RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-02006

            COUNSEL:  C. LEONARD SHOEMAKER

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His total active military service be corrected to include  the  period
14 Sep 98 to 25 Mar 99 as a period he was entitled  to  be  on  active
duty  orders  pending  the  processing  of  the  Line  of  Duty  (LOD)
determination required by AFI 36-2910.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The  cited  authority  requires  a  commander  to  initiate   an   LOD
investigation in those instances where  the  servicemember  is  absent
from duty for a specified  period  due  to  illness  or  injury.   The
failure of his then commander to follow proper procedure, coupled with
the significant incapacity he suffered, resulted in a  lengthy  period
of time that elapsed between the date of onset of his injury  and  his
subsequent placement on  orders  pending  both  Medical  and  Physical
Evaluation Board  (PEB)  determinations  to  place  his  name  on  the
Permanent Disability Retired List (PDRL).

In support of his appeal, the applicant provided a personal statement,
copies  of  his  military  personnel  records,  to  include  the   LOD
determination, MEB, Informal PEB,  Military  Personnel  Appropriations
(MPA) and retirement orders,  point  credit  summary,  and  separation
documents.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant was appointed a second lieutenant, Reserve of the Air Force,
on 14 Feb 86 and voluntarily ordered to extended active duty.

On 31 Dec 92,  he  was  voluntarily  released  from  active  duty  and
transferred to the Air Force Reserve in the grade of captain.  He  was
promoted to the grade of major effective 12 Aug 97,  with  a  date  of
rank (DOR) of 6 Mar 97.

An  AF  Form  938,  Request  and   Authorization   for   Active   Duty
Training/Active Duty Tour, indicates that the applicant was to perform
active duty training (MPA tour) for the period 12 Sep 98 to 13 Sep 98.
 While on active  duty,  he  became  ill  with  a  headache.   He  was
subsequently diagnosed with  subarachnoid  hemorrhage  resulting  from
multiple cerebral aneurysms.

On 26 Mar 99, the applicant was placed on active  duty  orders  for  a
medical evaluation.

On  29  Mar  99,  the  applicant’s  commander  recommended  that   the
applicant’s medical condition be found in the line of duty, which  was
approved on 8 Apr 99.

On 29 Nov  99,  the  applicant  was  relieved  from  active  duty  and
permanently retired by reason of a physical disability,  effective  30
Nov 99, in the grade of major, with a disability rating of 30 percent.

_________________________________________________________________

AIR FORCE EVALUATION:

ARPC/JA recommended denial indicating that nothing in  the  Air  Force
Instruction (AFI) cited by the applicant, nor any other AFI  of  which
they are aware, required that the applicant be  placed  on  continuing
orders for an LOD determination.  In many instances, continuing orders
are executed based on the medical and commander’s recommendations, but
they are not required.  In the record that was before them, there  was
no evidence the military knew, or should have known in Sep 98, of  the
seriousness of the applicant’s medical condition.  He,  in  fact,  was
placed on orders in Mar 99 until final determination was made  in  Nov
99.  According to ARPC/JA, the applicant received a lengthy period  of
evaluation on orders, which could have commenced in Sep 98  or  Mar 99
with the same expected result to him.  In  any  event,  there  was  no
entitlement to be placed on orders for LOD processing as  proposed  by
the applicant.

A complete copy of the ARPC/JA evaluation is at Exhibit C.

AFPC/DPPD indicated that having reviewed  the  mechanics  of  the  Air
Force Disability Evaluation System (DES) process concerning this case,
they  found  no  injustice,  discrepancies,  or  errors   during   the
applicant’s MEB/PEB that required any change to those records.   Since
ARPC/JA is the office of primary responsibility (OPR) for LOD  issues,
they accept ARPC/JA’s  findings  and  recommendation  concerning  this
matter.

A complete copy of the AFPC/DPPD evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel reviewed  the  advisory  opinions  and  furnished  a  response
indicating that the entire basis for the applicant’s amendment to  his
service record hinges on the time lapse between  the  disabling  event
and LOD that  established  that  fact.   In  his  view,  much  of  the
aggravation of the  LOD  process  could  have  been  avoided  had  the
applicant’s chain of command not failed him at  the  outset.   In  the
end, he has been treated fairly, but he maintains  it  is  speculation
that had the  process  begun  in  Sep  98,  it  would  have  concluded
approximately six months sooner,  resulting  in  the  same  length  of
service calculation.

Counsel’s complete response is at Exhibit F.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

HQ USAF/JAA recommended denial indicating that there was no  statutory
or regulatory requirement to place the applicant on active duty orders
during the  LOD  process  and  the  applicant’s  counsel  agreed.   In
addition to agreeing that the  discretionary  issuance  of  continuing
orders cannot be challenged, counsel also offered that the  applicant,
in the end, had been treated fairly.  Consequently, it was clear  that
the applicant has failed to demonstrate the existence of any error  or
present facts and circumstances supporting an injustice.

A complete copy of the HQ USAF/JAA evaluation is at Exhibit G.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Counsel reviewed the  additional  advisory  opinion  and  furnished  a
response indicating the applicant’s contention  is  based  more  on  a
mistake, in that his commander knew the degree of  his  incapacitation
long before the ultimate initiation of the LOD.  While the issuance of
orders may have been discretionary on the part of the commander, it is
hard for them to imagine why such orders would not have been issued in
the applicant’s case.  Counsel indicated that the applicant views  the
time lag as a failure of command and believes that he was penalized by
what could  only  be  characterized  as  a  mistake  or  an  abuse  of
discretion.

Counsel’s complete response is at Exhibit I.

_________________________________________________________________

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.  Insufficient relevant evidence has been presented  to  demonstrate
the  existence  of  error  or  injustice.   The  applicant's  complete
submission was thoroughly  reviewed  and  his  contentions  were  duly
noted.  However, we do not find the  applicant’s  assertions  and  the
documents provided in support of his appeal sufficiently persuasive to
override the rationale provided by the Air Force  offices  of  primary
responsibility (OPRs).   We  note  that  there  was  no  statutory  or
regulatory requirement to place the applicant on  active  duty  orders
during the LOD process.  Furthermore, no evidence has  been  presented
which has shown to our satisfaction that the failure to do so  was  an
abuse of discretionary authority.  In view of the  foregoing,  and  in
the absence of sufficient evidence to the contrary, we agree with  the
recommendations of the OPRs and adopt their rationale as the basis for
our decision that the applicant has failed to sustain  his  burden  of
establishing that he has suffered either an  error  or  an  injustice.
Accordingly, we find no compelling basis  to  recommend  granting  the
relief sought in this application.

4.  The applicant's case is adequately documented and it has not  been
shown  that  a  personal  appearance  with  or  without  counsel  will
materially  add  to  our  understanding  of   the   issues   involved.
Therefore, the request for a hearing is not favorably considered.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of material error  or  injustice;  that  the
application was denied without a personal  appearance;  and  that  the
application will only be reconsidered upon  the  submission  of  newly
discovered relevant evidence not considered with this application.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2003-02006 in Executive Session on 10 Feb 04, under the provisions  of
AFI 36-2603:

      Mr. Roscoe Hinton, Jr., Panel Chair
      Ms. Sharon B. Seymour, Member
      Mr. Garry G. Sauner, Member

The following documentary evidence pertaining to AFBCMR Docket  Number
BC-2003-02006 was considered:

    Exhibit A.  DD Form 149, dated 2 Jun 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ARPC/JA, dated 30 Jul 03.
    Exhibit D.  Letter, AFPC/DPPD, dated 21 Aug 03.
    Exhibit E.  Letter, SAF/MRBR, dated 29 Aug 03.
    Exhibit F.  Letter, counsel, dated 25 Sep 03.
    Exhibit G.  Letter, HQ USAF/JAA, dated 26 Nov 03.
    Exhibit H.  Letter, AFBCMR, dated 5 Dec 03.
    Exhibit I.  Letter, counsel, dated 23 Dec 03.




                                   ROSCOE HINTON, JR.
                                   Panel Chair