RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-00273
            INDEX CODE:  110.03

            COUNSEL:  NONE

            HEARING DESIRED: NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be placed on active duty from 3 March 2001 to 19 August  2003  with
all back pay and entitlements as well as point  credit  for  the  days
towards his retirement.

_________________________________________________________________

APPLICANT CONTENDS THAT:

While on active duty for 31 days he was diagnosed as having suffered a
heart attack and was subsequently  hospitalized.   He  was  improperly
discharged from active duty on 2 March 2001 after being  incapacitated
on active duty.  His unit did  not  keep  him  on  active  duty  until
resolution of his case as is required by  Air  Force  Instruction  36-
3212.  As a  result  of  his  complaints,  his  unit  agreed  to  some
additional benefits and completed a line of duty (LOD)  determination.
He contends no further action was taken for over two years  after  the
LOD was accomplished.  In May 2003, he was given  a  complete  cardiac
examination and on 19 August  2003,  was  returned  to  duty  with  an
assignment limitation code of “C”.  He contends from the time the  LOD
was written to his return to duty, he repeatedly tried to get his unit
to complete the medical evaluation process and to  compensate  him  in
accordance with applicable Instructions.  In October 2003, after  many
attempts to obtain compensation, he was told the AFBCMR was  his  only
remaining  course  of  action.   He  believes   Air   National   Guard
Instruction (ANGI) 36-3001 clearly shows he was entitled to remain  on
active duty until the final disposition of his medical case.

In  support  of  his  appeal,  the  applicant  has  provided  personal
statements, and a chronology, along with copies  of  his  active  duty
order, pertinent pieces of his medical record, an  LOD  determination,
several  pieces  of  correspondence  between  the  applicant  and  his
representatives  as  well  as   others,   notes   from   his   LOD/MEB
determinations,  pertinent  email  trails,   and   applicable   ANG/AF
Instructions.

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



STATEMENT OF FACTS:

The applicant, a member of the Arizona Air National Guard (AZANG), was
ordered to active duty and  deployed  to  France  for  the  period  31
January 2001 to 1 March 2001.  While deployed, on 27 February 2001, he
experienced a heart attack and was hospitalized on  28  February  2001
whereupon  he  was  diagnosed  as  having  experienced  a   myocardial
infarction.  On 28 February 2001, an  Air  Force  Form  1042,  Medical
Recommendation for Flying or Special Operational Duty,  was  completed
medically restricting the applicant from further  flying  duties.   He
was released from the hospital on 1 March 2001 and  after  his  orders
were extended for one day, flown back to Arizona on 2 March 2001.  His
orders expired on 2 March 2001.

On 5 March 2001, he wrote to his representative asking for  assistance
in obtaining a positive line of  duty  (LOD)  determination  from  his
unit.

On 12 March 2001, the applicant underwent cardiology  testing  with  a
civilian provider the results of which were all  found  to  be  within
normal limits.

On 20 March 2001,  applicant  was  notified  that  his  LOD  had  been
approved.   His  heart  attack  was  considered  LOD,  but  was   also
considered  as  existed  prior  to   service   (EPTS)   with   service
aggravation.

On 4 April 2001, the Arizona Adjutant General (AG)  responded  to  the
applicant’s  representative  with  a  letter  wherein  he  stated  the
applicant had received  a  favorable  LOD.   The  AG  also  noted  the
applicant’s unit had agreed to pay for further diagnostic  testing  of
up to $2500.  Since extensive testing to date indicated no evidence of
coronary disease, the  State’s  flight  surgeon  concluded  his  heart
attack was stress-induced and he was therefore  entitled  to  the  LOD
with related benefits.  The  AG  notes  the  applicant  indicated  his
pleasure with this outcome  although  he  would  not  be  entitled  to
incapacitation pay as he was on paid leave from his civilian employer.
 The AG stated he would  be  eligible  for  reimbursement  of  related
medical care.

On 23 January 2002, he underwent another physical where the  physician
indicated applicant was in good health.  Subsequently, on  29  January
2002, he requested to be reinstated to  flying  duties.   On  5  March
2002, an order was published medically disqualifying him from  further
flight duties effective 28 February 2002.  On 17 July 2002, he wrote a
letter to his wing commander asking that an MEB be accomplished,  that
he be  returned  to  active  duty  and  entered  into  the  Disability
Evaluation System (DES), that he be provided all back pay to the point
he was released from active duty and that he  remain  on  active  duty
until the disposition of his case was finalized.

On 29 April 2003,  the  wing  commander  ordered  a  Command  Directed
Investigation (CDI) wherein the investigating officer was tasked  with
identifying any facts and circumstances  surrounding  applicant’s  LOD
determination, medical evaluation board (MEB) and all other associated
actions.  The CDI found the preponderance of  the  evidence  indicated
his LOD was not initially processed in accordance with any ANG or  Air
Force  Instructions.   The  CDI  concluded  the  applicant   did   not
experience a myocardial infarction and, as a result, had his LOD  been
properly processed he  could  feasibly  have  been  returned  to  full
military duty.  Finally, the CDI concludes the applicant  is  entitled
to some military pay and benefits however, since the timeline for  his
LOD has far exceeded  the  six  months  allowed  by  regulations,  SAF
approval would have to be granted.

On 6 August 2003, applicant requested, via  email  to  his  commander,
that Incapacitation benefits be initiated.  On 19 August 2003, the Air
Force Personnel Center (AFPC) Medical Standards  Branch  directed  the
applicant be returned to duty; however, with an Assignment  Limitation
Code of “C”.  AFPC found  the  applicant’s  medical  condition  to  be
restricting and that he was not  mobility  qualified  pending  further
review.  On 15 October 2004, applicant’s commander notified  NGB  that
the applicant had exceeded his mandatory  separation  date  (MSD)  and
should be scheduled for retirement at the earliest possible date.

_________________________________________________________________

AIR FORCE EVALUATION:

ANG/DPPI states this case file does not have  sufficient  evidence  to
prove either the States claim or the member’s.  That  notwithstanding,
DPPI contends the applicant should have remained on active duty  until
the final disposition of his disability case.  However,  according  to
the State, the applicant was returned to duty with limitations  during
the period and returned to  his  civilian  employment.   Additionally,
there is evidence  indicating  the  applicant  was  pleased  with  the
outcome of his LOD determination and while his medical coverage  would
be reimbursed he was not eligible to receive  incapacitation  pay  for
lost wages as he was on paid leave from his civilian employer.

DPPI recommends the  applicant  be  granted  relief  for  any  medical
expenses that are related to  the  LOD  injury  and  with  the  proper
documentation reimbursed for any loss of wages  associated  with  said
injury.

DPPI’s complete evaluation, with attachment is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded to the ANG advisory and asks the Board  for  a
30-day delay that he may obtain and present three pieces  of  evidence
he needs to clarify the facts in his response.  He has asked his state
to provide him a copy of the Command Directed Investigation (CDI) into
his situation, he as asked the NGB for clarification  of  a  statement
made in their advisory regarding reimbursement of  medical  costs  and
incapacitation pay, and he as asked the NGB clarify the statement made
in their advisory regarding his release from active duty prior to  the
disposition of his case.

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

_________________________________________________________________

ADDITIONAL APPLICANT REVIEW OF AIR FORCE EVALUATION:

Applicant states the 161st Air Refueling Wing (ARW) and the AZANG  not
only  failed  to  follow  the  regulations  but  also  was  repeatedly
negligent in the handling of his case.  Instead of facing up to  their
obligation to him, they have sought  to  obfuscate  and  ignore  their
responsibility.  He notes it has been over four  years  since  he  was
wrongfully released from active duty.  He presents the following  five
examples:

            a. His Wing Commander failed  to  follow  regulations  and
improperly discharged him from active duty.

            b. The AZANG and the Adjutant General (AG) both misapplied
regulations in his case even after he had asked  for  assistance  from
his Congressman.

            c. After a year, he researched the regulations and pointed
out the AZANG’s responsibility to him and noting nothing was  done  to
resolve his case.

            d. Another year went  by  and  the  Investigating  Officer
(I/O) of the CDI noted the unit did not process  his  case  correctly,
nor did they respond to his repeated pleas for compensation.

            e. He notes the ANG took over a year  to  respond  to  his
rebuttal and when they did they failed to consider the CDI.

Applicant’s complete evaluation, with attached CDI, is at Exhibit F.

_________________________________________________________________

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 applicant was originally ordered
to active duty for 30 days.  When his orders were  amended  to  extend
the length of the orders by one  day,  the  applicant  was  considered
injured in the line of duty while on orders for 31 days.  By  law  and
regulation he was eligible to remain on active duty  until  the  final
disposition of his case.  However, he was released from active duty on
expiration of his orders.  In this regard, we note the  applicant  was
injured on 27  February  2001  and  while  an  LOD  determination  was
accomplished on 20 March 2001, it was not until 19 August 2003 that he
was determined to be fit to return to duty albeit with  an  assignment
limitation  code  rendering  him  ineligible   for   worldwide   duty.
Consequently, the majority of the Board agrees with his contention  he
should have remained on active duty from 3 March 2001 until 19  August
2003.  In regards to medical expenses incurred from 3 March 2001 until
19 August 2003, applicant  should  provide  any  medical  bills,  with
appropriate documentation, to DFAS  for  possible  reimbursement.   In
view of the above, the majority  of  the  Board  recommends  that  the
records be corrected as 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 he  was  not  released
from active duty on 2 March 2001, but on that date,  he  continued  on
active duty until 19 August 2003.

______________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 10 May 2005, under the provisions of AFI 36-2603:

      Ms. Cathlynn B. Sparks, Panel Chair
      Mr. Patrick C. Daugherty, Member
      Ms. Marcia Jean Bachman, Member

By a majority vote, the Board voted to grant the request.  Ms.  Marcia
Jean Bachman voted to deny the applicant’s request in its entirety and
elected to submit a minority report (see Exhibit G).

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 23 Jan 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ANG/DPPI, dated 10 Jan 04, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 14 Jan 05.
    Exhibit E.  Letter, APPLICANT, dated 24 Jan 05, w/atchs.
    Exhibit F.  Letter, APPLICANT, dated 21 Mar 05, w/atchs.




                                   CATHLYNN B. SPARKS
                                   Panel Chair



                         DEPARTMENT OF THE AIR FORCE
                                WASHINGTON DC




[pic]
Office Of The Assistant Secretary



AFBCMR BC-2004-00273




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 he was not
released from active duty on 2 March 2001, but on that date, he
continued on active duty until 19 August 2003.







     JOE G. LINEBERGER

     Director

     Air Force Review Boards Agency