RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-02038 

						COUNSEL:  NONE

						HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

1.  He receive Medical Continuation (MEDCON) orders for the period 18 November 2012 to 14 May 2013, to include pay, points and benefits.

2.  He be reimbursed for 23 days of leave for the period 26 October 2012 through 17 November 2012.

3.  If his request is approved, he desires compensation be issued during the 2017 calendar year to alleviate creating tax issues.

APPLICANT CONTENDS THAT:

He was deployed in support of Operations ENDUIRNG FREEDOM and IRAQI FREEDOM from 13 February 2012 to 17 November 2012.  During his deployment he re-aggravated a lower back injury he incurred during his deployment in 2006/2007 along with three additional herniated discs. 

An AF Form 348, Line of Duty (LOD) determination was initiated for his medical condition.  The medical officer signed the AF Form 348 on 10 September 2012.  His deployed commander signed the form on 26 September 2012, and it was forwarded to the medical group for processing.  

Prior to the completion of the LOD he was out processed to his home of record and had to use 23 days of leave until the termination of his orders.  His orders expired on 17 November 2012.  

On 1 April 2013, he contacted the Inspector General (IG) for assistance regarding the delay in receiving MEDCON orders.

After multiple administrative errors, he was placed on MEDCON orders from 15 May 2013 until he was disability retired on 28 December 2014.

The Florida ANG IG office reviewed his complaint and determined a formal investigation was not needed, but found several errors and procedural inconsistencies relating to the processing LOD determinations and MEDCON orders that contributed to the delay in the applicant receiving MEDCON orders.  

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

STATEMENT OF FACTS:

During the matter under review the applicant was serving in the Florida Air National Guard (ANG) in the rank of major.

On 24 October 2012, the applicant was ordered to active duty in support of Operation ENDURING FREEDOM for the period 13 February 2012 through 17 November 2012.

The applicant from 5 June 2012 and 7 September 2012 reported with complaints of lower back pain.

On 26 September 2012, an LOD determination was initiated and it was determined the applicant’s back injury was in the LOD on 4 October 2012.

According to the AF Form 988, Leave Request Authorization, provided by the applicant, he used 23 days of leave from 26 October 2012 through 17 November 2012.

According to the applicant’s, DD Form 214, Certificate of Release or Discharge from Active Duty, he was released from active duty on 27 November 2012, and was reverted to his traditional status.

According to an AF IMT 102, Inspector General Personal and Fraud, Waste & Abuse Complaint Registration, date 1 April 2013, the applicant filed a complaint with the Florida National Guard regarding his unit’s delay in processing his MEDCON orders.

On 15 May 2013, the applicant was placed on MEDCON order through 28 December 2014.

On 17 July 2013, HFHQ-FL/IGO notified the applicant in response to his IG complain that the preponderance of evidence revealed the inconsistency and administrative errors by his unit, squadron and NGB/SG contributed to the delay in processing his MEDCON orders.  They further noted that Air Force policy does not permit the backdating of MEDCON orders and he could seek relief through the AFBCMR.

On 29 December 2014, the applicant was permanently disability retired with a 70 percent disability rating.  He was credited with five years, nine months, and one day of active service.   

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:

AFPC/DPFA recommends granting the applicant’s request, indicating there is evidence of an error or injustice.

According to SAF MEDCON Policy Guidelines dated 15 August 2012, an airman may be eligible for MEDCON orders when an injury, illness, or disease is incurred or aggravated while serving on orders and that condition renders the airman unable to perform military duties.  In order for the applicant to qualify for MEDCON orders he would have had to meet the following criteria: 

(1) Provide a copy of the orders covering the period during which the injury, illness, or disease was incurred or aggravated; (Met) 
(2) An interim or finalized LOD or DD Form 261, Report of Investigation Line of Duty and Misconduct Status); (Met) 
(3) A completed AF Form 469, Duty Limiting Condition Report; (Met) 
(4) A medical evaluation conducted by a credential military provider within the last 30 days that describes why the service member is unable to meet retention or mobility standards, citing a specific paragraph from Chapter 5 or 13 of AFI 48-123; (Met; by a combination of restrictions not meeting standards for mobility documented on AF 469 as well as local military medical unit’s notes on hand-written SF 600s) 
(5) An individual treatment plan approved by a credential military provider based on occupational medicine guidelines and peer-reviewed recovery timelines that includes the expected duration of the impairment; (Partially met; submitted documentation did not include the overall current treatment plan.) 
(6) A signed DD 2870, Authorization for Disclosure of Medical or Dental Information. (Met) 
(7) Any request for MEDCON orders that is not initiated within 60 days of when the injury, illness, or disease was incurred or aggravated will require the service member to submit a written explanation, endorsed by the wing commander, for the untimely reporting. (N/A; the applicant reported injury immediately upon return to home station.)

On 5 June 2012, the applicant while deployed injured his back.  On 26 September 2012, the in-theater deployed commander completed an interim LOD.  The applicant returned from deployment and was evaluated by the primary care manager (PCM), who placed appropriate referrals to the Orthopedic Surgeon and Neurologist.  The available documentation in ASIMS reveals an AF Form 469 with AAC (assignment availability code) 37 for “JOINT PAIN – MULT JTS, ICD 719.49” was started on 14 November 2012 and was continued until 26 August 2014.  Total time on profile and AAC 37: 650 days.

The applicant was allowed to go on reconstitution leave, and both his leave and contingency orders were allowed to expire on 17 November 2012, despite the applicant having been diagnosed with significant injury and being found not fit for duty.

Under the provisions of MEDCON Policy Guidelines, dated 24 July 2012, states:

4.1.1. Commanders will ensure resolving the medical condition takes precedence over leave or reconstitution time.  All parties involved with the Airman’s care, especially the Airman, shall exert maximum effort to resolve the medical condition prior to expiration of the order. 

4.1.2. If the medical condition is not resolved prior to completion of the order, MEDCON orders may be requested.

Furthermore, the Department of Defense Instruction (DODI) 1241.2, Reserve Component Incapacitation System Management, states a Reserve component member on active duty under a call or order to active duty specifying a period of 31 days or more, who incurs or aggravates an injury, illness, or disease in the line of duty shall, with the member's consent, be continued on active duty upon the expiration of call or order to active duty until the member is determined fit for duty or the member is separated or retired as a result of a Disability Evaluation System determination.

The MEDCON Policy Guidelines further states:  For Airmen with a Break in Service.  The Airman’s medical unit or RMG/SG for IMAs shall electronically send the documentation listed in para. 4.3., including a finalized LOD, to the ARC CMO for validation, approval, and certification of MEDCON requests.  Therefore, the review by conducted by the Medical Branch Chief found the break in service negated the applicant’s eligibility for MEDCON orders.  Therefore, the applicant had to wait until LOD was finalized ILOD in order to re-apply for MEDCON orders.

AFPC/DPFA recommends approval.  The applicant should have been retained on orders until the LOD determination was finalized, until his medical assessment/treatment was finalized, and returned to duty or entered into the disability evaluation system.

A complete copy of the AFPC/DPFA 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 8 June 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 opinion and recommendation of the Air Force office of primary responsibility (OPR) and adopt its rationale as the basis for our conclusion the applicant has been the victim of an error or injustice.  With regard to the applicant’s leave request, the Board notes had the applicant been in the appropriate MEDCON status he would not have been allowed to take leave or reconstitution time until his medical conditions had been resolved in accordance with the governing instruction and the OPR evaluation.  As for his desire to have his compensation issues resolved during the 2017 calendar year to alleviate creating tax issues; this issue is outside of the Board’s purview.  Therefore, we recommend the applicant's records 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 27 November 2012, but on that date, he continued to serve on active duty for the purposes of medical continuation (MEDCON) through 28 December 2014 and furthermore, he was not on ordinary leave status from 26 October 2012 to 17 November 2012, but instead on normal duty status and upon retirement sold back 23 days of leave.

The following members of the Board considered AFBCMR Docket Number BC-2016-02038 in Executive Session on 27 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 pertaining to AFBCMR Docket Number BC-2016-02038 was considered:

	Exhibit A.  DD Form 149, dated 11 May 16, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFA, dated 5 Dec 16.
	Exhibit D.  Letter, AFBCMR, dated 8 Jun 17.

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.