RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-03094 XXXXXXX COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ THE APPLICANT REQUESTS THAT: He receive retirement points for the period 27 Sep 10 through 1 Apr 12 rather than Incapacitation Pay (INCAP Pay). ________________________________________________________________ THE APPLICANT CONTENDS THAT: While on extended active duty, in Jul 10, he injured his back and was released from active duty; however, he should have remained on active duty until his medical condition was resolved. He questioned why he was taken off orders and was told that no one had picked up the days, so he had to be placed in an INCAP Pay status. For the next 18 months he had to provide all medical information to the clinic and have his doctors fill out forms monthly in order to get paid. His biggest complaint is that while he was in INCAP Pay status he did not receive any retirement points. In support of his appeal, the applicant provides a personal statement; active duty orders for the period, 2 Jun – 26 Sep 10; Command Man-Day Allocation System (CMAS) Request Summary; AF Form 348, Line of Duty Determination (LOD), dated 6 Oct 10; MEDCON orders for the period, 2 Apr – 1 Jun 12; Duty Limiting Condition Report, dated 12 Feb 13, and various other supporting documents. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant was a member of the West Virginia Air National Guard (WVANG). On 2 Jun 10, the applicant was recalled to Extended Active Duty (EAD) under Title 10, USC §12301(d). On or about (o/a) 1 Jul 10, the applicant was moving construction materials (unloading a door from the back of a pickup truck and moving a railroad tie) when he hurt his back. The military medical provider, at Wake Island, initially identified it as a pulled muscle. O/a, 24 Jul 10, the medical provider noticed worsening symptoms and significant tenderness in the applicant's lower back and recommended a referral evaluation be conducted at Hickam AFB. On 26 Sep 10, the applicant was released from active duty. On 1 Aug 11, the applicant received INCAP Pay until on or about 27 Mar 12. On 2 Apr 12, the applicant was placed on EAD to have his conditions considered through the Integrated Disability Evaluation System (IDES). On 17 Jul 12, the applicant’s request for relief, dated 19 Apr 12, was received. On 19 Dec 12, the applicant’s request was administratively closed advising him that he had not exhausted his administrative remedies. On 11 Jun 13, the applicant requested his application be reopened. He reiterates his original contentions to receive active duty points rather than INCAP Pay and states that his previous requests for MEDCON had been denied. He notes that the governing DoD instructions authorizes a Reserve member who injures him/herself on active duty, while on orders of 31 days or more “who incurs or aggravates an injury, illness, or disease in the line of duty shall, with the members 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 retired as a result of a DES determination.” On 28 Jun 13, the applicant was released from EAD and the WVANG, by reason of retirement disability, permanent, in the grade of master sergeant. On 29 Jun 13, the applicant was permanently disability retired with a compensable disability rating of 40 percent. He was credited with 27 years, 10 months, and 9 days of service for basic pay. Due to the conflicting documentation in the applicant’s record between the available records and the Military Personnel Data System (MilPDS), the Air Reserve Personnel Center (ARPC) will administratively correct the applicant’s record to reflect that he was on EAD from 2 Apr 12 – 28 Jun 13. ________________________________________________________________ THE AIR FORCE EVALUATION: AFMOA/SGHI recommends the applicant’s request for retirement points for the period 27 Sep 10 to 1 Apr 12 be approved. The records should be corrected to show his MPA orders were extended by up to 30-days to initiate an LOD determination and AF Form 469, Duty Limiting Condition Report, when further medical evaluation was warranted, as set forth in AFI 48-123, Medical Examinations and Standards. The complete SGHI evaluation is at Exhibit C. NGB/A1P concurred with the Subject Matter Expert (SME) and did not make a recommendation. Since it was unclear whether MEDCON was actually denied, A1PS advised that the applicant should contact his unit Medical Group and forward the required documents for "Initial" MEDCON orders to the Air Reserve Component Case Management Office so that his MEDCON eligibility could be validated. The SME noted that a review of the contents revealed that the applicant’s LOD was determined to be “In the Line of Duty.”· There were no further medical records for review in this application. To date, no medical treatment records or duty restriction documentation has been forwarded or received for review by NGB/SGPF. On 10 Jun 11, NGB/SGPF received a request for INCAP Pay and again on 20 Oct 11, both requests were endorsed. On 27 Mar 12, a request for MEDCON orders was routed to NGB for consideration. The Military Personnel Appropriation (MPA) Management Office (MMO) reviewed the request for eligibility and MEDCON was approved through 09 Nov 12 by the Air Force Medical Operations Agency (AFMOA). The complete A1P evaluation, with attachment, is at Exhibit D. AFPC/DPFA did not make a recommendation, noting that there were not enough facts to determine if a mistake, error or unjust action occurred as a result of determining eligibility or validation for MEDCON. DPFA noted that the applicant had a valid line of duty determination which would have authorized access to care through the Department of Defense (DoD) Military Treatment Facilities (MTFs). The applicant was authorized and approved for INCAP Pay by NGB/A1 based on injuries sustained during Title 10 service. He was also placed on MEDCON orders while recently undergoing review within the IDES. The complete DPFA evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: Since the application was previously closed, copies of the Air Force evaluations were not forwarded to the applicant until 19 Sep 13 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit F). ________________________________________________________________ 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 corrective action. According to SGHI, the applicant had a Line of Duty (LOD) initiated on 1 July 2010 which was subsequently approved by his wing commander on 8 Oct 10. However, contrary to established guidance dictating that he remain in an active duty status until his medical condition was resolved he was placed in an INCAP Pay status and therefore did not receive the appropriate retirement points. Therefore, we recommend that he be placed on medical continuation orders for the period 27 Sep 10 to 1 Apr 12, rather than being in an INCAP status. We note that based on the recommended corrections to his record, any back pay may be offset by any INCAP or active duty pay he received. Accordingly, we recommend his 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 for the period 27 September 2010 through 1 April 2012, he was placed on active duty, for the purposes of medical continuation in accordance with Title 10, U.S.C. §12301(h), rather than authorization for incapacitation pay. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-03094 in Executive Session on 15 May 14, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the records, as recommended. Although XXXXXXXXXX chaired the panel, in view of her unavailability, XXXXXXXXXX has signed as Acting Panel Chair. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 19 Apr 12, w/atchs. Exhibit B. Applicant’s Available Master Personnel Record. Exhibit C. Letter, AFMOA/SGHI, dated 13 Sep 12. Exhibit D. Letter, NGB/A1PS, dated 1 Oct 12, w/atch. Exhibit E. Letter, AFPC/DPFA, dated 22 Jul 13. Exhibit F. Letter, SAF/MRBR, dated 19 Sep 13. 1 2