RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2008-00563
INDEX CODE: 108.00
COUNSEL: NONE
HEARING DESIRED: NO
________________________________________________________________
_
APPLICANT REQUESTS THAT:
He be continued on active duty with the West Virginia Air
National Guard (WVANG) from 7 June 2004 to 6 May 2005.
________________________________________________________________
_
APPLICANT CONTENDS THAT:
He was injured while on Title 10 active duty orders and
wrongfully demobilized after returning to his home station.
In support of his appeal, the applicant has provided copies of
his DD Forms 214, Certificate of Release or Discharge from
Active Duty, several pertinent email trails, orders and
Temporary Disability Retirement List (TDRL) documents along with
medical evaluation board (MEB) documents.
Applicants complete submission, with attachments, is at
Exhibit A.
________________________________________________________________
_
STATEMENT OF FACTS:
The applicant, a retired member of the WVANG, was mobilized on
3 March 2003 in support of Operation Iraqi Freedom (OIF). He
was ordered to Saudi Arabia where, on 9 March 2003, he injured
himself in the line of duty (ILOD) while moving cargo around in
his C-130 aircraft. He fell a distance of some six feet landing
on his knees, arms and elbows. He was diagnosed with
cervicalogia and contusions to his forearms and knees. An Air
Force Form 388, Line of Duty Determination, was eventually
accomplished on 8 September 2004 finding his injuries in the
LOD.
In March 2004, he reported skin lesions on his face that a
dermatologist diagnosed as pre-cancerous lesions needing further
treatment. On 14 September 2004, a skin biopsy on his right
cheek indicated a cancerous lesion. Another AF Form 388 was
accomplished on 7 November 2004 and found the lesion ILOD.
In June 2004 his orders were curtailed and he was demobilized on
7 June 2004, rather than 7 September 2004. The record indicates
that despite continuing problems with his injuries, he continued
his military duties, to some degree, through August 2004.
An additional AF Form 388 was accomplished on 4 May 2005, noting
the applicant had been diagnosed with Post Traumatic Stress
Disorder (PTSD) which was also found ILOD. On 6 May 2005, the
applicant was put on medical continuation orders for the purpose
of undergoing an MEB. On 21 July 2005, the MEB found the
applicant suffered from PTSD, a disqualifying medical condition.
His case was referred to the Informal Physical Evaluation Board
(IPEB) and on 28 September 2005, the IPEB found him unfit and
recommended temporary retirement with a 50% disability rating
for PTSD associated with Major Depressive Disorder and
Somatoform Pain Disorder due to multiple musculoskeletal
conditions. On 5 October 2005, the applicant agreed with the
IPEBs findings and recommendations. On 10 November 2005, he
was placed on the TDRL. On 12 April 2007, his case was reviewed
by the IPEB. His condition was found to have deteriorated
slightly and the IPEB recommended he remain on the TDRL with a
50% compensable rating.
As of 10 November 2008, he had served satisfactorily for
20 years, 7 months, and 27 days, almost eight years of which
were on active duty. Time spent on the TDRL does not count
toward the accrual of additional active duty or Reserve time.
________________________________________________________________
_
AIR FORCE EVALUATION:
The NGB was provided this application on 25 February 2008 for
the purpose of providing an advisory opinion. To date, they
have failed to provide one.
________________________________________________________________
_
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. Sufficient relevant evidence has been presented to
demonstrate the existence of error or injustice. The evidence
of record is unclear as to why it took unit officials some 18
months to accomplish an AF Form 388 indicating the applicants
injuries suffered in March 2003 as ILOD. We note that
subsequent AF Forms 388 addressing additional medical issues
were accomplished in a much more timely fashion. It appears the
applicant continued to serve beyond his demobilization date
thereby indicating he was somewhat fit for duty and not
necessarily eligible for continuation on active duty for the
time frame he is asking for. However, absent an opinion from
the NGB affirming he was fit for duty and presenting additional
persuasive evidence as to why the applicant should not have been
continued on active duty, we are of the opinion, in light of the
compelling evidence submitted by the applicant, that any doubt
as to his continuation should be resolved in his favor.
Therefore, we recommend 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 on 7 June
2004 he was not released from active duty, rather, on that date
he continued to serve on active duty with the West Virginia Air
National Guard until 6 May 2005.
______________________________________________________________
The following members of the Board considered AFBCMR Docket
Number BC-2008-00563 in Executive Session on 23 April 2009,
under the provisions of AFI 36-2603:
XXXXXXXXXXXXXXXX, Panel Chair
XXXXXXXXXXXXXXXX, Member
XXXXXXXXXXXXXXXX, Member
All members voted to correct the records, as recommended. The
following documentary evidence was considered:
Exhibit: DD Form 149, dated 5 Feb 08, w/atchs.
XXXXXXXXXXXXXXX
Panel Chair
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