RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-02113

   	COUNSEL: NONE
	
	HEARING: NO

APPLICANT REQUESTS:

He be granted medical continuation (MEDCON) orders covering the period 11 Sep 12 through his medical retirement date.  

As amended, his receipt of Incapacitation (INCAP) Pay during the requested period for MEDCON orders be converted to MEDCON orders.   

APPLICANT CONTENDS:

He was improperly released from active duty due to his line-of-duty (LOD) injuries.  He should have been continued on active duty on MEDCON orders through his retirement date.  He had to file a Congressional Inquiry in order to obtain some relief, which was retroactive INCAP Pay, but that was insufficient relief because it denied him the active duty service credit and related benefits he was entitled to with the MEDCON orders he qualified for.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant served in the Air Force Reserve in the grade of captain.  

On 10 Sep 12, the applicant was furnished an honorable discharge certificate and was credited with serving 5 years and 24 days of active service.  

On 11 Apr 17, the Informal Physical Evaluation Board (IPEB) found him unfit for further military service due to left rotator cuff tendonitis, intervertebral disc disorder herniated nucleus pulposes/cervical, and intervertebral disc disorder, lumbar neuritis with radiculopathy, and recommended permanent retirement with an 80 percent combined compensable percentage.  

Under Special Order No. ACD-02621, dated 8 Jun 17, the applicant was relieved from active duty and permanently disability retired with a compensable disability rating of 80 percent, effective 28 Jun 17. 

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C, D, and F.

AIR FORCE EVALUATIONS:

AFPC/DPFA recommends denying the applicant’s request for award of MEDCON orders.  The applicant did not meet the criteria for award of MEDCON from 31 Jan 14 to 28 Oct 14.  Additionally, the applicant received retroactive Incapacitation (INCAP) Pay from 1 Jan 14 through 12 Sep 14.  The applicant cannot receive concurrent pay, so any granted MEDCON entitlement would need to be reduced by the INCAP pay award.  The complete advisory is at Exhibit C.

AFBCMR Medical Advisor recommends denying the application. During the course of his Officer’s Training School (OTS) training, the applicant sustained injuries to the neck, shoulder, and lower back, although the resultant pain and ultimately in-line-of-duty (ILOD) determinations were not accomplished during the same timeframe.  The Medical Advisor notes the applicant  received approvals for INCAP pay, collectively covering 12 Sep 12 through 12 Sep 14.  This automatically eliminates the eligibility for MEDCON orders during this period, since members cannot receive both for the same period.  There may be other time-periods during CY15, CY16, or CY17 that may warrant placement on some type of active duty orders, if INCAP pay was not provided.  However, the applicant provided no evidence verifying which periods, if any, he received additional INCAP pay.  Due to the fact the applicant received INCAP pay for a significant portion of the period under petition, the Medical Advisor recommends denial of his current petition.  The applicant has not met the burden of proof of error or injustice that warrants the desired change of the record.  The complete advisory is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

The Board sent a copy of the Air Force evaluation to the applicant on 18 May 18 for comment (Exhibit E), and the applicant replied on 14 Jun 18 (Exhibit H).  In his rebuttal, the applicant contends he is not requesting both MEDCON and Incapacitation Pay (INCAP) for the period mentioned.   The request was for the INCAP Orders to be converted into MEDCON Orders instead to provide him with points for time-in-service and any additional benefits that would have been provided under MEDCON.  He is also requesting the MEDCON Orders be extended through the effective date of my retirement.  

ADDITIONAL AIR FORCE EVALUATION:

AFPC/DPFA recommends granting the applicant MEDCON orders covering the period 13 Sep 14 through 28 Oct 14, but recommends denying the remainder of his request.  The applicant presented four line-of-duty (LOD) determinations and his entire medical record.  Three of his LOD determinations (tendonitis left rotator cuff, intervertabral disc disorder, and herniated nucleus pulposus) did not qualify for MEDCON orders.  His fourth LOD, intervertabral disc disorder--lumbar neuritis, for which he had two surgeries, would have qualified for MEDCON orders from 31 Jan 14 through 28 Oct 14.   However, the applicant received retroactive INCAP pay from 1 Jan 14 through 12 Sep 14.  Members cannot receive concurrent INCAP pay and MEDCON orders, so any granted MEDCON entitlement would need to be reduced by the INCAP pay award period.  Therefore, he is only eligible to receive military pay and points for 46 days during the period 13 Sep 14 to 28 Oct 14.  The complete advisory is at Exhibit F.

APPLICANT’S REVIEW OF THE FIRST ADDITIONAL AIR FORCE EVALUATION:

The Board sent a copy of the additional Air Force evaluation to the applicant on 14 Jun 18 for comment (Exhibit G), but has received no response.
ADDITIONAL AIR FORCE EVALUATIONS:

AFPC/DPFA recommends partially granting the applicant’s request.  Based upon the applicant’s clarification in his rebuttal indicating he is not requesting MEDCON orders and INCAP pay for the same period, but is requesting his INCAP Orders to be converted into MEDCON Orders, AFPC/DPFA recommends granting MEDCON orders for the period for which he originally qualified for MEDCON orders.  He is entitled to service credit and any pay differential for the period he was eligible for MEDCON (31 Jan14 through 28 Oct 14, 271 days).  

However, AFPC/DPFA does not concur with the applicant’s request to remain on MEDCON orders until his retirement date.   When a medical condition is sufficiently resolved so the member no longer has retention or mobility restrictions, the medical profile is removed by the medical provider and the eligibility period for MEDCON ends.  In the applicant's case, this occurred on 28 Oct 14 when his medical profile was not extended by his medical provider.  The applicant would have had to already been in the Integrated Disability Evaluation System (IDES) in order to have a basis to remain on orders beyond 28 Oct 14.   Per AFPC/DPFD, AF Disability Division, the member signed his VA Form 21-0819 on 11 Feb 16 and this is recognized as the official start of the applicant’s disability case and entry into the IDES.  Therefore, he would have had no entitlement to remain on MEDCON orders beyond 28 Oct 14 and his orders would have ended on that date.  

The complete advisory is at Exhibit I.

APPLICANT’S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION:

The Board sent a copy of the Air Force first additional Air Force evaluation to the applicant on 19 Jun 18 for comment (Exhibit J), but has received no response.

THE BOARD CONCLUDES:

1.  The application was timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of an error on injustice.  We took notice of the applicant's complete submission in judging the merits of the case and agree with the opinion and recommendation of AFPC/DPFA and adopt the rationale expressed, as the basis for our conclusion the applicant has been the victim of an error or injustice.  Therefore the Board recommends granting MEDCON orders for the period of 31 Jan 14 through 28 Oct 14.  However, the Board recommends denial of the applicant’s request for MEDCOM orders until covering the period 11 Sep 12 through his medical retirement date as the evidence presented does not demonstrate an error or injustice.  Therefore, the Boards finds no basis to recommend granting this portion of the applicant’s request.  Accordingly, the Board recommends the applicant's records be corrected to the extent indicated below.

THE BOARD RECOMMENDS:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show all approval and authority for the granting of Incapacitation Pay for the period of 31 January 2014 through 12 September 2014 is hereby rescinded however, during the period 31 January 2014 through 28 October 2014 he served on active duty for the purpose of medical continuation (MEDCON).

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2017-02113 in Executive Session on 25 Jul 18:

Panel Chair
Member
Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 21 Apr 17.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFA, dated 10 May 18.
Exhibit D:	Advisory opinion, AFBCMR Medical Advisor, dated 16 May 18.
Exhibit E:	Notification of Advisory, SAF/MRBC to applicant, dated 18 May 18.
Exhibit F:  Advisory opinion, AFPC/DPFA, dated 11 Jun 18.
Exhibit G:  Notification of Advisory, SAF/MRBC to applicant, dated 14 Jun 18.
Exhibit H:  Letter, Applicant’s rebuttal, dated 14 Jun 18.  
Exhibit I:   Advisory opinion, AFPC/DPFA, dated 15 Jun 18.
Exhibit J:  Notification of Advisory, SAF/MRBC to applicant, dated 19 Jun 18.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings as required by AFI 36-2603, paragraph 4.11.9.