RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2022-00986

XXXXXXXXXXXXXX	COUNSEL: XXXXX
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

He be allowed to appeal his Not in Line of Duty (NILOD) determination.

APPLICANT’S CONTENTIONS

His Line of Duty (LOD) appeal was never submitted by the wing’s LOD Program Manager (PM).  The applicant submitted the required supporting documentation, as per the instructions on the Notification of Determination of Not in Line of Duty memorandum from his squadron commander, within the required time frame to the LOD PM who, by their own admission, never submitted the appeal. 

In support of his contentions, the applicant provides memoranda from the LOD PM who verified that due to no fault of the applicant, the LOD appeal was not timely submitted.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an Air National Guard master sergeant (E-7).

On 6 Oct 20, AF Form 348, Line of Duty Determination, was initiated for back pain. On 25 Nov 20, the appointing authority found his condition to be In Line of Duty (ILOD); however, on 6 Jan 21, the approving authority found the condition to be NILOD-Not Due to Member’s Misconduct, Existed Prior to Service, Not Service Aggravated (EPTS, NSA).

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

AIR FORCE EVALUATION

NGB/A1PS, recommends granting the applicant’s request that he be allowed to submit an appeal to his NILOD determination.  According to Department of the Air Force Instruction (DAFI) 36-2910, Line of Duty Determination, Medical Continuation (MEDCON), and Incapacitation (INCAP) Pay, paragraphs 3.2.5.2 and 3.2.5.3, the appellate must provide the appeal in writing, within 30 days of receipt of the LOD determination, to the LOD Program Manager, who forwards the appeal to the appellate authority.  The applicant’s claim that he submitted the LOD Appeal package to the LOD PM within the required timeframe, and that the LOD PM never forwarded the appeal to the appellate authority is supported by the memoranda from the LOD PM.  Based upon documentation provided by the applicant and analysis of the facts, there is evidence of an error or injustice.
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 Jun 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 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 substantiates the applicant’s contentions.  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 APPLICANT be corrected to show that the applicant be allowed to submit an appeal of his Not in Line of Duty (NILOD) determination for Radiculopathy, lumbar region; Acute exacerbation left lumbar radiculopathy, in accordance with DAFI 36-2910, Line of Duty Determination, Medical Continuation (MEDCON), and Incapacitation (INCAP) Pay.

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-2022-00986 in Executive Session on 12 Jul 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 22 Feb 22.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, NGB/A1PS, dated 6 Jun 22.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 9 Jun 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.