RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  00-02007
            INDEX CODE:  122.01

            COUNSEL:  NONE

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

The lumbo-sacral sprain, with lower extremities numbness, caused  when
he slipped in front  of  his  work  center  and  fell  to  the  floor,
resulting in his incapacitation, be determined to be in  the  line  of
duty (LOD).

He be provided all benefits that he has been denied pursuant  to  ANGI
36-2910 and ANGI 36-3001, including incapacitation pay and allowances,
disability compensation and hospitalization benefits by the  Veteran’s
Administration, reimbursement of medical  expenses  already  incurred,
and payment of future medical expenses.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was in a duty status at the time  he  was  injured.   Therefore,  a
determination should have been made that his injury was LOD.

In  support  of  his  appeal,  the  applicant  provided  an   expanded
statement, and the LOD determination  and  medical  documentation,  to
include a statement from an anesthesiologist.

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Available documentation indicates that the applicant enlisted  in  the
Air National Guard (ANG) on 6 Apr 88 for a period of six years.

On 28 Dec 98, the applicant, a member of the Puerto Rico Air  National
Guard (PRANG), was medically disqualified for Worldwide duty due to  a
coronary condition.  On 16 Mar 99, the applicant was given a  physical
profile  for  aetherosclerosis   cardio-vascular   disease   and   was
restricted from performing any military duty.  However, the  applicant
was not removed from a duty status  and  continued  to  perform  PRANG
related duties.

On 22 Jun 99, while walking toward the break area in front of his work
center, he slipped on gravel and  fell  to  the  floor  landing  in  a
sitting position,  resulting  in  a  lumbo-sacral  sprain  with  lower
extremities numbness.

On 1 Oct 99, the Commander, 156  Medical  Squadron,  PRANG,  certified
that the applicant had been declared incapacitated to  perform  normal
military duty and recommended that a determination be  made  that  his
injury was LOD.

On 29 Nov 99, the applicant was honorably discharged  from  the  PRANG
under the provisions  of  AFI  36-3209  (Not  Eligible  for  Worldwide
Deployment/Medical Disqualification).

On 23 Dec 99, the applicant’s commander recommended that a formal  LOD
investigation be conducted.  The recommendation was forwarded  to  the
appointing authority  who  provided  it  to  the  reviewing  authority
without comment on the recommendation for a formal investigation.

By Special Order EK-2205, dated 26 Jan 00, the applicant was  relieved
from his current  assignment  and  assigned  to  the  Retired  Reserve
Section and his name was placed on the Reserve Retired List, effective
30 Nov 99.  He was credited with 26 years, 7 months,  and  7  days  of
satisfactory Federal service for retirement.

On 2 Mar 00, the reviewing authority forwarded the  LOD  determination
to the approving authority, but it was returned without action.

_________________________________________________________________

AIR FORCE EVALUATION:

ANG/DPFP recommended denial.  ANG/DPFP  noted  the  applicant’s  claim
that he injured his spine after he was  found  medically  disqualified
for continued service.   ANG/DPFP  indicated  that  from  the  medical
documentation included in the case file, and a previous review of  his
medical record, it is apparent that  the  degenerative  changes  noted
were evident long before his  claim  of  an  injury  in  Jun  99.   In
addition, the LOD that was returned without action was due to the fact
that when a member is found medically disqualified, any future  claims
for LOD are not required nor allowed by law.   The  applicant’s  lumbo
sacral sprain, with lower extremities numbness injury existed prior to
service.

A complete copy of the ANG/DPFP evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response, the applicant indicated that if he was on active duty
orders on the date  of  his  injury,  received  active  duty  pay  and
benefits for said  day  of  work,  was  legally  performing  sensitive
military duties as a  military  member  and  not  as  a  civilian,  he
believes he is legally entitled to a LOD determination and should  not
have to pay for the mistakes of the system which now wants to  deprive
him of his rights in his time of need.

Applicant’s complete response, with attachments, is at Exhibit E.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

HQ USAF/JAG recommended that the Board either  request  that  ANGSC/SG
respond to the deficiencies noted in their advisory  or  request  that
the  Secretary  direct  ANGSC/SG  to  complete  the  applicant’s   LOD
determination as required by law and regulation.   They  would  expect
that in  doing  so,  an  explanation  would  be  obtained  as  to  the
applicant’s medical disqualification in Dec 98, his duty status at the
time of his injury in Jun  99,  and  whether  the  applicant’s  injury
should be considered EPTS.  As part of  this  process,  the  applicant
should be given an opportunity to submit  a  statement  in  accordance
with 10 U.S.C. 1219.  Upon completion of the  LOD  determination,  the
Board may  then  consider  the  applicant’s  request  for  relief,  if
warranted.

A complete copy of the HQ USAF/JAG evaluation is at Exhibit F.

ANG/DPFP indicated that after an additional review of the  applicant’s
medical documentation, and based on the fact that  the  applicant  was
injured while on duty, even though he was disqualified  medically  for
duty in Dec 98, the applicant should have been found LOD-Yes  for  his
spinal injury.  The state did not discharge the member for  11  months
after medical disqualification, based on the  coronary  condition,  by
ANG/SG and NGB.

A complete copy of the ANG/DPFP evaluation is at Exhibit G.

The Chief Medical Consultant, AFBCMR, recommended denial.  The Medical
Consultant indicated that perhaps the most compelling evidence against
eligibility for disability processing comes from the  applicant’s  own
words in which he states he “was put on sick call,  receiving  medical
treatment at Fort Buchanan Clinic.  I continued to work until 30  Sec,
99 when my military orders ended and they were  not  extended.”   This
evidence that he was able to continue to work until his orders expired
appears to substantiate the fact that he  was  not  incapacitated  for
performance of his duties (which should  have  been  curtailed  months
before,  anyway,  had  his  prior  disqualification  been  acted  upon
appropriately), and, therefore, not a candidate for  consideration  in
the disability evaluation  system.   Such  consideration,  of  course,
depends on a member’s being unable to perform his assigned  duties,  a
situation that clearly did not exist in this case.  There  appears  to
be no question, however, that the injury was sustained while on active
duty (albeit duty that should have been curtailed some  months  prior)
and that further care in the Department of Veterans Affairs system for
this service-incurred, but  militarily  not  unfitting  condition,  is
appropriate given  the  circumstances  leading  to  the  injury.   The
Medical Consultant stated that it is somewhat unclear to him  how  the
applicant continued to serve his period of active  duty  once  he  was
found to be medically disqualified.  The simple  physical  finding  of
his disqualification should have brought at least a  verbal  order  to
curtail further military duties  pending  receipt  of  the  “official”
notification  that   arrived   almost   a   year   later.    Favorable
consideration of this request, other than to approve future  DVA  care
for the service-incurred medical condition, cannot be supported.   The
BCMR Medical Consultant is of  the  opinion  that  no  change  in  the
records is warranted.

A complete of the Medical Consultant’s evaluation is at Exhibit H.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to applicant on  15
Nov 01 for review and response.  As of this date, no response has been
received by this office (Exhibit I).

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the
existence of probable error or  injustice  regarding  the  applicant’s
request that his spinal injury be determined to be in the line of duty
and that he be reimbursed for his incurred medical expenses.  After an
exhaustive review of the facts and circumstances of this case, we  are
sufficiently persuaded that a determination should have been made that
the applicant’s injury was incurred while in the  line  of  duty,  and
that he should be  entitled  to  reimbursement  for  any  expenses  he
incurred for medical care resulting from his injury.  Accordingly,  we
recommend that his records be corrected as set forth below.

4. Insufficient relevant evidence has been  presented  to  demonstrate
the  existence  of  probable  error  or   injustice   concerning   the
applicant’s request for incapacitation pay and allowances,  disability
compensation, and payment of future medical expenses.

      a.  With regard to the applicant’s  request  for  incapacitation
pay and allowances, we note that the purpose of incapacitation pay  is
to compensate an individual who experiences incapacitation or loss  of
civilian earnings as a result of illness, injury, or disease  incurred
or aggravated in the line of duty, and to provide the required medical
care associated with the incapacitation.  After a thorough  review  of
the available evidence, nothing has been provided which  convinces  us
that the applicant was physically disabled as a result of his  injury,
or was unable to perform duty subsequent to his injury.   Furthermore,
he has not provided any documentation to show  that  he  suffered  any
loss of civilian earnings.  In view of this, and  in  the  absence  of
evidence to the contrary, we find no basis upon which to act favorably
on the applicant’s request.

       b.  Concerning   the   applicant’s   request   for   disability
compensation, we agree with the  opinion  and  recommendation  of  the
Medical Consultant and adopt  his  rationale  as  the  basis  for  our
conclusion that the applicant has not been the victim of an  error  or
injustice.  No evidence  has  been  presented  which  shows  that  the
applicant was considered unfit to perform the duties of his  rank  and
office as a result of his spinal injury.  Therefore, in the absence of
evidence to the contrary, we find no  compelling  basis  to  recommend
granting the requested relief.

      c.  We note the applicant’s request that he received payment for
future medical expenses.  However, since a determination has been made
that his injury was in the line of duty,  and  thus  is  considered  a
service-incurred condition, we believe  the  DVA  is  the  appropriate
agency to address this matter.  Accordingly, the  applicant’s  request
is not favorably considered.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that a Line of Duty  (LOD)
Determination was initiated on 22 Jun 99  because  of  his  injury  of
lumbo-sacral sprain with  lower  extremities  numbness  and  competent
authority thereafter determined that his injury was incurred while  in
the Line of Duty; and, that he is entitled to  reimbursement  for  any
medical expenses he incurred as a result of his injury  prior  to  his
name being placed on the Reserve Retired List on 30 Nov 99.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number 00-
02007 in Executive Session on 6 Mar 02, under the provisions of AFI 36-
2603:

      Mr. Frederick R. Beaman III, Panel Chair
      Mr. James W. Russell III, Member
      Ms. Marcia Jane Bachman, Member

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

    Exhibit A.  DD Form 149, dated 9 Jul 00, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ANG/DPFP, dated 11 Jun 01.
    Exhibit D.  Letter, SAF/MIBR, dated 6 Jul 01.
    Exhibit E.  Letter, applicant, dated 5 Aug 01.
    Exhibit F.  Letter, HQ USAF/JAG, dated 17 Sep 01.
    Exhibit G.  Letter, ANG/DPFP, dated 1 Nov 01.
    Exhibit H.  Letter, Medical Consultant, dated 13 Nov 01.
    Exhibit I.  Letter, AFBCMR, dated 15 Nov 01.




                                   FREDERICK R. BEAMAN III
                                   Panel Chair










AFBCMR 00-02007




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 , be corrected to show that a Line of Duty (LOD)
Determination was initiated on 22 Jun 99 because of his injury of
lumbo-sacral sprain with lower extremities numbness and competent
authority thereafter determined that his injury was incurred while in
the Line of Duty; and, that he is entitled to reimbursement for any
medical expenses he incurred as a result of his injury prior to his
name being placed on the Reserve Retired List on 30 Nov 99.







    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency