RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2008-00563 INDEX CODE: 108.00 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ _ APPLICANT REQUESTS THAT: He be continued on active duty with the West Virginia Air National Guard (WVANG) from 7 June 2004 to 6 May 2005. ________________________________________________________________ _ APPLICANT CONTENDS THAT: He was injured while on Title 10 active duty orders and wrongfully demobilized after returning to his home station. In support of his appeal, the applicant has provided copies of his DD Forms 214, Certificate of Release or Discharge from Active Duty, several pertinent email trails, orders and Temporary Disability Retirement List (TDRL) documents along with medical evaluation board (MEB) documents. Applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: The applicant, a retired member of the WVANG, was mobilized on 3 March 2003 in support of Operation Iraqi Freedom (OIF). He was ordered to Saudi Arabia where, on 9 March 2003, he injured himself in the line of duty (ILOD) while moving cargo around in his C-130 aircraft. He fell a distance of some six feet landing on his knees, arms and elbows. He was diagnosed with cervicalogia and contusions to his forearms and knees. An Air Force Form 388, Line of Duty Determination, was eventually accomplished on 8 September 2004 finding his injuries in the LOD. In March 2004, he reported skin lesions on his face that a dermatologist diagnosed as pre-cancerous lesions needing further treatment. On 14 September 2004, a skin biopsy on his right cheek indicated a cancerous lesion. Another AF Form 388 was accomplished on 7 November 2004 and found the lesion ILOD. In June 2004 his orders were curtailed and he was demobilized on 7 June 2004, rather than 7 September 2004. The record indicates that despite continuing problems with his injuries, he continued his military duties, to some degree, through August 2004. An additional AF Form 388 was accomplished on 4 May 2005, noting the applicant had been diagnosed with Post Traumatic Stress Disorder (PTSD) which was also found ILOD. On 6 May 2005, the applicant was put on medical continuation orders for the purpose of undergoing an MEB. On 21 July 2005, the MEB found the applicant suffered from PTSD, a disqualifying medical condition. His case was referred to the Informal Physical Evaluation Board (IPEB) and on 28 September 2005, the IPEB found him unfit and recommended temporary retirement with a 50% disability rating for PTSD associated with Major Depressive Disorder and Somatoform Pain Disorder due to multiple musculoskeletal conditions. On 5 October 2005, the applicant agreed with the IPEB’s findings and recommendations. On 10 November 2005, he was placed on the TDRL. On 12 April 2007, his case was reviewed by the IPEB. His condition was found to have deteriorated slightly and the IPEB recommended he remain on the TDRL with a 50% compensable rating. As of 10 November 2008, he had served satisfactorily for 20 years, 7 months, and 27 days, almost eight years of which were on active duty. Time spent on the TDRL does not count toward the accrual of additional active duty or Reserve time. ________________________________________________________________ _ AIR FORCE EVALUATION: The NGB was provided this application on 25 February 2008 for the purpose of providing an advisory opinion. To date, they have failed to provide one. ________________________________________________________________ _ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice. The evidence of record is unclear as to why it took unit officials some 18 months to accomplish an AF Form 388 indicating the applicant’s injuries suffered in March 2003 as ILOD. We note that subsequent AF Forms 388 addressing additional medical issues were accomplished in a much more timely fashion. It appears the applicant continued to serve beyond his demobilization date thereby indicating he was somewhat fit for duty and not necessarily eligible for continuation on active duty for the time frame he is asking for. However, absent an opinion from the NGB affirming he was fit for duty and presenting additional persuasive evidence as to why the applicant should not have been continued on active duty, we are of the opinion, in light of the compelling evidence submitted by the applicant, that any doubt as to his continuation should be resolved in his favor. Therefore, we recommend that the records be corrected as indicated below. ______________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that on 7 June 2004 he was not released from active duty, rather, on that date he continued to serve on active duty with the West Virginia Air National Guard until 6 May 2005. ______________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2008-00563 in Executive Session on 23 April 2009, under the provisions of AFI 36-2603: XXXXXXXXXXXXXXXX, Panel Chair XXXXXXXXXXXXXXXX, Member XXXXXXXXXXXXXXXX, Member All members voted to correct the records, as recommended. The following documentary evidence was considered: Exhibit: DD Form 149, dated 5 Feb 08, w/atchs.