RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-01837 

						COUNSEL:  NONE

HEARING DESIRED:  YES

APPLICANT REQUESTS THAT:

He be placed on medical continuation (MEDCON) orders during the five year period beginning in Aug 11, to include associated benefits and service points.  

APPLICANT CONTENDS THAT:

He was wrongfully taken off MEDCON orders on 10 Aug 11 and his corresponding Line of Duty was then closed.  After being on his Line of Duty (LOD) for 8 months, in Aug 11, he was told he had two options--meet a Medical Evaluation Board (MEB) and get discharged, or come off the LOD and continue to seek medical treatment through the Department of Veterans Affairs (DVA).  He did not want to get out of the military so he made his civilian doctor give him clearance to return to duty.  

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

STATEMENT OF FACTS:

The applicant is currently serving in the Air National Guard in the grade of Technical Sergeant (TSgt), E-6.

On 29 Nov 10, the applicant was seen for right ankle pain and indicated his ankle was injured during training 2 months prior, as evidenced by Standard Form 600, Chronological Record of Medical Care, dated 29 Nov 10.

On 7 Dec 10, the applicant was released from active duty and was transferred to the South Dakota Air National Guard (SDANG) with a narrative reason of Completion of Initial Active Duty Training and in Block 14, Military Education, “Fire Protection Apprentice Course, Dec 2010” and was credited with 3 months and 15 days of active service this period, as evidenced by DD Form 214, Certificate of Release or Discharge from Active Duty, dated 9 Dec 10.

On 10 Feb 11, the applicant was issued an AF Form 469, Duty Limiting Condition Report, with release date 10 Aug 11, indicating code 31, Illness or Injury will be Resolved within 31-365 days.

On 11 Feb 11, the applicant’s ankle injury sustained at the Fire Protection Course was determined to be “In Line of Duty” (ILOD), as evidenced by AF Form 348, Line of Duty Determination.

On 15 Feb 11, the applicant was placed on active duty, as evidenced by DD Form 214, dated 13 Oct 11.

On 15 Feb 11, the applicant underwent arthroscopic ankle surgery as evidenced by Physical Therapy Evaluation, dated 16 Mar 11.

On 20 Jul 11, the applicant was returned to duty with no restrictions, as evidenced by letter from his doctor, dated 20 Jul 11.

On 27 Jul 11, the applicant was determined to be world-wide deployable (WWD) with waiver as evidenced by AF Form 422, Notification of Air Force Member’s Qualification Status, with an indefinite waiver expiration date.

On 27 Jul 11, the applicant was released from active duty and transferred to the SDANG and was credited with 5 months and 13 days of active service this period.

On 11 Sep 11, the applicant was determined to be world-wide deployable (WWD) with waiver as evidenced by AF Form 422 and the form was validated on 8 Jan 12 and again on 4 Feb 12.

On 8 Sep 12, the applicant was issued an AF Form 469, with release date 7 Mar 13, indicating code 31, Illness or Injury will be Resolved within 31-365 days.

On 1 Mar 13, the applicant was issued an AF Form 469, with release date 8 Sep 13, indicating code 31, Illness or Injury will be Resolved within 31-365 days.

On 8 Sep 13, the applicant was issued an AF Form 469, with release date 7 Mar 14, indicating code 31, Illness or Injury will be Resolved within 31-365 days.

On 2 Mar 14, the applicant was issued an AF Form 469, with release date 8 Sep 14, indicating code 31, Illness or Injury will be Resolved within 31-365 days.

On 7 Sep 14, the applicant was issued two AF Forms 469, with release date 29 Oct 14 and 1 Dec 14, indicating codes 31, Illness or Injury will be Resolved within 31-365 days.

On 31 Oct 14, the applicant was issued an AF Form 469, with release date 23 Oct 15 and no code indicated.

On 22 Mar 16, the applicant was issued an AF Form 469, with release date 15 Mar 17, indicating both codes 31, Illness or Injury will be Resolved within 31-365 days and 37, Medical Defect/Condition Requires MEB or PEB Processing.

On 25 Mar 16, the applicant was issued an AF Form 348, Block 22, indicating his ankle injury from Nov 10 while attending Fire Protection Apprentice Course was ILOD and in Block 20, “This injury prevents him from performing duties as a firefighter in the SDANG.”

On 6 Apr 16, according to NGB/SGP, the applicant was placed on MEDCON orders through 31 Aug 17, while his case processed through the Disability Evaluation System.

On 30 Nov 16, the applicant’s Department of Veterans Affairs (VA) evaluation rating for his right ankle was increased to 40 percent, effective 1 Mar 16.

On 16 Mar 17, according to NGB/SGP, the applicant’s case was submitted to an Informal Physical Evaluation Board (IPEB).  

On 4 Jan 18, the Personnel Board of the Secretary of the Air Force Personnel Council determined the applicant was to be permanently retired with a disability rating of 50 percent, as evidenced by SAF/MRBP memorandum, signed 4 Jan 18.

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

AIR FORCE EVALUATION:

NGB/SGP recommends denial, indicating there is no evidence of an error or an injustice.  DoDD 1241.01, Reserve. Component Medical Care and Incapacitation Pay for Line of Duty Conditions, 28 Feb 04 4.7 states, “Medical and dental care authorized under this Directive shall be provided until the member is fit for duty, or the condition cannot be materially improved with continued treatment and the member has received a final disposition under Disability Evaluation System as prescribed in DoD Directive 1332.18 and DoD Instruction 1332.38 (references (f) and (g)).”  The applicant was returned to duty and released by his treating provider, per the letter provided dated 20 Jul 11 along with a corresponding AF Form 422, Notification of Air Force Member’s Qualification Status, completed on 7 Sep 11 stating the applicant was World Wide Deployable (WWD) with Waiver (meaning the applicant was worldwide duty qualified) which was validated by the 114 MDS staff on 8 Jan 12 and 4 Feb 12.  Once the applicant had been returned to duty without restrictions the Line of Duty was closed leading the applicant eligible for care through the VA.

The applicant stated on his initial visit with Dr. “R”, 17 Dec 10, he had a “similar area of ankle injury this past summer”, prior to being discharged from the doctor’s care; he “went wakeboarding over the weekend and had increased pain and swelling following this activity;” and, he also had a fall on 29 Nov 12.

Furthermore, the applicant references AFI 36-2910, Line of Duty (Misconduct) Determination, para 1.7.6 and para 1.8.2, dated 8 Oct 15, but the period of time in question is 2011 when the applicant was taken off orders and the LOD was subsequently closed for further care.  This verbiage is not in the preceding AFI 36-2910, dated 4 Oct 02 incorporating through change 2, 5 Apr 10.

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

BCMR Medical Consultant recommends denial, indicating there is no evidence of an error or an injustice.  The applicant asserts “after being on [his] LOD for 8 months, in Aug 11, the Chief at [his] base clinic told [him] that [he] had two options, meet a Medical Evaluation Board and get discharged or come off my Line of Duty and continue to seek care with the VA hospital.”  The applicant conceded, “I did not want to get out of the military, so I made my civilian doctor give me clearance to return to duty and [seek] treatment at the VA.”  Taken in the context that the applicant allegedly “made” his civilian doctor clear him to return to duty to avoid possible discharge, this reviewer finds the applicant, at least in part, complicit in his failure to receive MEDCON orders or to be, more timely, processed through the Disability Evaluation System (DES).  

DoDI 1332.18, Disability Evaluation System [2014], reads: “Any medical condition incurred or aggravated during one period of active service or authorized training in any of the Military Services that recurs, is aggravated, or otherwise causes the member to be unfit, should be considered incurred in the LOD, provided that the origin of such impairment or its current state is not due to the Service member’s misconduct or willful negligence, or progressed to unfitness as the result of intervening events when the Service member was not in a duty status.”  The BCMR Medical Consultant could not definitively prove worsening of the applicant’s condition did not occur as a result of intervening events, when not in a duty status; although there is a reference by one of his surgeons that there was an exacerbation of symptoms since the applicant’s return to required physical activities.  Maintaining fitness has been a responsibility of all Airmen.  Had the applicant been serving a period of 31 days or more at the time of worsening, “clear and unmistakable evidence” would be required to conclude not permanently aggravated by military service.

When collectively considering the transient intervening periods of recovery or near recovery following surgical treatments, and recurring return to duty recommendations, the early use of “waiver” authority to maintain his worldwide qualification, albeit with some restrictions to running, this reviewer could not definitively determine MEDCON orders were justified along the 5-year continuum of time desired by the applicant.  It was not until Mar 16 when a definitive determination was made the wear of the prosthetic and special boot would prohibit duty as a fire-fighter, that his military healthcare provider(s) opined MEB action was indicated; or words to that effect.

Addressing the applicant’s contention he should not have been referred to the DVA and should not have been removed from MEDCON orders, the Medical Consultant offers the following extract from AFI 36-2910, paragraph 5.2.3., [Oct 15 version], which reads, “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 VA or TRICARE benefits; the member does not have to be on MEDCON orders to receive medical care for an ILOD condition.  Additional information can be obtained from the member’s RMU/GMU, MTF TRICARE office or VA.”

Addressing the applicant’s implicit allegation individuals at his servicing medical unit were not completely knowledgeable of their duties, there appears to have been an effort on the part of the servicing military medical unit to keep track of the applicant’s profiles, as noted periodic hand-written administrative records addressing the applicant’s medical condition.  However, through the early use of waivers to maintain WWD status and the recurring use of “31” coded AF Forms 469, there appears to have been no genuine intent to send the applicant through the DES until Mar 16.

The Medical Consultant saw more than one opportunity to timely process the applicant through the DES, but could not rule out this was likely deferred/delayed in part due to applicant’s desire to continue to serve and the periodic optimism for recovery expressed by his orthopedic surgeons.  Hence, most, if not all AF Forms 469 skirted use of code “37” and entered code “31,” to depict a prognosis for recovery within 31 to 365 days.  An example was noted in the revised AF Forms 469, each initiated on 8 Sep 12, but with progressive expiration dates of 7 Mar 13, 1 Jul 13, and 8 Sep 13.  Even the renewed AF Form 469 initiated on 8 Sep 13, with an expiration date of 8 Sep 14, albeit a full year, was not coded “37.”  Yet another AF Form 469 was designated an expiration date just short of 365 days; precluding a mandatory MEB/PEB action.

This reviewer could not find justification for granting active duty orders and attendant benefits for the 5-year continuum of time requested.

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 10 Oct 17 for review and comment within 30 days (Exhibit E).  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.  Insufficient 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; however, we agree with the opinions and recommendations of NGB/SGP and the BCMR Medical Advisor and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

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 DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

The following members of the Board considered AFBCMR Docket Number BC-2016-01837 in Executive Session on 6 Feb 18 under the provisions of AFI 36-2603, Air Force Board for Correction of Military Records:

	Panel Chair
	Member
	Member
The following documentary evidence pertaining to AFBCMR Docket Number BC-2016-01837 was considered:

	Exhibit A.  DD Form 149, received 9 May 16, w/atchs.
	Exhibit B.  Excerpts from Master Personnel Records.
	Exhibit C.  Memorandum, NGB/SGP, dated 12 Apr 17, w/atchs.
Exhibit D.  Memorandum, BCMR Medical Advisor, dated 10 Oct 17.
	Exhibit E.  Letter, AFBCMR, dated 10 Oct 17.

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