RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:	BC-2015-04171 COUNSEL:	NONE
HEARING DESIRED:	YES

APPLICANT REQUESTS THAT:
His military records be corrected to reflect that he was not released from active duty on 29 Sep 12, but was continued on active duty for the purpose of Medical Continuation (MEDCON)    through
28 Oct 14.

APPLICANT CONTENDS THAT:
He became disabled and unable to perform his military duties while serving on active duty for a period of 30 days or more.

He was involuntary released from active duty contrary to Title 37, United States Code (USC) §204; DoDI 1241.2, Reserve Component Incapacitation Management; and AFI 36-3212, Physical Evaluation for Retention, Retirement and Separation.

AFI 36-3212, states that Air Reserve Component (ARC) members who incur or aggregate an injury, illness or disease in the Line of Duty (LOD) while on orders for more than 30 days are not involuntarily released from those orders until final disposition of their disability case.

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

STATEMENT OF FACTS:
The applicant initially entered the Regular Air Force on 4 Feb 98. On 31 May 01, he was honorably discharged in the grade of senior airman, with narrative reason for separation of Intradepartmental Transfer (Air National Guard (ANG)) and was credited with 3 years,
3 months and 27 days of active duty service.
On 1 Jun 01, the applicant enlisted in the California (CA) ANG for a period of six years. On 16 Nov 06, he was discharged from the CA ANG, after having served 5 years, 5 months and 16 days of service.

FOR OFFICIAL USE ONLY – PRIVACY ACT OF 1974

On 17 Nov 06, the applicant was appointed a second lieutenant in the Reserve of the Air Force.
According to an AF Form 469, Duty Limiting Condition Report, dated
30 May 12, the applicant had both duty and mobility restrictions. The specific limitations/restrictions were recorded as “Not World Wide Qualified (WWQ); requires medications to function in work environment; may not be suited in a combat environment; exempt from run section of the fitness assessment, and Do not Arm.” A check mark was placed in block 37, to indicate, medical defect/condition requires MEB/PEB processing in accordance with AFI 41-210, Tricare Operations and Patient Administration Functions.
According to an IMT 348, Line of Duty (LOD) Determination  dated
11 Sep 12, a LOD was initiated for Post-Traumatic Stress Disorder (PTSD). It was noted the applicant while working in the Predator Operations Center was exposed to imagery, communications, and information that he had a harder and harder time coping with. He began to have symptoms of: difficulty sleeping; nightmares; body aches; back pain; headaches, and shortness of breath. Subsequently, he was diagnosed with PTSD. On this same date, another LOD was initiated for Chronic Mild Asthma. It was noted the applicant’s condition was “unlikely to resolve and will require a maintenance inhaler medication and further reassessment.”   On
13 Nov 12, both LODs were determined to be in the LOD.
According to the Commander’s input to the MEB/PEB memorandum, dated
27 Mar 13, it was noted the applicant’s medical conditions do not allow him to perform either primary in-garrison or deployed military duties without restrictions, limitations or work-a- rounds.
According to an AF IMT 618, Medical Board Report, dated 25 Jun 13, an MEB convened to consider the applicant for separation/retirement. The MEB recommended the applicant be referred to an Informal Physical Evaluation Board (IPEB) for PTSD, Attention Deficit Disorder (ADD), Asthma, Chronic Left Ankle Tendinosis and G6PD Deficiency. On 8 Jul 13, the applicant was informed of the findings and recommendations of the MEB and did not elect an impartial review.

According to an AF Form 356, Findings and Recommended Disposition of USAF PEB dated 17 Sep 13, the IPEB reviewed the case and determined the applicant’s PTSD, Chronic; Asthma and Bilateral Posterior Tibial Tendonitis where unfitting conditions which are compensable and ratable; however, his diagnosis of ADHD [sic] and G6PD Deficiency are conditions that are not separately unfitting and not compensable or ratable. The IPEB noted the applicant’s case was being processed under the Integrated DES and would be finalized upon receipt of ratings from the DVA.

According to the applicant’s DD Form 214, Certificate of Release or  Discharge  from  Active  Duty  dated  23  Sep  13,  issued in

conjunction with his release from active duty, he served on active duty during the following periods in support of Operations IRAQI FREEDOM from 6 Aug 07 to 30 Sep 10; NEW DAWN from 1 Oct 10 to
30 Sep 10 [sic] and ENDURING FREEDOM from 1 Oct 12 to 29 Sep
12 [sic].
On 4 Apr 14, the DVA granted the applicant service-connection for PTSD with ADD, with a 30 percent disability rating; Asthma with a
30 percent disability rating; Posterior Tibial Tendonitis, left with a zero percent disability rating; Posterior Tibial Tendonitis, right (also claimed as right ankle disorder) with a zero percent disability rating; Lumbar Myofascial Strain (claimed as Lumbago) with a 20 percent disability rating; Patellefemoral Syndrome, right with a 10 percent disability rating; Patellefemoral Syndrome, left with a 10 percent disability rating; Hand Strain, right with a zero percent disability rating; Hand Strain, left with a zero percent disability rating; and Hypertension with a zero percent disability rating.

According to Special Order ACD-00022 dated 7 Oct 14, on 28 Oct 14, the applicant was relieved from active duty. On 29 Oct 14, he was placed on the Temporary Disability Retired List (TDRL) in the grade of captain, with a compensable percentage for physical disability of 100 percent.      He was credited with 12 years, 5 months and
19 days of active service for retirement.
On 2 Nov 15, officials within the Office of the Secretary of the Air Force (SECAF) directed the applicant’s name be removed from the TDRL, and be permanently retired under the provisions of Title 10 USC 1201.

According to Special Order ACD-00194, dated 2 Nov 15, on 23 Nov 15, the applicant’s name was removed from the TDRL and retired in the grade of captain with a compensable percentage for physical disability of 80 percent. He was credited with 12 years, 5 months and 19 days of active service for retirement.

The remaining relevant facts pertaining to this application are described in the memorandums prepared by the Air Force Offices of Primary Responsibility (OPRs), which are attached at Exhibits C and D.

AIR FORCE EVALUATION:
NGB recommends granting the applicant’s request; however, the period of continuation cannot be determined by their office. Reasons beyond their knowledge and facts presented do not indicate why a MEDCON extension was not requested prior to the applicant’s discharge, such is required for contingency MEDCON requests in accordance with AFI 36-2910, Line of Duty (LOD) Determination, MEDCON, and Incapacitation (INCAP) Pay, chapter 5, paragraph 5.4.2.

The  applicant  served  on  continuous  active  duty  from  6 Aug
07 through 29 Sep 12, in support of Operations IRAQI FREEDOM, NEW DAWN and ENDURING FREEDOM. Following demobilization, a request for MEDCON was not received nor processed by the Air Reserve Component Case Management Division (ARC-CMD).
NGB/A1PS communicated with ARC-CMD to verify this information, as MEDCON approval is not automatic. Following the Medical Examination Board actions and eventual removal from the TRDL, the applicant was retired effective 23 Nov 15, with an 80 percent compensable disability rating for physical disability.
A complete copy of the NGB evaluation is at Exhibit C.
The BCMR Medical Consultant recommends granting the applicant’s request for MEDCON orders from 30 Sep 12, through his date of placement on the TDRL.

AFI 36-2910, paragraph 5.2. Eligibility: “MEDCON eligibility requires a LOD determination and a finding by a credentialed military medical provider that the member has an unresolved health condition requiring treatment that renders the member unable to meet retention or mobility standards IAW AFI 48-123, Medical Examinations and Standards.

5.2.1.	“Members who meet eligibility criteria for MEDCON must volunteer for retention or recall to duty under Title 10 U.S.C. § 12301(h), Reserve Components Generally, Title 10 U.S.C. § 12322, Active Duty for Health Care, or other appropriate authority for Reserve Personnel Appropriation (RPA) or Title 32, U.S.C. In the case under review, the Medical Advisor opines that the applicant had acquired the necessary LOD determination and an AF Form 469; both initiated prior to his release from active orders. The document also indicates that the applicant had been placed on duty and mobility restrictions and was coded “37”; with the implicit indication that retention standards were not met at the time and required MEB/PEB processing.”

5.2.1.1.	“Members who decline or are found ineligible for MEDCON orders may be eligible for and elect INCAP Pay IAW Chapter 6.” However, it is not known if the applicant was employed in the civilian sector or whether his medical conditions adversely impacted his net civilian income.

5.2.1.2.	“Members eligible for MEDCON shall not be directed to accept INCAP Pay in lieu of MEDCON.”

5.2.2.	“Not all conditions that restrict deployment or mobility establish MEDCON eligibility. Injuries or illnesses that are expected to resolve without interventions, without restorative care or within 30 days are generally NOT eligible conditions. Cases requiring surgical interventions with recovery times of less than 30 days may be eligible.” The applicant’s medical conditions
5.2.1.	

extended well beyond 30 days and were not expected to be resolved within 365 days; hence coded “37,” per his initial AF Form
469 prior to release from active duty orders.
5.2.3.	“A member who can perform military duties but requires medical care for a minor or chronic medical condition may be provided medical treatment for such condition through the DVA or TRICARE benefits; the member does not have to be on MEDCON orders to receive medical care for an ILOD condition.”

On 27 Mar 13, in response to a mission impact request, the applicant’s commander noted the applicant’s medical conditions “[did] not allow him to perform either primary in-garrison or deployed military duties without restrictions, limitations or work-arounds.” The specific conditions of concern were PTSD, asthma, and tendinosis. The two AF Forms 469, one initiated prior to release from active orders and the one which followed closely after expiration of the first [both coded “37”], suggest a functional impairment to duty along a continuum of time.

Finally, the Medical Advisor opines that the applicant was likely eligible to have been retained on orders until the time of departure from military service via the Disability Evaluation System (DES), albeit initially TDRL placement; particularly since his retainability was brought into question during 2012 and prior to his release from active duty orders. Again, the delay in processing the applicant through the DES is not officially explained. Although the case fits established policy regarding maintaining service members on active duty orders, it does not rule out possible mutual culpability observed among service members who walk the “tight rope” between declaring unfitness versus fitness, by delaying notification or failing to disclose medical conditions to military medical officials; thereby maintaining perceived privacy, maintaining employment as long as possible by avoidance of an MEB, or allowing time to obtain elective treatments for other conditions.

Nor does the delay rule out the applicant was assigned alternative duties which, he was able to satisfactorily carry out during 2012. This reviewer has no evidence to declare these were circumstances in the applicant’s case. On the other hand, in the context that the applicant’s PTSD arose in a controlled environment, with only video exposure to traumatic combat events, the fact that his asthma was controlled with medications, and he was likely exempted from certain components of the Fitness Assessment, some may have underestimated the urgency of processing him through the DES.

The Medical Advisor opines the LOD and AF Form 469, coded “37” and implemented in 2012 prior to the applicant’s release from orders, with the comments, “Need to schedule for MEB exam” on 29 Jun 12, should speak for themselves. Such a statement means at least the convening of a Deployment Availability Working Group (DAWG) should have timely taken place; which if retention was recommended with an Assignment Limitation Code (ALC), a new AF Form 469 could have

been established, coded “31,” which would have removed the reason to pursue MEDCON orders and the urgency for a medical separation action.

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
By letter, dated 23 Dec 16, the applicant agrees with the recommendation of the BCMR Medical Advisor and states “this recommendation is fully and completely in line with Title 10 USC, and applicable DoD and Air Force authorities.”

With respect to the missing orders for the period 2 Mar 10 – 30 Sep 10, as noted by the Medical Advisor, the applicant agrees their absence is not determinative of their nonexistence.

In support of his appeal, the applicant provides a personal statement, copies of special orders, and various other documents associated with his request (Exhibit F).

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 opinions and recommendation of the Air Force Office of Primary Responsibility and the BCMR Medical Consultant and adopt their rationale as the basis for our decision that the applicant has been the victim of an error or injustice. Therefore, we recommend the applicant’s records be corrected as indicated below. The evidence of record makes it clear the applicant’s conditions were incurred in the line of duty (LOD) and, because some of these ailments were unfitting, he should have been retained on active duty for the purpose of medical continuation until his conditions were materially resolved or until the conclusion of his processing through the Disability Evaluation System (DES) in accordance with the SAF/MR enhanced policy for medical continuation. Therefore, in view of the fact the Informal Physical Evaluation Board (IPEB) determined that his conditions rendered him unfit for continued duty and noted his case was being processed under the Integrated DES, we believe it appropriate to recommend his records be corrected to reflect that he was retained on active duty for the purpose of medical continuation until 28 Oct 14, when
1.	

he was released from active duty, with subsequent placement on the Temporary Disability Retired List, on 29 Oct 14.

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 the APPLICANT be corrected to show that he was not released from active duty on 29 Sep 12, but on that date was continued on active duty through 28 Oct 14, for the purpose of medical  continuation    in  accordance  with  Title  10, U.S.C.
§12301(h).

The following members of the Board considered AFBCMR Docket Number BC-2015-04171 in Executive Session on 25 Jan 17, 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 23 Sep 15, w/atchs. Exhibit B.	Applicant's Master Personnel Records. Exhibit C.	Memorandum, NGB/A1PP, dated 5 Oct 16. Exhibit D.	Memorandum, BCMR Medical Consultant, dated
18 Nov 16.
Exhibit E.	Letter, AFBCMR, dated 6 Dec 16.
Exhibit F.	Letter, Applicant, dated 23 Dec 16, w/atchs.
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.