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AF | BCMR | CY2007 | BC-2007-00406
Original file (BC-2007-00406.doc) Auto-classification: Denied

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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