RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-03639 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ THE APPLICANT REQUESTS THAT: 1. His record be corrected to show that he was not discharged from active duty on 2 Mar 12 but was continued on active duty until 26 Jul 12; 2. He be paid all back pay, allowances, and benefits to which he would have been entitled from 2 Mar 12 to 26 Jul 12; 3. He be paid for his out-of-pocket dental expenses; 4. His conditions were In the Line of Duty (INLOD); 5. His retirement date and retirement points be updated accordingly. ________________________________________________________________ THE APPLICANT CONTENDS THAT: In Sep 10, he was serving on Extended Active Duty (EAD) with US Central Command (CENTCOM), and reported severe pain in his #19 tooth, a molar. However, it was determined to have Existed Prior to Service – Not Applicable (EPTS-N/A). Had his dental condition been properly determined he would not have incurred an expense totaling $600.00. Between 2011 and 2012, he experienced right knee pain which ultimately required surgery. After surgery, his medical provider indicated that he required a full eight weeks of convalescent leave and therapy before he would be able to fulfill his job requirements. Even though the Air Force Reserve Command’s (AFRC) determined that his injury was EPTS – Service Aggravated (EPTS-SA), he should have remained on active duty until his medical condition was resolved. Based on the governing law, Department of Defense (DOD) and Air Force policy, the response to his Member of Congress which indicated that he was not entitled to MEDCON orders or incapacitation pay was incorrect, because he should have been entitled to one or the other due to his condition. Since AFRC did not finalize his LOD determination until 5 Jul 12, he should still be entitled to MEDCON orders until his eight weeks of convalescent leave was completed, 26 Jul 12. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant, while serving as a colonel with the Air Force Reserve, was recalled on EAD to support operations at US CENTCOM from 2 Apr 10 to 1 Sep 10. On 13 Mar 11, the applicant was recalled on EAD in support of Operation ENDURING FREEDOM/NEW DAWN. He continued supporting contingency operations until his demobilization, on 2 Mar 12. On 1 Jun 12, the applicant was transferred to the Retired Reserve and placed on the USAF Reserve Retired List, awaiting pay at age 60. He was credited with 30 years of satisfactory Federal service. On 18 Jun 12, the Vice Commander, Air Force Reserve Command (AFRC/CV) approved the applicant’s LOD determination for a finding of EPTS-SA. On 6 Jul 12, the applicant was notified of the decision by the AFRC/CV. ________________________________________________________________ THE AIR FORCE EVALUATION: AFRC/A1K did not provide a recommendation. They noted, however, the requested corrections are not within the purview of the authority for the programs managed by the AFRC/A1K staff. Instead, the concerns all appear to be medically related and as such, possibly could be more appropriately addressed by a medical authoritative source. The rationale for the AFRC/AlK’s position on this matter is based in large part, on their inability to determine where the applicant has solicited a stated desire to make an application for Incapacitation Pay (INCAP PAY). As an aside, the following is provided relative to the applicant's circumstance. Excerpt from AFRCI 36-3004, Incapacitation Pay and Management of Reservist Continued on Active Duty Orders, paragraph 1.4." Elect To Leave Active Duty, states that members on orders for 31 days or more, who would otherwise be retained on orders due to an incapacitation, but who elect to leave active duty, shall be entitled to incapacitation pay upon the end of the orders and medical treatment for the line of duty medical condition only in military treatment facilities, according to Section 1074 of Title 10 U.S.C (reference (c))." Again, the AlK staff is unable to determine where the applicant has indicated he is electing to be released from an active duty status and wishes to apply for INCAP PAY. The complete AFRC/A1P evaluation, with attachments, is at Exhibit B. AFMOA/SGH1 recommends denial, stating, in part, that they are unable to advise him on back payment of his medical expenses incurred for his dental LOD condition. The applicant would not have been eligible for MEDCON for this condition. Additionally, his request for his LOD's to be changed and his retirement date and points to be updated accordingly, is not in the authority of this office. However, if the decision is to grant the relief sought, the records should be corrected to show he was placed on active duty, with full entitlements from 31 May 12 to 26 Jul 12 during his surgical procedure and recovery, which is the only time he would have been eligible for MEDCON had he not been retired. The applicant was on continuous active duty orders from 6 Apr 10 through 30 Sep 10 and again from 13 Mar 11 through 2 Mar 12. Records submitted indicate he was seen for a dental problem on 28 Sep 10 at a Military Treatment Facility (MTF). He had follow-up appointments; however, there is no further documentation available, to indicate further treatment. During his routine Physical Health Assessment (PHA), on 23 Jan 12, he told the provider of his musculoskeletal condition. On 2 Feb 12, he reported to the Langley AFB MTF Emergency Room for this problem and radiological tests were performed, no significant findings were noted. There is no indication that either his dental or knee conditions caused him to terminate his tour of duty ear1y. There is no evidence of a Command Man-Day Allocation System (CMAS) request for MEDCON during any time the applicant was on AD orders or prior to his retirement date of 1 Jun 12. This does not indicate a CMAS was not requested by him; only that one cannot be found. Current guidance for MEDCON at the time in question indicates that an interim or completed LOD determination with an accompanying AF Form 469 does not in and of itself result in approval of MEDCOM orders. The level of severity of the injury, illness or disease must be taken into consideration by the credentialed military health care provider and whether the member is determined unable to perform military duties. There is no evidence that either condition caused the applicant to not be able to perform military duties until his surgical date 31 May 12. The MEDCON Division has no authority to delay or change an applicant’s Mandatory Separation Date (MSD) or order the applicant to remain on AD. This office has no purview of the applicants who become ill or injured and return from their deployments, on their scheduled return date, unless a CMAS request for MEDCON is made. As stated previously there is no indication that was accomplished, other than the note on the SF 600, Chronological Record of Medical Care, enclosure number 19, page 4, stating the request was sent to AFRC/SGP and AFMOA. If it was declined by HQ AFRC/SGP this office would not have received the actual CMAS request. The complete AFMOA/SGH1 evaluation, with attachments, is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: The applicant’s counsel noted his disagreement with the advisory opinions. In addition, A1K does not provide a recommendation but notes that INCAP is more appropriate rather than MEDCON. Further, AFMOA did not utilize the applicable governing law and directives in regard to the applicant’s request for MEDCON orders. The law does not require a member to go through CMAS to qualify for MEDCON and believes the applicant should have been continued on active duty. In addition, the applicant requested his application be amended to include protection under the sanctuary provision; however, he and counsel were advised that this constituted a new request and through counsel, he agreed to submit a new application. 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 error or injustice warranting corrective action to entitle the applicant to be paid out-of- pocket dental expenses or that his dental condition was incurred ILOD. We took notice of the applicant’s complete submission in judging the merits of the case; however, the evidence reflects that the applicant’s dental condition was EPTS/LOD Not Applicable. While we note the applicant contends that he should have been paid for his dental expenses he incurred as a result of a condition reportedly that occurred while on active duty for more than 30 days, he has not provided sufficient documentation to show this condition was not EPTS or that it prevented him from performing his military duties. Without evidence showing the applicant was unable to perform his military duties, we do not find a sufficient basis to substantiate that he has been the victim of an error or injustice. In view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this portion of the application. 4. Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of error or injustice warranting corrective action regarding his request for MEDCON from 3 Mar – 26 Jul 12. While we note the recommendation of the Air Force office of primary responsibility to deny the applicant’s request, the evidence reflects the applicant was treated for a medical condition in Dec 11 and, contrary to the AF Form 348, Informal Line of Duty Determination, dated Mar 12, wherein the military medical provider recommended the applicant be retained on active duty; he was transferred to Reserve Retired list. Moreover, we note that the LOD determination was not made until after he had retired. In view of the foregoing, we believe the applicant should have been placed on MEDCON orders for the period 2 Mar 12 to 26 Jul 12. Accordingly, in the interest of equity and justice, we recommend his record be corrected as indicated below. 5. 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 issue(s) 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 APPLICANT, be corrected to show that, by competent authority, he was not released from active duty on 2 Mar 12, but on that date was continued on active duty until 26 Jul 12 at which time he was discharged and transferred to the Retired Reserve on 27 Jul 12. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-03639 in Executive Session on 11 Jun 13, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence pertaining to BC-2012-03639 was considered: Exhibit A. DD Form 149, dated 27 Jul 12, w/atchs. Exhibit B. Letter, AFRC/A1K, dated 25 Jan 13, w/atchs. Exhibit C. Letter, AFMOA/SGHI, dated 1 Feb 13, w/atchs. Exhibit D. Letter, SAF/MRBR, dated 8 Feb 13. Exhibit E. Letter, Applicant’s counsel, dated 12 Mar 13, w/atchs.