RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-00805 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. He be continued on Medical Continuation (MEDCON) orders from 1 November 2011 through 5 May 2012 and receive back pay and allowances for that timeframe. 2. His Existed Prior to Service (EPTS) Line of Duty (LOD), Service Aggravated determination be changed. ________________________________________________________________ APPLICANT CONTENDS THAT: 1. He was mistakenly taken off active duty orders due to the extended amount of time it took to complete the Line of Duty (LOD) determination. He had knee surgery on 8 September 2011. On 1 November 2011, a decision was made to release him from Title 10 active duty orders and place him on medical continuation (MEDCON) orders. However, the MEDCON orders were not completed. He was told that he had to wait for the LOD determination to be finalized prior to being placed on the MEDCON orders. His LOD determination was completed on 24 February 2012. At that time, he was not placed on MEDCON orders but, was also not cleared to return to duty by his doctor. He was told it was because he was no longer in physical therapy and was only doing home therapy and since he was not actively seeking medical care, he was fit to return to his civilian employment. His duty restrictions at the time were no climbing, no lifting greater than 20 pounds, no twisting, and no running. His military doctor cleared him to return to duty on 5 May 2012. 2. The final LOD determination states that his injury existed prior to service. His injury occurred while he was on duty. He had surgery on the same knee in 1999, however, that was only for an ACL tear. This current injury was on the cartilage in the knee. The two injuries have nothing to do with each other. In support of his request the applicant submitted copies of his AF IMT 348, Line of Duty Determination, medical documents, active duty orders and other supporting documents. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant is currently serving in the Indiana Air National Guard in the grade of Master Sergeant, E-7. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate offices of the Air Force at Exhibits C and D. ________________________________________________________________ AIR FORCE EVALUATION: NGB/SGPF recommends denial. SGPF states they received two incomplete requests for MEDCON orders from the applicant on 27 October 201I and 15 November 2011, respectively. The requests were returned without action as the lacked the required documentation in accordance with (IAW) Medical Continuation Policy Guidelines for Wounded, Ill, and Injured (WII) Air Reserve Component (ARC) Airmen. They received a third MEDCON request on 5 March 2012, and forwarded it to the Air Force Medical Operations Agency (AFMOA), MEDCON validator for validation, approval, and certification. AFMOA determined the applicant was not eligible for MEDCON orders due to the lack of extensive ongoing medical care. His only treatment at that time was a home exercise program. They further advised if the applicant was able to produce substantial documentation constituting the need to be placed on MEDCON orders to provide that information as soon as possible. As an alternative, IAW DoDD 1241.1 and DoDI 1241.2, “if the member can perform military duties but cannot return to his/her civilian job they may be eligible for incapacitation pay which is administered by the ARC component.” The applicant failed to provide evidence of a successful appeal of the denial of his request for MEDCON orders. The complete NGB/SGPF evaluation is at Exhibit C. 1. AFMOA/SGHI recommends denial. SGHI states the applicant sought treatment for an LOD condition while on Title 10, 12301 (D) orders from 1 October 2010 to 30 September 2011. An LOD was initiated on 30 August 2011, and found to be In Line of Duty (ILOD) on 23 November 2011, by the Wing Appointing Authority. On 24 February 2012, HQ's ANG completed a DD 261, Report of Investigation of Line of Duty and Misconduct, and found the injury to be LOD-Service Aggravated. An Air Force Form 469, Duty Limiting Condition Report, was initiated on 19 August 2011, and completed on 10 October 2011, with duty and mobility restrictions of no running with a release date of 8 August 2012. The applicant requests that his LOD finding be changed, stating that the injury was not prior to military service as determined by HQ ANG. However, many of the medical documents submitted indicate the applicant had continuous problems with his knee over the years. Additionally, physical therapy notes indicate similar mechanisms of injury/history. Although they do not have authority on LOD determinations, it appears the LOD determination is appropriate. 2. Furthermore, there is no evidence of a Command Man-Day Allocation System (CMAS) request for MEDCON orders, however, the provided advisory from NGB/SGPF, indicates the applicant submitted requests three separate times. These requests were declined twice by NGB/SGPF for incomplete documentation and once by an AFMOA MEDCON validator for not having an approved treatment plan. A home exercise program does not warrant MEDCON. Per the advisory, they had recommended, if additional information became available, the CMAS request should be resubmitted. It was also recommended that the applicant might be eligible for incapacitation pay. 3. ANGI 36-3001, Air National Guard Incapacitation Benefits, does not specify the process or guidelines on how an Air Reserve Component (ARC) member is determined to be eligible for retention, on active duty orders, until their medical condition is resolved. The SAF/MR memorandum dated 9 December 2011, current at the time of applicant’s release from active duty, and recently revised on 15 August 2012, specifies the eligibility process for Air Reserve Component (ARC) members continuing or returning to Active Duty status for medical conditions. The applicant’s documentation submitted at that time, per the ANG/SGPS, did not meet MEDCON eligibility. 4. The delays in submission of the MEDCON orders requests, and the completion of the LOD on 24 February 2012, appear to be the contributing factors why the applicant’s request was not allocated. It was known as early as 30 August 2011, when the applicant’s LOD was initiated, that medical care was required. Had the request been submitted at any time prior to his surgery, there would have been sufficient time to correct discrepancies in the submitted MEDCON package. It should be noted that the processing of the LOD from August 2011 to February 2012, does exceed the suggested time frame, as noted in the Line of Duty Determination Policy for Members of the Air Reserve Component (ARC) from Assistant Secretary of the Air Force (Manpower and Reserve Affairs), 21 Apr 2010. The complete AFMOA/SGHI evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 8 March 2013 for review and comment within 30 days (Exhibit E). To date, a response has not been received. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. After a thorough review of the evidence of record, we see no evidence of error or impropriety in the LOD process and are not persuaded by the applicant's contentions, that he has been the victim of an injustice. It appears the applicant’s medical case was properly evaluated under the appropriate Air Force regulations, which implement the law. In our opinion, the detailed comments provided by the Air Force office of primary responsibility adequately address these allegations. Therefore, we adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Accordingly, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 4. 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(s) involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ 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 in Executive Session on 14 November 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in AFBCMR Docket Number BC-2013-00805: Exhibit A. DD Form 149, dated 2 February 2013, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, NGB/SGPF, dated 8 March 2013. Exhibit D. Letter, AFMOA/SGHI, dated 25 July 2013, w/atch. Exhibit E. Letter, SAF/MRBR, dated 5 August 2013. 1 2