RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-02776

XXXXXXXXXXXXXX	COUNSEL: XXXXXX
	
	HEARING REQUESTED: NO	

APPLICANT’S REQUEST

His Not In Line of Duty (NILOD) determination be changed to In Line of Duty (ILOD) and his medical record be changed to reflect that migraines were initially diagnosed while on Title 10 orders.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   

APPLICANT’S CONTENTIONS

The ANGRC/CC made a clear and unmistakable error/injustice when denying his appeal of NILOD determination for migraines.  His medical record reflects that on 11 Sep 18, he was initially seen for headaches while he was serving under Title 10 Military Personnel Appropriation (MPA) orders, for the period 24 Jun 18 to 29 Sep 18.  On 4 Dec 18, during his second set of Title 10 MPA orders, for the period 5 Nov 18 to 3 Jan 19, he was diagnosed with migraines and prescribed Sumatriptan.  After he returned to civilian life, his migraines have caused him to miss work on several occasions and he is currently under the care of a Department of Veterans Affairs (DVA) neurologist.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a currently serving Air National Guard technical sergeant (E-6).

According to Special Order XXXXX, dated 21 Jun 18, the applicant was placed on Title 10, Non Contingency (MPA) orders to the XX Medical Group for the purpose of non-contingency MPA in support of XXXX for the period of 24 Jun 18 to 29 Sep 18. 

According to Medical Group Warrior Clinic provider note, dated 11 Sep 18, the applicant complained of headaches which have persisted for several years.

According to Special OrderXXXXX, dated 2 Nov 18, provided by the applicant, he was placed on Title 10 Non contingency (MPA) orders for the purpose of a non-contingency tour in support of medical facility augmentation for the period of 5 Nov 18 to 3 Jan  19.

According documentation provided by the applicant, AF Form 348, Line of Duty Determination, dated 30 Jan 19, reflects on 4 Dec 18 he was evaluated at the Medical Treatment Facility (MTF) and diagnosed with migraines.  The medical reviewer recommended NILOD, Existed Prior to Service (EPTS) – Yes, with no service aggravation.  On 24 Oct 19, a NILOD-Not due to Member’s Misconduct determination was approved by approving authority.
According to documentation provided by the applicant, on 13 May 20, the ANGRC/CC denied the applicant’s request to change the NILOD – EPTS with no service aggravation determination.  

On 7 Feb 22, after reviewing additional evidence found in the applicant’s records, the ANGRC/CC denied the applicant’s LOD Appeal request with a final determination of NILOD for Migraines.

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

APPLICABLE AUTHORITY/GUIDANCE

DAFI 36-2910, Line of Duty (LOD) Determination, Medical Continuation (MEDCON), and Incapacitation (INCAP) Pay, 8 Oct 15:

1.9. Standard of Proof for LOD Determinations. Except where otherwise noted, the standard of evidentiary proof used in making an LOD determination is preponderance of evidence. Preponderance of evidence is defined as the greater weight of credible evidence. 

1.10. LOD Determinations. One of the following three determinations will be applied to the member’s illness, injury, disease or death: 

1.10.1. In Line of Duty (ILOD). A determination of ILOD is made when the illness, injury, disease or death was not due to the member’s misconduct and was incurred when the member was present for duty or absent with authority or when the illness, injury or disease was service aggravated. 

1.10.1.1. For ARC members, this includes while the member was in any duty status (including direct travel status). 

1.10.1.2. Service Aggravation. A condition is aggravated by military service when there is a permanent worsening of a pre-service medical condition, over and above natural progression, caused by trauma or the nature of military service. Natural progression is the course an illness, injury or disease would take over time, regardless of military service.

1.10.2. Not in Line of Duty (NILOD)-Not Due to Member’s Misconduct. 

1.10.2.1. Absent Without Authority. A determination of NILOD-Not Due to Member’s Misconduct is made when a formal investigation determined the member’s illness, injury, disease or death occurred while the member was absent without authority; or 

1.10.2.2. Existed Prior to Service (EPTS)-Not Service Aggravated (NSA). A determination of NILOD-Not Due to Member’s Misconduct is also made when an investigation determined, by clear and unmistakable evidence, the member’s illness, injury, disease or the underlying condition causing it, existed prior to the member’s entry into military service with any branch or component of the Armed Forces or between periods of such service, and was not service aggravated. EPTS-NSA conditions include chronic conditions and conditions where the incubation period rules out a finding that the condition started during any period of active duty, active duty for training (ADT) or inactive duty training (IDT). 

AIR FORCE EVALUATION

NGB/A1PS recommends denying the application. Based upon the documentation provided by the applicant and analysis of the facts, there is no error or injustice that would result in a changed LOD determination.  The applicant claimed he incurred the condition while on Title 10 MPA orders from 24 Jun 18 to  29 Sep 18 and continued to receive treatment while on his second Title 10 MPA orders from 5 Nov 18 to 3 Jan 19.  The LOD determination of NILOD, Not Due to Member’s Misconduct, Existed Prior to Service with No Service Aggravation (NILOD, EPTS-NSA) was finalized on 24 Oct 19 and on 13 May 20, the Appellate Authority denied his LOD appeal.  Upon receiving the BCMR request, the applicant’s Air Force Reserve Writing System (AROWS was reviewed and his Title 10 MPA tour dated 24 Jun 18 to 29 Sep 18 was found.  A review of the original LOD and LOD appeal packages confirmed that this tour period was not considered during the initial LOD and LOD appeal determinations.  NGB/A1PS then re-evaluated the LOD package to include this evidence and found a provider’s note, dated 11 Sep 18, which stated the applicant had been experiencing headaches for several years.  While NGB/A1PS confirms that the applicant was diagnosed on or about 11 Sep 18, this note clearly indicates that the condition existed prior to the 24 Jun 18 to 29  Sep 18 period of service.  NGB/SG also clarified through accepted medical principles that his condition was not worsened over and above the natural progression due to trauma or nature of service.

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 9 Feb 22 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/A1PS and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  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-2021-02776 in Executive Session on 27 Apr 22:

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 12 Aug 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, NGB/A1PS, w/atch, dated 7 Feb 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 9 Feb 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.