RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-04439

						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

He be put on medical continuation (MEDCON) orders for the period 4 May 12 to 16 Jul 14 vice the incapacitation (INCAP) pay status.

APPLICANT CONTENDS THAT:

He should have continued in an Active Duty (AD) status under Title 10, MEDCON orders, but for some unknown reason, the National Guard Bureau (NGB) decided to put him in INCAP pay status.  INCAP pay status, Title 32 U.S.C. section 502, is for those Reserve members who are disabled by disease while on active duty for periods of 30 days or less.  

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

STATEMENT OF FACTS:

During the matter in question, the applicant was serving in the Air National Guard in the grade of technical sergeant (E-6).  

The applicant was activated on contingency orders (Title 10 U.S.C. -12301) in support of OPERATION ENDURING FREEDOM from 21 Sep 11 to 3 May 12, during which time he sustained an injury.  

According to documents submitted by the applicant:

	a.  On 10 Jul 14, an NGB staff summary sheet (SSS), from the Chief, Force Management Division, indicates that while deployed to Bahrain Feb 12, the applicant sustained an injury to his neck during an exercise, sought treatment and was diagnosed with a Line of duty (LOD) medical condition.

	b.  He received initial INCAP Pay from 4 May 12 through 4 Nov 12 with three approved extensions through 3 May 14 and a request for a fourth extension for the period 4 May 14 to 19 Jul 14, however, the recommended extension by the Chief, Force Management Division was for the period of 4 May 14 to 3 Nov 14.

	c  The NGB SSS indicates that his unit commander determined he may not perform any military duty.  He had military duty and mobility restrictions with a release date of 3 Nov 14. 

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

AIR FORCE EVALUATION:

NGB/A1PP recommends denial indicating there is no evidence of an error or an injustice.  The applicant was on contingency orders in support of OPERATION ENDURING FREEDOM from 21 Sep 11 to 3 May 12 during which time he was injured.  He stated he received medical care at his home station until his orders ended on 3 May 12.  According to the applicant’s personnel records, his unit submitted and he received payments for four INCAP pay extensions from 4 May 12 through 3 Nov 14.  His file includes his endorsements for INCAP pay Application, Financial Entitlements Briefing, Medical Briefing, Employee/Employer Release Statement, Civilian Employer Statement, and Income Protection Statement. 

In this case, there were two errors, which prevented a MEDCON approval.  First, a case for MEDCON was not submitted to ARC-CMD as verified by their query to ARC-CMD on 8 Jul 16.  Secondly, his mobilization orders expired which further prevented a MEDCON application from being initiated.  Because of his expired contingency orders, the applicant was ineligible for MEDCON status.  However, he was eligible for INCAP pay according to AFI 36-2910, LINE OF DUTY (LOD) DETERMINATION, MEDICAL CONTINUATION (MEDCON), AND INCAPACITATION (INCAP) PAY: “The member is not eligible for MEDCON but cannot perform his or her civilian job duties and experiences a loss of earned income, to include wages lost due to accessing treatments.”  

A complete copy of the NGB/A1PP evaluation, with attachment, is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 10 Aug 16 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 error or injustice.  After considering the totality of the evidence before us, we are persuaded that relief is warranted in this case.  In this regard, we note that in accordance with DoDI 1241.2 Reserve members on orders for more than 30 days who incur a condition in the line of duty that renders them unfit for military duty will be retained on active duty orders until they are either found fit for duty or separated via the disability evaluation system (DES).  In view of this and since the applicant was on such orders at the time of his Feb 12 injury, which was determined to be ILOD, he should have been retained on active duty until the final disposition of his DES processing occurred.  We note NGB/A1PP recommends denial stating the applicant’s orders expired making him ineligible for MEDCON;   however, we believe the applicant has provided sufficient evidence to warrant his continuance on active duty orders until such time as his LOD medical condition was resolved.  The applicant requests MEDCON orders covering the period 4 May 12 to 16 Jul 14, however, available evidence indicates the applicant’s military duty and mobility restrictions termination date of 3 Nov 14.  Therefore, the applicant’s record should 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 that he was not released from active duty on 3 May 2012, but he continued to serve on active duty under 10 USC, 12301(h) (Medical Continuation) and competent authority granted an extension of active duty until 3 November 2014.  

The following members of the Board considered AFBCMR Docket Number BC-2015-04439 in Executive Session on 22 Sep 2016 under the provisions of AFI 36-2603:

All members voted to correct the records as recommended.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-04439 was considered:

	Exhibit A.  DD Form 149, dated 25 Sep 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, NGB/A1PP, dated 6 Jul 16.
	Exhibit D.  Letter, SAF/MRBR, dated 10 Aug 16.

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.