RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2015-04080
		
						COUNSEL:  NONE

						HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

He receive Medical Continuation (MEDCON) orders for the period of 7 June 2013 to April 2014 and be awarded the associated points, instead of the Incapacitation (INCAP) Pay he received.  

APPLICANT CONTENDS THAT:

The request for MEDCON orders was submitted but denied by the NGB.  At that point, he was placed on INCAP orders.  

In accordance with AFI 36-2910, Line of Duty (LOD), Medical Continuation (MEDCON) and Incapacitation (INCAP) Pay, his injuries were determined to be in the Line of Duty (LOD).  The request for MEDCON orders was submitted in accordance with AFI 36-2619, Military Personnel Appropriation Man Day Program, and Secretary of the Air Force (SAF) policy but the request was denied without any legitimate reason.  The denial of MEDCON orders was due to the Sequestration in-place at the time.  

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

STATEMENT OF FACTS:

The applicant entered the Air National Guard (ANG) on 17 April 1997.  On 14 October 2015, he was discharged and transferred to the Retired Reserve List in the grade of Technical Sergeant (TSgt, E-6).  He was credited with 26 years and 6 months of total service for retired pay.  

AF Form 469, Duty Limiting Condition Report, dated 12 January 2013, reflects the applicant was on duty and mobility restrictions through 10 January 2014.  The applicant was restricted from strenuous activity, crawling, stooping, kneeling, lifting, pushing or pulling, walking, running, marching or standing in formation, and climbing ropes, ladders or stairs. 

According to the AF Form 348, Line of Duty Determination, dated 31 May 2013, the applicant injured his knee while on a fishing boat on 26 May 2013.  He was diagnosed with left knee internal derangement, torn Anterior Cruciate Ligament (ACL) and meniscal tear.  He was on orders and approved leave when the injury occurred.  On 1 July 2013, the applicant’s injury was determined in the LOD.   
 
The applicant provides an e-mail from his Installation Personnel Readiness office dated 25 June 2013 which states the request for Non-MEDCON orders was declined by AFSOC/A3 because of the unavailability of enlisted steady state days to support the requirement. 

In an e-mail dated 12 July 2013, NGB/SG requested a LOD be provided for the MEDCON request as the restrictions on the AF Form 469 pre-dated the applicant’s injury for which he requested MEDCON.  Additionally, since the applicant was injured deep sea fishing while on leave and was under restrictions of no pushing, pulling and lifting greater than 45 pounds at the time of the injury a LOD was requested.     

According to the Chronological Record of Medical Care, dated 17 December 2013, the applicant had surgery on 19 June 2013 and was seen for ongoing care and treatment for ACL repair.  He was seen in the orthopedic clinic on 20 September 2013 and was scheduled for a follow-up on 20 December 2013.  He was in physical therapy two to three times a week for four to six weeks.  

The applicant provides an e-mail from ANG/A1PS dated 17 June 2014, which states he received initial INCAP Pay for the period of 7 June 2013 to 6 December 2013 and an extension for INCAP Pay for the period of 7 December 2013 to 13 March 2014.  On 14 March 2014, the applicant was returned to duty per determination he could perform military duty.  

According to the applicant’s military pay records, he received INCAP Pay for the period of 1 July 2013 to 13 March 2014.  

The remaining relevant facts pertaining to this application are described in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is included at Exhibit C.  

AIR FORCE EVALUATION:

NGB/SGP recommends the applicant be awarded points for the period of 3 [sic] June 2013 to 14 [sic] March 2014.  Based off the decision from NGB/SGPA regarding MEDCON, his FSS began initial INCAP request and backdated the start date to 3 [sic] June 2013.  Since the applicant collected INCAP Pay during this time, he should be awarded points for the period.  

On 3 July 2013, the 193d Medical Group submitted for an initial MEDCON request to NGB/SGPA.  However, there were discrepancies with the request which led to a denial of the initial MEDCON application.  The MEDCON package was missing a copy of his orders and included an outdated AF Form 469 which did not indicate he was undergoing active treatment.  Based on the NGB/SGPA decision, the 193d Force Support Squadron began the initial INCAP Pay request and backdated the start date.  He was on INCAP from 6 June 2013 to 14 [sic] March 2014, when he was returned to full duty. 

The applicant met the SAF policy guidance for Non-MEDCON.  He was injured on 26 May 2013 while on approved leave status while on orders.  Despite the administrative errors with the initial MEDCON request, he had surgery on 19 June 2013 and had subsequent follow-up appointments to include physical therapy which met the definition of “active treatment.”  However, his orders ended on   6 June 2013.  According to the documentation submitted, he was denied 30 days of Non-MEDCON orders.  In accordance with AFI 36-2910 and SAF policy, Non-MEDCON, known as Pre-MEDCON, is a 30 day extension to the original order to allow time for the LOD to be initiated and initial care and treatment to begin.  The applicant was denied Non-MEDCON orders based on the major command stating “AFSOC/A3 does not have enlisted steady state days to support this requirement.”  

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 23 May 2017 for review and comment within 30 days (Exhibit D).  As of this date, no response has been received by this office.

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.  We took notice of the applicant’s complete submission in judging the merits of the case and agree with the Air Force office of primary responsibility (OPR) that the applicant was unjustly denied MEDCON orders as a result of administrative errors due to no fault of his own.  In this respect, we note the Air Force OPR states the applicant met the criteria for MEDCON orders but instead received INCAP Pay and therefore should be awarded the associated points.  However, we find it would be proper and fitting to proceed in correcting the applicant’s records to show he was approved for MEDCON orders, in-place of the INCAP Pay he received for the period of 1 July 2013 to 13 March 2014.  We also note the OPR states the correct dates for his MEDCON orders are for the period of 3 June 2013 to 14 March 2014; however, having reviewed the evidence of record we believe the recommended dates reflect a typographic error and the correct dates are 7 June 2013 to 13 March 2014, as the applicant was already on orders through 6 June 2013 and was returned to duty on 14 March 2014.  In view of the above, we   recommend his record 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 he was placed on active duty, for the purpose of medical continuation, for the period of 7 June 2013 to 13 March 2014, in accordance with Title 10, U.S.C. § 12301(h), instead of Incapacitation (INCAP) Pay which he received for the period of 1 July 2013 to 13 March 2014.  

The following members of the Board considered AFBCMR Docket Number BC-2015-04080 in Executive Session on 6 July 2017 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 August 2015, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, NGB/SGP, dated 24 May 2016.
	Exhibit D.  Letter, AFBCMR, dated 23 May 2017.  

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.