RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-00921

XXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

He be placed on medical continuation (MEDCON) orders from 1 Sep 19 through 4 Jan 20 and receive the associated pay, points and entitlements due to his injuries received while on active duty.

APPLICANT’S CONTENTIONS

On 19 Jul 19, while on active duty, he was in an automobile accident, and was 100% disabled.  He was receiving Medical Continuation (MEDCON) pay until it was erroneously discontinued by his base medical unit.  He has been without MEDCON orders or pay from 1 Sep 19 through 4 Jan 20, and this has been a financial hardship. 

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is currently serving as a staff sergeant (E-5) in the Air National Guard.

According to Order Number ZAP4T2, dated 13 Jun 19, provided by the applicant, he was placed on Military Personnel Appropriation (MPA) contingency orders for the period 14 Jun 19 to 4 Mar 20. 

According to Order Number ZAV41R, dated 4 Sep 19, provided by the applicant, he was placed on Medical Continuation orders for the period 3 Aug 19 to 1 Sep 19.

According to DD Form 214, Certificate of Release or Discharge from Active Duty, the applicant was on active duty from 14 Jun 19 to 1 Sep 19.

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 documentation provided by the applicant and careful analysis of the facts, there is evidence an error or injustice.  The applicant’s active duty status was erroneously discontinued on 31 Aug 19, while he still had an unresolved in the line of duty (ILOD) condition that may have rendered him unfit for duty under the Disability Evaluation System (DES), but had not yet been referred to the DES, pending ongoing treatment outcomes.  On 19 Jul 19, the applicant sustained injuries, or aggravation of injuries, to his neck, low back and left shoulder, while on contingency orders from 14 Jun 19 to 4 Mar 20.  These injuries were ultimately found to be ILOD on 31 Jan 20.  Furthermore, the injuries resulted in physical disability relative to the applicant’s Air Force Specialty Code (AFSC) 3P0X1, Security Forces, as indicated by his mobility restrictions for left shoulder pain from 20 Aug 19 through 12 Jan 20, documented on his AF Form 469, Duty Limiting Condition.  Based on the medical evidence, it appears the applicant should have also been mobility restricted due to his cervical and lumbar spine conditions which were also deemed ILOD.  Based on the documented actions and sequence of events, it appears the applicant made efforts in good faith to comply with treatment and notify his chain of command and supporting medical unit in regards to the nature and extent of his injuries.  
 
The applicant was actively engaged in medical treatment from 22 Jul 19 to 30 Dec 19, primarily in the form of physical therapy and on-going Physical Medicine and Rehabilitation (PM&R) follow-up in consultation with Orthopedic Surgery and Pain Management.  The applicant’s contingency orders from 14 Jun 19 to 4 Mar 20 were curtailed retroactively by what appears to be medical hold or pre-MEDCON orders from 3 Aug 19 to 1 Sep 19, issued on 4 Sep 19 with Verbal Orders of the Commander (VOCO), and confirmed on 22 Aug 19.  Unfortunately, the Air Reserve Component Case Management Division (ARC CMD) did not receive sufficient documentation required to validate, approve, and certify an initial MEDCON order before these orders ended on 1 Sep 19.  Specifically, the applicant’s case was received by the ARC CMD and administratively returned without action.  There is no evidence to suggest that the lack of sufficient information submitted to the ARC CMD for review in a timely manner was due to the applicant’s failure to fully participate in treatment or provide current and sufficient information.  Nor is there evidence of his refusal to reply to official requests or correspondence regarding his medical status. 

On 3 Sep 19, orders were issued curtailing the applicant’s contingency orders before MEDCON orders could be certified by the ARC CMD.  In this instance, it appears pre-MEDCON orders were inappropriately issued when the correct course of action would have been to continue the applicant on his contingency orders through 4 Mar 20, or until MEDCON orders were certified and a MEDCON orders start date was established, whichever came first.  In this case, the applicant’s orders did not need to be extended and should not have been curtailed, except in the event of certified MEDCON orders, at any time before 12 Jan 20 when his mobility restrictions were removed.  

There is sufficient evidence to support validation, approval and certification of MEDCON orders by the ARC CMD had sufficient documentation been received while the applicant remained on active duty orders, a scenario which would have very likely occurred had his orders not been inappropriately curtailed.  Per AFI 36-2910, AFI 36-2910, Line of Duty (LOD) Determination, Medical Continuation (MEDCON), and Incapacitation (INCAP) Pay, paragraph 5.6.3.2, once a service member’s MEDCON is approved, an end-date will be established for the current tour (if applicable) and start and end dates established for the MEDCON order “to prevent a break in order” and ensure the service member has continued eligibility and access to medical care.  However, contrary to the policy’s intent, the issuance of the order on 3 Sep 19 erroneously established an end-date to the applicant’s then existing contingency orders before MEDCON orders could be certified.  Recommend the applicant be granted benefits and entitlements, to include computation of leave accrual and any retirement points/service credit that would have been earned had he remained on active duty orders, for the period of 2 Sep 19 to 12 Jan 20.

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 2 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.  Specifically, the applicant provided sufficient evidence to substantiate an error or injustice occurred when orders were issued that curtailed his existing contingency orders before MEDCON orders could be certified by the ARC CMD.  Therefore, the Board recommends correcting the applicant’s records as indicated below.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show he was not released from active duty on 1 Sep 19, but was continued on active duty orders, for the purpose of medical continuation in accordance with Title 10, United States Code §12301(h), for the period of 2 Sep 19 to 12 Jan 20.

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-2020-00921 in Executive Session on 18 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 3 Feb 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFA, dated 17 Sep 20.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 2 Oct 20.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings pertaining to Docket Number BC-2020-00921, as required by AFI 36-2603, paragraph 4.11.9.