RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2007-00406
COUNSEL: NONE
HEARING DESIRED: NO
MANDATORY CASE COMPLETION DATE: 12 AUGUST 2008
_________________________________________________________________
APPLICANT REQUESTS THAT:
His records be corrected to reflect he was medically discharged instead of
being transferred to the Retired Reserve List.
_________________________________________________________________
APPLICANT CONTENDS THAT:
He was not given the appropriate time to establish his disability case
prior to being administratively separated.
In support of his appeal, applicant submitted copies of medical records,
military documents, statements and rebuttals.
Applicant's complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
On 18 April 2000, the applicant had been on a unit training activity (UTA)
and during his travel home was involved in a motor vehicle accident (MVA).
A line of duty (LOD) determination was not initiated at this time.
Due to the injuries the applicant incurred from the MVA he underwent
surgery for a discectomy and fusion on 12 March 2001.
The HQ ANG/SGP Aeromedical Summary reflects the applicant’s injuries were
healing until he suffered another neck injury on 14 July 2001 at his
civilian job.
On 24 February 2004, an Air Force (AF) Form 348, Line of Duty Determination
(LOD) was initiated. The LOD determination review resulted in a
recommendation for a formal investigation.
On 7 November 2004, the Formal LOD concluded the applicant injuries were
not incurred in the LOD. The investigation verified the applicant’s
injuries were not in the LOD due to the location of the accident and that
applicant was not in a LOD status when the accident occurred.
On 19 March 2006, ANG/SGPA found the applicant disqualified for worldwide
service.
On 27 March 2006, the applicant was notified that ANG Surgeon General’s
Office determined him medically disqualified and recommended he be
discharged. He also was provided information regarding his options under
the Disability Evaluation System (DES).
On 31 March 2006, the applicant acknowledged the notification and applied
for transfer to the Retired Reserve and waived his opportunity to have his
case referred to the DES for a fitness determination.
On 11 May 2006, the applicant was honorably discharged from the Air
National Guard and transferred to the Reserves Retired List on 11 May 2006.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPPD recommends the requested relief be denied. They state that the
Physical Disability Division never received a referral to the Physical
Evaluation Board (PEB) and therefore could not have given the applicant a
medical discharge. They further stated the applicant should pursue follow-
up medical through the Veteran’s Administration.
A copy of the AFPC/DPPD evaluation is at Exhibit C.
AFPC/JA recommends the requested relief be denied. They state the
applicant’s status at the time is critical when analyzing whether he is
entitled to retirement benefits through the Air Force DES. After the
applicant was released from duty on the day of the accident, he remained in
military status for so long as he was traveling directly to his residence.
LOD determinations and investigation of Air Force servicemembers incurring
injuries while on active duty training tours are made in accordance with
the Air Force Instruction (AFI) 36-2910. The regulation states “an injury,
illness, disease or death sustained by a servicemember in an active duty
status or in an inactive duty for training (IDT) status is presumed to have
occurred in the LOD. The ANG supplement LOD instruction precisely
addresses the circumstances in the applicant’s case: LOD Not Required—Not
in Duty Status when clear evidence indicates that the servicemember was not
on official duty or on official orders at the time of the illness, injury
or disease. When it also clear that the servicemember deviated from a
direct route in traveling to and from duty. Once the servicemember makes a
stop he or she is no longer in duty status.
The AFI and the ANGI are both written in a fashion to insure consistency
with the statute authorizing disability retirements for reserve
servicemembers on duty for less than 30 days.
A copy of the AFPC/JA evaluation is at Exhibit D.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant reviewed the Air Force Evaluation and states he is not
requesting his DD Form 214 be changed to state that he was medically
discharged, but that he was discharged in order to be medically retired.
He further states it has been ingrained in him that servicemen are 24 hours
a day, seven days a week. If he committed a crime while off duty, it would
certainly have bearing on his military duties and potentially on his
discharge.
The PEB referral was not presented to him until he had been in the
discharge system for two years and he was told that he would again be
evaluated and given appellate rights and that the process could take up to
a year or two. Also, if the finding was against him, he would be forced to
take his appellate case to Texas at his own expense. So he agreed to the
transfer to the Retired Reserve out of sheer desperation (Exhibit F).
Senator Murray’s submitted a letter dated 14 May 2007, requesting the
applicant’s receive careful consideration. The Board staff in response to
the congressional inquiry provided status information regarding the
applicant’s request (Exhibit G).
_________________________________________________________________
THE BOARD CONCLUDES THAT:
1. The applicant has exhausted all remedies provided by existing law or
regulations.
2. The application was timely filed.
3. Insufficient relevant evidence has been presented to demonstrate the
existence of an error or an injustice. Applicant’s contentions are duly
noted; however, we agree with the opinions and recommendations of the Air
Force and adopt their rationale as the basis for our conclusion that the
applicant has not been the victim of an error or an injustice. The
applicant was injured while in route to his home from his official duty
station. The applicant believes his detour in route to his home was not
such a deviation from direct travel that it would prohibit a finding of in
the LOD. The applicant was disqualified for worldwide duty and applied for
transfer to the Retired Reserves and waived his opportunity to have his
case referred to the DES for a fitness determination. In accordance with
law and Air Force policy servicemembers who are injured in route from their
official duty station are considered to be in LOD as long as the injury
occurred while they were traveling directly home. Unfortunately, the
applicant detoured in his travel home and by no fault of his own was
injured; however, in accordance with law and policy his injuries are not
considered in the LOD because he was not traveling directly in route to his
home. Therefore, in the absence of evidence to the contrary, we find no
compelling basis to recommend granting the relief sought in this
application.
_________________________________________________________________
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-2007-
00406 in Executive Session on 14 June 2007 under the provisions of AFI 36-
2603:
Mr. James W. Russell III, Panel Chair
Ms. Glenda H. Scheiner, Member
Mr. Michael F. McGhee, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 5 Jan 07, w/atchs.
Exhibit B. VA Records.
Exhibit C. Letter, AFPC/DPPD, dated 13 Feb 07.
Exhibit D. Letter, AFPC/JA, dated 16 Mar 07.
Exhibit E. Letter, SAF/MRBR, dated 23 Mar 07.
Exhibit F. Letter, Applicant, dated 21 Apr 07.
Exhibit G. Letter, Senator Murray, dated 14 May 07.
JAMES W. RUSSELL III
Panel Chair
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