RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-05040

XXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His records be corrected to show that his shoulder injuries were received in the line of duty (ILOD).

APPLICANT’S CONTENTIONS

He injured his shoulder in 2107 in a deployed location; however, it was not documented at that time.  A re-injury of the shoulder resulted in required surgery in May 18.  He reported the injury during the Yellow Ribbon process with the Department of Veterans Affairs (DVA).  His injuries have not been correctly documented; subsequently, the ILOD determination filed on the re-injury was dismissed inappropriately due to lack of medical records, without proper procedures.  He still requires surgery on his right shoulder, with an estimated recovery time of up to 6 months, and should be on Medical Continuation (MEDCON) orders in order to have the injury corrected.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a master sergeant (E-7) in the Air National Guard.

According to Order Number Z7JT32, dated 7 Mar 17 provided by the applicant, he was placed on Partial Mobilization orders for the period 21 Jul 16 to 4 Mar 17 in support of Operation Freedom Sentinel.

The DVA Rating Decision, dated 13 Apr 18 provided by the applicant, indicates his right shoulder strain with degenerative arthritis was service connected with the DVA.

AF Form 348, Line of Duty Determination, reported 7 Nov 18 provided by the applicant, indicates his right shoulder was injured while performing his annual physical fitness test.  Item 21 reflects “Left shoulder was injured previously (during a deployment in 2017) Injury was not reported or documented.”  On 1 Feb 19, the injury was found to be ILOD in Item 22, by the Appointing Authority.  However, following medical and legal review, on 8 Apr 19, the injury was found to be not in the line of duty (NILOD) it Item 34, by the Approving Authority.  

AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, dated 30 Mar 20, found the applicant’s Right Knee Internal Derangement with Anterior Cruciate Ligament Tear, as “unfitting”, and indicated NO it Item D, “Disability was incurred in Line of Duty in Time of War or National Emergency or After 14 Sep 78.”  The Informal Physical Evaluation Board (IPEB) reviewed the diagnosis of Sleep Apnea and found the condition does not prevent the reasonable performance of duties.

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

APPLICABLE AUTHORITY

Department of Defense Instruction (DoDI) 1241.01, Reserve Component (RC) Line of Duty Determination for Medical and Dental Treatments and Incapacitation Pay Entitlements, Enclosure 3, In-LOD Determination for Medical and Dental Treatment:

2. INITIATION OF IN-LOD DETERMINATION 
a. Request for in-LOD Determination. 
(1) Unless already initiated by a member’s command, the Reserve Component (RC) Service member or, if she or he is unable, a designated representative or the Military Service concerned, will initiate the request for an in-LOD determination. 
(2) In general, an RC Service member or the Military Service concerned has up to 180 days after completion of the qualified duty status to request consideration for an in-LOD determination absent special circumstances.  Special circumstances are those in which the covered condition pre-dated the 180 day period, e.g., latent onset symptoms of post-traumatic stress disorder.

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

1.7. Additional Requirements.
1.7.4. Air Reserve Component (ARC) only.  After release from active duty or Inactive Duty Training (IDT), members have 180 days to ensure any illness, injury or disease that was incurred or aggravated while in a duty status is reported for LOD determination consideration.  When the member does not report his/her illness, injury or disease, the member is presumed to be able to perform military duties, does not require treatment and has no unresolved health condition rendering the member unable to meet retention or mobility standards in accordance with AFI 48-123, Medical Examinations and Standards.  The only avenue for addressing previously unreported illness, injury or disease is through the VA.

2.4. Appeal of the Final LOD Determination. 
2.4.1. Overview.  A final LOD determination may be appealed once by the member or next of kin (if the member is deceased or incapacitated) for any reason. 
2.4.2. Requirements.  To appeal a final LOD determination, the appellant must: 
2.4.2.1. Provide the appeal in writing, including the reason(s) for the appeal, to the LOD PM;
2.4.2.2. Within 30 days of receipt of the LOD determination.

AIR FORCE EVALUATION

NGB/SGPS recommends denying the application.  Based on the documentation provided by the applicant and analysis of the facts, there is no evidence of an error or injustice.  The applicant was on deployment orders Jul 16 through Mar 17, and claims to have incurred a right shoulder injury during deployment.  He reports receiving medical care with the VA through the Yellow Ribbon program post deployment.  However, no documentation provided shows that the applicant reported the deployment injury to the Guard Medical Unit within the 180 days window for initiating a line of duty (LOD) determination in accordance with DoDI 1241.01 and AFI 36-2910.  The VA subjective entry dated 8 Aug 17 notes, “reports occurring approx. 2 years ago” and the radiograph/x-ray results no acute injury.  Additional VA subjective notes states, “Initial injury to right shoulder was many years ago when he loaded material to the semi.  He also claims to have shoulder separation treated by people around him many years ago.”  The applicant did have a LOD initiated in Nov 18 for a shoulder injury during the Air Force Fitness Assessment in May 18.  The final Approving Authority determination was found to be not in the line of duty (NILOD) in Apr 19.  An appeal was submitted May 19, and the Appellate Authority disapproved the appeal request in Aug 19.  A second appeal was submitted Nov 19, but was returned without action, recommending the applicant submit a BCMR package.  In comparison of the already reviewed medical documentation for previous LOD determination and appeal, there is a lack of new significant medical documentation in this application for correction of military records.

The applicant has the responsibility to request a LOD determination within 180 days, but does not show this occurred after the 2017 deployment.  Due to the lack of supporting medical documentation, NGB is unable to conclude if these prior shoulder injuries incurred while in a qualified duty status.  Additionally, the applicant failed to provide new significant medical documentation to review for correction of the 2019 NILOD adjudication.

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 20 Oct 20 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 not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of NGB/SGPS and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The applicant has not provided sufficient evidence to show his injuries incurred while he was in a qualified duty status.  Therefore, the Board recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

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-2019-05040 in Executive Session on 18 Nov 20:

, Panel Chair
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 9 Mar 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, NGB/SGPS, dated 16 Jul 20.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 20 Oct 20.

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.