RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2014-02065 COUNSEL:	NONE
HEARING DESIRED:	YES

APPLICANT REQUESTS THAT:
1)	His promotion to the grade of colonel (O-6) be reconsidered.
2)	A Line of Duty (LOD) determination for Post Traumatic Stress Disorder (PTSD) be reconsidered.

3)	He be processed through a Medical Evaluation Board (MEB).
4)	By virtue of a separate DD Form 149, the applicant requests to receive Incapacitation (INCAP) Pay for 5 May 12 to 29 Mar 14.

APPLICANT CONTENDS THAT:
1)	The overall promotion recommendation (of “do not promote”) on his Promotion Recommendation Form (PRF), was either erroneous, not supported by a permissible reasons, or was otherwise improper. Specifically, he believes the rating was given because it was presumed he was going through an MEB and would not return to duty.

2)	His LOD should be reconsidered because the omission of documents critical to the analysis of the LOD deprived the AFRC/SG of key information and prevented a thorough and accurate decision in this case. The stated reason for not completing the LOD was his failure to provide the required documentation; he contends he did provide proper documentation.

3)	His issue of fitness [for duty], and the decision to not be placed on medical hold was predicated on an assumption, based on a limited set of facts, by a single individual, that he did not necessarily have a board-able condition that overcomes the presumption of fitness. He contends his condition severely interfered with his ability to function in military and civilian settings such that he was placed on profile and referred to a medical board, and further, he was unable to maintain his civilian position because of the severity of his referred conditions.
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4)	He should be awarded INCAP pay because his request for INCAP pay was approved while he was a member of the Air Force Reserve, but the application was not processed in a timely manner. He had injuries that prevented military and civilian employment.

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:
On 21 Nov 85, the applicant entered the Regular Air Force, where he served until 31 May 90, when he was transferred to the Air Force Reserve.

According to the AF Form 709, Promotion Recommendation, provided by the applicant, his overall recommendation for promotion for the V0613A promotion board was “do not promote.”

On 29 Jan 13, the applicant was informed his Mandatory Separation Date (MSD) was 1 Dec 13.

In an order dated 24 Mar 14, the applicant was relieved from his current assignment and placed on the USAF Reserve Retired List, effective 1 Dec 13, where he is eligible for retired pay except for the attainment of age.

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C, D, E, and F.

AIR FORCE EVALUATION:
AFRC/SG recommends to deny the applicant’s request for a retroactive MEB at this time. A review of the documentation provided reveals the applicant had a number of medical issues. Although these conditions had been longstanding, he had obviously continued to participate in the ready reserve and he was not referred to a board until 2012. According to documentation from the reserve unit, the applicant had been assigned to Keesler in 2010 but the member didn’t identify the conditions until he was relieved of his duty in 2012.

The applicant asserts he required line of duty completion for all his declared diagnoses and then desired to undergo a medical evaluation board. A narrative summary was drafted in preparation for his board. However, despite repeated attempts over a two year period, to obtain adequate documentation, the applicant did not provide documents and the cases were not completed. The applicant’s MSD was 1 Dec 13.  A medical hold was approved by

AFRC/SG for 60 days in attempt to obtain documentation, which was unsuccessful; further medical hold was subsequently denied.

Medical hold is a process for keeping a member past retirement or separation dates for purposes of disability processing where the presumption of fitness does not apply. In this case, every diagnosis identified as potentially disqualifying was one he had for many years. He had continued to participate without issue, thus failed to overcome the presumption of fitness. He was never profiled no pay/no points as was noted in his file until he declared in 2012. Had the wing processed this case correctly, they would have given him the required 60 days to gather information and then processed him administratively as noncompliant. AFRC/SG attempted to give him time after his MSD to provide documentation required but he failed to do so. Thus, the cases were closed as incomplete and the member retired.

It must be noted many attempts were made to work with the applicant. Although he was able to provide documentation to a wounded warrior advocate, he would not do the same for the medical unit; this OPR cannot speak to his failure to do so. Further, keeping him on medical hold indefinitely also is not a reasonable option. He is able to work with the DVA, which he appears to have successfully done, to service connect his conditions. It is recommended he continue to work within the DVA system to ensure he is managing his chronic, longstanding medical conditions in the best way possible.

A complete copy of the AFRC/SG evaluation is at Exhibit C.
AFRC/A1K recommends to deny the applicant’s request for supplemental promotion reconsideration. Air Force Reserve officers are considered for promotion IAW AFI 36-2504, Officer Promotion, Continuation and Selective Early Removal in the Reserve of the Air Force. AFI 36-2406, Officer and Enlisted Evaluation Systems, provides guidance for PRFs and what are appropriate and inappropriate comments that can be placed on a PRF. After review of all documents provided by the applicant, and applicable documents available from Military Personnel Data Systems (MiIPDS) and Personnel Records Display Application (PRDA), it is this OPR’s position the statement contained on line 9 of Section IV of the contested PRF is not a prohibited statement, IAW AFI 36-2406. The Senior Rater can consider other reliable information about duty performance and conduct to determine the overall promotion recommendation.

Additionally, AFRC/A1K recommends to deny the applicant’s request for incapacitation (INCAP) pay, indicating there is no evidence of an error or injustice. The AFRC/A1K staff contacted the applicant’s last servicing Military Personnel Section (MPS), and was informed that prior to his retirement he submitted a request for INCAP pay; however, the request was incomplete. His request was absent of any supporting documentation to show he was in an

active status at the time of illness and supporting Line of Duty Determination (LOD) to show that he was diagnosed and treated for the illness by a military treatment facility. Therefore, the applicant’s request was not processed by his servicing MPS. A review of member’s request for INCAP pay submitted to the AFBCMR has revealed he failed to provide mandatory documentation outlined in AFRCI 36-3004, Incapacitation Pay and Management of Reservist Continued on Active Duty Orders. Specifically, documentation outlining he was serving in an active status at the time of the injury and a completed AF IMT 1971, Certification for Incapacitation Pay. Additionally, the applicant is requesting INCAP pay for the period of 5 May 12 — 29 Mar 14, however, the AFRC IMT 348, Informal Line of Duty Determination, submitted with his request indicates he was treated for the injury on 10 Jan 13. Lastly, the AF Form 469, Duty Limiting Condition Report, is for the period 20 Apr 13 — 20 Apr 14, and does not match not 5 May 12
— 29 Mar 14 dates requested by the applicant. The applicant’s request for a correction of his military record to award INCAP pay is absent of supporting documentation to substantiate his eligibility for the period of 5 May 12 to 29 May 14.

A complete copy of the AFRC/A1K evaluation is at Exhibit D.
AFBCMR Medical Consultant recommends granting the applicant consideration of a Supplemental Promotion Board, with a Promote recommendation, devoid of any reference to a medical impairment. In review of documents provided, the reviewer opines that the Command had a reasonable belief the documented change in the applicant’s level of performance after 2012 may have resulted from health conditions which corresponds to the Profile 4 [physical condition code for “organic defect, systemic or infectious disease which requires, or is currently undergoing, an MEB or I-RILO as determined by the Deployment Availability Working Group (DAWG)”] and referral for medical evaluation for an MEB. While applicant’s Senior Rater acted within his authority in the comments made, in the opinion of the Medical Consultant, the rater’s actions could be used to support a possible finding of injustice.

Regarding the Line of Duty (LOD) issues, AFI 36-2910 states, “A LOD determination is a finding made after an investigation into the circumstances of a member’s illness, injury, disease or death. The finding concludes (1) whether or not the illness, injury, or disease existed prior to service (EPTS) and if an EPTS condition was aggravated by military service, (2) whether or not the illness, injury, disease, or death occurred while the member was absent from duty and (3) whether or not the illness, injury, disease or death was due to the member’s own misconduct.

With regard to whether an error or injustice occurred as relates to the matter of timely submission of supporting documentation for the LOD, the medical reviewer noted the allegation that the significant delay in processing the PTSD LOD determination resulted  from  the  applicant’s  delay  in  providing  required

documentation, while the applicant contends the AFRC/SG officials did not have possession of the evidence which had been made available to other authorities; which, consequently, resulted in the adverse decision reached by the SG. In an 11 Sep 14 memo from SAF/LL addressed to the Honorable Phil Gingrey, indicates the applicant’s LOD request for PTSD, dated 1 Mar 13, was “cancelled by the 403rd Wing due to [the applicant’s] inability to provide documentation linking his military service to his PTSD claim. Notes in the case reveal that [the applicant] claimed the PTSD symptoms began in 2004, but he did not report it to his commander until 2013.” Although we are now aware the applicant had been under treatment for PTSD since 2004 or 2005, the medical reviewer opines its disclosure to military officials in 2012 and follow-on letters of support from 2013 are insufficient to support a basis for service termination.

With regard to the applicant’s request for a Medical Evaluation Board (MEB) for his chronic medical diagnoses, LOD determinations must be completed to proceed with this process. In view of the extended delay in submission of the required documentation, the MEB could not be accomplished, despite an additional 60-day Medical Hold approved by the AFRC/SG. Consequently, AFRC/SG, reactivated the original MSD and the applicant was retired. AFI 41-210, contains guidance regarding Medical Hold. It is a process for retaining a member beyond retirement or separation dates for the purpose of disability processing where the presumption of fitness does not apply. The willingness to extend the applicant a medical hold, despite this policy restriction, may have been an effort on the part of officials, to give the applicant the additional time to submit evidence; possibly assuming some joint culpability in the delays. However, the policy also reads, “It will not be used for the purpose of evaluating or treating chronic conditions, performing diagnostic studies, elective treatment of remedial defects, non-emergent surgery or its subsequent convalescence, civilian employment issues, preservation of terminal leave, or for any other condition which does not warrant termination of active duty.”

The medical reviewer also noted that, despite the applicant’s chronic medical diagnoses, he reportedly continued to perform his assigned duties, per AFRC/SG, at a satisfactory level evidenced by no profiles or duty restrictions prior to 2012 and closely abutting a time during which he would be presumed fit, beginning in January 2013. Under AFI 36-3212, Presumption of Fitness, the “PEBs will presume a member fit if he or she has been able to do his or her duty satisfactorily in the 12 months before a scheduled retirement. Under most recent Department of Defense  (DoD) guidance, [DoD Instruction 1332.18], the [Disability Evaluation System], Presumption of Fitness, “The DES compensates disabilities when they cause or contribute to career termination. Service members who are pending retirement at the time they are referred for disability evaluation are presumed fit for military service.” Defining the presumptive period, “the Secretaries of the Military

Departments will presume Service members are pending retirement when the preparation of the Service member’s MEB narrative summary occurs after [in the applicant’s case] . . .an officer has been approved for selective early retirement or is within 12 months of mandatory retirement due to age or length of service.”

If the Board finds the government culpable in any delays of LOD processing that, in-turn, caused a delay in the execution an MEB, prior to entering the presumptive period, then a de facto MEB/PEB action would be an appropriate remedy. However, we are reminded that the applicant, himself, delayed notification of command officials of treatment for PTSD from 2004 through 2012 and reportedly continued to perform his duties up to May 2012, without apparent profile restrictions affecting worldwide qualification.

With regards to the applicant’s request for Incapacitation (INCAP) pay, an application is to be submitted no later than 60 days after the incapacitation occurs or completion of the LOD.  INCAP pay is a benefit for Reservist for incapacitation or loss of civilian earning as a result of an injury, disease or illness incurred, re- injured or aggravated in the line of duty. The applicant’s request for INCAP pay for the period 5 May 12 to 29 Mar 14, in reference to the applicant’s ILOD shoulder impairment the initial treatment  date  for  the  incapacitating  shoulder  injury  was
10 Jan 13; demonstrating a significant discrepancy regarding date of treatment and incapacitation; albeit later found ILOD. Therefore, INCAP pay was not processed for the requested period.

INCAP pay could be justified from 10 Jan 13, date of treatment, but note that 4 Apr 13 is the date medical officials declared the condition duty-limiting. The Board may also consider INCAP pay, or alternative active duty pay, from the date of his AF Form 469, Duty Limiting Condition Report, 4 Apr 13, through his date of retirement, 1 Dec 13.

In summary, the medical reviewer recommends consideration of a Supplemental Promotion Board, with a Promote  recommendation, devoid of any reference to a medical impairment. The Board may also consider INCAP pay, or alternative active duty pay, from the date of his AF Form 469, 4 Apr 13 through his date of retirement,
1 Dec 13. It is presumed that the applicant received active duty pay for any period while under Medical Hold.

A complete copy of the AFBCMR Medical Consultant evaluation is at Exhibit E.

The AFBCMR Clinical Psychiatry Consultant recommends to deny the applicant’s requests. A review of the member’s requests by this consultant, AFRC/A1K, the office of the AFRC/SG, and the AFBCMR Medical Reviewer have all noted multiple efforts to cooperate with the applicant prior to his mandatory separation. The notion of injustice or inequity is not supported. With specific note to the request for INCAP pay, AFRCI 36-3004, Incapacitation Pay and

Management of Reservists Continued on Active Duty Orders, states an application is to be submitted no later than 60 days after the incapacitation occurs or completion of the LOD. This review found neither incapacitating injury nor LOD were sustained/accomplished within the required 60 day period. He is encouraged to continue to work with the DVA for appropriate management of his medical conditions.

A complete copy of the AFBCMR Clinical Psychiatry Consultant evaluation is at Exhibit F.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
To substantiate his original request to accomplish his LOD, MEB, and INCAP processes, he provides witness statements from a medical provider and a wounded warrior advocate, attesting to the applicant’s compliance in providing medical information to complete his LOD and MEB package. He asserts the LOD and MEB processes were intentionally delayed or discounted by his chain of command and he, as well as the medical provider, were victims of reprisal at the Wing and Numbered Air Force level. Additionally, he submits medical records to further substantiate he suffered from other [than in his original AFBCMR request] injuries incurred on duty. However, due to lack of medical treatment and/or unsatisfactorily results by the Air Force, he has been forced to underdo surgeries at his own expense. He is now seeking reimbursement for medical expenses that should have been covered, but were not, because of his erroneous separation (Exhibit H).

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 to approve applicant’s request to reevaluate his Line of Duty Determination (LOD), and his request for reconsideration of a review by a Medical Evaluation Board (MEB). After reviewing the complete case file, to include the applicant’s rebuttal response, the Board is of the opinion the applicant has established by the preponderance of evidence he provided the documentation and the medical community did not make it available to other reviewing authorities. In this respect, a review of the evidence provided shows that during the time period in question (2012), multiple conditions (shoulder injury, PTSD, other conditions leading to a P4 [physical condition code for “organic defect, systemic or infectious disease which requires, or is currently undergoing, an MEB or I-RILO as determined by the Deployment Availability Working Group (DAWG)”]
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profile) existed that may have warranted consideration for an LOD, and potentially, an MEB. We note AFRC/SG stated the applicant failed to provide requested documentation to support his duty status and/or medical conditions; however, the applicant provided witness statements from his recovery care coordinator and wounded warrior advocate to the contrary, and the Board is convinced documentation was indeed provided by the applicant and was not fully considered in previous reviews of his overall medical condition and fitness for duty. The Board believes those involved in the LOD and medical evaluation process would be in the best position to reevaluate his records and render a fitness and/or rating determination, given all available information. Accordingly, we recommend his records be corrected to the extent indicated below.

Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice to approve the applicant’s request for Incapacitation pay (INCAP). We note the BCMR medical Consultant opines the Board may consider INCAP pay for the period of 4 Apr 13 through 1 Dec 13 (his date of retirement); however, we agree with the opinion and recommendation of AFRC/A1K and the AFBCMR Clinical Psychiatry Consultant and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice in regards to INCAP pay. Specifically, the applicant’s request to award INCAP pay for the period 5 May 2012 to 29 March 2014 fails to document an incapacitating injury or LOD sustained/accomplished within the 60 day period required by AFRCI 36-3004. Further, the dates requested by the applicant do not match his duty limiting report for the period 20 Apr 13 —
20 Apr 14, and the request was absent supporting documentation to substantiate his eligibility for the period he requests.

Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice to approve the applicant’s request for his promotion to the grade of colonel (O-6) to be reconsidered. We note the BCMR Medical Consultant suggests the Board may consider removing the last line of the applicant’s PRF; however, we agree with the opinion and recommendation of AFRC/A1K and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. Specifically, the language used in the PRF was not determined to be prohibitive. The Board determined the PRF should not be removed from the applicant’s record and no supplemental promotion be considered.

Additionally, in his rebuttal response, it is noted the applicant makes claims of reprisal and seeks reimbursement of various medical expenses, Medical Continuation (MEDCON) orders, a retroactive promotion with back pay, and a medical retirement, not previously mentioned in his earlier submittal. However, insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice to warrant granting relief of any additional requests, beyond what is indicated below.

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 RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that:

a.	Competent authority approved the extension of the applicant’s Mandatory Separation Date (MSD) to 1 December 2016.

b.	Competent authority approved active duty orders under Title 10, Section 12301(h) for purposes of medical evaluation, for any period required to complete the reviews described in paragraphs c and d.

c.	Competent authority directed the completion of a Line of Duty (LOD) evaluation(s) utilizing the medical evidence of record as of May 2012.

d.	Subject to a finding In Line of Duty (ILOD) as directed in paragraph c, competent authority directed review of the medical evidence of record as of May 2012, for Disability Evaluation System (DES) processing, which, if warranted, may include a Medical Evaluation Board (MEB) and/or Informal and Formal Physical Evaluation Boards (PEB).

e.	The results of the evaluation(s) in paragraph c and d may warrant further corrective action, and should be forwarded to the Air Force Board for Correction of Military Records at the earliest practicable date.

The following members of the Board considered AFBCMR Docket Number BC-2014-02065 in Executive Session on 22 Oct 15 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 13 May 14, w/atchs. Exhibit A1. DD Form 149, dated 29 May 14, w/atchs. Exhibit B.	Applicant's Master Personnel Records. Exhibit C.	Memorandum AFRC/SG, dated 7 Sep 14 Exhibit D.	Memorandum AFRC/A1K, dated 19 Sep 14 Exhibit E.	Memorandum, SAF/MRBRC, dated 17 Jul 15. Exhibit F.	Memorandum, SAF/MRBRC, dated 9 Sep 15. Exhibit G.	Letter, SAF/MRBR, dated 15 Sep 15.
Exhibit H.	Letter, Applicant, dated 10 Oct 15.