RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-04415 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: He be continued on Medical Continuation (MEDCON) orders effective 21 Mar 11 to the present. APPLICANT CONTENDS THAT: His MEDCON orders were terminated on 21 Mar 11 due to the anticipated government shutdown. He was allowed to work through 23 Mar 11 as his MEDCON orders were to be extended. Although he incurred an in the Line of Duty (LOD) injury, the orders were coded as an annual tour. In Accordance With (IAW) AFRC 36-3004, Incapacitation Pay and Management of Reservist Continued on Active Duty Orders, members on active duty orders are not involuntarily released if they incur an in the LOD injury. On 2 Sep 09, he had knee surgery and was placed on MEDCON. On 21 Oct 10, an in the LOD determination was approved. On 15 Oct 10, he initiated a LOD determination for his left knee, Existed Prior to Service (EPTS)/service aggravated. The injury and surgery to his right knee contributed to the complications with his left knee. On 22 Mar 11, his request for a LOD determination for his left knee was disapproved. His MEDCON orders should have been extended while he was on modified duties. He was unable to perform his duties as a jet mechanic and was under a doctor’s care. As of this date, his case has not been processed and finalized by the Disability Evaluation System (DES) IAW AFRCI 36-3004, paragraph 1.3. On 22 Apr 11, he submitted an AF IMT 1971, Certification for Incapacitation Pay. The form was signed by the orthopedic surgeon who indicated he was not fit for military duty. On 30 Mar 12, he was advised that his request for Incapacitation Pay (INCAP Pay) was disapproved because he failed to substantiate a compensable loss. On or about 21 Aug 12, he was advised of the second disapproval of his INCAP Pay request and on 3 Sep 12, he submitted an appeal. On 4 Sep 12, he was placed on annual tour orders and his unit has not been successful in reinstating his MEDCON orders. On 10 Nov 12, he submitted an AF IMT 102, Inspector General (IG) Personal and Fraud, Waste & Abuse Complaint Registration, alleging the release of his MEDCON orders and the disapproval of his application for INCAP Pay were not IAW AFRC 36-3004. On 20 Nov 13, he was advised by his unit’s LOD Manager and the IG that he would be placed on MEDCON orders effective 20 Nov 13. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant is a member of the Air Force Reserve. According to a DD Form 214, Certificate of Release or Discharge from Active Duty, he served on active duty for the period of 15 Jun to 29 Dec 09. According to another DD Form 214, he served on active duty for the period of 9 Apr 10 to 23 Mar 11. According to the Command Man-day Allocation System (CMAS) print out dated 4 May 13, he was on MEDCON from 16 Sep 10 through 11 Mar 11 for his right knee. He was also placed on MEDCON orders from 26 Nov 13 through 7 Mar 14. AIR FORCE EVALUATION: AFPC/DPFA recommends approval of MEDCON with modified eligibility. He should be approved for MEDCON/pay and entitlements for the period of 3 Dec 12 through 25 Nov 13 for the injury sustained based on a qualifying Title 10 order, subsequent LOD determination and verified medical proof of injury not-healing correctly on 3 Dec 12. The applicant sustained a right knee injury on 31 Jul 09 and the injury was found to be in the LOD and occurred while on Title 10 active duty orders (confirmed by Medical Case Manager). The active duty orders were in support of the war effort and dated 15 Jun 09 until 30 Sep 09 as confirmed by CMAS. CMAS also reflects he was placed on MEDCON orders on 16 Sep 10 through 11 Mar 11 for his in the LOD medical condition. The second set of MEDCON orders started on 26 Nov 13 and expired 7 Mar 14 with the applicant undergoing knee replacement. During the break between the two MEDCON orders, the applicant was initially finished with treatment with his right knee and started focusing treatment on his left knee. A review of his medical records reflects that he underwent an MRI study on 3 Dec 12 that revealed the previous attempt to repair his right knee was not healing properly. This is the most readily identifiable point in his medical history where he would have met MEDCON eligibility criteria. The injury/aggravation to his left knee was not in the LOD. This finding was finalized on 22 Nov 11 by the AFRC/CV. The complete copy of the DPFA evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 1 Feb 11, he was released to work modified duties. He was advised by his unit LOD manager that his MEDCON orders would be extended and he was authorized to continue to work modified duties through 23 Mar 11. He does not know why CMAS reflects he was medically improved or why the notes from medical reflect “documentation does not support continuation of orders.” He remained under his doctor’s care and supplied all of the medical documentation that was requested. The release impacted his medical coverage and he was unable to get timely medical care. Per AFRCI 36-3004, paragraph 1.3, his MEDCON orders should have been extended since his medical condition had not been resolved. Treatment was denied due to unpaid claims and his case should have been processed and finalized through the DES prior to any adverse action taken towards him. The applicant’s complete submission, with attachments is at Exhibit E. ADDITIONAL AIR FORCE EVALUATION: AFPC/DPFA states their original recommendation is still valid and recommends the applicant’s request for MEDCON be approved with a modified eligibility date from 3 Dec 12 through 25 Nov 13 based on the injury sustained on a qualifying Title 10 order, subsequent LOD determination, and verified medical proof of injury not healing correctly on 3 Dec 12. DPFA recommends no further relief be granted to the applicant due to the fact that no new evidence was submitted to support further MEDCON eligibility. None of the additional documentation submitted changes the facts. To clarify, all of the documentation submitted for medical treatment between 11 Mar 11 and 3 Dec 12 does not support any further consideration of historical MEDCON eligibility under current conditions. Specifically, the treatment documented in his records between 1 Mar 11 and 3 Dec 12 is for the left knee and not the right knee. His left knee condition was found as EPTS and a LOD not applicable by two separate AFRC/CVs. The first time that his left knee condition was found not in the LOD was 22 Nov 11 and the second ruling was administered on 23 Apr 13. Due to the fact that his injury was not in the LOD, and there was no treatment rendered for an in the LOD condition, the applicant is not eligible for any additional MEDCON related benefits. The complete DPFA evaluation is at Exhibit F. APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: His unit LOD manager provides a memorandum dated 30 Dec 14 with a timeline of his injuries. From 16 Sep 10 through 11 Mar 11 he was on MEDCON for his right knee, he was released from MEDCON due to medical documentation only reflecting a treatment plan for his left knee. He was placed back on MEDCON for his right knee on 26 Nov 13 to 16 Apr 14 and is pending an MEB. The applicant’s complete submission, with attachments, is at Exhibit H. 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 to warrant placing the applicant on MEDCON orders from 21 Mar 11 to the present. The medical documentation provided by the applicant is noted; however, he has not provided substantial evidence which, in our opinion, successfully refutes the assessment of his case by the Air Force Office of Primary Responsibility (OPR). Therefore, we agree with the opinions and recommendations of the Air Force OPR and adopt its rationale as the basis for our conclusion that the applicant has failed to sustain his burden of proof that he has been the victim of an error or injustice. In the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 4. Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of error or injustice to warrant partial relief. Having carefully reviewed this application, we agree with the recommendation of the Air Force OPR and adopt the rationale expressed as the basis for our decision that the applicant has been the victim of either an error or an injustice. Therefore, we recommend the applicant’s records be corrected to show that he was placed on MEDCON from 3 Dec 12 until 25 Nov 13. Accordingly, we recommend the applicant’s records be corrected to the extent indicated below. 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 the APPLICANT be corrected to show that for the period 3 December 2012 through 25 November 2013, he was placed on active duty, for the purposes of medical continuation in accordance with Title 10, U.S.C. § 12301(h). The following members of the Board considered AFBCMR Docket Number BC-2013-04415 in Executive Session on 20 Jan 15 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 8 Sep 13, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPFA, dated 13 Feb 14. Exhibit D. Letter, SAF/MRBR, dated 18 Apr 14. Exhibit E. Letter, Applicant, dated 5 May 14, w/atchs. Exhibit F. Memorandum, AFPC/DPFA, dated 3 Oct 14. Exhibit G. Letter, SAF/MRBR, dated 28 Nov 14. Exhibit H. Memorandum, 452 AMDS, dated 30 Dec 14, w/atchs.