RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02663
            INDEX CODES:  128.14, 135.02

            COUNSEL:  NONE

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to reflect he was entitled to  incapacitation
pay during the period 1 Jul 94 to 30 Sep 94, and that he  be  credited
with service points for this period.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was denied incapacitation pay for injuries he incurred in the  line
of duty (LOD) because a determination was made  he  could  work  light
duty with restrictions, even though he was not authorized to  work  by
the Hospital Commander.  He disagreed with that decision and filed  an
Inspector General (IG)  complaint  because  of  the  mistreatment  and
handling of his situation.

In  support  of  his  appeal,  the  applicant  provided  an   expanded
statement, and documentation pertaining  to  the  IG  report  and  LOD
determination.

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

_________________________________________________________________

STATEMENT OF FACTS:

Available documentation indicates  the  applicant  was  an  Individual
Mobilization Augmentee (IMA) who volunteered for and was put on a  60-
day Military Personnel Appropriation (MPA) tour from 13 Oct 93  to  11
Dec 93 at Cannon AFB.  He sustained an injury to his knee on or  about
13 Nov 93 while moving boxes  of  medical  records.   He  subsequently
obtained medication for pain and emergency treatment at the Cannon AFB
Clinic.  An investigation found the injury to be in the line of  duty,
however no legal review was conducted at the time, and  the  commander
did not sign the initial AF Form 348.  The applicant underwent further
evaluation on 11 Dec 93 and the results indicated he needed surgery.

Surgery was  performed  to  repair  a  medial  meniscal  tear  in  the
applicant’s right knee at  Tinker  AFB  Hospital  on  8  Jun  94.   In
addition to the meniscal tear, there was surface cartilage damage.  He
experienced complications upon his initial release from  the  hospital
and was readmitted.  He was placed on  convalescent  leave  after  his
subsequent release until 28  Jun  94.   His  rehabilitation  continued
through Jul 94, Aug 94, and Sep 94 and included three days of physical
therapy each week and two consultations per month with his physician.

The  first  report  of  the  injury  was   from   the   applicant   to
Lieutenant Colonel B--- (ARPC/SGP) on 10 Jul 94,  after  the  surgery.
Technical  Sergeant  (TSgt)  B---,  who  manages  the   administrative
requirements for IMAs  assigned  to  the  9019  ARS,  told  him  which
documents were required to process the continuation of pay (COP).   On
13 Jun 94, the applicant telephoned Staff Sergeant (SSgt)  D---  L---,
ARPC/MSPPC-2 (Special Actions).  SSgt L--- also advised the  applicant
of the required documentation, to include an AF Form 348, Line of Duty
Determination,  necessary  to  establish  entitlement  to  COP.    The
applicant sent the documentation, to include medical  information,  to
SSgt L--- via overnight delivery which SSgt L--- immediately delivered
to ARPC/SG for review and advice.

ARPC/SG determined  that  the  AF  Form  348  was  incomplete,  so  on
24 Jun 94, the LOD package was returned to the 27th Medical  Group  at
Cannon AFB, and they were instructed to complete the reverse of the AF
Form, to include the unit commander's signature and a legal review and
signature.  The completed AF Form 348 was not received  by  SSgt  L---
until 12 Aug 94.  While the AF Form 348 was at Cannon AFB,  SSgt  L---
and TSgt B--- followed-up with Airman H---  and  Airman  N---  of  the
Cannon AFB Clinic regarding its status, and were told the package  was
awaiting the legal review.

While the AF Form 348 was pending, SSgt L--- was unable to provide the
applicant a decision on his request for COP.  After receipt of all the
required medical documentation,  Master  Sergeant  (MSgt)  D---  S---,
Chief, Physical Standards Section,  HQ ARPC/SGS,  sent  a  memorandum,
dated 17 Aug 94 to ARPC/MSPPC-2, authorizing  incapacitation  pay  for
the applicant from 8 Jun 94 to 30 Jun 94.   This  period  covered  the
surgery and recuperation from the  surgery.   Another  memorandum  was
sent to ARPC/MSPPC-2 on 1 Sep 94, stating that as of  1  Jul  94,  the
applicant was fit for duty and no additional  incapacitation  pay  was
authorized.  ARPC/SG explained the applicant was entitled to  COP  for
the time he was disabled, which was from the time of the operation  to
the day he was released to light duty which was 30 Jun 94.   The  fact
he was still receiving  outpatient  care  did  not  prevent  him  from
working with the  recorded  restrictions.   ARPC/SG  stated  that  the
applicant was fit to perform the duties of  his  Air  Force  Specialty
Code (AFSC) during Jul 94, Aug 94, and Sep 94, and was  therefore  not
entitled to COP.  To be  eligible  for  COP,  a  member  must  have  a
physical profile of T-4/L-4, the only profile that makes the  military
member not worldwide deployable or fit for  return  to  full  military
duty.  The applicant was an L-3.

Major B--- (physician) confirmed the applicant was partially  disabled
during Jul, Aug, and Sep but indicated on the AF Forms 1971 for Jul 94
and Aug 94, that he was  returned  to  a  "light  duty"  status.   The
physical profile, AF Form 422, completed by Major B--- only restricted
the applicant to no running  or  aerobics,  and  no  cycle  ergometry.
Although the AF Form 1971, dated 9 Sep 94, showed the member  was  not
released and is entitled to  continued  disability,  and  even  though
Major B--- testified he did not think the applicant was fit  for  duty
or worldwide deployable during Jul 94, Aug 94, or Sep  94,  no  change
was made to the physical profile accomplished on 30 Aug 94 because the
AF Form 422 took precedence over the AF Form 1971.

On 19 Aug 94, the Denver Reserve Pay Office authorized an  advance  of
$1500.00 to the applicant.  This is  not  normally  done,  but  was  a
humanitarian decision based on Tinker AFB personnel who had interceded
on the applicant’s behalf since he had no income at  that  time.   The
amount of incapacitation pay he actually received after all deductions
did not equate to the advance, so he incurred a debt  on  his  record.
The first actual incapacitation paycheck was issued on 31 Aug 94,  and
the second on 15 Sep 94. His total debt equated to $343.42.

On 17 Oct 94, an IG inquiry was conducted  regarding  the  applicant’s
allegations of inappropriate handling by ARPC personnel of his request
for continuation of pay due to his LOD injury  and  surgery,  and  the
assertion of his entitlement to incapacitation pay beyond  30  Jun  94
through Sep 94.  The IG found that the ARPC personnel did process  his
LOD and his request  for  incapacitation  pay  appropriately,  and  he
received the continuation of pay to which he was entitled.

Information extracted from the Personnel Data System  (PDS)  indicates
that at the time of his appeal, the applicant was  serving  on  active
duty in the grade of senior master sergeant, having been  promoted  to
that grade on 1 Mar 98.  He had a date of separation (DOS) of  15  Dec
04 and an Expiration of Term of Service (ETS) of 31 Dec 04.

_________________________________________________________________

AIR FORCE EVALUATION:

ARPC/DPRFQ recommended denial noting  that  an  IG  investigation  was
initiated regarding the applicant’s complaint and found no  basis  for
the applicant’s claim.  Furthermore, the applicant’s request  that  he
be credited with service points for the period for incapacitation  pay
is not applicable.  According to ARPC/DPRFO, members  do  not  receive
points while receiving incapacitation pay  other  than  normal  points
awarded for duty training if applicable.

A complete copy of the ARPC/DPRFQ evaluation is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the  advisory  opinion  and  furnished  a  response
indicating his understanding of  the  governing  instruction  is  that
members on active duty orders for a specified period  of  31  days  or
more are not involuntarily released from their orders if they incur an
LOD medical condition.  His injury was incurred while he was on active
duty and an LOD was completed and he was on continuous treatment until
the end of Sep 94.

Applicant’s complete response, with attachment, is at Exhibit D.

_________________________________________________________________

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  office  of  primary
responsibility (OPR).  No evidence has been presented which has  shown
to our satisfaction he was entitled to incapacitation pay  during  the
period 1 Jul 94 to 30 Sep 94, or  that  he  should  be  credited  with
service points for this period.  In view of the foregoing, and in  the
absence of sufficient evidence to the  contrary,  we  agree  with  the
recommendation of the OPR and adopt their rationale as the  basis  for
our decision that the applicant has failed to sustain  his  burden  of
establishing  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-
2004-02663 in Executive Session on 25 Jan 05 and 10 Feb 05, under  the
provisions of AFI 36-2603:

      Ms. Peggy E. Gordon, Panel Chair
      Ms. Renee M. Collier, Member
      Mr. Patrick C. Daugherty, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 24 Aug 04, w/atchs.
    Exhibit B.  Letter, ARPC/DPRFQ, dated 29 Sep 04.
    Exhibit C.  Letter, SAF/MRBR, dated 30 Sep 04.
    Exhibit D.  Letter, applicant, dated 19 Oct 04, w/atch.




                                   RENEE M. COLLIER
                                   Acting Panel Chair