RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-01087 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: His records be corrected to show that he was on Medical Continuation (MEDCON) orders for the period of 8 Sep 11 to 18 Apr 12 as opposed to Incapacitation Pay (INCAP Pay). APPLICANT CONTENDS THAT: His requests to return to active duty after becoming unable to perform military duties as a result of an injury incurred or aggravated in the Line of Duty (LOD) were unjustly denied. He should have been allowed to voluntarily return to active duty status on MEDCON orders In Accordance with (IAW) SAF/AA Memorandum, Return to Active Duty of Air Reserve Component Members Unable to Perform Military Duties, dated 8 Dec 06. He was on continuous Military Personnel Appropriations (MPA) orders from 9 Sep 07 to 15 Jun 11. During that time he received two in the LOD injuries. He was receiving medical treatment when his orders ended on 15 Jun 11. Approximately 3 months after being released from active duty, he became unable to perform military duties as a result of the LOD injuries. He had a medical diagnosis rendering him unable to perform military duties as documented on the AF Form 469, Duty Limiting Conditions Report, dated 8 Sep 11. Additional restrictions were updated on 19 Oct 11. He was placed on full INCAP Pay for the period of 8 Sep 11 through 18 Apr 12. Due to his injuries and medical treatment, he was unable to perform his military duties or his civilian job. He is an airline pilot and he was unable to perform his civilian job because he could not meet the Federal Aviation Administration (FAA) physical requirements. His unit submitted several Command Man-Day Allocation System (CMAS) requests for MEDCON orders which were denied. The requests were disapproved citing he had a physical on 5 Apr 11 and was cleared to fly, was mobility qualified and there was no record of continued treatment. He continued to receive physical therapy and passed a flight physical. Being World Wide Qualified (WWQ) does not mean an individual does not have any medical issues. He was entitled to full pay and allowances under 37 U.S.C. § 204(g) because he was unable to perform military duties. He would have only received partial pay and benefits if he was determined only partially disabled and able to perform some military duty. The requirement to qualify for full INCAP pay and return to active duty as outlined in the SAF/AA policy are the same. The final denial of his request on 18 Jan 12 states that he remains eligible for care for all LOD conditions but that they were unable to associate the current condition as occurring while on 2007-2010 orders when he was medically cleared in 2011 and therefore was ineligible for MEDCON. He was on orders from 2007 to 2011 and the orders were included in the request. He also does not see how his condition could not be associated to the period while he was on orders. His medical records show he was receiving medical care for his back starting in Feb 08 through May 11 (three weeks before his orders ended). He was also receiving medical care for his shoulder from the time of his injury in Dec 09 through the time the Air Force renewed his surgical referral in May 11. If approved, the Air Force will not owe him any money as he has already received full monetary compensation through INCAP pay. However, the correction will allow him to receive the 224 active duty retirement points he was entitled to for that period. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant is a member of the Air Force Reserve serving in the grade of lieutenant colonel (O-5). According to his DD Form 214, Certificate of Release or Discharge from Active Duty, he served on active duty from 9 Sep 07 through 31 Jan 11 for this period. According to his DD Form 214, he served on active duty from 1 Feb 11 through 15 Jun 11. His AF Form 469 dated 8 Sep 11, reflects duty and mobility restrictions and physical limitations/restrictions of no running more than 100 yards, no repetitive bending at the waist, no pushing or pulling more than 25 pounds, no lifting more than 25 pounds and no timed walk. On 19 Oct 11, the additional restrictions of no lifting overhead and limiting of cross chest arm movements with right arm were added. The period of the restriction was through 18 Apr 12. AFRC IMT 348, Informal Line of Duty Determination, dated 25 Aug 11 reflects his injury (shoulder) was found in the LOD. AFRC IMT 348 dated 2 Dec 11, reflects his injury (back) was found in the LOD. According to Command Man-Day Allocation System (CMAS) entries dated 10 Oct 11, 15 Nov 11 and 18 Jan 12, his requests for MEDCON orders were disapproved. Reasons for the disapproval include that on 5 Apr 11 he was cleared to fly, and was mobility qualified and WWQ. He was also previously treated, medically improved and returned to duty in Oct 10. The applicant was entitled to use his LOD to receive treatment at any Military Treatment Facility (MTF) or Department of Veterans Affairs (DVA) facility. Per 37 U.S.C. § 204 and 206, the Military Pay and Allowances Manual and 10 U.S.C. § 1074 and 1074a, a member of the Air Force Reserve is entitled to medical and dental care, incapacitation pay, travel and transportation incident to medical and/or dental care when incurring an in the LOD injury. Per DODI 1241.2, Reserve Component Incapacitation System Management, paragraph 6.6.3.2., A Reserve component member on active duty under a call or order to active duty for a period of 31 days or more, who incurs or aggravates an injury, illness, or disease in the line of duty 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). Per AFRCI 36-3004, paragraph 3.4.9, a member who incurs or aggravates an injury, illness or disease and has an in the LOD determination completed and finalized as in the LOD is entitled to apply for INCAP Pay. According to the SAF/AA memorandum, paragraph 8.1, SAF/MR is the appeal authority for denied MEDCON requests. All appeals should be submitted to the Air Reserve Center Case Management Office (ARC CMO). The package will then be forwarded to the AFMOA commander or a delegated appropriate clinical director within AFMOA to conduct an independent review and make a recommendation to SAF/MR. Further, paragraph 8.2 states that in the event of a successful appeal, a claim for past entitlements may be submitted to the Board. AIR FORCE EVALUATION: AFPC/DPFA recommends denial indicating there is no evidence of a mistake. The applicant was previously treated, medically improved and returned to duty. He received finalized LODs which provides access to care at military or DVA treatment facilities. He was eligible for INCAP Pay which he applied for and was approved for IAW 37 U.S.C. The INCAP Pay afforded the applicant full pay and allowances. There is no sufficient evidence provided to overturn the previous determination. The applicant was injured twice in 2009 and 2010 while serving on qualifying Title 10 orders. Both conditions were found to be in the LOD. The conditions required medical care on an ongoing basis and the applicant continued to serve in a mobilized status. Once his tours of duty concluded, his medical condition continued to need care and he was placed on a mobilization restricted status as demonstrated on the AF Form 469. At this point, his condition deteriorated to the extent that surgical correction was required. In this case, the mobility restriction, while it existed, was temporally disassociated by two years from the injury date. Two additional MEDCON applications were submitted in 2011 and 2012 with the same result, not eligible for MEDCON. A complete copy of the DPFA evaluation is at Exhibit C. AFPC/JA recommends disapproval as the applicant has not established an error warranting corrective action. The SAF/AA policy states that airmen are entitled to be returned to active duty to satisfy pay and entitlements, medical evaluation and treatment and processing through the DES but they must have a “medical diagnosis rendering them unable to perform military duties and a LOD determination documenting that the injury/illness was incurred or aggravated in the LOD.” In this case, the applicant was injured on active duty but was cleared to fly and was mobility qualified after his physical in Apr 11. He continued to be mobility qualified for several years after the injury, and he was mobility qualified at the time he left active duty on 15 Jun 11. He was not placed on mobility restrictions until three months after his active duty orders ended. He was eventually placed on mobility restriction for having pain; however, there is no clear indication of what incident caused him to be placed in mobility restriction several years after the injury or whether the incident triggering the need to place him on a mobility restriction incurred during his military duties or off duty. Due to the mobility restriction occurring after the orders ended, AFPC/DPFA required evidence to show the causation of the mobility restriction was related to the performance of military duties. AFPC/DPFA states in their advisory that they followed the SAF/AA policy and denied the applicant’s request for MEDCON orders due to the lack of sufficient evidence. There is no evidence of an error. The complete JA advisory is at Exhibit D. The BCMR Medical Consultant recommends the Board consider granting relief if administratively feasible under the law based upon a preponderance of medical evidence. The Medical Consultant provides chronological extracts from the applicant’s voluminous presentation from Jul 08 to Jun 12 which may establish the needed nexus with his initial in the LOD injury. The documentation which includes physical therapy sessions, epidural steroid injections, discography, pain management, range of motion and strengthening routine for his shoulder, arthroscopic bursectomy and distal clavicle resection collectively establishes a nexus with his LOD initial injuries which appear in the record a long a relatively uninterrupted continuum of time until his physician released him to unrestricted duty on 18 Apr 12. The applicant injured his right shoulder on or about 20 Dec 09 when he slipped on a wet floor, wrenching his shoulder while handing-off bags and gear down a C-5 aircraft ladder. He previously received evaluations and care for a back problem during 2008. Both the back and shoulder ailment were found in the LOD. Therefore, although the annular tear involving the applicant’s lumbar spine identified on CT scan of Jul 11 was not identified on the MRI scan of May 08, the Medical Consultant opines the applicant has supplied sufficient evidence of an acute worsening of a chronic impairment requiring a period of sustained treatment and recovery that may have justified MPA orders during the requested period as an alternative to INCAP Pay. The Medical Consultant’s complete evaluation is at Exhibit E. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: He does not argue that he failed to meet the four items listed in the AFPC/DPFA evaluation; however, there is nothing in the SAF/AA policy memorandum that states this requirement. It also states that the mobility restrictions did not occur until two years after the injury. This is true but as shown the conditions never fully recovered and he was undergoing continued medical treatment. Even the BCMR Medical Consultant agrees that his extensive medical records establish a nexus with his LOD injuries. The SAF/AA policy puts no restrictions on how long after the airman was released from active duty orders. In his case, he became mobility restricted only a little over two months after his orders ended and the flight surgeon had given him surgical referrals a month before his orders ended which shows that he was still being treated when his orders ended. There are 12 different category rules of INCAP pay and he qualified under rule #1, which entitled him to receive full pay and allowances. His qualification for this level of INCAP pay under 37 U.S.C. actually shows that he met the additional requirement for MEDCON orders. The AFPC/JA states that there is no clear indication of what incident caused him to be placed in mobility restriction several years after the injury or whether the incident triggering the need to place him on mobility restriction occurred during his military duties or off duty. He does not know how to prove that there were no new injuries that occurred after he was released from orders. However, he provides AF Form 469 dated 5 Aug 11 directing further limitations but no mobility restrictions and AF Form 469 dated 8 Sep 11 resulting in his being mobility restricted. The timeline of the referrals and subsequent AF Forms 469 show that these were not new injuries. Instead, when combined with his medical records, they show continuing care for the original injuries and a progression of increasing limitations over time eventually resulting in the mobility restrictions. The applicant’s complete submission, with attachments, is at Exhibit G. THE BOARD CONCLUDES THAT: 1. The applicant has not 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. We note this Board is the highest administrative level of appeal within the Air Force. As such, an applicant must first exhaust all available avenues of administrative relief provided by existing law or regulations prior to seeking relief before this Board, as required by the governing Air Force Instruction. In this respect, we note the SAF/AA policy memorandum states that SAF/MR is the appeal authority for denied MEDCON requests. However, there is no evidence to indicate the applicant submitted an appeal to SAF/MR IAW established policy prior to submitting his application to the Board. In view of this, we find this application is not ripe for adjudication at this level as there exists a subordinate level of appeal that has not first been depleted. Therefore, in view of the above, we find no basis to recommend granting the relief sought in this application. 4. 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 that he has not exhausted all available avenues of administrative relief prior to submitting his application to the BCMR; and the application will only be reconsidered upon exhausting all subordinate avenues of administrative relief. The following members of the Board considered AFBCMR Docket Number BC-2014-01087 in Executive Session on 26 Feb 15 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 3 Mar 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPFA, dated 8 Apr 14. Exhibit D. Memorandum, AFPC/JA, dated 20 May 14. Exhibit E. Memorandum, BCMR Medical Consultant, dated 24 Oct 14. Exhibit F. Letter, SAF/MRBR, dated 24 Nov 14. Exhibit G. Letter, Applicant, dated 5 Dec 14, w/atchs.