RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-04418
		
	 	COUNSEL:  NONE

		HEARING DESIRED:  YES

APPLICANT REQUESTS THAT:

1.  His records be corrected to show that he was not released from active duty on 29 Sep 12, but instead continued on active duty for medical continuation (MEDCON) until 4 Feb 13.  

2.  In the alternative, he receive incapacitation (INCAP) pay for the period 30 Sep 12 to 4 Feb 13.  


APPLICANT CONTENDS THAT:

1.  His active duty orders should have been extended pending the resolution of his MEDCON orders.  He should have never been released from active duty until he was healed and physically able to return to his civilian employer.  However, he was forced to go nearly six months without pay when his active duty orders expired.  

2.  He should receive compensation during the period in which he was unable to return to his civilian pilot occupation and forced to pay for treatment out of his own pocket.  

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


STATEMENT OF FACTS:

The applicant’s military personnel records indicate he served in the Air National Guard (ANG) in the grade of lieutenant colonel (0-5) during the matter under review.  

On 19 Feb 12, the applicant commended a period of active duty in support of Operation ENDURING FREEDOM.  

On 2 May 12, the applicant sought treatment for possible skin cancer.  

On 3 May 12, the applicant had surgery to remove a tumor from in front of his right ear.  He was subsequently placed on convalescent leave until 30 Sep 12.

On 29 Sep 12, according to AFPC/DPFA, the applicant submitted a request for MEDCON orders.

On 29 Sep 12, the applicant was released from active duty and reverted to his traditional (part-time) status as a member of the ANG.

On 13 Oct 12, an AF IMT 348, Line of Duty (LOD) Determination, was initiated to evaluate the applicant’s skin cancer for service connection.  The applicant’s unit commander recommended his condition be found in the LOD and the staff judge advocate concurred.  

On 17 Oct 12, the LOD appointing authority recommended the applicant’s condition be found in the LOD.  

In accordance with Department of Defense Directive (DoDD) 1241.1, Reserve Component Medical Care and Incapacitation Pay for Line of Duty Conditions, the Military Departments shall authorize pay and allowances, to the extent permitted, for a Reserve component member who is not medically qualified to perform military duties, as determined by the Secretary concerned, because of an injury, illness, or disease incurred or aggravated in the LOD, or to provide pay and allowances to a member who is fit to perform military duties, but experiences a loss of earned income because of an injury, illness, or disease incurred or aggravated in the LOD.  This is commonly referred to as INCAP pay.  

On 28 Jun 13, the applicant was relieved from his current assignment and transferred to the retired reserve to await reserve retired pay at age 60.  

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


AIR FORCE EVALUATION:

AFPC/DPFA recommends denial of the applicant’s request for an orders extension or point credit, indicating the documentation submitted does not support his potential eligibility for MEDCON orders from 30 Sep 12 through 4 Feb 13.  According to SAF MEDCON guidelines, 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 airmen unable to perform military duties.  MEDCON eligibility requires a 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 or mobility standards in accordance with AFI 48-123, Medical Examination and Standards.  Furthermore, entry into the MEDCON program is voluntary and prior to being placed on MEDCON orders, service members must sign an acknowledgement form stating they are aware of their responsibilities.  Nevertheless, not all conditions that restrict deployment or mobility establish eligibility, such as conditions expected to resolve in 30 days or less.  An airman who can perform military duties, but requires medical care for a minor or chronic medical condition may be provided medical treatment for such condition through the Veterans Administration (VA), or TRICARE benefits; the airman does not have to be on MEDCON orders to receive medical care for a LOD condition.  In this case, the applicant submitted an original MEDCON request on 29 Sep 12 and based on the submitted documentation; he would not have been found eligible for MEDCON orders because he did not have a specific treatment plan documented for his medical condition.  However, it appears a decision on the applicant’s eligibility for INCAP Pay from 30 Sep 12 through 4 Feb 13 was delayed pending a decision on his MEDCON order request and he met INCAP Pay eligibility during the addressed time because his condition impacted his ability to return to his civilian employment.  Therefore, the applicant’s request for incapacitation INCAP pay should be approved.  

A complete copy of the AFPC/DPFA evaluation is at Exhibit C.  


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 9 Apr 14 for review and comment within 30 days.  As of this date, no response has been received by this office (Exhibit D).  


THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.  

3.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice with respect to the applicant’s request for medical continuation (MEDCON) orders.  We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility (OPR) and adopt its rationale as the basis for our conclusion the evidence presented is not sufficient to conclude the applicant should have been placed on MEDCON orders for the requested period.  

4.  Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the applicant should have been entitled to incapacitation (INCAP) pay during said period.  In this respect, we note the comments of the Air Force OPR indicating that while the applicant’s LOD injury did not render him unfit for his military duties, it did result in his loss of earnings from his civilian employment, which should have formed the basis for his entitlement to INCAP pay.  Therefore, we recommend the applicant’s records be corrected to the extent indicated below.  

5.  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 that competent authority approved his request for Incapacitation Pay (INCAP) for the period 30 September 2012 through 4 February 2013.  


The following members of the Board considered AFBCMR Docket Number BC-2013-04418 in Executive Session on 1 Jul 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 6 Aug 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.  
	Exhibit C.  Letter, AFPC/DPFA, dated 9 Apr 14.  
	Exhibit D.  Letter, SAF/MRBR, dated 20 May 14.