RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-02185 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His active duty orders for the period 1 October 2009 to 30 September 2010 be extended to 5 October 2011 due to his In- the-Line-of-Duty (ILOD) injury. _________________________________________________________________ APPLICANT CONTENDS THAT: During his active duty tour, he incurred a severe tibia/fibula fracture of his right leg in a motorcycle accident while participating in a commander approved race event on 3 September 2010. A Line of Duty (LOD) determination was initiated on 26 November 2010 and finalized with a finding of ILOD on 5 April 2011. A Duty Limiting Condition Report, dated 5 April 2011, indicates his release from physical limitations/restrictions would expire on 5 October 2011. In support of his appeal, the applicant provides copies of civilian and military medical records, his California Drivers License, Informal Line of Duty Determination, Ground Mishap Worksheet, Safety Monitor Witness Statement, and active duty orders. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is currently a member of the Air Force Reserve (AFRES) serving in the grade of technical sergeant (E-6). According to the Informal LOD Determination, dated 5 December 2010, the applicant was racing his motorcycle in a sanctioned event on 3 September 2010. His motorcycle was struck by another contender and the applicant was thrown off, leading to his injuries. The applicant’s active duty orders ended on 30 September 2010; therefore, he was released from active duty. According to the AFRES Deputy Command Surgeon, Clinical Operations/Command Nurse, an LOD determination was initiated on 26 November 2010 and was finalized with a finding of ILOD on 5 April 2011. According to a medical evaluation by a Family Practitioner, dated 20 January 2011, “Patient had internal fixation of right tibia and fibula. Patient reports no issue or problem. Patient takes vicodin 1-2 tablets twice a week for acute pain/ache. Patient will follow up in 3 mns [months]. Otherwise patient is cleared to return to duty.” However, a subsequent medical evaluation by an Orthopedics physician, dated 28 March 2011, indicates “His [Patient] recovery is on course for such a severe injury. It may take 18-24 mo [months] from injury for him to recover to nearly full function. It is not unreasonable to expect him to recover to the point that he can continue in the security forces career field, but it will take longer than 1 year after the injury to reach maximum recovery. For now his restrictions should be sit down job/light duty, no deployment/mobility. These restrictions have been continuous since Sep 10 and any return to duty restrictions determination from Jan 11 was in error.” _________________________________________________________________ AIR FORCE EVALUATION: AFRC/SGP recommends partial grant. SGP states that in accordance with Department of Defense Instruction (DoDI) 1241.2, Reserve Incapacitation System Management, Air Reserve Component (ARC) 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 returned to duty or separated via the disability evaluation system. A 20 January 2011 medical evaluation indicates the applicant was having no problems and was cleared for duty. It appears the applicant met the requirements for retention on active duty orders for pay and allowances for the period of 1 October 2010 to 20 January 2011. However, nothing provided indicates a need to continue these entitlements through 5 October 2011 as requested. The complete SGP evaluation, with attachment, is at Exhibit B. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The Family Practice physician’s 20 January 2011 determination to return him to full, unlimited duty was in error, as noted by the orthopedic commander. The Orthopedic physician’s evaluation on 28 March 2011 provides clear detail of the extent of his severe injury and that the recovery time would be 16-24 months. The applicant’s complete rebuttal, with attachments is at Exhibit D. _________________________________________________________________ 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. After considering the totality of the evidence before us, we are persuaded that the requested 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 returned to 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 3 September 2010 injury, which was determined to be ILOD, he should have been retained on active duty until the final disposition of his DES processing occurred. AFRC/SGP opines the applicant met the requirements for retention on active duty orders for the period of 1 October 2010 to 20 January 2011, based on a 20 January 2011 medical evaluation, rendered by a Family Practice Physician, which indicated that he was having no problems and was cleared for duty. However, based on the comments of the orthopedic physician, we believe the applicant has provided sufficient evidence to warrant his continuance on active duty orders until 5 October 2011. In this respect, we note the 28 March 2011 medical evaluation, in which an orthopedic physician indicated the applicant’s injury would take longer than a year from the date of the injury to reach maximum recovery and that in the meantime he could be utilized in a restricted capacity, i.e., sit-down job/light duty, with no deployment/mobility. The orthopedic physician also indicated the 20 January 2011 “return to duty without restrictions” determination by a family practice physician was in error. Based on the aforementioned, the Board believes that in order to provide the applicant fair and equitable relief, his records should 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 30 September 2010, but was continued on active duty until 5 October 2011. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-02185 in Executive Session on 2 February 2012, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence for AFBCMR Docket Number BC-2011- 02185 was considered: Exhibit A. DD Form 149, dated 18 May 11, w/atchs. Exhibit B. Letter, AFRC/SGP, not dated, with atch. Exhibit C. Letter, SAF/MRBR, dated 16 Sep 11. Exhibit D. Letter, Applicant, dated 2 Oct 11, w/atchs.