RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-03402 XXXXXXX COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ THE APPLICANT REQUESTS THAT: He be entitled to medical continuation (MEDCON) orders from Jul 10 to present for his injury he sustained in the Line of Duty (INLOD). ________________________________________________________________ THE APPLICANT CONTENDS THAT: He should have remained on active duty until his medical condition was resolved. It is not fair, to him or his civilian employer, to have to take leave for an injury that was caused by the military. In support of his appeal, the applicant provides copies of his medical appointment schedule; medical documentation from his military and civilian medical providers; his ILOD paperwork; email correspondence, and various other documents. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant served on a temporary tour of active duty, from 28 Dec 09 to 8 Jul 10. During his deployment to Balad Air Base, Iraq, on 7 Jul 10, the applicant was treated for an injury to his back that he incurred while stepping off the ramp of a C-5 aircraft. On 7 Dec 10, the LOD Board administrator signed, for the Air Force Reserve Vice Commander, deciding that the applicant’s injury was In the Line of Duty (INLOD). ________________________________________________________________ THE AIR FORCE EVALUATION: AFMOA/SGHI recommends denial of the applicant’s request for continuation of orders for the period 9 Jul 10 through his recovery of his LOD condition. SGHI states that a review of Armed Forces Health Longitudinal Technology Application (AHLTA) notes submitted to the Automated Line of Duty (ALOD) system indicates the applicant received care in theater and documents submitted reflect that he continued to receive medical care for his LOD condition, from 29 Jun 10 through 17 Jul 12. Additionally, an operative note, dated 8 May 12, indicates member had surgery for one of his LOD conditions. A MEDCON request is present in the Command Man-Day Allocation System {CMAS). It was submitted on 19 Jul 12, and declined by AFRC/SG office, to the member’s Wing on 20 Jul 12 due to "no LOD on file for 2005." There is no evidence it was ever resubmitted for processing by SGHI. It is also noted that the AF Form 469, Duty Limiting Condition Report, was not signed by the provider until 3 Aug 11. The Secretary of the Air Force, Manpower and Reserve Affairs (SAF/MR) memo, Medical Continuation/Extensions for Reserve Component (RC) Members Serving in Support of a Contingency dated 7 Jan 05, states that RC members who are able to perform military duties but are not able to return to their civilian employment will be demobilized and provided incapacitation pay (INCAP) in accordance with established procedure within the component. Follow-up health care services are available at military Medical Treatment Facilities (MTFs), as well as through the TRICARE Transitional Assistance Management Program (TAMP). The Military Medical Support Office (MMSO), in accordance with established procedures within the component, may authorize medical care through civilian sources for those RC members not living near an MTF. They did not find enough evidence to show the applicant was unable to do his military duties in accordance with DODD 1241.01, Reserve Component Medical Care and Incapacitation Pay for Line of Duty, para 3.3. The applicant states that he returned to his civilian job, thus he was ineligible for INCAP pay. Service members do not have to be on orders to receive care, as noted in the above referenced SAF/MR memo and as evidenced by the applicant receiving care for his condition after he was demobilized. The complete SGHI evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: The applicant notes that he submitted his application to the Board based on a recommendation from the AFRC Inspector General (AFRC/IG). He believes someone needs to answer for the lack of care he has received for his ILOD injuries. In response to the lack of evidence to show that he was unable to do his military duties, he has not been worldwide deployable since Jul 10 and has been on a profile and unable to leave Maxwell AFB. He believes the Board should have learned/found this information. He has AF Forms 422s and 469s that reflect his duty limitations and currently/supposedly going through a Medical Evaluation Board (MEB) process. The TAMP benefits are not explained in laymen's terms by the wing staff. He understands ignorance of the rules/policy is no excuse; however, the ones who deployed as well as the inactive duty medical staff at Maxwell are not knowledgeable of the TAMP benefit. For example, he was going to mental health for treatment and was released when his orders ended 8 Jul 10. He concludes by noting that he has medical conditions that go beyond the 180 days of TAMP medical coverage (Post Traumatic Stress Disorder (PTSD), migraines, high blood pressure, sleep disorder, diseases of hair/hair follicles, skin, and podiatry issues). His medical conditions have prohibited him from advancing in his duty position and promotion to the next higher rank. He deployed to fight for his country and now he want/need someone to fight for him. The applicant’s complete response, with attachments, is at Exhibit E. ________________________________________________________________ ADDITIONAL THE AIR FORCE EVALUATION: The BCMR Medical Consultant recommends granting the applicant partial relief by establishment of active duty status from 8 May 12 through 13 Oct 12. The BCMR Medical Consultant states that it is unclear why the applicant chose treatment by a civilian orthopedic surgeon and a pain management specialist, e.g., whether it was authorized based upon distance or non-availability of a military specialist, whether he actually has received orders for these episodes of care or was it the unauthorized elective choice of the applicant. Sufficient documentation indicates the applicant's back and knee ailments were found in line of duty. No evidence is supplied to reflect the applicant lost civilian pay as a result of his injuries, other than civilian leave he reportedly had to use to attend certain appointments. Nevertheless, an extract from AFI 36-3209, Chapter 9, Evaluation of Air Reserve Component (ARC) Members, paragraph 8.6.2, Duty and Pay Status, reads: "ARC members who incur or aggravate an injury, illness or disease in the line of duty while on orders for more than 30 days are not involuntarily released from those orders until final disposition of their disability case. These members' entitlement to full pay and allowances and benefits continue to the same extent provided by law or regulation to regular component members." The latter extract gives the false impression that, regardless of the disease or injury severity or its impact upon duty performance, the member will be retained on active duty orders. The fact remains that ARC members may be retained in a duty status by AFRC/SG, to perform Unit Training Assemblies and Annual Tours, but not to deploy. This does not preclude placing individuals on orders to receive treatment. The difficulty in the case under review is to determine whether any active duty orders should be contiguous, as in the case of attending weekly physical therapy or chiropractic appointments, or with interruptions to exclude weekends or days when no therapy took place. The applicant contends he should not have been released from orders following his deployment in Jul 10. He cites his forms 469 and 422 as a justification of his contentions. However, the applicant and the Board should be made aware that the mere assignment of a Duty Limiting Condition Report or Physical Profile does not automatically infer that an individual is unable to reasonably perform duties commensurate with his or her office, grade, rank, and rating. In the case of the AF Form 469, any illness, disease, or injury that has not resolved after 365 days [or sooner if not expected to resolve], should also be considered for an MEB. Again, without the actual episodes of care, other than the Duty Limiting Report of 3 Aug 11 [coded 37 with May 12 expiration], the intervening "P3 U3 L3" profile of 6 Aug 11 , the concluding back evaluation of Dec 11 when his back pain had reached MMI, and the pre and post-operative knee assessments of Apr and May 12, it is virtually impossible to accurately make an independent temporal determination of the applicant's ability to perform his military duties at a given time; except for the time he underwent surgical treatment and the recovery/rehabilitation time that followed; and, perhaps, when his pain management doctor opined he had reached maximum medical improvement for his back ailment in Dec 11. The Medical Consultant opines the applicant has not met the burden of proof to justify uninterrupted orders for the entire post-deployment period, as implicitly requested. It appears that AFMOA/SGHI has taken the alternative recommendation to show the applicant was "on orders from the date of his surgery 8 May 12, for a period of 53 days." The fact that the applicant's 13 Oct 12, Notification of Air Force Member's Qualification Status, reverted to "U2" and "L2" profile restrictions is an indicator that he was returned to worldwide qualification status; and could reasonably reflect an end-point of sustained active duty orders, assuming the applicant has not withheld a document reflecting an earlier date of return to worldwide qualification. The complete BCMR Medical Consultant evaluation is at Exhibit F. ________________________________________________________________ APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION: A copy of the additional Air Force evaluation was forwarded to the applicant on 23 Jun 13 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit G). ________________________________________________________________ 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 error or injustice warranting partial relief. We note the opinions and recommendations of the Air Force Medical Operations Agency and the BCMR Medical Consultant; nonetheless, in our view, we believe the applicant has provided substantial evidence that he has been the victim of an injustice. Considering the available medical documentation it is undisputed that the applicant incurred an injury while on an active duty tour of more than 30 days in support of contingency operations, while serving in Iraq. While we did not find any error in the processing of the applicant’s medical LOD determination, based on the preponderance of the evidence, we believe the applicant should have remained on active duty during periods of medical treatment and evaluation. In this respect, we note, subsequent to the applicant’s release from active duty, his physical condition, as evidenced by the documentation from his medical provider and noted by the BCMR Medical Consultant, was constantly changing and because of this his condition worsened over time. In our view, had the applicant received immediate and consistent evaluation and treatment while remaining on active duty, as requested by his medical provider in the duty limiting condition reports, he would have received more appropriate care and his condition may have been resolved sooner. Therefore, while we note the recommendation of the BMCR Medical Consultant, it is our opinion that the applicant should have remained on active duty until his condition(s) had fully resolved. Hence, we believe his record should be corrected to show that he remained on active duty until 13 Oct 12. Accordingly, we recommend the applicant’s 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 8 Jul 10, but on that date he was continued on active duty through 13 Oct 12, at which time he was released from active duty. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-03402 in Executive Session on 25 Jul 13, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence pertaining to AFBCMR Docket Number BC-2012-03402 was considered: Exhibit A. DD Form 149, dated 13 Jul 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFMOA/SGHI, dated 25 Feb 13, w/atchs. Exhibit D. Letter, SAF/MRBR, dated 27 Feb 13. Exhibit E. Letter, Applicant, dated 26 Mar 13, w/atchs. Exhibit F. Letter, BCMR Medical Consultant, dated 17 Jun 13. Exhibit G. Letter, AFBCMR, dated 28 Jun 13, w/atch.