RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-03804 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His records be corrected to show that he was not released from active duty on 14 Sep 2011, but instead continued on active duty for medical continuation (MEDCON) until present. 2. Twenty-eight days of leave be restored to his leave balance. _________________________________________________________________ APPLICANT CONTENDS THAT: 1. While on an active duty deployment to Kuwait, he sustained an injury to his back; however, he was released from active duty when his injury was erroneously found to have existed prior to service (EPTS). After appealing the decision, it was determined that his injury was in LOD and he should have been retained for MEDCON. 2. As a result of his erroneous release from active duty, he was forced to sell back 28 days of leave. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant currently serves in the Air Force Reserve in the grade of staff sergeant (E-5). On 14 Oct 10, the applicant was ordered to active duty in support of Operation ENDURING FREEDOM under the provisions of Partial Mobilization, 10 U.S.C. 12302. According to the remarks section of the applicant’s DD Form 214, he served in the Area of Responsibility (AOR) from 12 Dec 10 through 30 Jan 11. On 26 Jul 11, the applicant was released from active duty due to demobilization. On 27 Jul 11, the applicant was ordered to active duty voluntarily in accordance with the provisions of 10 U.S.C. Section 12301(d). On 14 Sep 11, the applicant was released from active duty and reverted to his traditional (part-time) status as a member of the Air Force Reserve. Title 10, United States Code, Section 12301 (h) provides authority to order a member of the reserve forces to active duty to receive authorized medical care or to be medically evaluated for disability or other purposes. A member ordered to active duty under this authority may, with the member’s consent, be retained on active duty for medical treatment for a condition associated with the evaluation. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force, which is at Exhibit C. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIM recommends denial of the applicant’s request to restore leave that he was forced to sell back after being released from the Air Force Reserve, indicating the applicant was discharged according to the prescribed guidance at the completion of his required active service. The applicant’s AFRC IMT 348, Informal Line of Duty Determination, indicated he required surgical intervention and was evacuated back to the CONUS for follow up treatment. The applicant was released from the Air Force Reserve on 14 Sep 11 with an honorable discharge and sold back 28 days of accrued leave for the active duty period of 14 Oct 10 through 14 Sep 11. In accordance with AFI 36-3209, paragraph 3.12.1, “Expiration of Enlistment, members are discharged at the expiration of an enlistment or completion of their MSO, whichever is later.” Paragraph 3.13.14 states, “The member is ineligible for transfer to a different AFSC or position in which the member would be fit for duty, or such transfer is considered inappropriate.” The applicant was deemed unfit for duty because of his back injury sustained on his deployment to Kuwait in 2011. A complete copy of the AFPC/DPSIM evaluation is at Exhibit C. AFMOA/SGHI recommends granting the applicant’s request to remain on active duty orders and receive service points for the time period of 13 Sep through 26 Oct 12 [sic] indicating, the applicant would not have been released from active duty, but would have received six weeks of physical therapy for his injury had his injury originally been found in the line of duty (LOD). The applicant was continued on MECON orders from 27 Jul 11 through 12 Sep 11 for treatment of his back injury; however, he was released on 12 Sep 11 after his injury was found to have existed prior to service (EPTS) on 23 Aug 11. The applicant appealed the LOD finding and, on 23 Feb 12, the finding was changed to in the LOD. It was revealed through previous medical documentation, dated 8 Sep 11, the applicant required six weeks of physical therapy for his LOD injury. He did not receive the recommended treatment due to his LOD being found EPTS-LOD N/A. Subsequently, he applied for but was declined for MEDCON orders due to lack of a conclusive treatment plan. He has not reapplied for MEDCON orders since Jul 12. A complete copy of the AFPC/DPSIM evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 8 May 13 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit E). __________________________________________________________________ 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 partial relief. The applicant contends that he should have retained on active duty for the purposes of medical continuation (MEDCON), but instead was released from active duty when his condition was erroneously determined to have existed prior to service (EPTS). After a thorough review of the evidence of record and the applicant’s complete submission, we believe a preponderance of the evidence supports some corrective action. In this respect, we note the comments of AFMOA/SGHI indicating the applicant has provided evidence indicating that he required treatment of his condition for approximately six weeks subsequent to his release from active duty. Therefore, we recommend his records be corrected to the extent indicated below. 4. Notwithstanding the above, we find insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice concerning his request to remain in a MEDCON status until the present and that he have 28 days of leave restored. While the evidence of record indicates that his line of duty (LOD) condition was initially found to be EPTS, but later reversed on appeal, said reversal is not sufficient for us to determine that he should have been continued on active duty for MEDCON to this day. That being said, he has provided no evidence whatsoever that would convince us that he was somehow unfit for duty subsequent to this period and, thus, should have been retained on active duty for MEDCON beyond the initial six- week period of treatment. As for his request related to the sale of his leave, the applicant has provided no evidence whatsoever to indicate that he was somehow precluded from taking leave during the year that preceded his release from active duty. Therefore, we find no basis to disturb the existing record in this respect. _________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that on 14 September 11, he was not released from active duty, but on that date he continued to serve on active duty through 26 October 2011 under the provisions of Section 12301(h) of Title 10, United States Code, for the purpose of medical continuation. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-03804 in Executive Session on 25 Jun 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the records as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 12 Jul 12. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSIM, dated 12 Mar 13. Exhibit D. Letter, AFMOA/SGHI, dated 29 Apr 13. Exhibit E. Letter, SAF/MRBR, dated 8 May 13.