RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2022-00015

XXXXXXXXXXXXX	COUNSEL: NONE	 

  	HEARING REQUESTED: YES	

APPLICANT’S REQUEST

1.  He be reinstated on active duty effective 13 Sep 21, with back pay, allowances and bonuses.  

2.  Sixty-seven (67) days of terminal leave be restored.

3.  He be retained on active duty until treatment completion.

4.  Upon treatment completion, a determination be made for return to duty without restrictions, return to duty with limitations or a medical evaluation board (MEB).  

APPLICANT’S CONTENTIONS

He was on active duty when he was scheduled for a permanent change of station (PCS) to his Air National Guard (ANG) unit on 7 Jul 21.  He injured his back the first part of Jun 21 and had to be transported to a hospital where he stayed for two days.  Upon release, he made an appointment with the orthopedic surgeon at the military treatment facility (MTF).  It was recommended he receive nerve block treatment.  He informed the orthopedic surgeon he was scheduled to PCS in less than a month.  He was not instructed of the need to delay his move until his medical issue was corrected.  He did not schedule the procedures and proceeded with reassignment to his ANG unit where he sought care.  

The time required to obtain an appointment was exceeding the time of his orders.  He called NGB/HR to inform them of the issue and the need to be placed on medical continuation (MEDCON) orders or have his orders extended.  NGB/HR declined to extend his orders and NGB/A1 informed him MEDCON was not an option.  However, per ANGI 36-101, Air National Guard and Reserve (AGR) Program, an airman would not be involuntarily released from AGR status while medically incapacitated, unless as a result of action in accordance with AFI 36-3212, Physical Evaluation for Retention, Retirement and Separation.  ANG/HR was notified on 9 Sep 21 of the AFI requirement.  They chose to do nothing and let his orders expire.  The appointments fell out of TRICARE and he was forced to get AF Forms 348, Line of Duty Determination, processed by his ANG medical unit to receive care.  The process delayed his care and he had to take personal time from his civilian job to have the procedures accomplished.  He is currently on mobility and duty restrictions per the AF Form 469, Duty Limiting Condition Report.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a lieutenant colonel (O-5) in the ANG.

On 19 Jun 18, the applicant entered a period of active duty as an AGR in accordance with 10 U.S.C. § 12301(d).  The applicant also performed a preceding period of active duty from 24 Oct 16 to 18 Jun 18.  

The applicant provides chronological record of medical care dated 22 Jun 21 showing he had an appointment with the MTF neurological clinic as a follow up after his civilian hospitalization discharge.  The applicant was diagnosed with low back pain.  

The applicant provides AF Form 348, dated 22 Jun 21 showing he was diagnosed with low back pain.  He reported constant dull low back pain radiating into his left buttock and groin with certain movements.  The pain started on 20 Jun 21 while moving on the couch.  The LOD stated the applicant was on Title 10 status until 12 Sep 21.  On 12 Sep 21, his commander recommended a finding of in the line of duty (ILOD).  However, the AF Form 348 is incomplete and does not show review by the judge advocate, appointing authority or that it was adjudicated by the LOD Determination Board.    

The applicant had a follow-up appointment on 29 Jun 21 at the MTF.  His MRI was unchanged and showed some disc height loss with minimal posterior disc bulge.  The provider noted only after failing extensive conservative therapy would surgery be considered.  It was recommended he continue to have a permanent profile for avoiding running, high impact activities and lifting more than 40 pounds at one time.  The applicant was released without limitations.  

On 7 Jul 21, the applicant began his terminal leave.  

The applicant provides a second AF Form 348, dated 23 Jul 21showing he was injured while on active duty orders and diagnosed with cervicalgia.  On 12 Sep 21, his commander recommended a finding of ILOD. The LOD Determination is incomplete and does not show review by the judge advocate, appointing authority or that it was adjudicated by the LOD Determination Board.    
 
The applicant’s DD Form 214, Certificate of Release or Discharge from Active Duty, for the period 19 Jun 18 to 12 Sep 21, shows he was honorably released from active duty for completion of required active service.  

The applicant provides AF Form 469, Duty Limiting Condition Report, dated 13 Sep 21, showing he was placed on mobility restrictions through 19 Mar 22.  He was exempt from the run, walk, push-up and sit-up components of the fitness assessment (FA).  His limitations included no prolonged standing, running, pushing, pulling, lifting 15 pounds, marching, crawling, climbing, repetitive crunches and repetitive push-ups.  The AF Form 469 reflects he was placed on Code 31 (illness or injury resolved within 1-365 days) through 19 Mar 22. 

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

APPLICABLE AUTHORITY/GUIDANCE

DAFI 36-2910, Line of Duty (LOD) Determination, Medical Continuation (MEDCON), and Incapacitation (INCAP Pay), an LOD determination must be made when a member incurs or aggravates an illness, injury or disease or receives any medical treatment while in an active duty status.  

AIR FORCE EVALUATION

NGB/HR recommends denial.  The applicant voluntarily curtailed his tour from 19 Jul 22 to 12 Sep 21.  In order for NGB/HR to medically hold a member, the primary care manager (PCM) at the MTF must issue an AF Form 469 with a permanent change of station (PCS) restriction.  The applicant’s AF Form 469 did not have a PCS restriction.  The applicant’s medical documentation was provided to HR by his State ANG upon his arrival at his ANG unit.  Further, NGB/HR is unable to assess the applicant back on active duty/statutory tour when rendered not medically qualified for extended active duty (EAD).

The complete advisory opinion is at Exhibit C.

NGB/SGP recommends denial.  The applicant did not have any type of duty, mobility or fitness restriction after his two day hospitalization and follow up appointments prior to his PCS and terminal leave departure to his new assignment.  The applicant proceeded with his terminal leave and was not on any restrictions when he returned to his ANG unit and continued care at his MTF.  The AF Form 469 dated 13 Sep 21 did not have any duty restrictions, thus indicating he was able to perform the duties of his office, grade, rank or rating.

The applicant has a history of chronic back pain and cervical discectomy C4-C7.  He contends he injured his back in Jun 21 while moving on his couch.  He was transported to the hospital by ambulance on 20 Jun 21 and was an inpatient for two days.  On 29 Jun 21, he followed up with his PCM who indicated he had chronic low back pain with acute pain worsening, which required hospitalization for pain control.  On 7 Jul 21, he proceeded with his terminal leave and PCS back to his State ANG.  He continued to receive care at his MTF and on 23 Jul 21 was referred to pain management.  His initial pain management appointment was on 30 Aug 21.  During this appointment, he was scheduled to have a lumbar medical branch block on 22 Sep 21.  However, since his statutory tour ended on 12 Sep 21, he was no longer enrolled in TRICARE and was unable to receive the procedure.  On 12 Sep 21, two separate LOD Determinations were initiated, one for cervicalgia and the other for low back pain.  An AF Form 469 was also initiated on 13 Sep 21 but with only mobility and fitness restrictions.  

Irrespective of the Board’s decision, the applicant’s two LODs should be finalized in accordance with DAFI 36-2910 to determine eligibility for Disability Evaluation System (DES) processing in accordance with AFI 36-3212.  

The complete advisory is at Exhibit D.

NGB/A1PS concurs with the NGB/HR and NGB/SGP advisories to deny relief. 

NGB/A1PS concurs with the recommendation the applicant’s LODs dated 22 Jun 21 and 23 Jul 21 be finalized by the NGB ARC LOD board in accordance with DAFI 36-2910 irrespective of the Board’s decision in order to determine eligibility for DES processing in accordance with AFI 36-3212.  

The complete advisory is at Exhibit E.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant on 4 Aug 22 for comment (Exhibit F).  In an undated response, he states his retirement date is 6 Nov 22.  He was on a continuous active duty tour from Nov 16 to 12 Sep 21.  He chose to curtail his tour to return to his home unit and his civil service position, which was being held under the Uniformed Services Employment and Re-employment Act (USERA) rights and his five year period was approaching.  The issues with his lower back did not exist prior to service.  The cervical discectomy he had in 2013 was a cervical spine injury.  The issue requiring hospitalization was a lumbar issue.  He provides a timeline and email thread with the medical unit, NGB/HR, NGB/A1PS and NGB/SG.  

NGB/HR states they could not assess him back to active duty when rendered “Not Medically Qualified.”  There is no need for a medical clearance and the current orders just need to be extended.  He requested an extension before his orders ended.  He also spoke to NGB/A1 and was told medical continuation (MEDCON) was not an issue because he was on a statutory tour.  NGB/HR waited until the orders ended to address the issue.  

NGB/SGP states he did not have any restrictions after his two day hospital stay.  It should not be incumbent on him to have informed the medical providers he needed to be placed on a restriction.  He did have a fitness restriction and would not have been placed on a Code 37 for MEB at that time, as it was too soon.  He has a medical Air Force Specialty Code (AFSC) and is aware of the requirements for restrictions.  His code 31 would have been changed to Code 37 (Medical Defect/Condition Requires MEB or PEB processing) and he would have undergone a MEB.  

He provides email threads with NGB/HR, NGB/SG and NGB/A1 prior to his orders actually ending.  His unit started the LOD and AF Form 469 to ensure care could be requested.  The SGP was out and the AF Form 469 could not be signed before 13 Sep 21.  They were also unable to access his records until 13 Sep 21, since up to that date he was on active duty.  

The applicant’s complete response is at Exhibit G.

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 recommendations of NGB/HR, NGB/SGP and NGB/A1PS and finds a preponderance of the evidence does not substantiate the applicant’s contentions.   In this respect, the Board finds the applicant has not sustained his burden of proof that he was unjustly denied MEDCON orders to warrant granting any of the requested relief.  Based on the evidence, the applicant was not on any duty or mobility restrictions when he requested curtailment of his tour so he may return to his home unit of assignment and civil service position.  While the applicant contends it was not incumbent on him to have requested a duty and mobility restriction following his hospitalization, there is no evidence to conclude he was unfit or unable to perform his duties following his hospitalization.  On the contrary, it appears the applicant was able to PCS, resume his duties and continued to receive treatment for his chronic back pain.  While it is unfortunate the applicant was unable to secure medical appointments before the expiration of his active duty orders, there is no evidence to show his medical conditions warranted placement on MEDCON orders in accordance with DAFI 36-2910.  The Board, as advised by NGB/SGP and NGB/A1PS, recommends the applicant’s LODs dated 22 Jun 21 and 23 Jul 21 continue to be finalized in accordance with DAFI 36-2910.  Therefore, the Board recommends against correcting the applicant’s records.

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 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-2022-00015 in Executive Session on 21 Sep 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 5 Nov 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, NGB/HR, dated 19 Jul 22.
Exhibit D: Advisory Opinion, NGB/SGP, dated 4 Aug 22.
Exhibit E.  Advisory Opinion, NGB/A1PS, w/atchs, dated 4 Aug 22.  
Exhibit F:	Notification of Advisory, SAF/MRBC to Applicant, dated 4 Aug 22.
Exhibit G:	Applicant’s Response, w/atchs, undated.

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.