RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-02469

XXXXXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

1.  He be granted medical continuation (MEDCON) orders for the period of 11 Feb 20 to 3 Jun 21 (477 days).

2.  He be promoted to the grade of staff sergeant (E-5).

APPLICANT’S CONTENTIONS

He sustained an in the line of duty (ILOD) injury while on deployment.  In a previous AFBCMR case, BC-2019-03417, he was granted MEDCON orders for the period of 10 Feb 19 to 21 Apr 19.  His current MEDCON orders in question, dated 13 Feb 20 were erroneously terminated and his appeal was denied due to his refusal to comply or respond to requests and correspondences.  This is not true as the evidence he submits will show he has complied and responded to the requests.  In his previous case, these same allegations were made and the Board found the evidence presented supported his claim.  Had he not been injured and unable to actively participate, he would have been able to attend Airman Leadership School (ALS) and been promoted to staff sergeant (E-5).

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a medically retired Air National Guard senior airman (E-4).

Dated 18 Mar 20, AFBCMR Directive BC-2019-03417 directed the applicant’s records be corrected to show he was placed on active duty, for the purpose of medical continuation, for the period of 10 Feb 19 to 21 Apr 19, in accordance with Title 10, U.S.C. § 12301(h).

Dated 19 Mar 21, his last DD Form 214, Certificate of Release or Discharge from Active Duty,  for his MEDCON orders reflects the applicant was honorably discharged after serving for the period of 12 Dec 18 to 11 Feb 20.  He was discharged, with a narrative reason for separation of “Completion of Required Active Service.”

On 19 Mar 21, AF IMT 618, Medical Board Report, indicates the applicant was referred to the Informal Physical Evaluation Board (IPEB) for right ankle pain and cervical radiculopathy.

On 23 Apr 21, the Department of Veterans Affairs (DVA) proposed a disability rating for his Category I unfitting medical conditions of right and left upper extremity cervical radiculopathy associated with cervical stenosis with Intervertebral Disc Syndrome and Arthritis with a 20 percent rating each, Cervical Stenosis with Intervertebral Disc Syndrome and Arthritis with a 10 percent rating, and right ankle anterior talo-fibular ligament (ATFL) tear with nerve release with a 10 percent rating.  

On 29 Apr 21, AF Form 356, Informal Findings and Recommended Disposition of USAF Physical Evaluation Board, indicates the applicant was found unfit due to his medical conditions of right and left upper extremity cervical Myelopathy, Herniated Nacleus Propulsus at C5-C6 with spinal stenosis, and residuals of right ankle sprain and nerve decompression with a combined disability compensation rating of 50 percent with a recommendation of “Permanent Retirement.” 

On 10 May 21, AF Form 1180, Action on Physical Evaluation Board Findings and Recommended Disposition, indicates the applicant agreed with the findings and recommended disposition of the IPEB and waived his right for any further appeal.

Dated 19 May 21, Special Order XXXXX, indicates the applicant was relieved from active duty, effective 3 Jun 21 and  permanently disability retired in the grade of senior airman (E-4) with a compensable percentage for physical disability of 50 percent, effective 4 Jun 21.

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

AIR FORCE EVALUATION

NGB/A1PP recommends denying the applicant’s request for promotion, alleging he could not attend ALS and therefore was not eligible for promotion to staff sergeant.  The applicant was placed on MEDCON orders from 19 Feb 18 to 11 Feb 20.  The applicant was placed on a medical profile (Code 37) restricting him from traveling on temporary duty (TDY).  The applicant was retired under Permanently Disability Retirement effective 4 Jun 21.  There is no law or policy based on the potential to attend ALS to be promoted.  In addition, even if he attended ALS he would need to be recommended for promotion.  In accordance with AFI 36-2502, Enlisted Airman Promotion and Demotion Programs, paragraph 10.1.1.1, the fact that a member meets each of the eligibility criteria outlined in this instruction does not automatically guarantee promotion to the next higher grade and per paragraph 10.1.4.4.1, commanders serve as the recommendation authority for all enlisted promotions.

The complete advisory opinion is at Exhibit C.

AFPC/DPFA recommends partially granting the applicant’s request for MEDCON orders for the period 12 Feb 20 to 3 Jun 21.  The applicant did possess three valid ILOD determinations, although he was not profiled for both conditions during the entire timeframe in question.  The facts demonstrate that Air Reserve Command Case Management Division (ARC CMD) erred on the side of the applicant on multiple occasions ensuring he was able to obtain the prescribed care despite insufficient medical documentation submitted.  Upon review of the case management tracking system (RNT) and discussion with the assigned case manager, the assigned case management team had approximately 18 phone conversations and sent more than 30 emails to the applicant.  This does not include other calls made on behalf of the applicant to his chain of command and his providers.  Regarding the medical treatment plan following the applicant’s release from MEDCON orders; limited documentation was provided by the applicant as part of this AFBCMR request.  Additional information obtained by ARC CMD from his Podiatry doctor confirmed the applicant was seen regularly from Feb 20 through Sep 21 for continued pain associated with sinus tarsi syndrome.  This condition was connected to the LOD injury per the treating provider.  Formal physical therapy was initially recommended but was then canceled per provider.  It was the provider’s assessment the injury was exacerbated by returning to work earlier than recommended following his surgical procedure and that time and rest would lead to clinical improvement.  As the applicant’s pain continued, he then documented that surgery would likely be required at a later time although no surgery was scheduled during the time period in question.  In response to the request for additional documentation, an email was provided by the applicant’s father (Power of Attorney (POA)) stating the surgery had not been performed due to the applicant having been in the “MED BOARD pipeline.”  Regarding the other LOD (neck) the father states that the applicant decided that correcting the ankle issues were more important to him than the neck issue and he chose to wait.  He went on to state that surgery on the neck was then further postponed due to the disability processing similar to the ankle issue.  

Service members who are in the process of being entered into the Disability Evaluation System (DES) are encouraged to delay surgical interventions that are not required to preserve life or limb in order to minimize further delay in their evaluation.  The applicant was referred to and began the process of disability evaluation on 17 Nov 20 and resolution was obtained and a final date of separation was determined as 3 Jun 21.  It should be noted that during the time period in question between the release from MEDCON orders in Feb 20 and Nov 20, the applicant’s care was most likely significantly affected by delays associated with the COVID-19 pandemic.  During this time, there were numerous examples of other members having care including office visits, surgeries and post-operative rehabilitation delayed or canceled due to COVID-19 restrictions, treatment center operating hours, provider availability and an overwhelming backlog.  Furthermore, as ARC CMD shifted to a full-time telework environment under COVID-19 protocols, the ability of the applicant and his POA to communicate with this office in a timely and consistent manner was affected.  Ultimately the applicant was caught in a cycle of not having access to care although requiring it, and unable to obtain sufficient documentation to validate treatment in order to reapply for continued MEDCON which was needed.  Finally, the fact remains that the applicant had an unresolved ILOD condition that was incurred while in a qualified duty status of more than 30 days. 
In accordance with DoDI 1241.01, Reserve Component (RC) Line of Duty Determination for Medical and Dental Treatments and Incapacitation Pay Entitlements, dated 19 Apr 16 and the governing authority during the period which the applicant is seeking consideration for approval of MEDCON orders; it is DoD policy that a RC Service member is entitled to medical and dental treatment for an injury, illness, or disease that was incurred or aggravated while in a qualified duty status and that is not the result of gross negligence or misconduct (referred to in this instruction as a covered condition).  A determination that establishes a covered condition will be referred to in this instruction as an “in LOD determination.” (1) In the case of a qualified duty status other than active duty for a period of more than 30 days, the ILOD determination for a covered condition will establish eligibility for appropriate medical and dental treatment in accordance with section 1074a of Title 10, USC, Reference (e) (2) When a 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 ILOD condition that may render the member unfit for duty under the DES, but this has not yet been determined by the DES, the member will, with his or her consent, be retained on AD or FTNGD until the outstanding ILOD conditions are resolved; or he or she is either found fit for duty, separated, or retired as a result of a DES finding.

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 21 Jan 22 for comment (Exhibit E), 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 in part.  Specifically, the applicant possessed three valid ILOD determinations, coupled with the numerous delays associated with the COVID-19 pandemic, the inability to access care, and to obtain sufficient documentation to validate treatment in an effort to reapply for continued MEDCON which was needed, is sufficient to justify granting the applicant’s request to be granted MEDCON orders.  While the applicant requests MEDCON orders for the period 11 Feb 20 to 3 Jun 21 (477 days), the Board notes the applicant was already on MEDCON orders through 11 Feb 20 (Date of Separation per IPEB Order).  However, for the remainder of the applicant’s request, the evidence presented did not demonstrate an error or injustice, and the Board therefore finds no basis to recommend granting that portion of the applicant’s request.  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 APPLICANT be corrected to show that he was placed on active duty, for the purpose of medical continuation, for the period of 12 February 2020 to 3 June 2021, in accordance with Title 10, U.S.C. § 12301(h).

However, regarding the remainder of the applicant’s request, the Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.
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-2021-02469 in Executive Session on 27 Apr 22:

, 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 4 Jun 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, NGB/A1PP, dated 8 Sep 21.
Exhibit D:	Advisory opinion, AFPC/DPFA, dated 26 Nov 21.
Exhibit E:	Notification of advisory, SAF/MRBC to applicant, dated 21 Jan 22.

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.