RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  01-02850
            INDEX CODE:  128.14

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

Special Order ---, dated 17 Feb 98, be rescinded and his  active  duty
status be reinstated with full pay and benefits, ending with his  date
of separation on 22 May 01.

By amendment, his records be corrected to reflect that he was entitled
to incapacitation pay from 7 Apr 98 to 6 Oct 98; and, from 1 Apr 99 to
22 May 01.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The special order was in violation  of  Air  Force  Instruction  3001,
Section 1.5.  This order removed him from active  duty  after  it  was
determined that he injured both of his  knees  in  the  line  of  duty
(LOD), which resulted in his incapacitation.  This  was  done  without
his consent.

In  support  of  his  appeal,  the  applicant  provided  an   expanded
statement, and  extracts  from  his  military  personnel  records,  to
include the findings of a Formal  Physical  Evaluation  Board  (FPEB),
Special Order ---, and an LOD.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force  on  5  Dec  88.   He  was
released from active duty on 7 May 97 under the provisions of AFI  36-
3208 (Intradepartmental Transfer).  He was credited  with  8 years,  5
months, and 3 days of active duty service.

On 8 May 97, the applicant enlisted in the Air National  Guard  for  a
period of 4 years and 3 months.

By Special Order ---, dated 1 Dec 97, the  applicant  was  ordered  to
active duty from 17 Dec 97 through  10  Mar  98  for  the  purpose  of
attending Ground Combat and Security Forces training courses.

On 13 Jan 98, the applicant went to sick  call  because  of  pain  and
swelling in both of his knees.  On 15 Jan 98, he  was  taken  to  sick
call when he could not complete a “ruck” march.  After completing  two
more follow-up appointments, he was referred to Orthopedics.  At  this
time, he was told that he would need physical therapy to recover,  and
was sent back to Kulis ANGB, Alaska.

By Special Order ---, dated 17 Feb 98, Special Order ---, dated 1  Dec
97, was amended to show that the applicant was ordered to active  duty
from 16 Dec 97 to 13 Feb  98.   Special  Order  ---  was  subsequently
amended to show that the applicant was ordered to active duty from  16
Dec 97 to 6 Apr 98.

On 19 Sep 98, the applicant went into the ---th Medical Squadron  (176
MDS) and requested a consult for Orthopedics.  He complained  that  he
was having problems with his knee again.  On 7 Oct 98, he was seen  by
an orthopedic specialist, who recommended to  the  applicant  that  he
would benefit from a temporary change in his duties.  He  stated  that
the applicant’s job activities aggravated his knee pain and he did not
expect this condition to improve unless he took time off.

On 20 Oct 98, the medical authority 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.  The
Commander, ---th Security Forces Squadron (-- SFS), certified that the
applicant was in a duty status at the time of the injuries which could
result in entitlement to pay and/or benefits, which was concurred with
by the Medical Corps commander.

On 4 Aug 99, the approval  authority  determined  that  the  applicant
injuries were not LOD,  but  existed  prior  to  service  (EPTS)  with
service aggravation.  He indicated that conservative  therapy  for  60
days was authorized.

On 11 Dec 00, a Medical Evaluation Board (MEB) convened and rendered a
diagnosis of bilateral patellofemoral  chondromalacia  with  resultant
bilateral  anterior  knee  pain.   The  MEB   recommended   that   the
applicant’s case be referred to an Informal Physical Evaluation  Board
(IPEB).   It  also  indicated  that  nonmilitary  hospitalization  was
required.

On  2  Feb  01,  an  IPEB  convened  and  rendered  a   diagnosis   of
patellofemoral syndrome.  The IPEB found that the applicant was  unfit
because of physical disability, that the disability was incurred while
the applicant was entitled to receive basic pay, that  the  disability
was incurred in the line of duty,  that  the  disability  was  ratable
under VA Diagnostic Codes  5003-52999  at  10 percent,  and  that  the
disability  might  be  permanent.   The  IPEB  recommended  that   the
applicant be discharged with severance pay.

On  21  Feb  01,  the  applicant  disagreed  with  the  findings   and
recommended disposition of the IPEB.

On 12 Apr 01, a Formal PEB (FPEB) convened and rendered a diagnosis of
patellofemoral syndrome.  The FPEB found that the applicant was  unfit
because of physical disability, that the disability was incurred while
the applicant was entitled to receive basic pay, that  the  disability
was incurred in the line of duty,  that  the  disability  was  ratable
under VA Diagnostic Codes  5003-52999  at  10 percent,  and  that  the
disability  might  be  permanent.   The  FPEB  recommended  that   the
applicant be discharged with severance pay.

On  12  Apr  01,  the  applicant  disagreed  with  the  findings   and
recommended disposition of the FPEB.

On 2 May 01,  the  Secretary  of  the  Air  Force  directed  that  the
applicant be separated for physical disability under the provisions of
10 USC 1203, with severance pay.

Applicant  was  relieved  from  his  assignment  and   was   honorably
discharged from the Air National Guard and as a  Reserve  of  the  Air
Force, effective 22 May 01, with severance pay.

_________________________________________________________________

AIR FORCE EVALUATION:

ANG/DPFP indicated that this case was mishandled based on the  conduct
of both the applicant and the state of ---.  The  applicant  left  the
state of --- in the middle  of  his  Medical  Evaluation  Board  (MEB)
process, which caused  some  delay.   The  state  of  ---  could  have
requested a waiver to continue incapacitation pay when  it  originally
expired in Apr 99, instead of waiting nine months. Since  the  request
was delayed, the absence of incapacitation pay from May 99 to  Oct  99
contributed to the applicant’s decision to move out of  the  state  in
Dec 99.

In  accordance  with  DoD   Directive   1241.1,   Reserve   Components
Incapacitation Benefits and DoD Instruction 1241.2, Reserve Components
Incapacitation System, the applicant, within his  rights,  refused  to
attend  MEB  appointments  without  being  on  active   duty.    Those
appointments were rescheduled, causing further delay.  At which  time,
the --- Air National Guard (--ANG)  placed  the  applicant  on  active
duty.

ANG/DPFP believes that the applicant should receive back pay  from  30
Oct  99  to  22  May  01,  as  if  he  had  been  allowed  to  collect
incapacitation pay.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant indicated that when he left --- in late Dec 99, it was  with
the understanding that a legitimate MEB had been  performed.   He  had
kept every appointment that the --- MDS had  made  for  him.   Further
investigation on his part later revealed the MEB  that  was  conducted
was fraudulent and a new MEB was ordered.  The --ANG and the  ---  MDS
were totally responsible for all of the delays, inconsistent  actions,
and broken promises that  have  occurred  since  these  injuries  took
place.  The LOD  was  delayed,  improperly  handled,  and  deceptively
originated.  The MEB should have taken place in Feb  98,  or  in  July
1999 when the Guard Bureau directed the ---th MDS to initiate it.  The
--- MDS should not  have  refused  examination  or  treatment  of  his
injuries from Mar 98 until Sep 98.   The  constant  misrepresentations
and manufactured documents have done  nothing  but  deceive  reviewing
authorities and  create  misconceptions  in  the  actual  sequence  of
events.

Applicant indicated  that  he  was  unclear  regarding  the  dates  of
30 Oct 99 to 22 May 01.  He was removed from active duty on 17 Feb  98
(made retroactively effective 13 Feb 98) by Special Order  ----  (this
order has since been  extended  to  6  Apr  98).   He  was  also  paid
incapacitation pay from 07 Oct 98 to 30 Mar 99. He should receive back
pay from 07 Apr 98 until 06 Oct 98 and from 01 Apr 99 to 22 May 01.

Applicant’s complete response is at Exhibit E.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

HQ USAF/JAG indicated that,  in  summary,  the  applicant’s  principle
complaint that the ANG was dilatory in handling his medical  situation
and disability processing appears, on its face, to  have  some  merit.
The ANG should have initiated an interim LOD in Feb 98,  within  seven
days of his injury, instead of delaying almost nine months.   Had  the
LOD been accomplished on time, the issue whether applicant should have
been considered incapacitated from the  date  of  his  injury  through
October 98 would be clearer. Since one was not accomplished, the Board
will need to examine applicant’s medical records  and  other  evidence
and make its own determination  whether  applicant  should  have  been
considered  incapacitated  during  that  period.   If  so,  then   the
applicant would be entitled to pay for the period 7 Apr 98  to  6  Oct
98.  Likewise, the Board should  examine  the  available  evidence  to
determine whether during the period of May  99  through  Sep  99,  the
applicant contributed to the delay in processing of  his  MEB  to  the
extent that he should be denied pay for that period.  If not, then the
Board may conclude that there is  an  error  in  applicant’s  military
records and he should also receive pay for the entire  period  from  1
Apr 99 to 22 May  01.  Otherwise,  the  Board  may  follow  ANG/DPFP’s
recommendation that applicant be paid only for the period 30 Oct 99 to
22 May 01.

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

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

In his response,  the  applicant  indicated  that  when  he  sustained
injuries to both of his knees, he was not able to perform  the  duties
of his Air Force Specialty Code (AFSC) and  should  have  been  deemed
incapacitated at that point.  From 7 Apr 98 to 31 Oct 98, he was never
released by an orthopedic specialist or  any  other  qualified  doctor
from the restrictions originally placed upon him.  If an LOD had  been
done within the required seven days of his return in Feb  99,  and  an
MEB had been accomplished, the gap of time  would  not  have  occurred
because a monthly medical evaluation by the ---th MDS would have  been
required.  The negligence of  the  ---th  MDS  and  their  refusal  to
evaluate him monthly should not preclude  him  from  the  active  duty
status and the incapacitation pay that he has the  right  to  receive.
Furthermore, the --- MDS falsely reported  that  he  did  not  provide
documentation for medical certification from May 99  to  Sep  99.   As
evidenced by the documentation provided, he did  everything  that  was
required of him and followed the directives of the  ---  Air  National
Guard and the ---th MDS.

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

_________________________________________________________________

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 error or injustice.  The  evidence  of  record  indicates
that in Jan 98, while on  active  duty  orders  attending  a  training
course, the applicant injured his knees.  His active duty  status  was
subsequently terminated on 6 Apr 98, when the ANG determined  that  he
was cleared to return to ANG duty.  As a result of his  injuries,  the
applicant was eventually found unfit for  continued  military  service
and discharged with severance pay in May 01.  He contends that he  has
been  incapacitated  since   Jan   98   and   should   have   received
incapacitation pay from 7 Apr 98, after his  active  duty  status  was
terminated, until 22 May 01, his date of separation from the ANG.   We
note that the applicant did receive incapacitation pay from 7  Oct  98
to 30 Mar 99.  Thus, the only periods in  dispute  for  incapacitation
pay are 7 Apr 98 to 6 Oct 98 and 1 Apr 99 to 22  May  01.   Concerning
the period of 7 Apr 98 to 6 Oct 98, we are not inclined  to  favorably
consider the request because no evidence has been presented which  has
shown  to  our  satisfaction  that  the   applicant   was   considered
incapacitated during this period of  time.   Despite  his  contentions
that he was incapacitated from the time  he  injured  his  knees,  the
evidence available before us  indicates  that  during  the  subsequent
months after his return to ANG duty in Apr 98; i.e., May 98 to Jul 98,
he participated and was paid for drill attendance.  It appears that it
was in Aug 98 when he again started to complain of knee problems.   We
note that in Oct 98, some nine months after he was injured, an LOD was
conducted regarding the applicant’s knee injuries  certifying  he  was
incapacitated, resulting in his entitlement to incapacitation pay  for
the period 7 Oct  98  to  30 Mar  99.   After  that,  the  applicant’s
incapacitation pay was not extended pending an MEB.  However, we  note
that the MEB was preceded by an inordinate delay.  Both the  applicant
and the ANG blame the other for the delay.  In our  view,  the  record
was insufficient for a determination as to  where  the  responsibility
truly lies.  It would appear that there may  be  enough  blame  to  go
around.  Nonetheless, what we do know is that the ANG  mishandled  the
applicant’s case by failing to initiate an LOD in  the  time  required
after he was injured.  At the very least, an interim LOD  should  have
been initiated seven days after the applicant was injured,  not  after
nine months.  Had this occurred, it might have  brought  some  clarity
regarding the issue of his  incapacitation.   Although  the  applicant
left the state of --- during the MEB process, it appears that  he  did
so  because  of  the  hardship  caused  by  the  termination  of   his
incapacitation pay.  Furthermore, in light of the applicant’s ultimate
separation for a physical  disability  that  was  determined  to  have
occurred in the line of duty, it would seem to  us  that  he  remained
incapacitated until he was finally discharged.  In view of the  above,
we are inclined to  give  the  applicant  the  benefit  of  the  doubt
concerning his request for incapacitation pay from 1 Apr 99 to  22 May
01.   Accordingly,  we  recommend  that  the  applicant’s  records  be
corrected as set forth 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 Line of Duty  (LOD)
Determination was initiated on  20  Oct  98  because  of  his  medical
condition  of  patellofemoral   syndrome   and   competent   authority
thereafter determined that his medical condition was incurred while in
the Line of Duty; and, that  competent  authority  determined  he  was
incapacitated from 1 Apr 99 through 22 May 01, and was entitled to pay
and benefits.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number 01-
02850 in Executive Session on 3 Dec 02, under the provisions of AFI 36-
2603:

      Mr. Joseph G. Diamond, Panel Chair
      Ms. Brenda Romine, Member
      Mr. James W. Russell III, Member

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

     Exhibit A.  DD Form 149, dated 4 Oct 01, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, ANG/DPFP, dated 21 Mar 02, w/atchs.
     Exhibit D.  Letter, SAF/MRBR, dated 5 Apr 02.
     Exhibit E.  Letter, applicant, dated 1 May 02.
     Exhibit F.  Letter, HQ USAF/JAG, dated 22 Oct 02, w/atchs.
     Exhibit G.  Letter, AFBCMR, dated 30 Oct 02.
     Exhibit H.  Letter, applicant, dated 24 Nov 02, w/atchs.




                                   JOSEPH G. DIAMOND
                                   Panel Chair









AFBCMR 01-02850




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 20 Oct 98 because of his medical
condition of patellofemoral syndrome and competent authority
thereafter determined that his medical condition was incurred while in
the Line of Duty; and, that competent authority determined he was
incapacitated from 1 Apr 99 through 22 May 01, and was entitled to pay
and benefits.







    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency