RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-02172 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: He receive incapacitation (INCAP) pay for the periods Dec 12 through Jun 13, Jun 13 through Dec 13, and Dec 14 through May 14. APPLICANT CONTENDS THAT: The ankle injury he sustained in Jun 12 while performing his military duties prevented him from working, and he was unjustly denied his request for additional INCAP pay. He was initially entered into the INCAP Program and received INCAP pay from Jun 12 through Dec 12. Having to compensate for his “left FHL tendon injury” led to multiple injuries to include his bilateral achilles tendon and right plantar tendon, as well as right hip impingement, bulging discs with flattening fluid sac and left knee patella injury. Even though the complications from his injury prevented him from going to work, his requests for INCAP pay after Dec 12 were denied. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant served in the Air National Guard (ANG) during the period of time in question. According to the documentation submitted by the applicant: a.  On 8 Jun 12, while serving on active duty during the period 4 Jun 12 through 8 Jun 12 on Special Order A-J000941, dated 8 May 12, the applicant “was stepping back during training and felt a pop in his left ankle.” He reported to the emergency room and was diagnosed with “left ankle sprain.” b.  On 28 Jun 12, the applicant received an AF IMT 348, Line of Duty Determination, for “left ankle strain” which reflected the injury was sustained “in the line of duty (ILOD).” c.  On 14 Nov 12, the applicant received a NAVHOSPJAX Form 6320/15, Duty Status Recommendation Form, placing him on light/restricted duty for 30 days or until 14 Dec 12, with the following instructions “Desk work only. Patient is ambulate within comfort.” d.  On 7 Mar 13, the applicant received an IMT 348 for “femoral acetabular impingement right hip” which stated “these could be compensatory for the altered gait from the left foot problem,” and therefore, were also determined to be ILOD. e.  On 19 Jul 13, the applicant was furnished an AF Form 469, Duty Limiting Condition Report, indicating both duty and mobility restrictions. He was restricted from running 99.9 yards, lifting 20 pounds, prolonged standing, climbing stairs, performing duties in a confined space, walking over 800 yards, walking on excessively angled surfaces, running, jumping, and climbing ladders. These limitations were to expire on 20 Jun 14. The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPRs), which are attached at Exhibits C and D. AIR FORCE EVALUATIONS: NGB/A1PS recommends denial indicating there is no evidence of an error or an injustice. The applicant’s current physical restrictions for his medical condition should not prevent him from performing his military duties. NBG/SG asked for medical documentation supporting his loss of income due to medical appointments or documentation of his inability to work his required 40 hour week. The medical documentation provided to NGB/SG does not support his attending appointments during the claimed loss of income days. Physical therapy notes indicate the applicant has been spending his weekends going against what his medical profile states is causing him to call into work due to pain. NGB/SG found the applicant non-compliant with his recommended duty/mobility restrictions and course of therapy. A complete copy of the NGB/A1PS evaluation, with attachment, is at Exhibit C. NGB/SGPA recommends denial indicating there is no evidence of an error or an injustice. The applicant is a full time “dual” technician, so his duties as a technician are the same as his military duties. The applicant suffered an ankle injury while performing military duty in Jun 12. An LOD determination found his sprained ankle to be ILOD. He was placed on light duty for seven days. His AF Form 469 reflects he was restricted from running greater than 99 yards, prolonged standing and lifting greater than 20 pounds. The AF Form 469 stated the applicant was able to perform desk duties. According to his Medical Group, since Dec 12 the applicant reports for his technician duties on Mondays and Tuesdays, leaves early on Wednesdays and calls in sick on Thursdays and Fridays due to ankle pain. There is no documentation to show the member was going to his medical appointments or that his duties were aggravating his ankle sprain. Review of the medical documentation does not support the claim the member cannot perform his military duties. Furthermore, his physical therapy notes state the member is spending his weekends hiking, which is against the medical advice in his documentation. The medical documentation states the member was on light duty and was able to perform his duties. A complete copy of the NGB/SGPA evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS: In further support of his request, the applicant submits a substantial rebuttal alleging his injuries are now permanent and his case is still being processed through the Disability Evaluation System (DES), and he submits medical records from the Navy health clinic along with multiple leave request forms showing he took leave without pay during the period in question (Exhibit F). ADDITIONAL AIR FORCE EVALUATION: The BCMR IMA Medical Consultant recommends granting the applicant’s request. The records indicate several endorsements for continued INCAP pay by clinical staff who provided treatment to the applicant for multiple abnormalities including left foot tendonitis, left knee and hip pain, and right ankle and lower back pain. A memorandum from the Medical Standards Branch (NGB/SGPF) on 15 Apr 13, directed an MEB, and continuation of a duty limiting profile and medical mobility restriction for Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB) processing, code 37, until disability evaluation processing is completed. The case was reviewed by the IPEB on 8 May 14, finding the applicant’s injuries unfitting; resulting in a combined disability rating of 20%. On 4 Aug 14, the Secretary of the Air Force Personnel Council (SAFPC) affirmed the determination of unfitting, assigned a combined disability rating of 20 percent, and designated both unfitting conditions as combat-related. The reviewer opines that the applicant was under substantial duty/mobility restrictions from the period 8 Jun 12 through 20 Jun 14. These restrictions indicate the existence of substantial limitations on the applicant’s ability to maintain civilian employment and perform full duty in his assigned Air Force Specialty Code (AFSC) during this period. ANGI 36-2001 states “If a member is not fit for full military duty, incapacitation was in the LOD, the member is able to perform civilian job, but not fully, and losses income then the member is entitled under Title 37 United States Code §204(h) to the amount of loss of income up to the amount of pay and allowances.” The period of incapacitation is determined by the treating physician with the member’s unit commander. Review of the available documentation indicates repeated written endorsement of the applicant’s unit commander for continuation of INCAP pay during the treatment period. There is no documentation supporting the contention the applicant was non-compliant with medical appointments or failed to follow the prescribed physical therapy treatment plan. Recommend approval of the applicant’s request for INCAP pay during the period Dec 12 through May 14. A complete copy of the BCMR IMA Medical Consultant’s evaluation is at 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 an injustice. We took notice of the applicant's complete submission in judging the merits of the case, to include his rebuttal response to the advisory opinion, and agree with the opinion and recommendation of the BCMR IMA Medical Consultant and adopt his rationale as the basis for our conclusion that relief should be granted. Therefore, 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 the APPLICANT be corrected to show that competent authority approved his requests for incapacitation (INCAP) pay for the periods 8 December 2012 through 6 June 2013, 7 June 2013 through 7 December 2013, and 8 December 2013 through 7 May 2014. The following members of the Board considered AFBCMR Docket Number BC-2014-02172 in Executive Session on 11 Jun 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 26 May 14, w/atchs. Exhibit B.  Applicant's Master Personnel Records. Exhibit C.  Memorandum, NGB/A1PS, dated 17 Jun 14, w/atch. Exhibit D.  Memorandum, NGB/SGPA, dated 7 Jan 15. Exhibit E.  Letter, SAF/MRBR, dated 11 Feb 15. Exhibit F.  Letter, Applicant, undated, w/atchs. Exhibit G.  Memorandum, BCMR IMA Medical Consultant, dated 31 Mar 14. Exhibit H.  Letter, SAF/MRBR, dated 2 Apr 15.