RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-04176

	COUNSEL: NONE

	HEARING: YES

APPLICANT REQUESTS THAT:

1)	Her record be corrected to show that she served on continuous active duty until she was found fit for duty; and,
 
2)	She receive all back pay and allowances and any consequential out of pocket expenses incurred for her medical treatment.

APPLICANT CONTENDS THAT:

The Air Force Reserve Command Surgeon General (AFRC/SG) unjustly found her cancer to have existed prior to service – Line of Duty Not Applicable (EPTS-LOD NA).  After resubmission, the command found her cancer to be ILOD.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant is a major in the Air Force Reserve.  

The applicant was mobilized in support of Operation ENDURING FREEDOM from 22 Sep 14 to 25 Dec 14 and was released from active service due to demobilization on 24 Jan 15.  

On 27 Jan 15, an informal LOD was initiated on the applicant with a diagnosis of malignant neoplasm of female breast and on 19 Feb 15, the AFRC/CV determined her condition was EPTS-LOD NA.  

On 15 Apr 15, a second informal LOD was initiated and on 1 Jun 15, the AFRC/CV found her condition was again EPTS-LOD NA.  

On 17 Dec 15, a third informal LOD was initiated and on 23 Dec 15, the AFRC Mobilization Assistant to the Commander found her condition to be in the LOD.  

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

AIR FORCE EVALUATION:

AFPC/DPFA recommends denying the applicant’s request with reservations.  This case was correctly adjudicated by both AFRC and AFPC/DPFA with the information that was available.  When the original application for MEDCON was received on 26 Jan 15, the member had a break in orders and did not have a finalized LOD.  

On 19 Feb 2015, AFRC found the LOD to be EPTS – LOD N/A. This LOD finding was appealed twice and on the second appeal, the applicant provided sufficient additional information for AFRC to find the condition ILOD on 23 Dec 15.  This date is technically the first time the applicant would have been eligible for MEDCON so the new inclusive dates of her MEDCON orders could be 23 Dec 15 – 31 Jan 16 (40 days).

An argument can be made that an overturned decision reverts the effective date back to the original decision date.  If the Board concurs, the original LOD decision date was 19 Feb 2015 and this would have been the first time the member was eligible for MEDCON.  The inclusive dates for this period could be 19 Feb 15 – 31 Jan 16 (347 days).

The complete advisory is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 13 Sep 18 for comment (Exhibit D) and the applicant replied on 9 Oct 18.  In her response, the applicant contends she was not given the full 30 days to respond to the advisory opinion.  Furthermore, she calls into question the advisory writer’s interpretation of her request.  To clarify, her request is to show she served on continuous active duty until she was found fit for duty and receive all back pay and allowances to include any consequential out of pocket expenses incurred for her medical treatment.  The break in orders was due to an administrative oversight.  The appropriate instructions were not followed for her LOD or MEDCON requests.  Furthermore, AFRC unjustly determined her LOD to be EPTS – LOD N/A on 19 Feb 15.  The medical review office did not find a pre-existing medical diagnosis in her records.  She includes a letter requesting a reinvestigation, which better explains the LOD error.  The applicant’s complete response is at Exhibit E.  

THE BOARD CONCLUDES THAT:

1.  The application was timely filed.

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

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is the victim of an error or injustice.  While the Board notes the comments of AFPC/DPFA indicating that relief should be denied, the Board believes a preponderance of the evidence substantiates the applicant’s contentions.  In this regard, the Board finds the applicant’s LOD appeal was subsequently overturned which should have allowed her MEDCON orders starting from the original LOD decision date of 19 Feb 15.  As for the applicant’s remaining request, she should contact TRICARE to seek reimbursement of any medical expenses she incurred.  Therefore, the Board recommends correcting the applicant’s records to the extent indicated below.

4.  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 the Board’s understanding of the issues involved.

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 placed on active duty orders, for the purpose of medical continuation in accordance with Title 10, U.S.C. §12301(h), from 19 February 2015 through 31 January 2016, and issued a DD Form 214, Certificate of Release or Discharge from Active Duty, for this period.

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-2017-04176 in Executive Session on 20 Nov 18.

Panel Chair
Panel Member
	Panel Member

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

Exhibit A:	Application, DD Form 149, w/atchs, dated 31 Jan 17.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFA, dated 6 Jul 18.
Exhibit D:	Notification of Advisory, SAF/MRBC to applicant, dated 13 Sep 18.
Exhibit E:	Letter, Applicant, w/atchs, dated 9 Oct 18.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings of Docket Number BC-2017-04176 required by AFI 36-2603, paragraph 4.11.9.