RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-02147 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ THE APPLICANT REQUESTS THAT: 1. He be credited with enough retirement points to qualify for an Air Force Reserve retirement. 2. He be placed on medical continuation (MEDCON) orders from Feb 10 until 29 Aug 12 (date medically retired). ________________________________________________________________ THE APPLICANT CONTENDS THAT: He should have been placed on orders when his medical evaluation board (MEB) started. However, at that time he was placed in a no point/no pay status instead of active duty orders. When he was placed in a non-participation status he was just six points shy of obtaining 19 years of satisfactory Federal service towards a Reserve retirement. His inability to obtain 20 years of satisfactory service toward retirement makes him ineligible for Concurrent Retirement Disability Pay (CRDP). He will be losing this benefit because someone at his command did not do their job. He filed three congressional inquiries before he was finally placed on orders as he should have been when his MEB started. In support of his appeal, the applicant provides copies of his AFRC IMT 348, Informal Line of Duty (LOD) Determination, signed and dated 24 Mar 06 and response to his congressional inquiry, dated 27 Apr 12. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant, a former member of the Air Force Reserve, served on active duty in support of Operation ENDURING FREEDOM/NOBLE EAGLE from 25 May 05 – 8 Apr 07. Based on medical documentation, the applicant was diagnosed with a depressive disorder, in 2005, while still in theater. An Informal LOD, on 24 Mar 06, determined the applicant’s condition Existed Prior to Service-Service Aggravated (EPTS-SA). In Nov 11, an MEB diagnosed the applicant with major depressive disorder and referred his case to the Informal Physical Evaluation Board (IPEB). On 6 Jan 12, the IPEB diagnosed the applicant with major depressive disorder and as a part of a pilot joint venture program, his case was referred to the DVA for review. On 2 May 12, the DVA rated the applicant with a combined rating of 90 percent, 50 percent for major depressive disorder. On 19 Jun 12, the IPEB diagnosed the applicant with major depressive disorder, with a compensable disability rating of 50 percent. On 11 Jul 12, the applicant agreed with the IPEB’s findings. On 17 Jul 12, the Secretary of the Air Force Personnel Council directed the applicant be permanently disability retired with a compensable disability rating of 50 percent. On 28 Aug 12, the applicant was relieved from active duty and permanently retired for disability with a compensable disability rating of 50 percent. He completed 7 years and 3 days of active service for retirement, with 18 years of satisfactory Federal service, totaling 23 years, 1 month, and 2 days of service for pay. ________________________________________________________________ THE AIR FORCE EVALUATION: AFRC/A1K recommends denial, stating, in part, that in accordance with the governing DoD directive, 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 returned as a result of a Disability Evaluation System (DES) determination. It does not appear the applicant was serving on an active duty order when the purported injury occurred that was determined to be in the line of duty (ILOD), i.e., confirmation of whether or not the LOD that was determined to be ILOD, is in fact the LOD that could have placed/or could be used to continue the member on an active duty order, as requested by the applicant, must be determined by the AFRC/SG staff or some other authoritative medical source. Absent a medical determination from an authoritative medical source validating the applicant’s medical condition warranted him being placed on MEDCON orders due to a specified medical condition, disapproval is recommended. The recommended disapproval encompasses the member's request that his number of good years of service be adjusted as well, based on the request for MEDCON orders. The complete A1K evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 3 Oct 12 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D). ________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: The BCMR Medical Consultant recommends approval, noting the applicant’s record should be amended to reflect, as a minimum, the applicant was placed on active duty orders for pay and points on 5 Mar 11 and remained so until his medical retirement effective 29 Aug 12. In addition, the BCMR Medical Consultant notes, the applicant's MEB narrative summary, typed on 12 Jan 11, reflects a diagnosis of a major depressive disorder as far back as 2005, for which he was prescribed antidepressants; but discontinued their use due to undesirable side effects. The record indicates that he subsequently received a MEB in 2007, for which he reportedly "appealed and was returned to duty." As noted above, a subsequent presumed commander-directed mental health evaluation was conducted following a 2009 incident ["communicating a terrorist threat"], for which the applicant was, again, diagnosed with major depressive disorder. It should be noted the record indicates the applicant's condition was determined to be "in partial" followed by "full remission with treatment" at that time; which is a likely reason the MEB was not pursued at that juncture, along with the provider's opinion that he would be "fit as long as he agrees to stay in mental health treatment." There are also no AF Form 422, Physical Profile restrictions, or AF Form 469, Duty-Limiting Condition Reports, imposed or supplied for calendar years (CYs) 2008 through 2010, although the applicant has taken the implicit position he should have been put on or sustained on active duty orders since in Feb 10. Even though comments in the applicant's MEB narrative summary, dated 12 Jan 11, makes reference to a mental health evaluation for a MEB on 10 Dec 10, the subsequent delays in timely completion of the MEB action [most of CY 2011] is not explained in the record, thereby requiring the need for two addendum updates to the original MEB narrative summary, in Jul 11 and again in Oct 11, with the actual convening of the MEB not until Nov 11. The Medical Consultant pauses at this juncture to note that time standards for case processing, has to be in accordance with (IAW) Department of Defense Instruction (DoDI) 1332.38, Physical Disability Evaluation, and the National Defense Authorization Act of 2008. It is implicit that the recurrence or exacerbation of the applicant's major depressive disorder that resulted in his MEB held in 2011, which was previously found ILOD in 2005, was also found in line of duty, although a new LOD document is not supplied to reflect this. The Medical Consultant considered the applicant's implicit request for receiving back-dated orders from Feb 10, in the effort to achieve sufficient point credits to reach 20 satisfactory years of service. However, although the applicant may have received periodic treatment throughout this period, there is insufficient evidence of record to indicate that his ability to continue to perform his military duties rendered him non-worldwide qualified since Feb 10. Indeed, the only supplied AF Form 469 reflecting the applicant was determined non-worldwide qualified and projected for DES processing was initiated on 16 May 11, although the actual MEB did not take place until 3 Nov 11. The unanswered question is whether there is shared culpability for any apparent delays in the timely processing of the applicant's case through the DES; noting the history of his successful appeal to return to duty in 2007 for the same condition, with the stated objective in current review to achieve enough time in service to reach 20 satisfactory years of service. The Medical Consultant directs attention to an interpretation of the term "MEDCON" which, in his opinion, presumes an individual is already or "while serving" on orders and, thus, continued on [or not released from] those orders. In the case under review, there is no evidence to reflect the applicant was on orders at the time his inability to perform military duties was made, nor at any subsequent milestone within the DES, to include the date of dictation of the MEB narrative summary and the date of issuance of the AF Form 469. However, based upon the recommendation of the Chief, Congressional Inquiry Division, Office of Legislative Liaison, the Medical Consultant recommends placement of the applicant on active duty orders effective 5 Mar 11, the date that the PEBLO first counseled him on the DES process. While an error may be limited to the date of orders recommended by the Congressional Liaison, an earlier date may be justified, as a matter of injustice to the applicant, noting the unexplained delays [with no evidence of significant change in clinical status in the interim] in processing the applicant's case from the time of his initial MEB narrative summary to the date the case file was received by the PEB; in violation of the timeline standards established by the DoD. The complete BCMR Medical Consultant evaluation, with attachments, is at Exhibit E. ________________________________________________________________ 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 warranting partial corrective action. Notwithstanding the recommendations of the Air Force Reserve office of primary responsibility, we are inclined to agree with the analysis of the BCMR Medical Consultant who finds that there may have been a possible injustice to the applicant by the untimely completion of his MEB which does not appear to be in compliance with DoD policy and law. As alluded to by the BCMR Medical Consultant, taking a retrospective look at a case can pose certain risks by introducing a different set of suggested conclusions. However, a thorough analysis by the BCMR Medical Consultant raises doubt as to whether there was shared culpability between the applicant and the Air Force. Based on the substantial evidence provided by the applicant, including the congressional response, it appears he should have been afforded MEDCON orders; the only question would be the start date of the orders. As such, we agree with the Medical Consultant’s recommendation to place the applicant on active duty orders effective 5 Mar 11. We believe this approach presents the best option for a correct, yet fair and equitable determination in the applicant’s case. Since this is the date he was formally briefed by the PEBLO of his options for a disability separation. Therefore, in the interest of justice, we recommend the applicant’s record be corrected as indicated below. 4. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice in regards to the applicant’s request for credit for 20 years of satisfactory service towards retirement. The applicant’s request is duly noted; however, we did not find the evidence provided substantial enough to override the opinions and recommendations from the Air Force Reserve OPR and the BCMR Medical Consultant that the applicant has been the victim of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no basis to favorably consider this portion of the application. 5. The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ 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 recalled to extended active duty from 5 Mar 11 to 28 Aug 12. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-02147 in Executive Session on 28 Mar 13, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 21 May 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFRC/A1K, dated 26 Sep 12. Exhibit D. Letter, SAF/MRBR, dated 3 Oct 12. Exhibit E. Letter, BCMR Medical Consultant, dated 14 Feb 13, w/atchs. Exhibit G. Letter, AFBCMR, dated 15 Feb 13.