ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:			DOCKET NUMBER:  BC-2012-01103
		
   						COUNSEL:  NONE

						HEARING DESIRED:  YES



APPLICANT REQUESTS THAT:

1.  His DD Form 214, Certificate of Release or Discharge from Active Duty, dated 17 Jun 11, be corrected to add back the two years of active duty service credit which the National Guard Bureau (NGB) removed by DD Form 215, Correction to the DD Form 214, dated 23 Oct 12.

2.  He be credited with active service during the period of time of his surgery. 

3.  He receive military pay and Air National Guard (ANG) retirement points for the periods of time requested above. 


RESUME OF CASE:

On 17 Jan 13, the Board considered and denied the applicant’s original request to change his record to show he was not released from active duty in Jun 08, but was continued on medical continuation (MEDCON) orders; met a medical evaluation board (MEB) and was medically retired due to his disabilities; and, was authorized reconstitution leave after his medical treatment was complete.  The Board noted the applicant appeared to have returned from Iraq and after completion of his reconstitution leave he returned to his civilian job and resumed his military duties as a traditional Guardsman, and there was no indication of any duty or work restrictions or functional impediments to duty resulting for any potential unfitting condition.  Absent evidence of an unfitting condition, there was no basis upon which to place the applicant on medical continuation orders or medical hold for an MEB and processing through the DES.  For an accounting of the facts and circumstances surrounding the applicant’s original request and the rationale of the earlier decision by the Board, see the Record of Proceedings (ROP) at Exhibit H.

On 11 Mar 14, the applicant submitted a request for reconsideration, reiterating that he sustained a shoulder injury while serving on active duty due to being electrocuted when deployed to Iraq, which the Department of Veteran Affairs (DVA) initially rated as an 80% disability rating, then increased to a 90% rating through his Medical Evaluation Board (MEB).  As a result of said injury he missed months of work at his job working for New York State, and had to use his State of New York Division of Military and Naval Affairs sick leave, annual leave, and “all manner of benefits” to cover the loss of time from work.  Subsequently, the NGB unjustly removed two years of active duty service credit from his record.  He provided the Board new information which included e-mails concerning his attempts at resolution of his case, a personal note from his surgeon, time sheets from his civilian job, and his points and credits summary (Exhibit I).  

On 18 Feb 15, SAF/MRBP determined the applicant was to be permanently retired with a combined compensable disability rating of 60 percent (Exhibit M).  


STATEMENT OF FACTS:

The applicant served in the Air National Guard in the grade of Master Sergeant (E-7) during the matter under review. 

On 15 Jun 10, the applicant was furnished an honorable discharge, and was credited with 11 years, 3 months, and 11 days of total active service.   

On 23 Oct 12, the applicant was issued a DD Form 215, Correction to DD Form 214, changing, in part, Block 12b (Separation Date This Period) from “2010 Jun 15” to read “2008 Jun 15,” and Block 12c (Net Active Service This Period) from “2 years, 5 months, and 14 days,” to read “5 months, 14 days.” 

On 18 Feb 15, the Secretary of the Air Force Personnel Council (SAF/MRB) directed the member be permanently retired with a combined compensable disability rating of 60 percent.  

On 10 Apr 15, the applicant requested a rating reconsideration for the Department of Veterans Affairs (DVA), as authorized by the FY2008 National Defense Authorization Act, because he did not concur with his 60 percent combined compensable disability rating.  As a result the DVA increased his combined compensable disability rating to 70 percent.  

On 24 Aug 15, the Secretary of the Air Force Personnel Council (SAF/MRB) conducted a mandatory case review based upon the change in the DVA’s combined compensable disability rating, and directed the member be permanently retired with a combined compensable disability rating of 70 percent.  

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.  


AIR FORCE EVALUATIONS:

The BCMR Medical Consultant recommends partially granting the applicant’s request, indicating there is evidence of an error or injustice.  The applicant is a traditional Guardsman and a New York State employee.  The applicant injured his right shoulder during a deployment to Iraq in Apr 08 but was not extended on medical continuation (MEDCON) orders following termination of his mobilization order in Jun 08, after his five month deployment.  On 23 Jun 08, the Appointing Authority found his shoulder injury to be in line of duty (ILOD).  On 2 Sep 09, the DVA issued a rating decision with assignment of a 20% disability rating for right shoulder strain and a 20% rating for Diabetes Mellitus Type II, effective 13 Jun 08, but the applicant apparently continued to serve as a Guardsman.  In Mar 13, the applicant underwent a Medical Evaluation Board (MEB) and the sole subject of the MEB was his shoulder condition--as entered by his treating military medical officials on AF Form 618, Medical Board Report coversheet.  The Medical Consultant acknowledges the multiple additional clinical diagnoses (pl.) in the applicant’s VA treatment record from 2008 through 2013, however, none of these were identified by military medical officials as interfering with duty sufficiently to be included in the MEB proceeding.  In Feb 13, over 4 years after his injury, he underwent surgical repair on his injured shoulder.  On 16 Aug 13, the applicant’s case was reviewed by an Informal Physical Evaluation Board (IPEB), and by a Formal Physical Evaluation Boards (FPEB) on 20 Nov 13; both which found only the chronic right shoulder pain unfitting [Right shoulder Rotator Cuff Tendonopathy with Degenerative Arthritis, s/p arthroscopic surgical repair], and they recommended discharge with severance pay with a 20% disability rating.  The applicant did not agree with the disability rating disposition and appealed to the Secretary of the Air Force Personnel Council (SAFPC) for inclusion of additional medical conditions as unfitting in a 3½ page memorandum.  On 26 Feb 14, the SAFPC upheld the decision of previous boards.  With reference to the applicant’s unfitting shoulder condition, it should be noted on 16 Jun 08 the DVA, who had initially assigned a 20% rating, assigned an intervening temporary 100% rating to cover the period of surgical treatment he received on or about 6 Feb 13.  On 1 Jun 13 following rehabilitation, the rating for his shoulder was returned to its original 20% rating.

The applicant presents an implicit argument that he should not have been released from active duty orders in Jun 08 following the ILOD injury he sustained in Apr 08 in Iraq.  However, as pointed out in the previous appellate advisory reviews, no formal evidence was supplied to indicate that modification to duty or disqualification for worldwide duty was imposed during his period of active service nor for the time since remobilization [demobilization], except for a single DD Form 469, Duty Limiting Condition Report, dated 8 Feb 12, and the MEB and profile restrictions for his surgery in Mar 13.  Addressing the applicant’s more explicit petition for retroactive active duty orders to cover the period of his absence from his civilian job to undergo a surgical procedure and its convalescence, the Medical Consultant finds it is reasonable to assign active duty orders from the date of the applicant’s surgery through the date of his release from military service through the Disability Evaluation System, particularly in view of the fact that it was his shoulder injury that was subject of his MEB and for which he was found unfit.  Alternatively, the applicant may have been eligible for incapacitation (INCAP) pay while undergoing and recovering from surgery.  Since the applicant’s MEB was temporally in close proximity to his surgical procedure, perhaps assigning active duty points would be more appropriate.  

The Military Department, operating under Title 10, United States Code (USC), only assigns disability ratings to medical conditions found unfitting by a Physical Evaluation Board (PEB), and then only to the degree of impairment present at the “snapshot” of time of final military disposition and not based upon post-service progression of disease or injury.  This is unlike the DVA, operating under USC Title 38, which is authorized to offer compensation for any medical condition determined to be service connected, without regard to demonstrated impact upon a service members’ retainability, fitness to serve, narrative reason for separation, or proven impact upon a service member’s retainability.  With this in mind, USC Title 38 which governs the DVA compensation system, was written to allow awarding compensation ratings for conditions that were not unfitting during military service or at the time of separation.  This is the reason why an individual can be found unfit for one or more medical conditions and yet received additional compensation ratings from the DVA for conditions that were service-connected, but were not proven militarily unfitting.  Recommend granting partial relief to the applicant by awarding active duty points from the date of the applicant’s surgical procedure in Feb 13 until his date of release from military service. 
 
A complete copy of the BCMR Medical Consultant evaluation is at Exhibit J.

NGB/A1PS does not make a recommendation, but explains the incapacitation pay (INCAP) program as it relates to the applicant.  In accordance with ANGI 36-3001, Incapacitation Pay, an ANG member who is unable to perform military duties, as determined by the Secretary concerned, due to an injury, illness, or disease incurred or aggravated in the line of duty is entitled to full pay and allowances, including all incentive and special pays to which entitled, if otherwise eligible, less any earned income.  Further, and ANG member who is able to perform military duties, but demonstrates a loss of earned income as a result of an injury, illness, or disease incurred or aggravated in the line of duty is entitled to pay and allowances, including all incentive and special pay to which entitled, if otherwise eligible, but not to exceed the amount of the demonstrated loss of earned income.  

The applicant did not apply for INCAP pay related to his Line of Duty (LOD) injury.  If the applicant had applied for the INCAP Program he would have been eligible to receive pay and allowances for his paygrade for the period he was found and verified as unable to perform military duties and for his loss of civilian pay.  

A complete copy of the NGB/A1PS evaluation is at Exhibit K.


APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Copies of the Air Force evaluations were forwarded to the applicant on 7 Jul 15 for review and comment within 30 days (Exhibit L).  As of this date, no response has been received by this office.


THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case and agree with the opinion of the BCMR Medical Consultant and adopt his rationale as the basis for our conclusion the applicant has been the victim of an error or injustice.  While the Board notes the BCMR Medical Consultant recommends awarding the applicant active duty points, and the applicant requests the two years of service credit removed from this DD Form 214 on 23 Oct 12 be replaced, because the Board believes MEDCON orders were warranted from the date of his shoulder surgery through the final resolution of his case by the DES, providing MEDCON for this period of time will result in more active duty service credit than the applicant requested and will constitute full and fitting relief.  Therefore, we recommend the applicant's records be corrected as indicated below.	

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 RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show he was issued orders to serve on active duty for the purpose of medical continuation (MEDCON) during the period beginning 6 February 2013 and continuing through the date of his permanently medical retirement for disability.


The following members of the Board considered AFBCMR Docket Number BC-2012-01103 in Executive Session on 11 Aug 15 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 H.  Record of Proceedings, dated 4 Feb 13, w/atchs.
	Exhibit I.  Request for Reconsideration, dated 11 Mar 14, w/atchs. 
	Exhibit J.  Memorandum, BCMR Medical Consultant, dated 2 Feb 15.
	Exhibit K.  Memorandum, NGB/A1PS, dated 10 Jun 15.
	Exhibit L.  Letter, SAF/MRBR, dated 7 Jul 15.
	Exhibit M.  Memorandum, SAF/MRBP, dated 18 Feb 15.