RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2011-03356
COUNSEL: NONE
HEARING DESIRED: NO
__________________________________________________________________
APPLICANT REQUESTS THAT:
His AF Form 469, Duty Limiting Condition Report, for the period
Mar-Apr 2011 be changed to reflect not fit for military duty.
__________________________________________________________________
APPLICANT CONTENDS THAT:
The initial AF Form 469 is in error because a diagnosis of his
injury was made with incomplete information from a civilian
doctor, which resulted in the change of the second AF Form 469.
He was prescribed Valium and Flexoril between Mar through Apr
2011, which are not conducive to the performance of military duty.
He requests this correction not only for his familys future, but
to file for Incapacitation Pay (INCAP) he is entitled to for the
period of Mar to May 2011.
The flight surgeon attempted to change the original AF Form 469,
but was unsuccessful.
In support of his request, the applicant provides copies of his
military and civilian medical records, AF Form 938, Request and
Authorization for Active Duty Training/Active Duty Tour; AFRC IMT
348, Informal Line of Duty Determination; AF Form 1042, Medical
Recommendation for Flying or Special Operational Duty, and AF Form
469.
The applicant's complete submission, with attachments, is at
Exhibit A.
__________________________________________________________________
STATEMENT OF FACTS:
Based on the applicants submission and the available records, he
was on active duty 24 Sep 1997 through 12 Dec 1997,
12 Jan 1998 through 15 Oct 1998, 11 Feb 2003 through 4 Apr 2004,
and 20 Jul 2008 through 31 May 2010, when he was released.
__________________________________________________________________
AIR FORCE EVALUATION:
HQ AFRC/SG recommends denial. SG states the AF Form 469, is the
mechanism by which the provider communicates physical and
deployment restrictions. In this case the AF Form 469 was
prepared by the active medical provider at flight medicine and was
based on a documented physical examination and interview with the
applicant.
SG states that although the member was taking Motrin during the
day and Valium at night, he was only placed on Duties Not
Including Flying (DNIF) and given running, lifting and bending
restrictions. Since this was a temporary condition he was not
taken off duty, or placed on an assignment availability code
restricting any mobility.
SG states to change a previous AF Form 469 is asking to change the
medical providers assessment of the situation. The notes are
congruent with the statements on the AF Form 469, which appear to
be correct given their assessment of the patient at that moment in
time.
The complete SG evaluation is at Exhibit C.
__________________________________________________________________
BCMR MEDICAL EXAMINERS EVALUATION:
The BCMR Medical Consultant recommends denial. The Medical
Consultant states that although a referral physician indicated on
15 Apr 2011, that the applicant was unable to work until after
surgery, it remained the military clinicians responsibility to
manage oversight of the applicants care and to implement
appropriate restrictions as necessary.
The Medical Consultant states that while the applicant was
ultimately placed on orders, presumably initiated in May 2011, the
supplied AF Form 469 initiated in Mar 2011 clearly indicated no
intent to designate the applicants medical condition as
potentially requiring a medical evaluation board (Code 37) or that
it was known to require treatment 31-365 days (Code 31). Both
spaces are left blank by the provider. The Medical Consultant
states that in retrospect one may wonder why the applicant was not
placed on medical continuation orders during his initial phases of
treatment and diagnostic work-up (Mar-Apr 2011), noting the
applicant experienced pain and required a change of medications.
Conversely, the Medical Consultant opines that with precautionary
instructions on usage and side effects of the prescribed
medication, the fact that the applicant was designated DNIF, and
the intervening evidence of some improvement in pain, a health
care provider may consider a member worldwide qualified.
The Medical Consultant agrees with the SG advisorys opinion and
finds it inappropriate to supplant his clinical judgment with that
of the treating physician who cared for the applicant during the
periods of service in question. Therefore, the Medical Consultant
states the applicant has not met the burden of proof of an error
or injustice that warrants the desired change of record
The complete BCMR Medical Consultants evaluation is at Exhibit F.
__________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant states his request was not for the purpose of
establishing medical continuation (MEDCON) orders from Mar through
Apr 2011, but to request a code change so he could re-apply for
incapacitation (INCAP) pay. His package was denied due to the
improper code that was assigned to his injury on the AF Form 469.
A doctor attempted to correct this code, but was unable to do so,
and as a result of this administrative issue he was left without
income for nearly five months.
He refers to the remark, meds were making the pain livable, he
made on 11 Mar 2011, and states it was made in the context of
allowing him to physically function at a minimal level. "Livable"
also applied to the fact that with the medications he was finally
able to obtain a quasi-decent night's sleep without waking up in
excruciating pain several times a night. Without the medications
he would not have been able to perform any duty, and given the
narcotic nature of two of the medications, there should have been
a disqualification from duty. If he were to take the medications
without a prescription it would be the end of his military career,
but questions why taking them under prescription did not affect
his duty status.
At no point during his injury was he ever placed on medical
continuation orders and questioned several people, but was told
that despite obtaining the Line of duty" designation for the
injury the process was denied for the entirety of the
injury/recovery.
He reiterates that the purpose of his request is to recover INCAP
pay for the period of Mar through Apr 2011 that was denied due to
an improper code assigned to his injury. He is not seeking
medical continuation orders, whether warranted or not.
The applicants complete response is at Exhibit G.
__________________________________________________________________
ADDITIONAL AIR FORCE EVALUATION:
The Medical Consultant recommends consideration for amending the
record to reflect a check mark was placed in Block 31 of the AF
Form 469, initiated on 11 Mar 2011. The Medical Consultant states
the only medical document under question is the applicant's AF
Form 469, on which his provider left blank an important
designation (purposefully or otherwise) on the form he initiated
on 11 Mar 2011. In the previous advisory, the Medical Consultant
found it inappropriate, and still does, to supplant his clinical
judgment with that of the applicant's practitioner, noting the
likelihood that the provider may have initiated the document at
the time when it could not be definitively determined whether the
course of treatment would extend beyond 30 days; particularly for
a condition believed to be limited to muscle spasms. Based upon a
preponderance of the clinical evidence of record, the Medical
Consultant opines the applicant may have indeed been sufficiently
impaired to warrant the designation of Code 31, that is, a
condition which actually required treatment for 31 to 365 days for
resolution.
The Medical Consultant states, if the Board feels the applicant
deserves the benefit, not based upon error, but upon a possible
resultant retrospectively determined injustice, then granting
relief is appropriate. Furthermore, since the inclusive period of
time of duty restrictions imposed on 11 Mar 2011 [likely
unintentionally] actually totaled 31 days, then it would seem
legally disingenuous to then not have placed the check mark in
block 31 to indicate the same.
The complete BCMR Medical Consultants evaluation is at Exhibit H.
__________________________________________________________________
APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:
On 26 Mar 2012, a copy of the Air Force evaluation was forwarded
to the applicant for review and comment within 30 days. To date,
a response has not been received (Exhibit I).
__________________________________________________________________
THE BOARD CONCLUDES THAT:
1. The applicant has exhausted all remedies provided by existing
law or regulations.
2. The application was not timely filed.
3. Sufficient relevant evidence has been presented to
demonstrate the existence of an error or injustice warranting
corrective action. After our review of the evidence before us
and noting in particular the evaluation prepared by the BCMR
Medical Consultant, we believe the applicants AF Form 469
should be amended to reflect that a check mark was placed in
Block 31 to reflect that his medical condition would be resolved
within 31-365 days. In view of the above and as a matter of
justice, we recommend the applicants 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 the AF Form 469,
initiated on 11 Mar 2011 be amended to reflect a check was placed
in block 31.
__________________________________________________________________
The following members of the Board considered this application in
Executive Session on 1 May 2012, under the provisions of AFI 36-
2603:
, Panel Chair
, Member
, Member
All members voted to correct the records, as recommended. The
following documentary evidence was considered:
Exhibit A. DD Form 149, dated 29 Jul 2011, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, HQ AFRC/SG, dated 9 Dec 2011.
Exhibit D. Letter, SAF/MRBR, dated 29 Dec 2011.
Exhibit E. Letter, SAF/MRBC, dated 23 Feb 2012.
Exhibit F. Letter, BCMR Medical Consultant, dated 16 Feb 2012.
Exhibit G. Rebuttal, Applicant, undated.
Exhibit H. Letter, BCMR Medical Consultant, dated 22 Mar 2012,
w/atchs.
Exhibit I. Letter, SAF/MRBC, dated 26 Mar 2012.
Panel Chair
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