RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2012-03402
	XXXXXXX	COUNSEL:  NONE
		HEARING DESIRED:  NO

________________________________________________________________

THE APPLICANT REQUESTS THAT:

He be entitled to medical continuation (MEDCON) orders from 
Jul 10 to present for his injury he sustained in the Line of 
Duty (INLOD).  

________________________________________________________________

THE APPLICANT CONTENDS THAT:

He should have remained on active duty until his medical 
condition was resolved.  It is not fair, to him or his civilian 
employer, to have to take leave for an injury that was caused by 
the military.

In support of his appeal, the applicant provides copies of his 
medical appointment schedule; medical documentation from his 
military and civilian medical providers; his ILOD paperwork; 
email correspondence, and various other documents.

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

________________________________________________________________

STATEMENT OF FACTS:

The applicant served on a temporary tour of active duty, from 
28 Dec 09 to 8 Jul 10.  During his deployment to Balad Air Base, 
Iraq, on 7 Jul 10, the applicant was treated for an injury to 
his back that he incurred while stepping off the ramp of a C-5 
aircraft.  

On 7 Dec 10, the LOD Board administrator signed, for the Air 
Force Reserve Vice Commander, deciding that the applicant’s 
injury was In the Line of Duty (INLOD).  

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THE AIR FORCE EVALUATION:

AFMOA/SGHI recommends denial of the applicant’s request for 
continuation of orders for the period 9 Jul 10 through his 
recovery of his LOD condition.  SGHI states that a review of 
Armed Forces Health Longitudinal Technology Application (AHLTA) 
notes submitted to the Automated Line of Duty (ALOD) system 
indicates the applicant received care in theater and documents 
submitted reflect that he continued to receive medical care for 
his LOD condition, from 29 Jun 10 through 17 Jul 12.  
Additionally, an operative note, dated 8 May 12, indicates 
member had surgery for one of his LOD conditions.  A MEDCON 
request is present in the Command Man-Day Allocation System 
{CMAS).  It was submitted on 19 Jul 12, and declined by AFRC/SG 
office, to the member’s Wing on 20 Jul 12 due to "no LOD on file 
for 2005."  There is no evidence it was ever resubmitted for 
processing by SGHI.  It is also noted that the AF Form 469, Duty 
Limiting Condition Report, was not signed by the provider until 
3 Aug 11.  

The Secretary of the Air Force, Manpower and Reserve Affairs 
(SAF/MR) memo, Medical Continuation/Extensions for Reserve 
Component (RC) Members Serving in Support of a Contingency dated 
7 Jan 05, states that RC members who are able to perform 
military duties but are not able to return to their civilian 
employment will be demobilized and provided incapacitation pay 
(INCAP) in accordance with established procedure within the 
component.  Follow-up health care services are available at 
military Medical Treatment Facilities (MTFs), as well as through 
the TRICARE Transitional Assistance Management Program (TAMP).  
The Military Medical Support Office (MMSO), in accordance with 
established procedures within the component, may authorize 
medical care through civilian sources for those RC members not 
living near an MTF.

They did not find enough evidence to show the applicant was 
unable to do his military duties in accordance with 
DODD 1241.01, Reserve Component Medical Care and Incapacitation 
Pay for Line of Duty, para 3.3. The applicant states that he 
returned to his civilian job, thus he was ineligible for INCAP 
pay.  Service members do not have to be on orders to receive 
care, as noted in the above referenced SAF/MR memo and as 
evidenced by the applicant receiving care for his condition 
after he was demobilized.

The complete SGHI evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:

The applicant notes that he submitted his application to the 
Board based on a recommendation from the AFRC Inspector General 
(AFRC/IG).  He believes someone needs to answer for the lack of 
care he has received for his ILOD injuries.

In response to the lack of evidence to show that he was unable 
to do his military duties, he has not been worldwide deployable 
since Jul 10 and has been on a profile and unable to leave 
Maxwell AFB.  He believes the Board should have learned/found 
this information.  He has AF Forms 422s and 469s that reflect 
his duty limitations and currently/supposedly going through a 
Medical Evaluation Board (MEB) process.  

The TAMP benefits are not explained in laymen's terms by the 
wing staff.  He understands ignorance of the rules/policy is no 
excuse; however, the ones who deployed as well as the inactive 
duty medical staff at Maxwell are not knowledgeable of the TAMP 
benefit.  For example, he was going to mental health for 
treatment and was released when his orders ended 8 Jul 10.  

He concludes by noting that he has medical conditions that go 
beyond the 180 days of TAMP medical coverage (Post Traumatic 
Stress Disorder (PTSD), migraines, high blood pressure, sleep 
disorder, diseases of hair/hair follicles, skin, and podiatry 
issues).  His medical conditions have prohibited him from 
advancing in his duty position and promotion to the next higher 
rank.  He deployed to fight for his country and now he want/need 
someone to fight for him. 

The applicant’s complete response, with attachments, is at 
Exhibit E.

________________________________________________________________

ADDITIONAL THE AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends granting the applicant 
partial relief by establishment of active duty status from 
8 May 12 through 13 Oct 12.

The BCMR Medical Consultant states that it is unclear why the 
applicant chose treatment by a civilian orthopedic surgeon and a 
pain management specialist, e.g., whether it was authorized 
based upon distance or non-availability of a military 
specialist, whether he actually has received orders for these 
episodes of care or was it the unauthorized elective choice of 
the applicant.  Sufficient documentation indicates the 
applicant's back and knee ailments were found in line of duty.  
No evidence is supplied to reflect the applicant lost civilian 
pay as a result of his injuries, other than civilian leave he 
reportedly had to use to attend certain appointments.

Nevertheless, an extract from AFI 36-3209, Chapter 9, Evaluation 
of Air Reserve Component (ARC) Members, paragraph 8.6.2, Duty 
and Pay Status, reads: "ARC members who incur or aggravate an 
injury, illness or disease in the line of duty while on orders 
for more than 30 days are not involuntarily released from those 
orders until final disposition of their disability case. These 
members' entitlement to full pay and allowances and benefits 
continue to the same extent provided by law or regulation to 
regular component members."  The latter extract gives the false 
impression that, regardless of the disease or injury severity or 
its impact upon duty performance, the member will be retained on 
active duty orders.  The fact remains that ARC members may be 
retained in a duty status by AFRC/SG, to perform Unit Training 
Assemblies and Annual Tours, but not to deploy. This does not 
preclude placing individuals on orders to receive treatment.  
The difficulty in the case under review is to determine whether 
any active duty orders should be contiguous, as in the case of 
attending weekly physical therapy or chiropractic appointments, 
or with interruptions to exclude weekends or days when no 
therapy took place.

The applicant contends he should not have been released from 
orders following his deployment in Jul 10.  He cites his forms 
469 and 422 as a justification of his contentions.  However, the 
applicant and the Board should be made aware that the mere 
assignment of a Duty Limiting Condition Report or Physical 
Profile does not automatically infer that an individual is 
unable to reasonably perform duties commensurate with his or her 
office, grade, rank, and rating.

In the case of the AF Form 469, any illness, disease, or injury 
that has not resolved after 365 days [or sooner if not expected 
to resolve], should also be considered for an MEB.  Again, 
without the actual episodes of care, other than the Duty 
Limiting Report of 3 Aug 11 [coded 37 with May 12 expiration], 
the intervening "P3 U3 L3" profile of 6 Aug 11 , the concluding 
back evaluation of Dec 11 when his back pain had reached MMI, 
and the pre and post-operative knee assessments of Apr and 
May 12, it is virtually impossible to accurately make an 
independent temporal determination of the applicant's ability to 
perform his military duties at a given time; except for the time 
he underwent surgical treatment and the recovery/rehabilitation 
time that followed; and, perhaps, when his pain management 
doctor opined he had reached maximum medical improvement for his 
back ailment in Dec 11.  The Medical Consultant opines the 
applicant has not met the burden of proof to justify 
uninterrupted orders for the entire post-deployment period, as 
implicitly requested.

It appears that AFMOA/SGHI has taken the alternative 
recommendation to show the applicant was "on orders from the 
date of his surgery 8 May 12, for a period of 53 days."  The 
fact that the applicant's 13 Oct 12, Notification of Air Force 
Member's Qualification Status, reverted to "U2" and "L2" profile 
restrictions is an indicator that he was returned to worldwide 
qualification status; and could reasonably reflect an end-point 
of sustained active duty orders, assuming the applicant has not 
withheld a document reflecting an earlier date of return to 
worldwide qualification.

The complete BCMR Medical Consultant evaluation is at Exhibit F.

________________________________________________________________

APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION:

A copy of the additional Air Force evaluation was forwarded to 
the applicant on 23 Jun 13 for review and comment within 
30 days.  As of this date, no response has been received by this 
office (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.  Sufficient relevant evidence has been presented to 
demonstrate the existence of error or injustice warranting 
partial relief.  We note the opinions and recommendations of the 
Air Force Medical Operations Agency and the BCMR Medical 
Consultant; nonetheless, in our view, we believe the applicant 
has provided substantial evidence that he has been the victim of 
an injustice.  Considering the available medical documentation 
it is undisputed that the applicant incurred an injury while on 
an active duty tour of more than 30 days in support of 
contingency operations, while serving in Iraq.  While we did not 
find any error in the processing of the applicant’s medical LOD 
determination, based on the preponderance of the evidence, we 
believe the applicant should have remained on active duty during 
periods of medical treatment and evaluation.  In this respect, 
we note, subsequent to the applicant’s release from active duty, 
his physical condition, as evidenced by the documentation from 
his medical provider and noted by the BCMR Medical Consultant, 
was constantly changing and because of this his condition 
worsened over time.  In our view, had the applicant received 
immediate and consistent evaluation and treatment while 
remaining on active duty, as requested by his medical provider 
in the duty limiting condition reports, he would have received 
more appropriate care and his condition may have been resolved 
sooner.  Therefore, while we note the recommendation of the BMCR 
Medical Consultant, it is our opinion that the applicant should 
have remained on active duty until his condition(s) had fully 
resolved.  Hence, we believe his record should be corrected to 
show that he remained on active duty until 13 Oct 12. 
Accordingly, we recommend the applicant’s record 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 he was 
not released from active duty, on 8 Jul 10, but on that date he 
was continued on active duty through 13 Oct 12, at which time he 
was released from active duty. 

________________________________________________________________
The following members of the Board considered AFBCMR Docket 
Number BC-2012-03402 in Executive Session on 25 Jul 13, under 
the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The 
following documentary evidence pertaining to AFBCMR Docket 
Number BC-2012-03402 was considered:

     Exhibit A.  DD Form 149, dated 13 Jul 12, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFMOA/SGHI, dated 25 Feb 13, w/atchs.
     Exhibit D.  Letter, SAF/MRBR, dated 27 Feb 13.
     Exhibit E.  Letter, Applicant, dated 26 Mar 13, w/atchs.
     Exhibit F.  Letter, BCMR Medical Consultant, 
                 dated 17 Jun 13.
     Exhibit G.  Letter, AFBCMR, dated 28 Jun 13, w/atch.




                                   Vice Chair