RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-03828 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: He receive back-pay and points for time off from his civilian employer due to a service related injury. ________________________________________________________________ APPLICANT CONTENDS THAT: On 2 July 2003 while on an active duty deployment to Ramstein Air Base (AB) Germany, he injured himself by stepping through a hole in the floor while on a site survey of the second floor of a facility to be used for logistical staging. There were no safety warning signs indicating there was a hazard on the floor. He saw a piece of metal shelving in the middle of the floor and bent over to pick it up. He lifted the shelf and stepped forward not knowing that the shelf was covering a hole in the floor. He stepped into the hole and injured his right ankle, left upper leg and his back. He immediately called for medical attention. He was placed in a right foot splint for his ankle injury and had abrasions and bruises on his leg. He returned to the hospital with back pain on 5 July 2003. He was told that he may have possibly bruised his kidneys. There were no x-rays or MRIs taken at the time. On 25 July 2003 he returned home on emergency leave due to his mother’s diagnosis of only a few months to live. On that same day, he completed his post deployment health assessment and indicated on the form that he was still experiencing back pain. He was deactivated on 30 November 2003 while under a doctor’s care for the injuries he sustained while deployed. After five years of intermittent care, his pain levels became intolerable and he sought extensive medical treatment. He was required to have foot surgery in August 2008. He requested to be put on orders to cover his surgery and recovery period but all attempts were denied. He exhausted his personal leave and his civilian employer allowed him to work flexible hours to accommodate medical appointments and the post-surgery recovery period. Due to limited personal leave, he returned to work almost immediately. He was on crutches and his healing period was longer than anticipated. During the pre-operation testing of his foot, the extent of his back injury was revealed. After his return to work he juggled his schedule to accommodate physical therapy for his foot and neurosurgeon appointments for his back until January 2010. He was placed on active duty orders in January 2010 to undergo treatment and care for his back injury. He has upheld his responsibilities to the Air Force and requests the Air Force do the same by correcting his records. He performed military functions by keeping all of his scheduled appointments and is asking for credit, pay and points in accordance with Department of Defense (DoD) Instructions that cover MedCon Orders. The attached letter from SAF/LL (Exhibit B) to his congressman indicates that MedCon orders cannot be backdated and issued and that only this Board can take corrective actions. He has a total of 87 days served from release of active duty in November 2003 until he was placed on active duty orders in January 2010 to care for his injuries. In support of his request, the applicant submits personal statements, an Air Force Reserve Command (AFRC) IMT 348 Informal Line of Duty Determination w/attachments dated 28 November 2003, Letter from his congressman with attachments dated 7 September 2011, letters of support from employer and previous supervisors, copies of requests and denials for medical continuation orders, spreadsheet of his appointments, supporting email messages and documents extracted from his military personnel records. The applicant’s complete submission with attachments is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant is currently an enlisted member of the Air Force Reserves serving in the grade of Master Sergeant (MSgt) E-7. The applicant was on Military Personnel Appropriation (MPA) orders from 23 February 2003 to 22 February 2004 but was deactivated and orders ended on 30 November 2003. On 2 July 2003, an Informal Line of Duty Determination was initiated. The findings were In Line of Duty (ILOD) and reflect that on 2 July 2003, while working on the second floor structure, the applicant fell through a 1 1/4 inch compressed board used as flooring and sustained injuries to his right ankle, left upper leg with right and left side pain and back pain. ________________________________________________________________ AIR FORCE EVALUATION: HQ AFRC/A1K recommends disapproval. A1K states, after careful review of the documentation provided by the applicant, he has not provided any evidence that reveals or supports his claim to be awarded back-pay and points for the time away from his civilian employment. In accordance with (IAW) Air Force Instruction (AFI) 36-2254V1, Reserve Personnel Participation paragraph 2.2., “Points may only be credited to the date a member actually performed duty, except in those activities where the cumulative method is authorized, such as telecommuting.” Because the applicant did not perform duty in either manner, he is not entitled to any points. However if he incurred a loss of civilian income because of an injury that occurred in the line of AF Reserve duty, the applicant may be eligible for incapacitation pay. If he chooses to exercise this option, he may apply IAW AFRCI 36-3004, Incapacitation Pay and Management of Reservist Continued on Active Duty Order, attachment 2, Table A2.1 (incapacitation procedures). The complete AFRC/A1K evaluation, with attachments, is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation (Exhibit D) was forwarded to the applicant on 1 March 2012 for review and comment within 30 days. As of this date, this office has not received a response. ________________________________________________________________ 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. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. The applicant received medical treatment as well as compensation for travel to and from medical appointments and outpatient treatments in accordance with AFRCI 36-3004, Chapter 4. Medical Continuation orders would have been appropriate only if the applicant’s treatment and recovery periods were 30 days or more. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that 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 this application BC-2011-03828 in Executive Session on 17 May 2012, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 22 September 2011, w/atchs. Exhibit B. Letter, SAF/LL, dated 29 August 2011. Exhibit B. Letter, AFRC/A1K, dated 20 December 2011. Exhibit C. Letter, SAF/MRBR, dated 1 March 2012