RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-04960 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: She receive incapacitation (INCAP) pay for the period 9 Jan 14 to 28 Aug 14. APPLICANT CONTENDS THAT: She was on active duty orders for more than 30 days when she incurred her injury. She was removed involuntarily from Active Duty Special Work (ADSW) orders while pending notification for medical continuation (MEDCON) orders. She should have received INCAP pay for the time period she was undergoing her medical evaluation board (MEB) and for the time period she was removed from ADSW orders and denied MEDCON orders. Her request for INCAP pay was denied because she was kept on orders after her initial injury. Her initial injury was determined to have existed prior to service (EPTS) and then deemed in line of duty (ILOD). Her line of duty (LOD) determination was initially denied but was approved for reinvestigation and subsequently approved. Her AF Form 469, Duty Limiting Condition Report, was annotated for duty limitation but did not contain comments as to what limitations. She was unemployed before coming on orders. According to the DODI 1241.2, Reserve Component Incapacitation System Management, a member does not have to be able to return to civilian employment to qualify for incapacitation pay, nor, do they have to demonstrate a loss of civilian income when they are found not fit to perform military duties. According to AFI 36-2254V1, Reserve Personnel Participation, a service member that has a disqualifying condition in accordance with AFI 48-123, Medical Examination and Standards, is not allowed to participate in any pay or point gaining activity until the disqualifying condition has been removed, or an approved waiver has been granted. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to documents extracted from her military personnel record (MPR), on 22 May 96, the applicant initially enlisted in the Regular Air Force. On 15 Jun 99, she was honorably released from active duty and discharged on 11 Jan 00. She served with the Army National Guard from 12 Jan 00 to 11 Jan 01. On 5 Jun 01, the applicant enlisted in the Regular Air Force and was honorably discharged on 19 Dec 05. On 22 Jan 07, the applicant commenced her enlistment in the Air Force Reserve. She was progressively promoted to the grade of technical sergeant E-6, and was relieved from active duty on 28 Aug 14 and permanently disability retired on 29 Aug 14, with a compensable percentage for physical disability of 50 percent. On 18 Jun 12, the applicant was placed on Active Duty for Special Work (ADSW) orders with a release date of 18 July 12, however, subsequent to an injury to her left knee on 28 Jun 12, her orders were amended several times extending her service through 8 Jan 14. On 28 Jun 12, the applicant incurred an injury to her left knee while participating in physical training (PT). On 23 Jul 12, the applicant sought medical treatment for her knee injury and was diagnosed with Anterior Cruciate Ligament (ACL) tear. On 6 Sep 12, an LOD determination was initiated to evaluate the applicant’s left knee ACL injury. On the same date the applicant’s injury was determined to be ILOD. Another LOD determination was initiated to evaluate the applicant’s right knee and back pain that she developed as a result of compensating for her left knee injury. Subsequent to two reviews, the Air Force Reserve Component (AFRC) LOD Board concurred with the finding of ILOD for the applicant’s right knee and back pain. On 17 Jun 13, an LOD determination was initiated to evaluate the applicant’s carpal tunnel syndrome of the left hand. On 9 Jul 13, her carpal tunnel syndrome was found to be ILOD and forwarded to the AFRC LOD Board. On 3 Oct 13, the AFRC found the applicant’s carpel tunnel syndrome to be EPTS-LOD Not applicable. On 9 Dec 13, an LOD determination was initiated to evaluate the applicant’s pain disorder associated with both psychological factors and general medical condition associated with challenges of treatment and LOD determination processing. The recommended finding was ILOD; however the final decision was Not ILOD-Not Due to Own Misconduct. On 8 Jan 14 the applicant was involuntarily removed from ADSW orders. On 24 Jan 14, the applicant submitted a request for INCAP pay for the period 9 Jan 14 through 3 Jul 14. She signed a statement of earned income indicating that she did not earn any civilian income for the period 9 Jan 14 to 3 Jul 14. On 5 May 14, the applicant’s commander denied the request for INCAP pay noting there was no evidence the applicant was employed prior to her active duty tour. The commander further noted although she is currently unemployed there is no evidence to support her knee injuries she experienced in 2012 prevented her from finding employment in her primary career field. She appealed and the appeal was denied on 11 Jul 14. On 27 Mar 14, the applicant underwent an MEB review for plantar fasciitis, chronic migraines, bilateral patellofemoral dysfunction and chronic back pain with L5-S1 Arthropathy. Her case was referred to the Informal Physical Evaluation Board (IPEB). On 22 Apr 14, the IPEB determined the applicant’s medical condition was not likely to change over the next several years and prevented her from reasonably performing the duties of her office, grade, rank, and rating. On 17 Jul 14, the IPEB recommended the applicant be permanently disability retired with a combined rating of 50 percent in accordance with the Veterans Administration Schedule of Rating Disabilities (VASRD) guidelines. On 28 Jul 14, the applicant concurred with the findings and recommendation of the IPEB. By memorandum dated 26 Aug 14, the Physical Evaluation Board Liaison Officer (PEBLO) noted the applicant’s MEB took eight months to process, she was not on orders during this period, and she should not have been involuntarily released from orders until the disability case was finalized. On 28 Aug 14, the applicant was relieved from active duty and permanently disability retired with a 50 percent disability rating. AIR FORCE EVALUATION: ARPC/DPAA recommends denial indicating there is no evidence of an error an injustice. DPAA states there is no evidence to show the applicant met the criteria for award of INCAP pay. The applicant submitted an incapacitation pay request for the period of 9 Jan 14 through 28 Aug 14, which was disapproved by the wing commander. The applicant appealed and her request was reviewed by both the Command’s Surgeon General Office and Judge Advocate General Office. Both agencies provided comments, non- concurred with her request and agreed with the wing commander’s disapproval of incapacitation pay. HQ AFRC/A1 provided a memorandum to the applicant on 11 Jul 14, stating that upon consultation with Surgeon General and Judge Advocate offices, her appeal for incapacitation pay was disapproved. A complete copy of the ARPC/DPAA evaluation is at Exhibit C. AFPC/DPFA recommends denial indicating there is no evidence of an error or an injustice. MEDCON eligibility requires an LOD determination and a finding by a credentialed military health care provider showing the service member has an unresolved health condition requiring treatment. The applicant failed to provide documentation or evidence from a military health care provider stating she had an unresolved health condition that required treatment. Furthermore, she was found fit for duty. The applicant’s situation does not meet the criteria for the MEDCON. In addition, there is no evidence of an error by the Air Force. The applicant has the right to appeal the denial, however, there is no evidence she submitted an appeal. Lastly, the applicant can receive continued medical care utilizing the LOD, Transitional Assistance Management Program), or Tricare Reserve Select as applicable. A complete copy of the AFPC/DPFA evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 1 Jun 15, for review and comment within 30 days (Exhibit E). As of this date, no response has been received by this office. ADDITIONAL AIR FORCE EVALUATION: The AFBCMR Medical Consultant concedes that denial of INCAP pay may have been administratively justified, in the context of the applicant’s demonstrated ability to perform “some” of her military duties and the implicitly insufficient substantiation of civilian income loss; presumably due to unemployment. This reviewer could not validate whether the applicant was unemployed prior to her application for INCAP pay and whether unemployment itself disqualifies her for such pay; particularly if released due to a medical condition. The Medical Consultant also concedes there is an appearance of “stacking the deck” in acquiring LOD determinations over a progression of time for one or more medical conditions, perceived by some as having little to no adverse impact on the performance of military duties; implicitly rendering her Fit for military service. However, based upon the contents of the MEB narrative summary, conducted well in advance of termination of the applicant’s orders, the AF Forms 469, coded “37” from Jul 13, the Medical Consultant found sufficient evidence of unresolved functional impediments to duty that affected the applicant’s retainability as a Total Force asset. While performance of duty is a partial disqualifier for INCAP Pay [absent proof of loss of civilian income], under MEDCON policy, the applicant would have been expected to perform military duties to the extent duty restrictions allowed and, thus, would not be a sole basis for denial of this optional remedy. The Medical Consultant notes that the applicant did not specifically request MEDCON orders. However, given the facts of the case, he believes other existing AF policies would justify placing the applicant on active duty orders, under the appropriate nomenclature, from the time her orders were discontinued in Jan 14 to the time she was retired from military service. The Medical Consultant recommends the Board’s consideration of the aforementioned facts and evidence in rendering its final decision. A complete copy of the AFBCMR Medical Consultant’s evaluation is at Exhibit F. APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: A copy of the additional Air Force evaluation was forwarded to the applicant on 10 Dec 15, for review and comment within 30 days (Exhibit G). As of this date, no response has been received by this office. 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 of an error or injustice has been presented regarding the applicant’s request to be granted incapacitation pay for the period 9 Jan 14 to 28 Aug 14. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant did not meet the criteria for incapacitation pay for the period in question. Accordingly, the applicant’s request is not favorably considered. 4. Notwithstanding our findings above, we believe sufficient evidence has been presented to warrant partial relief. In this regard, we note the AFBCMR Medical Consultant concludes that in accordance with DoDI 1241.2 Reserve members on orders for more than 30 days who incur a condition in the line of duty that renders them unfit for military duty will be retained on active duty orders until they are either found fit for duty or separated via the disability evaluation system (DES). In view of this and since the applicant was on such orders at the time of her 28 June 2012 injury, which was determined to be in line of duty (ILOD), she should have been retained on active duty until the final disposition of her DES processing occurred. We believe the applicant has provided sufficient evidence to warrant her continuance on active duty orders until such time as her LOD medical condition was resolved. Therefore, the applicant’s record should be corrected as 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 issues 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 she was not released from active duty on 8 January 2014, but was continued until 28 August 2014. The following members of the Board considered AFBCMR Docket Number BC-2014-04960 in Executive Session on 20 Jan 16, under the provisions of AFI 36-2603: , Panel Chair , Member , Member ? All members voted to correct the records as recommended. The following documentary evidence pertaining AFBCMR Docket Number BC-2014-04960 was considered: Exhibit A. DD Form 149, dated 1 Dec 14, w/atchs. Exhibit B. Applicant's Master Personnel Record. Exhibit C. Memorandum, ARPC/DPAA, dated 3 Feb 15. Exhibit D. Memorandum, AFPC/DPFA, dated 27 Mar 15 Exhibit E. Letter, SAF/MRBR, dated 1 Jun 15. Exhibit F. Memorandum, AFBCMR Medical Consultant, dated 1 Dec 15. Exhibit G. Letter, AFBCMR, dated 10 Dec 15. 1 2