RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-00118
			COUNSEL:  NONE
			HEARING DESIRED:  NO

________________________________________________________________

APPLICANT REQUESTS THAT:

He be entitled to Medical Continuation (MEDCON) orders beginning 
the date he was released from active duty.

________________________________________________________________

APPLICANT CONTENDS THAT:

He was prematurely released from active duty orders in Mar 09, 
based on an injury he incurred while deployed.  

In Jun 08, he deployed to Iraq and started to experience back 
problems.  As a senior airman, he decided to suffer through the 
pain after seeing a fellow airman being ridiculed by senior 
leadership for seeking treatment for an illness during a 
deployment.

He reported his back issues during his post-deployment medical 
in-processing.  However, he was still released from active duty 
which was not in accordance with (IAW) AFI 36-3212, Physical 
Evaluation for Retention, Retirement, and Separation.  The 
issues with his back are the result of repetitive bending, 
kneeling, and stooping which was accelerated by the weight of 
the full body armor.  

He started treatment for his back immediately after returning 
from his deployment.  He does not know when the Informal Line of 
Duty (LOD) determination was initiated, however, in May 10, he 
received notification that it was denied because his back injury 
was a pre-existing medical condition.  This is not true, as he 
has never had any back problems prior to his deployment.  

According to the AFI an Informal LOD should have been completed 
within 50 days.  He appealed the Informal LOD decision, but 
never received any updates on his paperwork.

He was put on a “P4” profile (permanent disqualification) in Aug 
11, but he was not receiving any pay or allowances, which is not 
IAW Department of Defense Instruction (DoDI) 1241.2, Section 
6.2.1.

His back condition has dramatically deteriorated.  He is 
receiving spinal block injections in order to manage the pain 
and be able to walk.  He is utilizing his civilian leave and 
vacation, but at this point he does not have any more leave to 
use.  He is also covering his medical bills out of pocket.  To 
date he has lost over $9,000 in civilian income not including 
his medical bill.  He cannot agree to surgery due to the length 
of time for recovery, and loss of income for 3-6 months.

In Oct 11, a Wounded Warrior Care Coordinator, offered to help 
him resolve his situation.  After several attempts to get the 
information from his unit, his wife solicited the help of a 
general officer.  Subsequently, in Mar 12, his Informal LOD was 
approved and found In Line of Duty (ILOD).

Four years later, his Medical Evaluation Board (MEB) process 
still has not been started.  On 27 Jul 12, he applied for MEDCON 
orders and never received any follow-up.  He also submitted for 
Incapacitation (INCAP) pay six months ago and has not seen it 
either.

In support of his request, the applicant provides a personal 
statement, copies of his orders, post-deployment medical 
inprocessing paperwork, loss of income statements, and various 
other documents associated with his request.

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

________________________________________________________________

STATEMENT OF FACTS:

According to the applicant’s AF IMT 938, Request and 
Authorization for Active Duty Training/Active Duty Tour, dated 
8 Apr 08, the applicant was scheduled for a temporary tour of 
active duty from 23 Jun 08 to 30 Apr 09.  

The applicant’s Standard Form 600, Chronological Record of 
Medical Care, Post-Deployment Inprocessing, dated 7 Feb 09, 
reflects that he served in Iraq from 27 Jul 08 to 5 Feb 09 and 
received a referral for evaluation of pain.  

On 7 Nov 09, an AF Form 469, Duty Limiting Condition Report, was 
initiated placing the applicant on a temporary physical profile 
until 6 Jan 10, with no lifting, pulling or pushing greater than 
10 pounds, no repetitive stooping, bending, or climbing, no PT 
testing, non WWD.

On 7 Jan 10, an AFRC IMT 348, Informal Line of Duty 
Determination was initiated by the applicant’s medical provider.  
Contrary to the SF Form 600, it reflects that he served on 
active duty status from 23 Jun 08 thru 31 Mar 09.  It also 
reflects that on 23 Mar 09, the applicant reported back pain 
that developed while he was deployed to Iraq and had 
progressively believed it was from the heavy body armor, no 
single traumatic event.  The medical provider diagnosed the 
applicant’s condition as “Lumbago” and recommended that it be 
found ILOD.  

On 21 Jan 10, the appointing authority determined that the 
applicant’s condition was ILOD.  

In April 10, the medical and legal reviewers nonconcurred with 
the appointing authority and recommended a new finding:  Existed 
Prior to Service (EPTS)-LOD not applicable.  

On 13 Apr 10, the approving authority agreed with the medical 
and legal review’s recommendation of EPTS-LOD not applicable.   

On 12 Feb 12, another AFRC IMT 348, Informal Line of Duty 
Determination was initiated.  It reflects that the applicant 
initially reported low back pain on 23 Mar 09 that had developed 
while deployed to Iraq and believed it was from the heavy body 
armor, no single traumatic event.   The medical provider 
diagnosed the applicant’s condition as “Posterior Disc Bulge at 
L5-S1” and recommended that it be found ILOD.  

On 7 Mar 12, the appointing authority determined it was ILOD and 
recommended the applicant’s case be forwarded to the HQ AFRC LOD 
Board.  The recommendation was upheld by the AFRC LOD Board on 
23 Mar 12, and the final approval authority on 26 Mar 12.

On 10 Jun 13, the applicant’s enlistment was extended 12 months 
to 5 Jun 14, for the purpose of his pending MEB.

On 28 Dec 13, the applicant was released from active duty and 
placed on the Temporary Disability Retired List (TDRL) effective 
29 Dec 13.

________________________________________________________________

AIR FORCE EVALUATION:

AFMOA/SGHI was unable to make a recommendation for continuous 
orders for the time period after the applicant’s deployment end-
date as he has not provided sufficient evidence to support his 
claim.  SGHI states that the applicant’s former unit should be 
contacted for further explanation as to why the applicant’s LOD 
was not found ILOD in Apr 10 and why a MEDCON request was not 
submitted in Mar 12.  

The documents provided by the applicant make no reference as to 
why his LOD or MEDCON request were not completed prior to his 
orders ending and no MEDCON request was found in the Command 
Manday Allocation System (CMAS).  Typically an Air Reserve 
Component (ARC) members’ medical unit, in his case the 302nd 
Aeromedical Staging Squadron (302 ASTS) or assigned unit, the 
302nd Security Forces (302 SFS) would complete such a request in 
CMAS.

The applicant would have qualified for MEDCON orders until his 
LOD was found ILOD or service aggravated which did not occur 
until 26 Mar 12.  There appears to be adequate medical 
documentation, but there is no explanation as to why his 
original LOD was found Not ILOD on 13 Apr 10.  There is also no 
explanation as to why a MEDCON request was not submitted by the 
302 ASTS or SFS in Mar 12.

The complete SGHI evaluation is at Exhibit B.

HQ AFRC/SG recommends relief only if the lag time in making a 
diagnosis was caused solely by inaction on the part of the 
medical squadron rather than the applicant.  On the other hand, 
if the member did not provide the needed medical information or 
attend required medical appointments then relief should not be 
granted.

SG states that the applicant’s initial LOD was initiated on 
31 Dec 09, by the 302 AMDS (AFRC) for lumbago (low back pain, 
which is not a definitive diagnosis).  There was a delay of 
several months while the unit made multiple attempts to get the 
member to get a definitive diagnosis from a medical physician.  
Ultimately, his condition was found LOD/NA in Apr 10 by the AFRC 
LOD Board as the only records available were physical therapist 
and chiropractor notes which indicated some improvement but no 
diagnosis that could be supported by his history or submitted 
documents.  This is a key point:  AFRC cannot find the condition 
ILOD unless they have an actual medical diagnosis.  The LOD 
would have entitled him to care and treatment for this condition 
from 31 Dec 09 until Apr 10.  He would not have been eligible 
for MEDCON until/unless the LOD was closed in his favor due to 
the break in service from Feb 09 through Dec 09.

The Armed Forces Health Longitudinal Technology Application 
(AHLTA) [electronic military medical records] from Peterson AFB, 
indicate the applicant did have Physical Therapy (PT) consults 
entered soon after redeployment, but they expired without being 
booked by the applicant.  In May 09, there was a new PT referral 
requested by the applicant’s spouse on behalf of the applicant 
with reference that “Pt [patient] works full time night shift in 
Denver at the jail and is requesting to have PT done in 
[TRICARE] network because of later hours.”  PT began in Jun 09 
and continued twice weekly until Nov 09.  There is a gap in 
AHLTA records for a while after this.  An LOD reinvestigation 
was initiated on Jun 10 by the 302 ASTS.  Per previous 
conversation with 302 ASTS, it took 499 days to receive updated 
information from the member to process the case.  A Magnetic 
Resonance Imaging (MRI) in Aug 10 then a neurosurgery consult in 
Oct 11, showed a herniated vertebral disc.  Based on this 
information, the case closed on Mar 12 as ILOD for the 
definitive diagnosis of posterior disc bulge at L5-S1.

The applicant was entitled to care and treatment while his 
reinvestigation was pending from Jun 10 based on his Interim 
LOD.  However, he was not entitled to INCAP or MEDCON until his 
condition was found ILOD in Mar 12 based on the valid LOD.  

On 10 Sep 13, his MEB was submitted by the 21st Medical Group to 
AFPC/DPSDD.

Given the above circumstances, the applicant’s case did not meet 
the requirements for MEDCON at the time.  

The complete SG evaluation is at Exhibit C.

________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends denial of the applicant’s 
implicit petition for MEDCON orders from the date of his 
remobilization until the present.  

The Medical Consultant acknowledges that it is the 
responsibility of the military health care provider to timely 
initiate profile restrictions, to timely initiate LOD 
determinations, and to timely initiate MEB processing IAW 
established AF policies.  However, it is also the responsibility 
of the service member, in the case of the ARC member, IAW AFI 
36-3209, Separation and Retirement Procedures for Air National 
Guard and Air Force Reserve Members, to timely supply necessary 
medical documentation from civilian sources so that military 
medical officials may act appropriately on this evidence.  

The Medical Consultation is also aware of the policies that 
assure ARC members on active duty orders who sustain an illness 
of injury that interferes with the performance of military 
duties [results in profile restrictions precluding worldwide 
qualification] are either retained on those orders until 
returned to duty without restrictions or processed through the 
Disability Evaluation System (DES).  

Although the applicant has presented an argument for MEDCON 
orders from the time of his remobilization in 2009 to the 
present [noting he is currently undergoing MEB, and likely on 
orders], there are certain factors, some pointed out by AFRC/SG, 
that confound his request and bring into question the existence 
of error or injustice to the extent alleged.

1)  There is no actual documentation of a diagnosis or treatment 
of a diagnosis during the deployment; nor is there evidence to 
reflect the extent of the resultant impairment, if any, while 
deployed.

2)  The SG indicates the applicant was not eligible for MEDCON 
or INCAP pay since “lumbago,” as listed on his initial LOD 
document, is not [in his view] considered a “diagnosis,” which 
is, implicitly, a prerequisite for initiating either of these 
benefits.  The fact that the applicant’s initial LOD 
recommendation was overturned and ruled EPTS LOD N/A by the AFRC 
LOD board, would have rendered him ineligible at that time.

3)  The SG recommends consideration of relief only if the time 
lag in making the diagnosis was caused solely by inaction on the 
part of the medical unit versus the applicant; noting the 
499 days which passed awaiting receipt of the applicant’s 
medical documentation, referred to in the advisory.

4)  The applicant’s Duty-Limiting Condition Report (DLC) of 8 
Aug 10, is the first and only indication that suggests that the 
medical unit had concluded that his medical condition had 
reached the point [Code “37”] of requiring MEB processing.  
While this date suggests incapacity to meet military physical 
standards for retention, it does not rule out intervening 
assignment of duties not involving deployment or the 
restrictions imposed.  It is, however, clear that by 21 Oct 11, 
the applicant’s surgeon had advised him against continued wear 
of heavy pack and doing heaving lifting, as this would further 
aggravate his condition.  It is not known whether this 
information was not timely made available to his military 
medical unit or whether the fault of the medical unit, noting 
this assessment is well past the 8 Feb 11, expiration date of 
his previous DLC report; and fully justified a renewed DLC 
report since that time.  There is presumption of regularity on 
the part of the military.  The applicant continued to receive 
treatment from his civilian provider, in Nov 11 and on 21 Feb 
12; the later visit where he reported improvement after an 
epidural injection and reported that he had been “back on full 
duty” working in his civilian corrections job.

The Medical Consultant states that the applicant may be eligible 
for at least periodic restoration of active duty orders to 
receive treatment for his medical condition on the dates he was 
required to take leave from his civilian employment, but finds 
the evidence insufficient to establish MEDCON orders along the 
entire continuum requested; noting the evidence suggesting that 
his medical condition waxed and waned while under treatment with 
epidural and sacroiliac steroid injections; allowing his return 
to full duty at his place of civilian employment at one point.

The Medical Consultant recommends alternatively offering the 
applicant INCAP for the period he was unable to perform his 
civilian duties, but was required to use his personal leave to 
receive pay; likewise, consideration for MEDCON orders for any 
unpaid absences if proven to represent time he required and 
received treatment of his medical condition; or, again INCAP 
pay, but not both, if there is evidence he was unable to perform 
his civilian occupation.

The complete BCMR Medical Consultant’s evaluation is at Exhibit 
D.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant states that the information obtained from the 
302nd Aeromedical Staging Squadron (ASTS) is incorrect.

His post deployment physical noted that he had back pain and 
that he needed a follow-up; however, that never took place.

Immediately after his return, he reported for inprocessing, and 
then was granted block leave.  Upon completion, he was 
discharged from active duty without the follow-up ever taking 
place.

According to AFI 36-3212, paragraph 8.6.2. “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.”

There was no delay on his part in keeping his unit updated on 
his treatment.  The same paperwork was turned in several times.  
He was in pain and loosing income from his civilian job so it 
was in his best interest to keep in touch with his unit, 
especially, since he was hoping for MEDCON orders.  

The advisory states that his “PT began in Jun 09 and continued 
twice weekly until Nov 09.”  However, his therapy actually 
continued until Jan 10, and after six months of attending the 
sessions twice weekly without any relief, it was decided that it 
was not beneficial for him to continue.

The advisory also states “Per previous conversation with 
302 ASTS, it took almost 499 days to receive updated information 
from the member to process the case,” again, all the paperwork 
that he had from four different doctors was turned in personally 
by him.  He informed them that it was all he had at the time, 
and there were no new updates.  Since one diagnosis was not good 
enough, he got a second, and then third opinion just to make 
sure they had all that they needed.  It was in his best interest 
to comply with the multiple requests to turn in doctor’s 
statements.

His INCAP pay took over six months to be completed because it 
was stuck at the unit level.  He applied for MEDCON orders 
(after his second LOD was already approved and found In Line of 
Duty), but he never received an answer.  

The last four years has been exhausting, he received no support 
from his unit despite countless emails and phone calls.  His has 
been out of work again for almost two months due to his back, 
and is awaiting spinal fusion.

The applicant's complete response is at Exhibit G.

________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was timely file.

3.  Insufficient relevant evidence has been presented to 
demonstrate the existence of error or injustice to warrant 
Medical Continuation (MEDCON) orders beginning the date he was 
released from active duty in 2009.  While the applicant is 
requesting MEDCON orders beginning the date he was released from 
active duty it appears that his medical provider did not 
initiate the Informal LOD determination until 7 Jan 10.  
Therefore, we find no basis to recommend the requested relief.

4.  Notwithstanding the above, sufficient relevant evidence has 
been presented to demonstrate the existence of an error or 
injustice warranting partial relief.  In this respect, we note 
the applicant was identified by medical authorities as having an 
injury to his back that required an evaluation.  Subsequently he 
was placed on a temporary medical profile for 60 days.  However, 
contrary to established guidance dictating that he remain on 
active duty orders until processed through the disability 
evaluation system, he was demobilized from active duty.  
Further, it appears the applicant’s LOD determination which was 
initially denied in Jan 2010 was subsequently approved in March 
2012 for essentially the same back condition that was previously 
found to have EPTS.  Accordingly, it is our opinion that in 
order to resolve the injustices he has suffered his record 
should be corrected to show that he was placed on active duty 
orders for “pay and points” effective the date his medical 
provider first initiated the Informal LOD (7 Jan 10) until his 
placement on the TDRL on 28 Dec 13.  Therefore, we recommend his 
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 he was 
placed on active duty orders for “pay and points” for the period 
7 Jan 10 until he was released from active duty on 28 Dec 13 and 
placed on the Temporary Disability Retired List (TDRL).

________________________________________________________________

The following members of the Board considered AFBCMR Docket 
Number BC-2013-00118 in Executive Session on 5 Dec 13, 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 2 Jan 13, w/atchs.
     Exhibit B.  Letter, AFMOA/SGHI, dated 31 May 13.
     Exhibit C.  Letter, AFRC/SG, dated 17 Sep 13.
     Exhibit D.  Letter, BCMR Medical Consultant, 
                 dated 30 Sep 13.
     Exhibit E.  Letter, SAF/MRBC, dated 1 Oct 13.
     Exhibit F.  Letter, SAF/MRBC, dated 15 Oct 13.
     Exhibit G.  Email, Applicant, dated 15 Nov 13.




                                   Panel Chair