RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  00-00132
                                     INDEX CODE:  108.01, 110.02, 122.01
            COUNSEL:  Mr. MICHAEL J. CALABRO

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His Not In Line of Duty (NLOD) determination be removed  from  his  records;
all documents  and  references  pertaining  to  the  NLOD  determination  be
removed from his records; his request for transfer to the  Retired  Reserves
be removed from his records; he be returned to  duty  for  evaluation  by  a
Medical Evaluation Board (MEB); he  receive  all  back  pay,  incapacitation
pay, retirement pay, and allowances  due  to  him;  he  receive  credit  for
longevity purposes for the period he is returned to duty; he  be  reimbursed
for all medical and travel expenses associated with his  medical  care,  and
medical insurance premiums he has incurred; he be provided  the  opportunity
to participate in the Survivor Benefit  Plan  (SBP)  if  medically  retired;
and, his DD Form 214 be corrected to  indicate  that  he  was  separated  or
retired by reason of physical disability.

_________________________________________________________________

APPLICANT CONTENDS THAT:

On 30 May 93, he received injuries to his back in  an  automobile  accident.
On 26 Jun 93, he was examined by a flight surgeon  and  cleared  for  flying
duties.  While flying on a training mission in  Panama  in  March  1994,  he
flew in an aircraft which subjected him  to  long  periods  of  bending  and
stooping during  significant  turbulent  conditions,  which  caused  further
injury to his back.  He was re-examined  by  his  flight  surgeon  in  April
1994, and temporarily  removed  from  flying  status.   He  was  permanently
disqualified from flying duties on 24 Sep 94 and subsequently authorized  to
return to military duties not involving flying on 14 Mar 95.

During the period in which he  was  disqualified  from  performing  military
duties he was entitled to receive and requested incapacitation pay, but  was
told by his commander that he was not entitled to incapacitation  pay  until
an LOD determination was made.  On 21  May  96,  an  LOD  determination  was
initiated.  The  medical  evaluation  found  that  his  back  condition  was
aggravated by military duties and recommended that his injury be  determined
as In Line of Duty.  A legal review, based  on  an  unauthorized  additional
investigation, recommended a  determination  be  made  that  his  disability
resulted solely from the prior automobile  accident.   On  29  Oct  96,  the
approving  authority  accepted  the  recommendation   and   made   an   NLOD
determination.

The Air Force refused to  further  evaluate  his  medical  condition  or  to
provide medical treatment.  On 5 Feb 97, he requested an MEB,  however,  his
case was never sent to an MEB.  On 29 Oct 97, he was forced to  complete  an
application for transfer to Retired Reserve  status,  under  the  threat  of
denial of retirement benefits.

In support of his request applicant's counsel provided a  brief  in  support
of the  application;  applicant's  personal  affidavit;  administrative  and
medical  chronologies;  supportive  statements   and   affidavits;   medical
examination notes and reports; applicant's  LOD,  Report  of  Investigation;
applicant's DD Form 214, Report of Release or Discharge  from  Active  Duty;
extracts from applicable directives;  and,  documents  associated  with  the
issues raised in his contentions.

His complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant was appointed a second lieutenant, Reserve of the  Air  Force  and
ordered to extended active duty (EAD) on 26 May 72.  He was integrated  into
the Regular Air Force on 30 Aug 78.  On 8 May  81,  applicant  tendered  his
resignation from the Regular Air Force and was discharged on 8 Nov  81.   He
was appointed a captain, Reserve of the Air Force and assigned to the  Ready
Reserve.  He was progressively promoted to the  Reserve  of  the  Air  Force
grade of lieutenant colonel, effective and with a promotion service date  of
26 May 93. On 29  Oct  97,  applicant  requested  transfer  to  the  Retired
Reserve and his name was placed on the Retired Reserve List on  25  Jan  98.
Applicant has 20 years, 8  months,  and  11  days  of  satisfactory  Federal
service.

The relevant facts  pertaining  to  this  application,  extracted  from  the
applicant’s military records, are contained in the letters prepared  by  the
appropriate offices of the Air Force.  Accordingly,  there  is  no  need  to
recite these facts in this Record of Proceedings.

_________________________________________________________________

AIR FORCE EVALUATION:

The  Chief,  Aerospace  Medicine  Branch,  AFRC/SGPA,  reviewed  applicant's
request and states that a review of the history  and  medical  documentation
provided by applicant suggests that his back  pain  was  aggravated  by  his
duties as an Air Force aircrew.  There is some suggestion  that  his  spinal
degeneration,  which  made  him  susceptible  to  chronic  back  pain,   was
accelerated by his flying  duties  before  the  automobile  accident.   SGPA
recommends a finding for his injuries as In Line of Duty (see Exhibit C).

AFRC/JA, reviewed applicant's request and found  little  evidence  that  his
injuries were aggravated due to his own misconduct and recommends  that  his
injury be found In Line of Duty.  JA states  that  prior  considerations  of
applicant's case argued that his understatement  and  "hiding"  of  symptoms
for the  purpose  of  remaining  on  flying  status,  caused  him  to  incur
aggravation  of  his  back  injury.    Documentation   submitted   indicated
applicant attempted to see a flight surgeon 3 days after  his  accident  but
was turned away due to his Reserve status.  Less  than  1  month  later,  he
made an appointment and was seen by a  Reserve  flight  surgeon.   Applicant
was approved for many hours of leave  for  his  physical  therapy  with  his
commander's knowledge.  From  these  facts,  there  is  no  indication  that
applicant was hiding the existence or severity of his symptoms to remain  on
flying status.

Applicant was cleared for flying status despite the fact that he  was  still
undergoing physical therapy.  The Medical Group commander indicates  in  his
memorandum that ongoing physical therapy alone is enough to  take  a  member
off of flying status, yet, through no fault of his own,  applicant  remained
on flying status (see Exhibit D).

AFRC/DPM,  reviewed  applicant's  request  and  states  that  the   requests
pertaining to removal of his LOD  determination  and  associated  documents,
and removal of his transfer to the Retired  Reserve  will  be  granted  upon
direction of the Board.  If  it  is  determined  that  applicant's  injuries
should have been found In Line  of  Duty,  and  he  is  returned  to  active
Reserve status,  he  must  be  evaluated  to  determine  if  MEB  action  is
required.  For the periods that the applicant was Profile 4, he is  entitled
to full military pay and allowances, minus civilian earned income.  For  the
periods where he was other than Profile 4, he would have  to  demonstrate  a
loss of civilian income.  If returned to duty, applicant would  be  entitled
to incapacitation pay; however, he would still be  required  to  submit  the
appropriate paperwork to  determine  qualification.   If  his  injuries  are
determined to be In Line of Duty, he would be authorized to  submit  medical
bills for consideration  through  the  appropriate  medical  channels.   His
requests for pay and credit for longevity purposes, to  participate  in  the
SBP program, and for correction to his DD Form 214, are  administrative  and
will be addressed as appropriate (see Exhibit E).

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant's counsel responded to the Air Force evaluations and  states  that
there appears to be  a  factual  error  in  AFRC/JA's  letter  in  that  the
applicant attempted to visit the Reserve flight surgeon on  his  UTA,  which
was his earliest opportunity to  do  so.   Evidence  provided  by  applicant
establishes that any inaccuracy or  inconsistency  in  the  original  record
resulted  from  the  mishandling  of   the   investigation   and   the   LOD
determination by members of applicant's command.  Those  officers  knowingly
withheld relevant  documents,  failed  to  interview  witnesses,  failed  to
obtain signed, sworn  witness  statements,  which  negatively  impacted  the
ultimate determination.

Applicant disagrees with DPM's assertion that medical  evaluation  would  be
discretionary.  The sole reason for his retirement  was  his  unfitness  for
duty.  He was not assigned a disability percentage because of the  erroneous
NLOD  finding.   With  correction  of  the  NLOD  determination,  the   only
remaining issue would  be  for  the  MEB  to  determine  the  percentage  of
disability.   Regarding  DPM's  comments  concerning   incapacitation   pay,
applicant's counsel states that had the local SG acted in  a  timely  manner
and in accordance with the applicable directives he would  have  received  a
profile 4, with an LOD initiated within 7 days of 9 Apr 94.  DPM  interprets
the definition of "fit for duty" too narrowly as defined  in  DoD  Directive
1241.1, which states that entitlement is based on inability to perform  full
military duties.  Applicant's military  duties  were  as  a  combat  aircrew
member.  When grounded on  9  Apr  94,  applicant  could  not  perform  full
military  duties.   Intent  exists  within  the   directive   to   establish
entitlement based  on  when  actions  should  have  properly  occurred  (see
Exhibit G).

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing  law  or
regulations.

2.  The application was not timely filed; however, it is in the interest  of
justice to excuse the failure to timely file.

3.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of probable error or injustice.  Based  on  the  applicability  of
AFI 36-2910, Line of Duty (Misconduct) Determination, and  the  opinion  and
recommendations  of  the  Air  Force  Reserve  Command  offices  of  primary
responsibility, we recommend that  the  applicant's  Not  In  Line  of  Duty
determination be corrected to reflect In Line of Duty.  AFI 36-2910  clearly
defines  misconduct  as   "intentional   conduct   that   is   wrongful   or
improper—willful neglect."  We see no evidence of that in  this  case.   The
evidence at hand indicates that the applicant initially  sustained  injuries
to  his  back  in  an  automobile  accident  that  was  not  caused  by  his
misconduct.   He  promptly  reported  his  injuries  to  his  superiors  and
attempted to obtain treatment at  a  military  medical  treatment  facility.
While undergoing therapy for  his  injuries,  military  medical  authorities
cleared him for flying duties, which resulted in further aggravation of  his
back injuries.  Accordingly, we believe that his request to  have  his  name
removed from the Retired Reserve List and that he be returned  to  duty  for
evaluation  by  a  Medical  Evaluation  Board  (MEB)  should  be   favorable
considered.  Prior to doing so however, it is our opinion that his  military
medical treatment facility is in the best position to properly determine  if
his injuries warrant evaluation by an MEB, and,  therefore,  recommend  that
they be directed to do so.

4.  As a result of the aforementioned recommendation to correct his Line  of
Duty determination, applicant is eligible to receive incapacitation pay  and
reimbursement for medical expenses  he  has  incurred.   However,  applicant
must submit the proper documentation to the appropriate agencies.   In  view
of the above, we recommend that his  records  be  corrected  to  the  extent
indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT be corrected to show that:

      a.  The injuries that he sustained in a vehicular accident on  30  May
1993 were found to be “In Line of Duty” rather than “Not  In  Line  of  Duty
due to his own misconduct,” and that all  documents  pertaining  thereto  be
amended to reflect his injuries were incurred “In Line of Duty.”

      b.  A review of his medical records  be  conducted  by  the  attending
physician at the nearest medical treatment  facility  to  determine  if  his
medical condition, as of 25 January 1998,  disqualified  him  for  continued
active duty  and  if  referral  to  a  Medical  Evaluation  Board  (MEB)  is
appropriate; and, that the results of the evaluation  be  forwarded  to  the
Air Force Board for Correction of Military Records (AFBCMR) at the  earliest
practical date  so  that  all  necessary  and  appropriate  actions  may  be
completed.

      c.  If the review determines that MEB action  is  appropriate;  he  be
issued invitational travel orders for the  purpose  of  undergoing  physical
examination and review by an MEB and a Physical Evaluation  Board  (PEB)  to
determine his medical condition as of 25 January 1998; and  the  results  of
the evaluation be forwarded to the AFBCMR at the earliest practical date  so
that all necessary and appropriate actions may be completed.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 21 Nov 00, under the provisions of AFI 36-2603:

           Mr. Patrick E. Wheeler, Panel Chair
           Mr. E. David Hoard, Member
           Ms. Patricia D. Vestal, Member

All members voted to correct the records,  as  recommended.   The  following
documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 27 Sep 99, w/Atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFRC/SGPA, dated 10 Feb 00.
     Exhibit D.  Letter, AFRC/JA, dated 16 Feb 00.
     Exhibit E.  Letter, AFRC/DPM, dated 22 Mar 00.
     Exhibit F.  Letter, SAF/MIBR, dated 14 Apr 00.
     Exhibit G.  Letter, Applicant's Counsel, dated 2 May 00.




                                  PATRICK E. WHEELER
                                  Panel Chair

AFBCMR 00-00132




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air Force
Board for Correction of Military Records and under the authority of Section
1552, Title 10, United States Code (70A Stat 116), it is directed that:

      The pertinent military records of the Department of the Air Force
relating to APPLICANT, be corrected to show that:

      a.  The injuries that he sustained in a vehicular accident on  30  May
1993 were found to be In Line of Duty rather than Not In Line  of  Duty  due
to his own misconduct, and that all documents pertaining thereto be  amended
to reflect his injuries were In Line of Duty.

      b.  A review of his medical records  be  conducted  by  the  attending
physician at the nearest medical treatment  facility  to  determine  if  his
medical condition, as of 25  January  1998,  disqualify  him  for  continued
active duty  and  if  referral  to  a  Medical  Evaluation  Board  (MEB)  is
appropriate; and, that the results of the evaluation  be  forwarded  to  the
Air Force Board for Correction of Military Records (AFBCMR) at the  earliest
practical date  so  that  all  necessary  and  appropriate  actions  may  be
completed.

      c.  If the review determines that MEB action  is  appropriate;  he  be
issued invitational travel orders for the  purpose  of  undergoing  physical
examination and review by an MEB and a Physical Evaluation  Board  (PEB)  to
determine his medical condition as of 25 January 1998: and  the  results  of
the evaluation be forwarded to the AFBCMR at the earliest practical date  so
that all necessary and appropriate actions may be completed.






  JOE G. LINEBERGER

  Director

  Air Force Review Boards Agency