RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2014-05253

						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

1.  He receive all the Incapacitation (INCAP) pay he is entitled for the period October 2000 to August 2003.

2.  He receive a disability rating for his medical conditions of testalgia and Gastroesophageal Reflux Disease (GERD).

APPLICANT CONTENDS THAT:

He did not receive INCAP pay for over two years.  The laws have changed and the Medical Evaluation Board (MEB) did not consider all of the evidence.  He has testalgia which is tied to his back and the Department of Veteran Affairs determined his medical conditions were service connected.

In support of his requests, the applicant provides copies of a one-page handwritten statement, NGB Form 348, Line of Duty Determination, dated 1 Jul 00; Radiologic Examination Report, dated 1 Apr 03; memorandum from a civilian provider, dated 17 Apr 03; Radiologic Examination Report, dated 7 Feb 03; extracts from his Department of Veterans Affairs (DVA) rating decision, dated 4 Jan 05 indicating that his back injury was rated at 20 percent and his left testalgia at 10 percent effective 24 Jul 03 and SF Form 600, Patient Encounter Form, dated 10 Mar 03.

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

STATEMENT OF FACTS:

According to the applicant’s DD Form 4/1, Enlistment/Reenlistment Document Armed Forces of the United States, on 7 Mar 00, he enlisted in the Air National Guard (ANG).

On 24 Mar 01, the applicant was issued an AF Form 422, Physical Profile Serial Report, that indicated he was placed in a 4T status (non-worldwide qualified) and restricted from heavy lifting, bending, twisting, running or prolonged standing or walking.  Additionally, no squatting or kneeling and was limited to Inactive Duty Training (IDT) duties only.  He could not deploy and was undergoing a MEB.

According to the NGB Form 348, Line of Duty Determination, on 24 Oct 01, the applicant’s medical condition of lower back pain was found to be In the Line of Duty (ILOD) and it was recommended that he attend follow-up treatment on a monthly basis.

In a letter, dated 27 Jan 02, the applicant requested a six-month extension of his INCAP pay due to a delay in the processing of his LOD paperwork.  The applicant states, “I got paid in December 2001 for March through September 2001 so I am about 4 months behind right now.”  His commander concurred with the extension request.

On 24 Mar 02, the applicant was issued an AF Form 422 that continued his restriction and indicating his medical condition requires MEB or Physical Evaluation Board (PEB) processing.

In a letter dated 27 Sep 02, the applicant requested another six-month extension of his INCAP pay, due to a delay in the processing of his LOD paperwork.  He also indicated the last pay he received was on 20 Jun 02 for the time period of Sep 01 to Mar 02.  His wing commander concurred with the extension request. 

On 30 Sep 02, the applicant was issued an AF Form 422 extending his restrictions until 31 Jul 03 to include no weight bearing activities, no physical fitness, light duty only, and no deployments.  His IDT waiver was valid until 31 Dec 04.

In a letter, dated 22 Feb 03, the applicant requested an additional six-month extension of his INCAP pay pending the results of the Formal Physical Evaluation Board (FPEB).  The applicant states, “The last pay I received was 20 June 2002 for the timeframe September 2001 to March 2002.” 

On 3 Apr 03, the FPEB found the applicant’s chronic lower back pain condition unfitting and recommended discharge with severance pay with a 10 percent disability rating.  

According to the applicant’s NGB Form 22, National Guard Bureau Report of Separation and Record of Service, on 7 Aug 03, he received an honorable discharge from the ANG and the Air Force Reserve (AFRES), with a narrative reason for separation of Disability - Severance Pay.  He was credited with 10 years, 1 month, and 3 days of total service. 

On 4 Dec 13, the Physical Disability Board of Review (PDBR) evaluated the applicant’s diagnosis of chronic low back pain and increased his disability rating from 10 percent to 20 percent.  

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

AIR FORCE EVALUATION:

NGB/A1P recommends denial of the applicant’s request for INCAP because he did not submit INCAP pay extension documentation to his wing for a determination to be made by the National Guard Bureau.

In accordance with (IAW) ANGI 36-3001, Air National Guard Incapacitation Benefits, paragraph 2.2.2.1, “An Air National Guard member who is unable to perform military duties, as determined by the Secretary concerned, due to an injury, illness, or disease incurred or aggravated in the line of duty is entitled to full pay and allowances, including all incentive and special pays to which entitled, if otherwise eligible, less any earned income as provided under 37 U.S.C. 204(g) and DoD 7000.14-R, Volume 7A.  This has been commonly referred to as incapacitation pay (INCAP Pay).”

A complete copy of the NGB/A1P evaluation is at Exhibit C.

The BCMR IMA Medical Consultant recommends approval of the applicant’s request for INCAP pay for the period Mar 02 through 7 Aug 03, minus deductions for subsequent payments received.  He also recommends denial of the applicant’s request to receive a disability rating for testalgia and GERD.

The applicant was treating with multiple therapies including medications and physical therapy through early 2001.  He was placed on 4T status which denotes “non-worldwide qualified” beginning on or around 24 Mar 01 which he remained until his administrative separation.

Per AFI 36-2910, Line of Duty (LOD) Determination, Medical Continuation (MEDCOM), and Incapacitation (INCAP) Pay, LOD  determinations apply to injuries, illnesses or diseases at home station or a deployed location for Inactive Duty for Training or Active Duty (of less than 30 days).  Members with injuries or illnesses contracted while in a duty status will have medical and dental bills paid and may be eligible for INCAP pay if unable to return to a regular duty status.  An investigative report into the injury indicates some delay occurred with providing the requested documentation. 

On 27 Sep 02, the applicant requested a six-month extension of INCAP PAY resulting from a delay (8 months) in LOD processing. Documents by unit leadership validate statements that INCAP pay ended Mar 02.  Also, NGB/A1P indicates the applicant did not apply for INCAP pay related to this LOD injury.  In accordance with ANGI 36-3001, paragraphs 2.2.2 and 2.2.3, “if the member would have applied for the INCAP program the member would have received entitlements…”  So the INCAP pay could not be processed without following the application process.

In response to the applicant’s request for a rating determination for testalgia and GERD, neither condition is considered unfitting and thus not qualified for the disability evaluation system.   For a condition to be considered unfitting, it must represent a cause for service termination.  The mere presence of a medical condition does not qualify a member for disability evaluation.  The presence of medical conditions that were not unfitting while in service, and were not the cause of separation or retirement, that later progressed in severity causing disability resulting in service connected DVA compensation is not a basis to grant a retroactively military disability discharge or disability compensation.  Hence, there is no error or injustice in the exclusion of testalgia and GERD as unfitting medical conditions and thus not rated for disability. 

The Military Disability Evaluation System (MDES), established to maintain a fit and vital fighting force, can by law only offer compensation for those diseases or injuries which rendered a member unfit for continued active service, and then only for the degree of impairment present at the time of separation.  The MDES is able to offer transition assistance into civilian life for those members who have been rendered physically or mentally unable to complete their service career.  

The DVA operates under a different set of laws and specifically addresses long term medical care, social support, and educational activities.  This agency is chartered to offer compensation and care to all eligible veterans for any service-connected disease or injury.  The DVA is also empowered to reevaluate veterans periodically for the purpose of changing their disability awards if the level of impairment varies over time.

A complete copy of the BCMR IMA Medical Consultant evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant argues that he submitted the required paperwork to apply for INCAP pay.  The whole process was completed to the best of his ability and no one had all the answers to this long process.  Once he submitted the request, it was sent through his chain of command and he had no control over it at that point.  However, he inquired about the status of his request on a regular basis but once he was discharged, he was told that he could not be helped because he was no longer in the military.  

The PDBR changed his disability rating from 10 percent to 20 percent indicating he had severe GERD and testalgia that was tied to his back injury, therefore, the Board should add these conditions to his percentage.  The DVA added these conditions almost immediately after he was discharged and backdated his claim indicating these conditions more than likely occurred in service and/or due to the medications he was taking for his chronic back pain which was incurred in the LOD.  

In further support of his requests, the applicant provides copies of his six-month extension requests for INCAP pay, dated 27 Jan 02, 16 Mar 02, 27 Sep 02 and 22 Feb 03; e-mail communications regarding INCAP pay; Income Protection Statement, dated 2 Feb 03; and a letter, dated 9 Apr 03 from the Pain Medicine Clinic. 

A complete copy of the applicant’s response, with attachments, is at Exhibit F.

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was not timely filed.  While the applicant claims a date of discovery of less than three years ago, in our view, the reasonable date of discovery of the alleged error or injustice was more than three years ago and the application is therefore untimely.  However, it is in the interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice to warrant awarding the applicant a disability rating for testalgia and GERD.  The applicant argues that the PDBR changed his disability rating from 10 percent to 20 percent and noted that his medical conditions of GERD and testalgia were associated with his back injury, therefore, the Board should add these conditions to his percentage.  The applicant also states the DVA added these conditions almost immediately after he was discharged and backdated his claim indicating these conditions more than likely occurred in service and/or due to the medications he was taking for his chronic back pain which was incurred in the LOD.  While the applicant’s contentions are noted, he has not provided substantial evidence which, in our opinion, successfully refutes the assessment of his case by the BCMR IMA Medical Consultant.  

With respect to the applicant’s request for INCAP pay for the period of October 2000 to August 2003, he has not provided substantial evidence to support relief for the entire period.  Nonetheless, we believe the partial relief recommended below to grant INCAP pay for the period 24 Mar 02 through 7 Aug 03, provides the applicant full and fitting relief.  Therefore, we agree with the opinion and recommendation of the BCMR IMA Medical Consultant and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden of proof of either an error or an injustice.  In view of the above and in the absence of evidence to the contrary, we find no basis to grant the relief sought in this portion of his application.

4.  Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice to warrant partial relief in the form of INCAP pay.  Having carefully reviewed this application, we agree with the recommendation of the BCMR IMA Medical Consultant and adopt the rationale expressed as the basis for our decision that the applicant has been the victim of either an error or an injustice.  As noted by the BCMR Medical Consultant, the applicant was placed in a “non-worldwide qualified” status beginning on or around 24 Mar 01 and his unit leadership validated that he was paid INCAP through Mar 02; therefore, based on the applicant’s AF Form 422, dated 24 Mar 02, continuing his duty restrictions, we recommend the applicant’s record be corrected to show that he received INCAP pay from 24 Mar 02, until his administrative separation on 7 Aug 03.  Accordingly, we recommend the applicant’s record be corrected to the extent 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 competent authority approved his requests for incapacitation (INCAP) pay for the period 24 Mar 02 through 7 Aug 03.

The following members of the Board considered AFBCMR Docket Number BC-2014-05253 in Executive Session on 8 Dec 15 under the provisions of AFI 36-2603:

				   , Panel Chair
				  , Member
				    , Member

All members voted to correct the records as recommended.  The following documentary pertaining to AFBCMR Docket Number BC-2014-05253 was considered:

	Exhibit A.  DD Form 149, dated 1 Dec 14, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, NGB/A1P, dated 29 Oct 15.
	Exhibit D.  Memorandum, BCMR IMA Medical Consultant,
  dated 30 Oct 15.
	Exhibit E.  Letter, AFBCMR, dated 3 Nov 15.
	Exhibit F.  Letter, Applicant, dated 12 Nov 15, w/atchs.