RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-00031

XXXXXXXXXXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His record be corrected to show that he was on medical continuation orders (MEDCON) for the periods indicated below and awarded active duty retirement points, reduced retirement age and the associated allowances: 

	8 Nov 14 to 16 Nov 14

	12 Aug 15 to 19 Oct 15

	12 Aug 16 to 15 Nov 16

	13 Apr 18 to 15 Nov 19

APPLICANT’S CONTENTIONS

He originally injured his left shoulder while on Title 10 orders deployed in the United Arab Emirates (UAE)/ADAB in 2014.  After returning home, he was operated on in Nov 14 while on extended MEDCON orders.  While undergoing rehabilitation after his shoulder surgery, he sustained heart issues that required a stent in Mar 15.  During the time that he was on MEDCON orders for his cardiac rehabilitation, he broke his right ring finger in Jul 15, resulting in nine surgeries by three different orthopedic specialists over the course of nearly two and a half years.  He had his last surgery on his right ring finger on 3 Nov 17.  All of this happened to him while he was serving on Title 10 orders in the UAE.  Due to his unresolved conditions, he should have been retained on active duty.  Additionally, he had to pay for medical insurance out-of-pocket and was not awarded retirement points for the time he was on incapacitation pay, an entitlement he should have been afforded had he been retained on active duty.  Retirement points are more than warranted for the injuries he sustained while serving his country during the incapacitation periods, as well as a reduction of his retirement age.

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS

The applicant is a permanently disability retired Air Force technical sergeant (E-6).

According to Order Number Z62RYS dated 9 Apr 14, provided by the applicant, he was on Activation Contingency (MPA) Title 10 United States Code (USC) 12301 (D) and AFI 36-2619, from 31 Mar 14 to 11 May 14, in support of Contingency: 13223D – Operation Enduring Freedom.

According to Order Number Z6E71Q, dated 5 Nov 14, the applicant was on Annual Training State (Title 32) 32 USC 502(A), from 15 Oct 14 to 7 Nov 14, for the purpose of training duty, local training.

According to Order Number Z6F1FB, dated 2 Dec 14, the applicant was on Activation Medical Hold (Title 10) 10 USC 12301 (H) and AFI 10-402, from 17 Nov 14 to 16 Dec 14, for the purpose of medical continuation in support of: 8999M.

According to Order Number Z6FSCZ, dated 29 Dec 14, the applicant was on Activation Non Contingency (MPA) (Title 10) 10 USC 12301 (D) and AFI 36-2619, from 17 Dec 14 to 8 Apr 15, for the purpose of non-contingency MPA tour in support of MEDCON.

According to Order Number Z6MXUU, dated 9 Apr 15, the applicant was on Activation Medical Hold (Title 10) 10 USC 12301 (H) and AFI 10-402, from 9 Apr 15 to 11 Aug 15, for the purpose of medical continuation in support of: 8999M .

According to Order Number Z82NQN, dated 18 Jan 18, the applicant was on Activation Medical Hold (Title 10) 10 USC 12301 (H) and AFI 10-402, from 16 Nov 16 to 12 Apr 18, for the purpose of medical continuation in support of: 8999M.

According to the applicant’s AF Form 469, Duty Limiting Condition Report, dated 31 Oct 18, he was diagnosed with a medical defect/condition requiring Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB) processing.  He was placed on duty and mobility restrictions through 31 Oct 19.  The AF Form 469 states he was undergoing an MEB to determine fitness for continued worldwide duty and retention.  He was not deployable and was not cleared for temporary duty.

On 12 Apr 19, the MEB recommended the applicant be referred to the Informal Physical Evaluation Board (IPEB).

On 30 Jul 19, the applicant’s commander notified the MEB that the applicant was unable to perform all primary duties and recommended that the applicant not be retained.

On 18 Sep 19, the IPEB determined the applicant’s Distal Phalanx Fracture of Right Ring Finger with Osteoarthritis was unfitting with 0 percent disability rating and his Left Shoulder Osteoarthritis was unfitting with 20 percent disability rating for a combined compensable percentage of 20 percent and recommended Temporary Disability Retired List (TDRL) to Discharge with Severance Pay (DWSP).

On 30 Sep 19, the applicant disagreed with the IPEB findings and recommended disposition and requested a formal hearing.

On 17 Oct 19, the Formal PEB (FPEB) determined the applicant’s Distal Phalanx Fracture of Right Ring Finger with Osteoarthritis was unfitting with 0 percent disability rating; his Left Shoulder Osteoarthritis was unfitting with 20 percent disability rating; and his Painful Surgical Scars, Right Finger and Wrist were unfitting with 20 percent disability rating, for a combined compensable percentage of 40 percent and recommended permanent retirement.

On 22 Oct 19, the applicant agreed with the FPEB findings and recommended disposition, waived his rights for any further appeal and did not request a one-time reconsideration of the Department of Veterans Affairs (DVA) disability ratings for the conditions found unfitting by the PEB.

Effective 16 Nov 19, the applicant was permanently disability retired with compensable percentage for physical disability of 40 percent.

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 granting the application.  Based on the documentation provided by the applicant and analysis of the available facts and clinical documentation, there is evidence of an error or injustice.  During the periods in question for which the applicant contends he should have received MEDCON, there is evidence of unresolved in line of duty (ILOD) condition(s) with a clear requirement for further treatment and which warranted MEDCON orders during those periods.  MEDCON was curtailed on 6 Apr 18 as no further treatment or restorative plan was noted.  However, a review of AF Forms 469 indicates that Assignment Availability Code (AAC) 37 mobility restriction was applied on 14 Dec 17, indicating that a retention determination was required to ascertain if the applicant was fit or unfit for continued military service.  This would indicate that, unless the applicant elected otherwise, continued MEDCON would have been warranted in accordance with (IAW) Department of Defense Instruction (DoDI) 1241.01, Reserve Component (RC) Line of Duty Determination for Medical and Dental Treatments and Incapacitation Pay Entitlements, paragraph 3.a(2) which states:  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.

A review of AF Forms 469 also indicates that, effective 9 Oct 14, continuous AAC 31 mobility restrictions, along with fitness and duty restrictions, were in place related to the applicant’s left shoulder rotator cuff injury.  By policy in effect at the time (AFI 36-2910, Line of Duty (Misconduct) Determination, 5.11.1 and AFI 10-203, Duty Limiting Conditions, 4.1.3.3.2),  AAC 37 should have been applied no later than 9 Oct 15 and a retention case initiated.  However, that violation of policy and misapplication of medical retention standards and processes is not the fault of the applicant but rather reflects mismanagement at the local medical unit level.  Nonetheless, it reinforces the conclusion that at any time following 10 Oct 15, the applicant should not have been removed from MEDCON without his consent, IAW DoDI 1241.01 as noted above.

Should the Board elect to grant the request(s), the applicant’s record should be corrected as follows: MEDCON orders for the periods requested (8 Nov 2014 to 16 Nov 2014; 12 Aug 2015 to 19 Oct 2015; 12 Aug 2016 to 15 Nov 2016; and 13 Apr 2018 to 15 Nov 2019), with any associated benefits/entitlements that would derive from additional periods of active duty such as active duty retirement points and reduced retirement age if applicable.

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 1 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 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.  There is evidence of unresolved in line of duty (ILOD) condition(s) with a clear requirement for further treatment which warranted MEDCON orders during the periods 8 Nov 2014 to 16 Nov 2014; 12 Aug 2015 to 19 Oct 2015; 12 Aug 2016 to 15 Nov 2016; and 13 Apr 2018 to 15 Nov 2019.  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 he was placed on active duty for the following periods, for the purposes of medical continuation in accordance with Title 10, U.S.C. § 12301(h), with any associated benefits and entitlements that would derive from additional periods of active duty, such as active duty retirement points and reduced retirement age, if applicable:

	8 Nov 14 to 16 Nov 14

	12 Aug 15 to 19 Oct 15

	12 Aug 16 to 15 Nov 16

	13 Apr 18 to 15 Nov 19

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-2020-00031 in Executive Session on 4 Nov 20:

, 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 26 Dec 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFA, dated 28 Sep 20.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 1 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.