON eligibility. Sleep Apnea is not a medical condition that qualifies for medical continuation; however, it would be a part of the disability rating. An LOD was completed on 24 May 11, for an injury that occurred in Mar 07 and aggravated while on active duty; however, the applicant’s AF Form 469 would need to state the applicant is not fit for duty. Additionally, the applicant should provide copies of the AF Forms 469 for the period when he started treatment for his shoulder through the present time. Lastly, he should provide a copy of his orders for the last period of active duty and the medical documentation of treatment received while he was on orders. The A1PS evaluation, with attachments, is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant asserts that it appears that there is some confusion regarding his request and reiterates that he is aware that he is not eligible for MEDCON orders. However, he believes additional action is warranted regarding his ongoing medical issues at the time of his discharge, irregularities in how his case was processed, and procedures regarding his tour/retirement. Specifically, he is requesting receipt of service credit from the date of discharge from active duty and to be considered for medical retirement as it was afforded to other service members in similar situations. He contends that he should have been maintained on orders until his medical issues were resolved or an MEB was conducted. He believes the only reason he was not maintained on orders was because the medical unit had not initiated a LOD determination as they had for other members serving in the Nevada ANG program. Although he had repeatedly requested a LOD and MEB be conducted, these actions were not initiated until months after his discharge. Had these actions taken place, he would not have been discharged. The applicant mentions two other personnel in his unit who were maintained on orders due to open LOD actions. He states that this issue is unique to the ANG and the personnel on full-time ANG Counterdrug status. In regards to NGB/A1P’s request for further documentation, all of the medical documents were included in his AFBCMR application. He also included copies of his DD Forms 214 showing uninterrupted active duty dating back to 2003. Additionally, to his knowledge, the medical unit only generated one AF Form 469 on his shoulder issues and that was more than six months after his discharge. There is not a Military Treatment Facility (MTF) in his area where he could see a military medical provider so Tricare Prime Remote provided all of his care prior to his discharge. Prior to his discharge, he requested an exit physical at Travis AFB, CA, but was denied. Lastly, he reiterates that he request to receive service credit points from the date of his discharge from active duty until the MEB renders its decision. Additionally, if the MEB finds him unfit, he request that he be medically retired. In further support of his requests, the applicant provides various letters. He specifically requests the Board to read a letter from her former supervisor dated 20 Nov 12, in its entirety. He also provides a copy of his Medical Board Report which he believes substantiates the long standing issues. His complete response, with attachments, is at Exhibit F. ________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: The BCMR Medical Consultant recommends denial indicating the applicant has not met his burden of proof of error or injustice, nor offered evidence to support a disability that warrants the desired change of his record. The applicant offered excerpts from his leadership that state there is ample documentation to support his contention that his shoulder injury took place while on active duty orders. However, the Board was not offered this information. The available information indicates the applicant performed his duties until his orders terminated due to a RIF in 2010. There is no medical evidence provided that would infer permanent service aggravation of this condition, nor the ability to perform his duties. The applicant underwent surgical repair of his rotator cuff, five years after the initial injury, a procedure that is often completed on an elective basis. Although the applicant reversed his request for MEDCON orders, the Medical Consultant believes it prudent to establish the purpose of MEDCON orders. MEDCON orders extend entitlements to airmen who are unable to perform military duties due to an injury, illness or disease incurred or aggravated while on orders or Inactive Duty Training (IDT) status. There are no objective findings to support the applicant was ever unable to perform his military duties. Regarding the applicant’s Obstructive Sleep Apnea, there is no supporting documentation or evidence that the condition was unfitting or would have been the cause of career termination. While the LOD states the Obstructive Sleep Apnea started around November 2010, 6-8 weeks prior to the termination of the active duty orders, AFI 36-2910, Line of Duty (Misconduct) Determination, paragraph 3.4.1.1, states; “A LOD determination is based upon the onset of the disease, illness or injury process, not the existence of symptoms. The applicant’s active duty tour was not terminated due to a medical condition. There is no fact to support the applicant was unfit for duty. A service member shall be considered unfit when the evidence establishes that the member, due to physical disability, is unable to reasonably perform the duties of his or her office, grade, rank, or rating. The applicant performed all of his duties and there is no evidence to support that if his orders were not abruptly terminated, he would not have continued on those orders. The complete BCMR Medical Consultant evaluation is at Exhibit H. ________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: On 21 Mar 13, the applicant requested to withdraw his AFBCMR application and asserted that there is still confusion as to what he is requesting. He stated that he never once suggested that his orders were terminated for medical reasons. Also, he did not provide medical documentation because the ANG medical unit never did any of the required documentation. He reiterated that he never requested MEDCON orders and understands that ANG Counterdrug personnel are ineligible for MEDCON orders. Lastly, he indicated that he extended his enlistment to be able to deploy for the fourth time to the Middle East. Finally, at the time of his discharge, he was not a “Traditional Guardsman,” he was in a career program like the AGR program under the National Guard’s Counterdrug Program. His complete response is at Exhibit I. ________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: The BCMR Medical Consultant recommends partial approval by establishment of pay and points from 8 Jul 11 which is at or about the time military medical officials should have initiated worldwide duty determination due to Obstructive Sleep Apnea. However, the Board may choose to grant full relief, if based solely on existing Air Reserve Component (ARC) retention policy regarding members remaining on orders until returned to unrestricted duty or processed through the military Disability Evaluation System (DES). MEDCON orders are intended to extend (uninterrupted), a Reserve component member’s active duty orders beyond the termination date for any duty limiting illness or injury sustained while under Title 10 orders. Although the applicant stated he received treatment for his medical conditions while he was on active orders, he has only provided subjective evidence following his release from active duty. Ordinarily, military documents would be created for the service members who are unable to perform their duties but instead, the applicant has provided evidence from his civilian providers for his conditions that he deemed rendered the applicant unable to perform his duties. Nevertheless, the restrictions recommended by the civilian providers serve as potential/appropriate start dates for initiation of military documentation depicting either the expectation that the condition(s) would be resolved within 31- 365 days or that the condition(s) require MEB/PEB processing. Moreover, any Duty Limiting Condition (DLC) unresolved within 12 months that continues to prohibit deployability or worldwide qualification, would also warrant MEB/PEB processing. Without actual records of treatment prior to the applicant’s release from active duty on 31 Dec 10, it is clinically impossible to determine what actual duties he was allowed to or unable to perform. It is also noted that the applicant’s unit did not have a full-time medical provider on staff and he received his care via TRICARE Prime Remote. These factors likely contributed significantly to any delays in processing the applicant’s case. If the applicant was unable to perform his duties at the time he was released from active duty orders on 31 Dec 10, then retroactively extending his orders from 1 Jan 11 by placing him on medical hold until he was processed through the military DES would be the appropriate course of action in relation to his right shoulder ailment and possibly the Obstructive Sleep Apnea. With respect to the severe Obstructive Sleep Apnea, it is not as clear when or if it interfered with his duty capabilities prior to his release from orders on 31 Dec 10; particularly since it was only formally diagnosed on 8 Jul 11. Although rarely found unfitting, Obstructive Sleep Apnea has been listed as one requiring MEB processing for active duty members and worldwide duty evaluation for ARC members under a previous AFI 48-123, Medical Standards for Continued Military Service (Retention). Nevertheless, if either or both conditions first occurred during the applicant's extended period of active duty and interfered with duty, it may be presumed that they were service-incurred. Although reportedly initiated six months after being released from active duty, it reflects an effort was made to correct the deficiency, since the applicant had been returned to non-active duty status. While the applicant's shoulder surgery was conducted on 19 Jan 12, a clinical assumption can be made that there was likely some degree of functional impairment or restriction to duty for weeks or months prior to his surgical treatment date. Sufficient evidence of an error or injustice has occurred in the case under review. The remedy or remedies for the error or injustice may be based on the existing evidence versus simple application of an Air Force policy governing Air Reserve Component (ARC) members who incur an illness or injury while on active duty orders. The BCMR Medical Consultant supplemental evaluation is at Exhibit L. ________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: The applicant reiterates his request that he be afforded full relief to include pay, allowances and service credit from 1 Jan 11 through 28 Sep 13 due to his premature removal from active duty. In support of his position that he was unable to perform his military duties and/or deploy as of Nov 10, he provided three opinions from treating physicians in support of this contention. The first physician states that “If the patient was tested in Dec 10, he would have had just as severe and disabling OSA than (sic) as documented in 7-2011.” The second physician states that the applicant has OSAS which was clinically diagnosed using nationally recognized criteria in Nov 10 and a sleep study confirmed the diagnosis. The physician also noted the sleep study that was delayed until Jul 11 was not required to make the diagnosis. The third physician, his Orthopedic Surgeon, stated he did not have insurance coverage during the initial portion of 2011 and this led to a delay in treatment. If he had insurance, the shoulder injury would have been addressed in early 2011 and significantly shortened treatment. The opinions of these three physicians support that he was diagnosed and affected by the Obstructive Sleep Apnea and shoulder injury prior to Jul 11. The combination of the opinions of the physicians, the opinion of the BCMR Medical Consultant, and provided medical evidence clearly demonstrates an error or injustice that warrants full relief. ? Lastly, the applicant opines that the letter from his former supervisor officer further supports his premature removal from active duty and indicates he would have been able to demonstrate his disability were it not for this error and injustice (Exhibit M). ________________________________________________________________ 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. After a thorough review of the evidence of record and the applicant’s complete submission, including the letter from his former supervisor dated 20 Nov 12, we believe partial relief is warranted. In this respect, we note the applicant contends he should have been maintained on active duty orders from 1 Jan 11 until his medical issues were resolved. However, the BCMR Medical Consultant has thoroughly reviewed the evidence of record and points out that without actual records of treatment prior to the applicant's release from active duty orders on 31 Dec 10, it is clinically impossible to determine what actual duties the applicant was allowed to or was unable to perform and we agree with this statement. Therefore, based on the existing evidence, we agree with the BCMR Medical Consultant’s that 8 July 11 is about the time military medical officials should have initiated a worldwide duty determination due to Obstructive Sleep Apnea. In view of the foregoing, it is our opinion that the applicant’s record should be corrected to reflect that he was placed on active duty orders effective 8 Jul 11 until he was relieved from active duty on 27 Sep 13. Accordingly, 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 APPLICANT, be corrected to show that for the period for the period of 8 July 2011 through 27 September 2013, he was placed on active duty, for the purposes of medical continuation in accordance with Title 10, U.S.C. §12301(h). ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-02683 in Executive Session on 21 Oct 14, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 1 Jul 13, w/atchs. Exhibit B. Applicant's Available Master Personnel Records Exhibit C. Letter, NGB/A1PS, dated 16 Nov 12, w/atchs. Exhibit D. Letter, NGB/A1P, dated 19 Dec 12. Exhibit E. Letter, SAF/MRBR, dated 20 Dec 12. Exhibit F. Letter, Applicant, dated 17 Jan 13, w/atchs. Exhibit G. Letter, SAF/MRBC, dated 15 Mar 13. Exhibit H. Letter, BCMR Medical Consultant, dated 12 Mar 13. Exhibit I. Letter, Applicant, dated 21 Mar 12. Exhibit J. Letter, AFBCMR, dated 22 Apr 13, w/atchs. Exhibit K. Letter, SAF/MRBC, dated 5 Sep 14. Exhibit L. Letter, BCMR Medical Consultant, dated 4 Sep 14. Exhibit M. Letter, Applicant, dated 3 Oct 14, w/atchs.