RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-00326 COUNSEL: NONE HEARING DESIRED: NOT INDICATED _________________________________________________________________ APPLICANT REQUESTS THAT: He receive service credit for the period April 2008 through June 2010 due to ongoing medical treatment for a service- connected injury. _________________________________________________________________ APPLICANT CONTENDS THAT: 1. He should have been retained on active duty orders until the doctors and the Air Force could come to terms on what to do (surgery). He knows this was supposed to take place before relieving him from service. 2. He has been trying to go through all avenues at the unit level but no one can get him a straight answer, “it was always wait.” In support of his request, the applicant provides copies of AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board (PEB); AF IMT 618, Medical Board Report; AF Form 469, Duty Limiting Condition Report; AF Form 422, Physical Profile Serial Report; AF IMT 348, Line of Duty Determination, and medical records. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant deployed in support of Operation IRAQI FREEDOM from 10 May 2007 to 15 October 2007 with orders extended through 15 October 2007. During the deployment, he sustained a lower back injury and was placed on active duty continuation orders (medical hold) from 16 October 2007 to 16 December 2007. His orders were later extended through 15 April 2008. On 16 October 2007, a Line of Duty (LOD) determination was initiated due to lower back pain from pushing concrete T-walls during his deployment and on 12 August 2008, his injury was found to be ILOD. On 2 July 2009, the applicant’s records met a Medical Evaluation Board (MEB) for degenerative disc disease of the lumbar spine. The MEB recommended the applicant be referred to an Informal Physical Evaluation Board (IPEB). On 19 August 2009, the IPEB found the applicant unfit and recommended his discharge with severance pay with a disability rating of 20 percent. In December 2009, he waived his election to demand a formal hearing for the purpose of concurring with the IPEB’s recommendation and findings. On 11 January 2010, officials within the Office of the Secretary of the Air Force (SAF) determined the applicant was physically unfit for continued military service and directed an honorable discharge with severance pay. However, since he had 20 years of satisfactory service, he had the option to transfer to the Inactive Status List Reserve Section (ISLRS) for the purpose of retirement in lieu of discharge with severance pay. The applicant elected to be discharged with severance pay as provided under Title 10, U.S.C., Chapter 61, Section 1203. Per ARPC/DPTTR, on 12 August 2010, the applicant declined severance pay and applied for retirement to be effective on 22 June 2010. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force, which are attached at Exhibits C, D and F. _________________________________________________________________ AIR FORCE EVALUATION: NGB/A1PS recommends denial. A1PS states the applicant is asking for service credit for the period April 2008 to June 2010 and is claiming he should have been retained on active duty during this period. A thorough review of the documentation provided failed to validate that he was unable to perform military duties during this period. The complete A1PS evaluations are at Exhibits C and D. _________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: The BCMR Medical Consultant recommends the record be corrected to reflect the applicant was on active duty status (medical hold) from 16 April 2008 through 11 January 2010 to coincide with its final determination and the transfer order to Inactive Status List Reserve Section (ISLRS) for the purpose of retirement in lieu of discharge. The BCMR Medical Consultant states, from April 2008 through June 2010, clinical notes indicate the applicant was actively receiving care and had significant duty limiting restrictions. More specifically, a duty limiting condition report (AF Form 469) on 1 May 2009 detailed significant duty limiting restrictions which were clearly inconsistent with functional capabilities of his duty requirements. The IPEB found the applicant unfit and recommended discharge with severance at 20 percent disability rating for chronic low back pain with degenerative joint-disease at L3-L5. The applicant subsequently waived his right for a Formal PEB and agreed with the IPEB recommendations. While additional care was received after acceptance of the IPEB recommendation, there is no conclusive evidence that the applicant's condition worsened or a significant change in treatment course was instituted. More importantly, the applicant waived the request for a Formal PEB on 4 December 2009 and elected to be discharged with severance pay as provided under Title 10, U.S.C., Chapter 61, Section 1203. Therefore, the BCMR Medical Consultant opines the applicant's concurrence with the findings of the IPEB and subsequent waiving of a hearing before the formal PEB constituted sufficient acknowledgement of his status as unfit for continued military service. In addition, due to the active course of treatment and therapeutic interventions which occurred throughout the board review process, the reviewer recommends extension of his active duty status from 16 April 2008 through 11 January 2010 to coincide with its final determination and the transfer order to ISLRS for purpose of retirement in lieu of discharge. The complete BCMR Medical Consultant’s evaluation is at Exhibit F. _________________________________________________________________ APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE ADVISORY: The applicant responded by stating he agrees with the BCMR Medical Consultant recommendation. He also provides clarification to some points made in the Medical Consultant advisory. The applicant’s complete response is at Exhibit H. _________________________________________________________________ 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 warranting corrective action. The applicant requests he receive service credit for the period April 2008 through June 2010 with back pay due to his ongoing medical treatment for a service connected injury. After a thorough review of the evidence of record and the applicant's submission, we believe relief is warranted. In this respect, the applicant was on active duty orders in support of Operation Iraqi Freedom and sustained an injury to his back as a result of pushing concrete T-walls. Subsequently, the injury was found to be In the Line of Duty (ILOD). However, contrary to established guidance dictating that he remain on an active status until processed through the disability evaluation system, it appears he was released from active duty without due process. As such, we believe the applicant has suffered an injustice. With respect to his request for clarification of the service dates contained in the BCMR Medical Consultant’s advisory opinion, the available records reflect the applicant entered active duty on 23 July 1979 and was honorably discharged on 24 October 1987. His NGB Form 22, Report of Separation and Record of Service reflects that he entered the Air National Guard on 21 August 1988 and was discharged 21 June 2010. In view of the above, we agree with the opinion and recommendation of the BCMR Medical Consultant and recommend that the applicant be continued on active duty status from 16 April 2008 through 11 January 2010. Accordingly, we recommend his record 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 he was not released from active duty on 15 April 2008, but was continued on active duty until 11 January 2010. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-00326 in Executive Session on 3 November 2011, under the provisions of AFI 36-2603: Acting Panel Chair Member Member All members voted to correct the records, as recommended. The following documentary evidence pertaining to AFBCMR Docket Number BC-2011-00326 was considered: Exhibit A. DD Form 149, dated 28 January 2011, w/atchs. Exhibit B. NGB/A1PS, Letter, dated 29 March 2011, w/atchs. Exhibit C. NGB/A1PS, Letter, dated 28 March 2011 w/atchs. Exhibit D. NGB/A1PS, Letter, dated 2 June 2011. Exhibit E. SAF/MRBR, Letter, dated 17 June 2011. Exhibit F. BCMR Medical Consultant, Letter, dated 12 September 2011. Exhibit G. SAF/MRBC, Letter, dated 7 October 2011. Exhibit H Applicant’s Rebuttal, Letter, dated 19 October 2011. Acting Panel Chair