RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-01000 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: She receive medical continuation (MEDCON) orders for the period 17 Sep 11 to 30 Jul 12; or in the alternative she receive Incapacitation (INCAP) Pay for the period she was released from MEDCON orders. ________________________________________________________________ APPLICANT CONTENDS THAT: She was erroneously released from MEDCON orders for a lack of adequate treatment record and or medical documentation. According to regulations, she should never have been taken off orders because "things were moving too slow.” The delays in the processing of her case through the Disability Evaluation System (DES) were due to circumstances outside her control. The Air Force Medical Operations Agency (AFMOA) had no right to terminate her MEDCON orders and their action to do so was in contravention to what is prescribed in DoD Instruction 1241.2 Reserve Component Incapacitation System Management, and AFI 36- 3212, Physical Evaluation for Retention, Retirement and Separation. Her Base Immobilization Augmentee Administrator (BIMAA) informed her that she did not qualify for INCAP pay; however, the INCAP pay program manager informed her she was eligible for INCAP pay. In support of her appeal, the applicant provides copies of correspondence from her Congressional representative, a patient appointment listing, from her military medical records. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 1 May 96, the applicant entered the Air Force Reserve as a second lieutenant. In accordance with DoD Instruction 1241.2, paragraph 6.6.3.2, a Reserve component member on active duty under a call or order to active duty specifying a period of 31 days or more, who incurs or aggravates an injury, illness, or disease in the line of duty (LOD) shall, with the member's consent, be continued on active duty upon the expiration of call or order to active duty until the member is determined fit for duty or the member is separated or retired as a result of a Disability Evaluation System (DES) determination. In accordance with AFI 36-3212, Reserve Component members who incur or aggravate an injury, illness or disease in the LOD while on orders for more than 30 days are not involuntarily released from those orders until final disposition of their disability case. These members' entitlement to full pay and allowances and benefits continue to the same extent provided by law or regulation to regular component members. In accordance with AFRCI 36-3004, Incapacitation Pay and Management of Reservist Continued on Active Duty Orders, members on active duty for 31 days or more are not involuntarily released from their orders if they incur a LOD medical condition. These members have their orders extended until the medical condition is resolved or can no longer be materially improved by further hospitalization or treatment, and the case has been processed and finalized through the DES. On 28 Dec 09, the applicant was ordered to active duty in support of Operation ENDURING FREEDOM. According to the remarks section of her DD Form 214, Certificate of Release or Discharge from Active Duty, she served in the Area of Responsibility (AOR) from 29 Dec 09 through 13 Jul 10. On 8 Aug 10, the applicant was released from active duty and reverted to her traditional (part-time) status as a member of the Air Force Reserve. In Nov 2010, according to the MEB narrative summary, the applicant sought and was treated for anxiety, depression and symptoms of Post-Traumatic Stress Disorder (PTSD) by Mental Health. She was diagnosed with PTSD. On 10 Dec 10, a LOD Determination was initiated to determine if the applicant’s PTSD was incurred in the LOD. On 13 Dec 10, the applicant was ordered to active duty for the purpose of MEDCON. On 23 Jan 11, the LOD approval authority found that her PTSD was incurred in the LOD and her case was referred to the AFRC LOD Board. On 4 May 11, the Board determined the applicant’s condition was in the LOD. In June 2011, the applicant underwent a Medical Evaluation Board (MEB) and, based on Command Man-Day Allocation System (CMAS) case notes, her MEB was placed on hold due to a pending LOD for Obstructive Sleep Apnea (OSA). On 16 Sep 11, the applicant was released from her MEDCON orders. In June 2012, the applicant underwent an MEB. She was diagnosed with PTSD, major depressive disorder, and alcohol disorder. It was further noted the diagnoses were incurred in the LOD. On 30 Jul 12, the applicant was once again placed on MEDCON orders. On 29 Apr 13, she was relieved from active duty and transferred to the Temporary Disability Retired List (TDRL) with a combined compensable disability rating of 90 percent. ________________________________________________________________ AIR FORCE EVALUATION: AFMOA/SGHI recommends granting partial relief. Although the applicant requested MEDCON orders for the period 17 Sep 11 to 30 Jul 12, she has not provided sufficient evidence to warrant MEDCON orders for the period in question. The applicant was removed from MEDCON orders on 19 Sep 11 based on a lack of medical documentation noting she was receiving treatment more frequently than once a month. In addition, her MEB/IDES processing was placed on hold due to a new condition that required completion of a new LOD. However, the documentation presented shows she received more frequent treatment from 1 Sep 11 to 12 Oct 11. Therefore, the applicant’s records should be corrected to show that she was placed on MEDCON orders for the period 1 Sep 11 to 12 Oct 11. A complete copy of the AFMOA/SGHI evaluation is at Exhibit C. AFRC/A1K recommends denial of the applicant’s request for INCAP pay noting there is no evidence of an error an injustice. In accordance with AFRCI 36-3004, Incapacitation Pay and Management of Reservist Continued on Active Duty Orders, a service member must submit a valid request for INCAP pay. The applicant was advised on the required documentation to submit for INCAP pay, but failed to do so. Unless the applicant provides the required documentation her entitlement to INCAP pay cannot be verified. A complete copy of the AFRC/A1K evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: She was taken off of MEDCON orders for an inability to provide medical documentation indicating she was receiving treatment more frequently than once a month. She was never asked to provide any documentation. After being taken off of MEDCON orders, she was unable support herself and could not afford to attend individual or group therapy. She did not know anything about INCAP pay and did not apply for INCAP pay because she believed her MEB would be reinstated before the pay would be started. Reservists require LOD determination for any injury or condition to be considered in the IDES before a final determination. In her case, no new condition had any bearing on a determination of fitness to continue to serve. She believes her situation is due to AFMOA’s poor performance. 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. Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice. The applicant contends she was unfairly released from her medical continuation (MEDCON) orders for the period 17 Sep 11 to 30 Jul 12. After a thorough review of the evidence of record and the applicant’s complete submission, we believe a preponderance of the evidence indicates the applicant is the victim of an error or injustice. In this regard, we note that the applicant has cited the provisions of a variety of authoritative Department of Defense, Air Force, and Air Force Reserve instructions, all of which indicate that Reserve members such as the applicant who, while on active duty orders form more than 30 days, incur an unfitting condition in the line of duty (LOD) will be retained on active duty for the purposes of MEDCON until they are either found fit for duty or separated through the disability evaluation system (DES). The applicant’s Post-Traumatic Stress Disorder (PTSD) and other conditions were obviously unfitting as she was placed on MEDCON orders shortly after being diagnosed with these conditions. However, she was subsequently released from her MEDCON orders when her medical evaluation board (MEB) processing was apparently “suspended” due to a pending LOD determination for an additional potentially unfitting condition. Nonetheless, we are not convinced that she should have been released from her orders simply because her MEB processing was “suspended.” In this respect, we note that the suspension of her MEB processing did not constitute either of the two outcomes required which, according to the instructions cited by the applicant, would allow her to be released from her MEDCON orders: a finding that she was fit for duty or a final determination by the DES. While we note the comments of AFMOA/SGHI indicating that it was appropriate for the applicant’s MEDCON orders to be terminated because her MEB processing was “suspended” and because she was not receiving treatment with the required frequency to justify continuation, unlike the applicant, AFMOA/SGHI cites no specific authoritative source to support the proposition that it is appropriate to suspend MEDCON orders in this circumstance when there is no evidence to indicate the applicant was fit for duty and, thus, should have been released from her MEDCON orders. We note the presumption of regularity dictates that, absent evidence to the contrary, it is assumed that government officials carry out their duties properly and in good faith and the applicant (not the government) bears the burden of proof in these matters; however, because AFMOA/SGHI is apparently reluctant to cite an authoritative reference for our review indicating that it is appropriate to release a member who is unfit from MEDCON orders under these circumstances, we believe the applicant has met her burden and established that she is the victim of an error or injustice. Therefore, we recommend the applicant’s 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 she was not released from active duty on 16 September 2011, but on that date, she continued to serve on active duty for the purposes of medical continuation (MEDCON) until 29 April 2013, when she was transferred to the Temporary Disability Retired List (TDRL). ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2013-01000 in Executive Session on 13 Feb 14, 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 20 Feb 13, w/atchs. Exhibit B. Applicant's Master Personnel Records Exhibit C. Letter, AFMOA/SGHI, dated 2 Jul 13. Exhibit D. Letter, AFRC/A1K, dated 12 Sep 13. Exhibit E. Letter, SAF/MRBR, dated 20 Sep 13. Exhibit F. Letters, Applicant, dated 28 Sep 13 and 16 Oct 13, w/atchs. Panel Chair