RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-01000

		COUNSEL:  NONE

		HEARING DESIRED:  NO 


________________________________________________________________

APPLICANT REQUESTS THAT:

She receive medical continuation (MEDCON) orders for the period 
17 Sep 11 to 30 Jul 12; or in the alternative she receive 
Incapacitation (INCAP) Pay for the period she was released from 
MEDCON orders.

________________________________________________________________

APPLICANT CONTENDS THAT:

She was erroneously released from MEDCON orders for a lack of 
adequate treatment record and or medical documentation.  
According to regulations, she should never have been taken off 
orders because "things were moving too slow.”  The delays in the 
processing of her case through the Disability Evaluation System 
(DES) were due to circumstances outside her control.  The Air 
Force Medical Operations Agency (AFMOA) had no right to 
terminate her MEDCON orders and their action to do so was in 
contravention to what is prescribed in DoD Instruction 1241.2 
Reserve Component Incapacitation System Management, and AFI 36-
3212, Physical Evaluation for Retention, Retirement and 
Separation.  Her Base Immobilization Augmentee Administrator 
(BIMAA) informed her that she did not qualify for INCAP pay; 
however, the INCAP pay program manager informed her she was 
eligible for INCAP pay.

In support of her appeal, the applicant provides copies of 
correspondence from her Congressional representative, a patient 
appointment listing, from her military medical records.

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

________________________________________________________________

STATEMENT OF FACTS:

On 1 May 96, the applicant entered the Air Force Reserve as a 
second lieutenant.

In accordance with DoD Instruction 1241.2, paragraph 6.6.3.2, a 
Reserve component member on active duty under a call or order to 
active duty specifying a period of 31 days or more, who incurs 
or aggravates an injury, illness, or disease in the line of duty 
(LOD) shall, with the member's consent, be continued on active 
duty upon the expiration of call or order to active duty until 
the member is determined fit for duty or the member is separated 
or retired as a result of a Disability Evaluation System (DES) 
determination.

In accordance with AFI 36-3212, Reserve Component members who 
incur or aggravate an injury, illness or disease in the LOD 
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.

In accordance with AFRCI 36-3004, Incapacitation Pay and 
Management of Reservist Continued on Active Duty Orders, members 
on active duty for 31 days or more are not involuntarily 
released from their orders if they incur a LOD medical 
condition.  These members have their orders extended until the 
medical condition is resolved or can no longer be materially 
improved by further hospitalization or treatment, and the case 
has been processed and finalized through the DES.

On 28 Dec 09, the applicant was ordered to active duty in 
support of Operation ENDURING FREEDOM.  According to the remarks 
section of her DD Form 214, Certificate of Release or Discharge 
from Active Duty, she served in the Area of Responsibility (AOR) 
from 29 Dec 09 through 13 Jul 10.

On 8 Aug 10, the applicant was released from active duty and 
reverted to her traditional (part-time) status as a member of 
the Air Force Reserve.

In Nov 2010, according to the MEB narrative summary, the 
applicant sought and was treated for anxiety, depression and 
symptoms of Post-Traumatic Stress Disorder (PTSD) by Mental 
Health.  She was diagnosed with PTSD. 

On 10 Dec 10, a LOD Determination was initiated to determine if 
the applicant’s PTSD was incurred in the LOD. 

On 13 Dec 10, the applicant was ordered to active duty for the 
purpose of MEDCON.

On 23 Jan 11, the LOD approval authority found that her PTSD was 
incurred in the LOD and her case was referred to the AFRC LOD 
Board.  

On 4 May 11, the Board determined the applicant’s condition was 
in the LOD.

In June 2011, the applicant underwent a Medical Evaluation Board 
(MEB) and, based on Command Man-Day Allocation System (CMAS) 
case notes, her MEB was placed on hold due to a pending LOD for 
Obstructive Sleep Apnea (OSA).

On 16 Sep 11, the applicant was released from her MEDCON orders.

In June 2012, the applicant underwent an MEB.  She was diagnosed 
with PTSD, major depressive disorder, and alcohol disorder.  It 
was further noted the diagnoses were incurred in the LOD.

On 30 Jul 12, the applicant was once again placed on MEDCON 
orders.  On 29 Apr 13, she was relieved from active duty and 
transferred to the Temporary Disability Retired List (TDRL) with 
a combined compensable disability rating of 90 percent.

________________________________________________________________

AIR FORCE EVALUATION:

AFMOA/SGHI recommends granting partial relief.  Although the 
applicant requested MEDCON orders for the period 17 Sep 11 to 
30 Jul 12, she has not provided sufficient evidence to warrant 
MEDCON orders for the period in question.  The applicant was 
removed from MEDCON orders on 19 Sep 11 based on a lack of 
medical documentation noting she was receiving treatment more 
frequently than once a month.  In addition, her MEB/IDES 
processing was placed on hold due to a new condition that 
required completion of a new LOD.  However, the documentation 
presented shows she received more frequent treatment from 
1 Sep 11 to 12 Oct 11.  Therefore, the applicant’s records 
should be corrected to show that she was placed on MEDCON orders 
for the period 1 Sep 11 to 12 Oct 11.  

A complete copy of the AFMOA/SGHI evaluation is at Exhibit C.

AFRC/A1K recommends denial of the applicant’s request for INCAP 
pay noting there is no evidence of an error an injustice.  In 
accordance with AFRCI 36-3004, Incapacitation Pay and Management 
of Reservist Continued on Active Duty Orders, a service member 
must submit a valid request for INCAP pay.  The applicant was 
advised on the required documentation to submit for INCAP pay, 
but failed to do so.  Unless the applicant provides the required 
documentation her entitlement to INCAP pay cannot be verified.

A complete copy of the AFRC/A1K evaluation is at Exhibit C.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

She was taken off of MEDCON orders for an inability to provide 
medical documentation indicating she was receiving treatment 
more frequently than once a month.  She was never asked to 
provide any documentation.  After being taken off of MEDCON 
orders, she was unable support herself and could not afford to 
attend individual or group therapy.  She did not know anything 
about INCAP pay and did not apply for INCAP pay because she 
believed her MEB would be reinstated before the pay would be 
started.  Reservists require LOD determination for any injury or 
condition to be considered in the IDES before a final 
determination.  In her case, no new condition had any bearing on 
a determination of fitness to continue to serve.  She believes 
her situation is due to AFMOA’s poor performance.

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

________________________________________________________________

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.  The applicant 
contends she was unfairly released from her medical continuation 
(MEDCON) orders for the period 17 Sep 11 to 30 Jul 12.  After a 
thorough review of the evidence of record and the applicant’s 
complete submission, we believe a preponderance of the evidence 
indicates the applicant is the victim of an error or injustice.  
In this regard, we note that the applicant has cited the 
provisions of a variety of authoritative Department of Defense, 
Air Force, and Air Force Reserve instructions, all of which 
indicate that Reserve members such as the applicant who, while 
on active duty orders form more than 30 days, incur an unfitting 
condition in the line of duty (LOD) will be retained on active 
duty for the purposes of MEDCON until they are either found fit 
for duty or separated through the disability evaluation system 
(DES).  The applicant’s Post-Traumatic Stress Disorder (PTSD) 
and other conditions were obviously unfitting as she was placed 
on MEDCON orders shortly after being diagnosed with these 
conditions.  However, she was subsequently released from her 
MEDCON orders when her medical evaluation board (MEB) processing 
was apparently “suspended” due to a pending LOD determination 
for an additional potentially unfitting condition.  Nonetheless, 
we are not convinced that she should have been released from her 
orders simply because her MEB processing was “suspended.”  In 
this respect, we note that the suspension of her MEB processing 
did not constitute either of the two outcomes required which, 
according to the instructions cited by the applicant, would 
allow her to be released from her MEDCON orders: a finding that 
she was fit for duty or a final determination by the DES.  While 
we note the comments of AFMOA/SGHI indicating that it was 
appropriate for the applicant’s MEDCON orders to be terminated 
because her MEB processing was “suspended” and because she was 
not receiving treatment with the required frequency to justify 
continuation, unlike the applicant, AFMOA/SGHI cites no specific 
authoritative source to support the proposition that it is 
appropriate to suspend MEDCON orders in this circumstance when 
there is no evidence to indicate the applicant was fit for duty 
and, thus, should have been released from her MEDCON orders.  We 
note the presumption of regularity dictates that, absent 
evidence to the contrary, it is assumed that government 
officials carry out their duties properly and in good faith and 
the applicant (not the government) bears the burden of proof in 
these matters; however, because AFMOA/SGHI is apparently 
reluctant to cite an authoritative reference for our review 
indicating that it is appropriate to release a member who is 
unfit from MEDCON orders under these circumstances, we believe 
the applicant has met her burden and established that she is the 
victim of an error or injustice.  Therefore, we recommend the 
applicant’s records be corrected as indicated below.

________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air 
Force relating to the APPLICANT be corrected to show that she 
was not released from active duty on 16 September 2011, but on 
that date, she continued to serve on active duty for the 
purposes of medical continuation (MEDCON) until 29 April 2013, 
when she was transferred to the Temporary Disability Retired 
List (TDRL).

________________________________________________________________

The following members of the Board considered AFBCMR Docket 
Number BC-2013-01000 in Executive Session on 13 Feb 14, 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 20 Feb 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records
	Exhibit C.  Letter, AFMOA/SGHI, dated 2 Jul 13.
	Exhibit D.  Letter, AFRC/A1K, dated 12 Sep 13.
	Exhibit E.  Letter, SAF/MRBR, dated 20 Sep 13.
	Exhibit F.  Letters, Applicant, dated 28 Sep 13 and 
 	            16 Oct 13, w/atchs.



                                   
                                   Panel Chair



AFBCMR BC-2013-01000




MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for 
Correction of Military Records and under the authority of Section 1552, Title 10, United States 
Code it is directed that:

	The pertinent military records of the Department of the Air Force relating to        ,        be 
corrected to show that she was not released from active duty on 16 September 2011, but on that 
date, she continued to serve on active duty for the purposes of medical continuation (MEDCON) 
until 29 April 2013, when she was transferred to the Temporary Disability Retired List (TDRL).




                                                                             
                                                                            Director
                                                                            Air Force Review Boards Agency