RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-04360

XXXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: NO
APPLICANT’S REQUEST

She be placed on medical continuation (MEDCON) orders from 20 Mar 18 through 2 Nov 18 and receive the associated pay, points and entitlements.

APPLICANT’S CONTENTIONS

Her request to extend her MEDCON orders was inappropriately disapproved and at that time, she was not informed of her right to appeal the decision.  She contends that her orders were wrongfully denied based on AFI 32-3212, AFI 36-2910, and DoDI 1241.2, which all indicate that members on active duty orders for more than 30 days, who incur or aggravate an injury, illness, or disease In the Line of Duty (ILOD) shall be continued on active duty until the member is determined fit for duty, separated, or retired as a result of the Disability Evaluation System (DES).  As such, she continued to receive medical treatment on 20 Mar 18 and since the appellate authority found her condition to be ILOD on 6 Aug 19, she requests that she be placed on MEDCON orders for the time-period in question.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an Air Force Reserve senior master sergeant (E-8). 

According to the documents in the applicant’s master personnel record and provided by the applicant:  

	On 3 Aug 17, AF Form 348, Line of Duty Determination, indicates that while on deployment to Al Udied, the applicant was diagnosed with “state 3A invasive lobular carcinoma” (breast cancer). 

	On 22 Aug 17, the applicants DD FM 214, Certificate of Release or Discharge from Active Duty, shows that she completed a tour of duty.  In the remarks it states that she was deployed in support of OPERATION FREEDOM SENTINAL on partial mobilization orders from 29 Dec 16 to 22 Aug 17. 

	On 15 Feb 18, an e-mail from the Total Force Service Center (TFSC) was sent to the applicant denying her request to continue on active duty MEDCON orders and indicating that her current MEDCON orders would end on 16 Feb 18.  It also stated that in accordance with AFI 
36-2910 para. 5.9., "Members who are denied MEDCON orders may submit an appeal through the ARC CMD.  Appeals must be made within 45 days of receipt of a MEDCON request denial."

	According to DD FM 214, signed 7 Jan 19, the applicant served a period of active duty from 23 Aug 17 to 16 Feb 18.

	On 5 Aug 18, a “Narrative Summary” of the applicant’s LOD determination indicates that the applicant’s condition was found Not in Line of Duty (NILOD)

	On 19 Sep 18, an appeal was submitted by the applicant’s legal counsel requesting that the decision be overturned and that her medical condition be found ILOD.    

	On 2 Nov 18, AF FM 422, Notification of Air Force Member’s Qualification Status, indicates that the applicant was found fit and returned to duty.  

	On 6 Aug 19, the Appellate Authority granted the applicant’s appeal and determined that her medical condition was ILOD.   

	According to a letter from the applicant’s physical therapist, dated 4 Sep 19, the applicant was undergoing a “maintenance program to maintain her range of motion, reduce scar tissue and prevent lymphedema. Her current treatment plan includes physical therapy one time weekly to include therapeutic exercise and manual therapy.”  It also states that the plan was in preparation for her pending reconstructive surgery.  

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

APPLICABLE GUIDANCE

AFI 36-2910, Line of Duty (LOD) Determination, Medical Continuation (MEDCON), and Incapacitation (INCAP) Pay:

	5.1. Overview. The purpose of MEDCON is to authorize medical and dental care for members who incur or aggravate an injury, illness or disease ILOD and to provide pay and allowances while they are being evaluated, treated for or recovering from a service-connected injury, illness or disease. ARC members may be entitled to MEDCON when they are unable to perform military duties due to an injury, illness or disease incurred or aggravated while serving in a duty status.

	5.2. Eligibility. MEDCON eligibility requires an LOD determination and a finding by a credentialed military medical provider that the member has an unresolved health condition requiring treatment that renders the member unable to meet retention or mobility standards IAW AFI 48-123.

DoDI 1241.01, Reserve Component (RC) Line of Duty Determination for Medical and Dental
Treatments and Incapacitation Pay Entitlements, Paragraph 3.a.(2): When an RC Service member is on active duty (AD) or full-time National Guard duty (FTNGD) for a period of more than 30 days and, at the scheduled end of that period, has an unresolved in-LOD condition that may render the member unfit for duty under the Disability Evaluation System (DES), but this has not yet been determined by the DES, the member: (a) Will, with his or her consent, be retained on AD or FTNGD until: 1. Outstanding in-LOD conditions are resolved; or 2. He or she is either found fit for duty, separated, or retired as a result of a DES finding.

DoDI 1241.02 Reserve Component Incapacitation System Management, Paragraph 6.4.4. Appeal of Final Determination Decision. A Reserve component member whose injury, illness, or disease was determined not to be in the line of duty may appeal the denial of a final line of duty determination to an appellate review authority designated by the Secretary concerned, in accordance with regulations prescribed by the Secretary concerned. Should the line of duty determination be reversed as a result of this review, the member's eligibility to healthcare, as provided in paragraph 6.1., above, shall be reinstated immediately and pay and allowances as provided under paragraph 6.2., above, shall be reinstated with payment effective from the date such pay was terminated.

AIR FORCE EVALUATION

AFPC/DPFA recommends granting the application.  Had her LOD been finalized with a ILOD determination at the time her MEDCON orders expired, she would have continued to meet all MEDCON eligibility criteria while receiving a restorative treatment plan (PT in preparation for reconstructive surgery) and would have remained on said orders until she was returned to duty on 3 Nov 18.  Furthermore, while she requested her orders be restarted 20 Mar 18, DPFA recommends they be a continuation of her orders that ended on 16 Feb 18.  The applicant requests the 20 Mar 18 date, because this was the date she began physical therapy; however, her medical documentation supports that she was experiencing symptoms at the time her MEDCON orders ended and since these symptoms were the direct result of the ILOD surgical treatment, they would not have required a separate LOD to be MEDCON eligible.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 18 Nov 19 for comment (Exhibit D), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

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

3.  After reviewing all Exhibits, the Board concludes the applicant is the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DPFA and finds a preponderance of the evidence substantiates the applicant’s contentions.  The Board notes, that the applicant had a pending Line of Duty (LOD) determination and in accordance with DoDI 1241.01 and 37 U.S.C. Chapter 2, Section 204, she should have remained on active duty orders until she was “either found fit for duty, separated, or retired as a result of a DES finding.”  In this regard, the applicant’s injury has since been found In the Line of Duty (ILOD) and had the final LOD determination been completed prior to the expiration of her medical continuation orders she would have remained on said order for the duration of her evaluation.  Therefore, the Board recommends correcting the applicant’s records as indicated below.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show her Medical Continuation orders for the period 22 September 2017 through 16 February 2018, did not end on 16 February 2018, but continued through 2 November 2018 (258 days).

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-2019-04360 in Executive Session on 18 Dec 19:

	, 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 16 Sep 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFA, dated 13 Nov 19.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 18 Nov 19.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings related to Docket Number BC-2019-04360, as required by AFI 36-2603, paragraph 4.11.9.