RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2012-02683
		COUNSEL:  NONE
		HEARING DESIRED:  NO

________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to show that he was given service 
credit points, to include back pay and entitlements, for the 
period of 1 Jan 11 through 28 Sep 13.

________________________________________________________________

APPLICANT CONTENDS THAT:

He should not have been discharged from active duty with 
unresolved medical issues and a Line of Duty (LOD) determination 
should have been initiated prior to his release from active 
duty.  If a LOD was initiated, he would not have been separated 
under a Reduction in Force (RIF), but maintained on active duty 
until his medical issues were resolved.  At the time of his 
discharge, he had two major medical issues, a torn rotator cuff 
and sleep apnea, but was denied the opportunity to stay on 
active duty orders to complete treatment.

In further support of his request, the applicant provides 
various letters.  He specifically requests the Board to read a 
letter from his former supervisor dated 20 Nov 12, in its 
entirety.  He also provides a copy of his Medical Board Report 
which he believes substantiates the long standing issues.

The applicant’s complete submission, with attachments, is at 
Exhibit A.

________________________________________________________________

STATEMENT OF FACTS:

On 15 Nov 90, the applicant enlisted in the Air National Guard 
(ANG) in the grade of senior airman (E-4).

On 31 Dec 10, the applicant was honorably discharged due to an 
involuntary RIF in the grade of chief master sergeant (E-9).

According to documentation provided by the applicant, on 15 Apr 
11, a Line of Duty (LOD) determination was conducted for a right 
shoulder rotator cuff tear the applicant suffered on or around 
1 Mar 07.  On 18 May 11, the injury was found to be In the Line 
of Duty (ILOD) and was incurred while on active duty orders.

According to documentation provided by the applicant, on 15 Apr 
11, a LOD determination was conducted for possible Obstructive 
Sleep Apnea, first diagnosed in Nov 10.  On 13 May 11, this 
condition was found to be ILOD. 

On 7 Jun 12, the applicant was issued an AF Form 469, Duty 
Limiting Condition Report, that indicated he was restricted from 
lifting more than 20 pounds, could not deploy, and was 
undergoing a Medical Evaluation Board (MEB).

On 13 Nov 12, a MEB evaluated the applicant’s case after being 
diagnosed with Obstructive Sleep Apnea and a right shoulder 
rotator cuff tear.  The MEB recommended his case be referred to 
an Informal Physical Evaluation Board (IPEB).

On 22 Apr 13, the applicant’s BCMR case was administratively 
closed per the applicant’s request.

On 18 Jun 13, an IPEB found the applicant’s OSA and right 
shoulder rotator cuff tear was unfitting and recommended 
permanently retirement with a combined disability rating of 
60 percent.

On 1 Jul 13, the applicant requested his case be reopened and 
provided a cover letter from his Senator, a two-page expanded 
statement, a new DD Form 149, dated 1 Jul 13, copies of the PEB 
results, LOD determinations, medical record review, various 
character letters and his DD Forms 214.

On 3 Jul 13, the Secretary of the Air Force (SECAF) determined 
the applicant physically unfit for continued military service 
and directed he be permanently retired from active service for 
physical disability.

According to Special Order Number ACD-02882, dated 31 Jul 13, 
the applicant was relieved from active duty on 27 Sep 13 and on 
28 Sep 13, he was permanently retired for physical disability 
with a combined disability rating of 60 percent.  He was 
credited with 15 years, 8 months, and 16 days of total active 
service.

________________________________________________________________

AIR FORCE EVALUATION:

NGB/A1PS recommends denial of the applicant’s request for MEDCON 
orders indicating there is no evidence of an error or an 
injustice.  

An airman may be eligible for MEDCON orders when an injury, 
illness, or disease is incurred or aggravated while serving on 
orders and that condition renders the Airman unable to perform 
military duties.  MEDCON eligibility requires a Line of Duty 
(LOD) determination and a finding by a credentialed military 
health care provider that the airman has an unresolved health 
condition requiring treatment and renders the Airman unable to 
meet retention standards.  Not all conditions that restrict 
deployment or mobility establish MEDCON eligibility.  

Sleep Apnea is not a medical condition that qualifies for 
medical continuation; however, it would be a part of the 
disability rating.  An LOD was completed on 24 May 11, for an 
injury that occurred in Mar 07 and aggravated while on active 
duty; however, the applicant’s AF Form 469 would need to state 
the applicant is not fit for duty.  Additionally, the applicant 
should provide copies of the AF Forms 469 for the period when he 
started treatment for his shoulder through the present time.  
Lastly, he should provide a copy of his orders for the last 
period of active duty and the medical documentation of treatment 
received while he was on orders.

The A1PS evaluation, with attachments, is at Exhibit C.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant asserts that it appears that there is some 
confusion regarding his request and reiterates that he is aware 
that he is not eligible for MEDCON orders.  However, he believes 
additional action is warranted regarding his ongoing medical 
issues at the time of his discharge, irregularities in how his 
case was processed, and procedures regarding his 
tour/retirement.  Specifically, he is requesting receipt of 
service credit from the date of discharge from active duty and 
to be considered for medical retirement as it was afforded to 
other service members in similar situations.

He contends that he should have been maintained on orders until 
his medical issues were resolved or an MEB was conducted.  He 
believes the only reason he was not maintained on orders was 
because the medical unit had not initiated a LOD determination 
as they had for other members serving in the Nevada ANG program.

Although he had repeatedly requested a LOD and MEB be conducted, 
these actions were not initiated until months after his 
discharge.  Had these actions taken place, he would not have 
been discharged.

The applicant mentions two other personnel in his unit who were 
maintained on orders due to open LOD actions.  He states that 
this issue is unique to the ANG and the personnel on full-time 
ANG Counterdrug status.

In regards to NGB/A1P’s request for further documentation, all 
of the medical documents were included in his AFBCMR 
application.  He also included copies of his DD Forms 
214 showing uninterrupted active duty dating back to 2003.  
Additionally, to his knowledge, the medical unit only generated 
one AF Form 469 on his shoulder issues and that was more than 
six months after his discharge.  There is not a Military 
Treatment Facility (MTF) in his area where he could see a 
military medical provider so Tricare Prime Remote provided all 
of his care prior to his discharge.  Prior to his discharge, he 
requested an exit physical at Travis AFB, CA, but was denied.

Lastly, he reiterates that he request to receive service credit 
points from the date of his discharge from active duty until the 
MEB renders its decision.  Additionally, if the MEB finds him 
unfit, he request that he be medically retired.

In further support of his requests, the applicant provides 
various letters.  He specifically requests the Board to read a 
letter from her former supervisor dated 20 Nov 12, in its 
entirety.  He also provides a copy of his Medical Board Report 
which he believes substantiates the long standing issues.

His complete response, with attachments, is at Exhibit F.

________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends denial indicating the 
applicant has not met his burden of proof of error or injustice, 
nor offered evidence to support a disability that warrants the 
desired change of his record.

The applicant offered excerpts from his leadership that state 
there is ample documentation to support his contention that his 
shoulder injury took place while on active duty orders.  
However, the Board was not offered this information.  The 
available information indicates the applicant performed his 
duties until his orders terminated due to a RIF in 2010.  There 
is no medical evidence provided that would infer permanent 
service aggravation of this condition, nor the ability to 
perform his duties.  The applicant underwent surgical repair of 
his rotator cuff, five years after the initial injury, a 
procedure that is often completed on an elective basis.

Although the applicant reversed his request for MEDCON orders, 
the Medical Consultant believes it prudent to establish the 
purpose of MEDCON orders.  MEDCON orders extend entitlements to 
airmen who are unable to perform military duties due to an 
injury, illness or disease incurred or aggravated while on 
orders or Inactive Duty Training (IDT) status.  There are no 
objective findings to support the applicant was ever unable to 
perform his military duties.

Regarding the applicant’s Obstructive Sleep Apnea, there is no 
supporting documentation or evidence that the condition was 
unfitting or would have been the cause of career termination.  
While the LOD states the Obstructive Sleep Apnea started around 
November 2010, 6-8 weeks prior to the termination of the active 
duty orders, AFI 36-2910, Line of Duty (Misconduct) 
Determination, paragraph 3.4.1.1, states; “A LOD determination 
is based upon the onset of the disease, illness or injury 
process, not the existence of symptoms.  The applicant’s active 
duty tour was not terminated due to a medical condition.  There 
is no fact to support the applicant was unfit for duty.  A 
service member shall be considered unfit when the evidence 
establishes that the member, due to physical disability, is 
unable to reasonably perform the duties of his or her office, 
grade, rank, or rating.  The applicant performed all of his 
duties and there is no evidence to support that if his orders 
were not abruptly terminated, he would not have continued on 
those orders.

The complete BCMR Medical Consultant evaluation is at Exhibit H.

________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

On 21 Mar 13, the applicant requested to withdraw his AFBCMR 
application and asserted that there is still confusion as to 
what he is requesting.  He stated that he never once suggested 
that his orders were terminated for medical reasons.  Also, he 
did not provide medical documentation because the ANG medical 
unit never did any of the required documentation.  He reiterated 
that he never requested MEDCON orders and understands that ANG 
Counterdrug personnel are ineligible for MEDCON orders.  Lastly, 
he indicated that he extended his enlistment to be able to 
deploy for the fourth time to the Middle East.  Finally, at the 
time of his discharge, he was not a “Traditional Guardsman,” he 
was in a career program like the AGR program under the National 
Guard’s Counterdrug Program.

His complete response is at Exhibit I.

________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends partial approval by 
establishment of pay and points from 8 Jul 11 which is at or 
about the time military medical officials should have initiated 
worldwide duty determination due to Obstructive Sleep Apnea.  
However, the Board may choose to grant full relief, if based 
solely on existing Air Reserve Component (ARC) retention policy 
regarding members remaining on orders until returned to 
unrestricted duty or processed through the military Disability 
Evaluation System (DES).

MEDCON orders are intended to extend (uninterrupted), a Reserve 
component member’s active duty orders beyond the termination 
date for any duty limiting illness or injury sustained while 
under Title 10 orders.  Although the applicant stated he 
received treatment for his medical conditions while he was on 
active orders, he has only provided subjective evidence 
following his release from active duty.  Ordinarily, military 
documents would be created for the service members who are 
unable to perform their duties but instead, the applicant has 
provided evidence from his civilian providers for his conditions 
that he deemed rendered the applicant unable to perform his 
duties.  Nevertheless, the restrictions recommended by the 
civilian providers serve as potential/appropriate start dates 
for initiation of military documentation depicting either the 
expectation that the condition(s) would be resolved within 31-
365 days or that the condition(s) require MEB/PEB processing.  
Moreover, any Duty Limiting Condition (DLC) unresolved within 
12 months that continues to prohibit deployability or worldwide 
qualification, would also warrant MEB/PEB processing.

Without actual records of treatment prior to the applicant’s 
release from active duty on 31 Dec 10, it is clinically 
impossible to determine what actual duties he was allowed to or 
unable to perform.  It is also noted that the applicant’s unit 
did not have a full-time medical provider on staff and he 
received his care via TRICARE Prime Remote.  These factors 
likely contributed significantly to any delays in processing the 
applicant’s case.

If the applicant was unable to perform his duties at the time he 
was released from active duty orders on 31 Dec 10, then 
retroactively extending his orders from 1 Jan 11 by placing him 
on medical hold until he was processed through the military DES 
would be the appropriate course of action in relation to his 
right shoulder ailment and possibly the Obstructive Sleep Apnea.  
With respect to the severe Obstructive Sleep Apnea, it is not as 
clear when or if it interfered with his duty capabilities prior 
to his release from orders on 31 Dec 10; particularly since it 
was only formally diagnosed on 8 Jul 11.  

Although rarely found unfitting, Obstructive Sleep Apnea has 
been listed as one requiring MEB processing for active duty 
members and worldwide duty evaluation for ARC members under a 
previous AFI 48-123, Medical Standards for Continued Military 
Service (Retention).  Nevertheless, if either or both conditions 
first occurred during the applicant's extended period of active 
duty and interfered with duty, it may be presumed that they were 
service-incurred.  Although reportedly initiated six months 
after being released from active duty, it reflects an effort was 
made to correct the deficiency, since the applicant had been 
returned to non-active duty status.  While the applicant's 
shoulder surgery was conducted on 19 Jan 12, a clinical 
assumption can be made that there was likely some degree of 
functional impairment or restriction to duty for weeks or months 
prior to his surgical treatment date.  Sufficient evidence of an 
error or injustice has occurred in the case under review.  The 
remedy or remedies for the error or injustice may be based on 
the existing evidence versus simple application of an Air Force 
policy governing Air Reserve Component (ARC) members who incur 
an illness or injury while on active duty orders. 

The BCMR Medical Consultant supplemental evaluation is at 
Exhibit L.

________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The applicant reiterates his request that he be afforded full 
relief to include pay, allowances and service credit from 1 Jan 
11 through 28 Sep 13 due to his premature removal from active 
duty.  In support of his position that he was unable to perform 
his military duties and/or deploy as of Nov 10, he provided 
three opinions from treating physicians in support of this 
contention.  The first physician states that “If the patient was 
tested in Dec 10, he would have had just as severe and disabling 
OSA than (sic) as documented in 7-2011.”  The second physician 
states that the applicant has OSAS which was clinically 
diagnosed using nationally recognized criteria in Nov 10 and a 
sleep study confirmed the diagnosis.  The physician also noted 
the sleep study that was delayed until Jul 11 was not required 
to make the diagnosis.  The third physician, his Orthopedic 
Surgeon, stated he did not have insurance coverage during the 
initial portion of 2011 and this led to a delay in treatment.  
If he had insurance, the shoulder injury would have been 
addressed in early 2011 and significantly shortened treatment.  
The opinions of these three physicians support that he was 
diagnosed and affected by the Obstructive Sleep Apnea and 
shoulder injury prior to Jul 11.

The combination of the opinions of the physicians, the opinion 
of the BCMR Medical Consultant, and provided medical evidence 
clearly demonstrates an error or injustice that warrants full 
relief.
?

Lastly, the applicant opines that the letter from his former 
supervisor officer further supports his premature removal from 
active duty and indicates he would have been able to demonstrate 
his disability were it not for this error and injustice (Exhibit 
M).

________________________________________________________________

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.  After a 
thorough review of the evidence of record and the applicant’s 
complete submission, including the letter from his former 
supervisor dated 20 Nov 12, we believe partial relief is 
warranted.  In this respect, we note the applicant contends he 
should have been maintained on active duty orders from 1 Jan 
11 until his medical issues were resolved.  However, the BCMR 
Medical Consultant has thoroughly reviewed the evidence of 
record and points out that without actual records of treatment 
prior to the applicant's release from active duty orders on 
31 Dec 10, it is clinically impossible to determine what actual 
duties the applicant was allowed to or was unable to perform and 
we agree with this statement.  Therefore, based on the existing 
evidence, we agree with the BCMR Medical Consultant’s that 
8 July 11 is about the time military medical officials should 
have initiated a worldwide duty determination due to Obstructive 
Sleep Apnea.  In view of the foregoing, it is our opinion that 
the applicant’s record should be corrected to reflect that he 
was placed on active duty orders effective 8 Jul 11 until he was 
relieved from active duty on 27 Sep 13.  Accordingly, we 
recommend the applicant’s records be corrected to the extent 
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 for the 
period for the period of 8 July 2011 through 27 September 2013, 
he was placed on active duty, for the purposes of medical 
continuation in accordance with Title 10, U.S.C. §12301(h).
________________________________________________________________


The following members of the Board considered AFBCMR Docket 
Number BC-2012-02683 in Executive Session on 21 Oct 14, under 
the provisions of AFI 36-2603:

	                  , Panel Chair
	                  , Member
	                  , Member

The following documentary evidence was considered:

Exhibit A.  DD Form 149, dated 1 Jul 13, w/atchs.
Exhibit B.  Applicant's Available Master Personnel Records
Exhibit C.  Letter, NGB/A1PS, dated 16 Nov 12, w/atchs.
Exhibit D.  Letter, NGB/A1P, dated 19 Dec 12.
Exhibit E.  Letter, SAF/MRBR, dated 20 Dec 12.
Exhibit F.  Letter, Applicant, dated 17 Jan 13, w/atchs.
Exhibit G.  Letter, SAF/MRBC, dated 15 Mar 13.
Exhibit H.  Letter, BCMR Medical Consultant, dated 12 Mar 13.
Exhibit I.  Letter, Applicant, dated 21 Mar 12.
Exhibit J.  Letter, AFBCMR, dated 22 Apr 13, w/atchs.
Exhibit K.  Letter, SAF/MRBC, dated 5 Sep 14.
Exhibit L.  Letter, BCMR Medical Consultant, dated 4 Sep 14.
Exhibit M.  Letter, Applicant, dated 3 Oct 14, w/atchs.