RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 			DOCKET NUMBER: BC-2014-01087
 					COUNSEL:  NONE
					HEARING DESIRED:  YES


APPLICANT REQUESTS THAT:

His records be corrected to show that he was on Medical 
Continuation (MEDCON) orders for the period of 8 Sep 11 to 
18 Apr 12 as opposed to Incapacitation Pay (INCAP Pay).  


APPLICANT CONTENDS THAT:

His requests to return to active duty after becoming unable to 
perform military duties as a result of an injury incurred or 
aggravated in the Line of Duty (LOD) were unjustly denied.  He 
should have been allowed to voluntarily return to active duty 
status on MEDCON orders In Accordance with (IAW) SAF/AA 
Memorandum, Return to Active Duty of Air Reserve Component 
Members Unable to Perform Military Duties, dated 8 Dec 06.    

He was on continuous Military Personnel Appropriations (MPA) 
orders from 9 Sep 07 to 15 Jun 11.  During that time he received 
two in the LOD injuries.  He was receiving medical treatment 
when his orders ended on 15 Jun 11.  Approximately 3 months 
after being released from active duty, he became unable to 
perform military duties as a result of the LOD injuries.  

He had a medical diagnosis rendering him unable to perform 
military duties as documented on the AF Form 469, Duty Limiting 
Conditions Report, dated 8 Sep 11.  Additional restrictions were 
updated on 19 Oct 11.  He was placed on full INCAP Pay for the 
period of 8 Sep 11 through 18 Apr 12.  

Due to his injuries and medical treatment, he was unable to 
perform his military duties or his civilian job.  He is an 
airline pilot and he was unable to perform his civilian job 
because he could not meet the Federal Aviation Administration 
(FAA) physical requirements.   

His unit submitted several Command Man-Day Allocation System 
(CMAS) requests for MEDCON orders which were denied.  The 
requests were disapproved citing he had a physical on 5 Apr 
11 and was cleared to fly, was mobility qualified and there was 
no record of continued treatment.  He continued to receive 
physical therapy and passed a flight physical.  Being World Wide 
Qualified (WWQ) does not mean an individual does not have any 
medical issues.  

He was entitled to full pay and allowances under 37 U.S.C. § 
204(g) because he was unable to perform military duties. He 
would have only received partial pay and benefits if he was 
determined only partially disabled and able to perform some 
military duty.  The requirement to qualify for full INCAP pay 
and return to active duty as outlined in the SAF/AA policy are 
the same.  

The final denial of his request on 18 Jan 12 states that he 
remains eligible for care for all LOD conditions but that they 
were unable to associate the current condition as occurring 
while on 2007-2010 orders when he was medically cleared in 
2011  and therefore was ineligible for MEDCON.  He was on orders 
from 2007 to 2011 and the orders were included in the request.  
He also does not see how his condition could not be associated 
to the period while he was on orders.  His medical records show 
he was receiving medical care for his back starting in Feb 
08 through May 11 (three weeks before his orders ended).  He was 
also receiving medical care for his shoulder from the time of 
his injury in Dec 09 through the time the Air Force renewed his 
surgical referral in May 11.  

If approved, the Air Force will not owe him any money as he has 
already received full monetary compensation through INCAP pay.  
However, the correction will allow him to receive the 224 active 
duty retirement points he was entitled to for that period.

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


STATEMENT OF FACTS:

The applicant is a member of the Air Force Reserve serving in 
the grade of lieutenant colonel (O-5).  

According to his DD Form 214, Certificate of Release or 
Discharge from Active Duty, he served on active duty from 9 Sep 
07 through 31 Jan 11 for this period.

According to his DD Form 214, he served on active duty from 
1 Feb 11 through 15 Jun 11.  

His AF Form 469 dated 8 Sep 11, reflects duty and mobility 
restrictions and physical limitations/restrictions of no running 
more than 100 yards, no repetitive bending at the waist, no 
pushing or pulling more than 25 pounds, no lifting more than 
25 pounds and no timed walk.  On 19 Oct 11, the additional 
restrictions of no lifting overhead and limiting of cross chest 
arm movements with right arm were added. The period of the 
restriction was through 18 Apr 12. 

AFRC IMT 348, Informal Line of Duty Determination, dated 25 Aug 
11 reflects his injury (shoulder) was found in the LOD. 

AFRC IMT 348 dated 2 Dec 11, reflects his injury (back) was 
found in the LOD.

According to Command Man-Day Allocation System (CMAS) entries 
dated 10 Oct 11, 15 Nov 11 and 18 Jan 12, his requests for 
MEDCON orders were disapproved.  Reasons for the disapproval 
include that on 5 Apr 11 he was cleared to fly, and was mobility 
qualified and WWQ.  He was also previously treated, medically 
improved and returned to duty in Oct 10.  The applicant was 
entitled to use his LOD to receive treatment at any Military 
Treatment Facility (MTF) or Department of Veterans Affairs (DVA) 
facility.  

Per 37 U.S.C. § 204 and 206, the Military Pay and Allowances 
Manual and 10 U.S.C. § 1074 and 1074a, a member of the Air Force 
Reserve is entitled to medical and dental care, incapacitation 
pay, travel and transportation incident to medical and/or dental 
care when incurring an in the LOD injury.  

Per DODI 1241.2, Reserve Component Incapacitation System 
Management, paragraph 6.6.3.2., A Reserve component member on 
active duty under a call or order to active duty for a period of 
31 days or more, who incurs or aggravates an injury, illness, or 
disease in the line of duty 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).   
 
Per AFRCI 36-3004, paragraph 3.4.9, a member who incurs or 
aggravates an injury, illness or disease and has an in the LOD 
determination completed and finalized as in the LOD is entitled 
to apply for INCAP Pay.   

According to the SAF/AA memorandum, paragraph 8.1, SAF/MR is the 
appeal authority for denied MEDCON requests.  All appeals should 
be submitted to the Air Reserve Center Case Management Office 
(ARC CMO).  The package will then be forwarded to the AFMOA 
commander or a delegated appropriate clinical director within 
AFMOA to conduct an independent review and make a recommendation 
to SAF/MR.  Further, paragraph 8.2 states that in the event of a 
successful appeal, a claim for past entitlements may be 
submitted to the Board.  


AIR FORCE EVALUATION:

AFPC/DPFA recommends denial indicating there is no evidence of a 
mistake.  The applicant was previously treated, medically 
improved and returned to duty.  He received finalized LODs which 
provides access to care at military or DVA treatment facilities.  
He was eligible for INCAP Pay which he applied for and was 
approved for IAW 37 U.S.C.  The INCAP Pay afforded the applicant 
full pay and allowances.  There is no sufficient evidence 
provided to overturn the previous determination.

The applicant was injured twice in 2009 and 2010 while serving 
on qualifying Title 10 orders.  Both conditions were found to be 
in the LOD.  The conditions required medical care on an ongoing 
basis and the applicant continued to serve in a mobilized 
status.  Once his tours of duty concluded, his medical condition 
continued to need care and he was placed on a mobilization 
restricted status as demonstrated on the AF Form 469.  At this 
point, his condition deteriorated to the extent that surgical 
correction was required.  In this case, the mobility 
restriction, while it existed, was temporally disassociated by 
two years from the injury date.  Two additional MEDCON 
applications were submitted in 2011 and 2012 with the same 
result, not eligible for MEDCON.  

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

AFPC/JA recommends disapproval as the applicant has not 
established an error warranting corrective action.  The SAF/AA 
policy states that airmen are entitled to be returned to active 
duty to satisfy pay and entitlements, medical evaluation and 
treatment and processing through the DES but they must have a 
“medical diagnosis rendering them unable to perform military 
duties and a LOD determination documenting that the 
injury/illness was incurred or aggravated in the LOD.”  In this 
case, the applicant was injured on active duty but was cleared 
to fly and was mobility qualified after his physical in Apr 11.  
He continued to be mobility qualified for several years after 
the injury, and he was mobility qualified at the time he left 
active duty on 15 Jun 11.  He was not placed on mobility 
restrictions until three months after his active duty orders 
ended.  He was eventually placed on mobility restriction for 
having pain; however, there is no clear indication of what 
incident caused him to be placed in mobility restriction several 
years after the injury or whether the incident triggering the 
need to place him on a mobility restriction incurred during his 
military duties or off duty.  Due to the mobility restriction 
occurring after the orders ended, AFPC/DPFA required evidence to 
show the causation of the mobility restriction was related to 
the performance of military duties.  AFPC/DPFA states in their 
advisory that they followed the SAF/AA policy and denied the 
applicant’s request for MEDCON orders due to the lack of 
sufficient evidence.  There is no evidence of an error.  

The complete JA advisory is at Exhibit D.  

The BCMR Medical Consultant recommends the Board consider 
granting relief if administratively feasible under the law based 
upon a preponderance of medical evidence.  The Medical 
Consultant provides chronological extracts from the applicant’s 
voluminous presentation from Jul 08 to Jun 12 which may 
establish the needed nexus with his initial in the LOD injury.  
The documentation which includes physical therapy sessions, 
epidural steroid injections, discography, pain management, range 
of motion and strengthening routine for his shoulder, 
arthroscopic bursectomy and distal clavicle resection 
collectively establishes a nexus with his LOD initial injuries 
which appear in the record a long a relatively uninterrupted 
continuum of time until his physician released him to 
unrestricted duty on 18 Apr 12. 
 
The applicant injured his right shoulder on or about 20 Dec 
09 when he slipped on a wet floor, wrenching his shoulder while 
handing-off bags and gear down a C-5 aircraft ladder.  He 
previously received evaluations and care for a back problem 
during 2008.  Both the back and shoulder ailment were found in 
the LOD.  Therefore, although the annular tear involving the 
applicant’s lumbar spine identified on CT scan of Jul 11 was not 
identified on the MRI scan of May 08, the Medical Consultant 
opines the applicant has supplied sufficient evidence of an 
acute worsening of a chronic impairment requiring a period of 
sustained treatment and recovery that may have justified MPA 
orders during the requested period as an alternative to INCAP 
Pay. 

The Medical Consultant’s complete evaluation is at Exhibit E.   


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He does not argue that he failed to meet the four items listed 
in the AFPC/DPFA evaluation; however, there is nothing in the 
SAF/AA policy memorandum that states this requirement.  It also 
states that the mobility restrictions did not occur until two 
years after the injury.  This is true but as shown the 
conditions never fully recovered and he was undergoing continued 
medical treatment.  Even the BCMR Medical Consultant agrees that 
his extensive medical records establish a nexus with his LOD 
injuries.  The SAF/AA policy puts no restrictions on how long 
after the airman was released from active duty orders.  In his 
case, he became mobility restricted only a little over two 
months after his orders ended and the flight surgeon had given 
him surgical referrals a month before his orders ended which 
shows that he was still being treated when his orders ended.  

There are 12 different category rules of INCAP pay and he 
qualified under rule #1, which entitled him to receive full pay 
and allowances.  His qualification for this level of INCAP pay 
under 37 U.S.C. actually shows that he met the additional 
requirement for MEDCON orders.

The AFPC/JA states that there is no clear indication of what 
incident caused him to be placed in mobility restriction several 
years after the injury or whether the incident triggering the 
need to place him on mobility restriction occurred during his 
military duties or off duty.  He does not know how to prove that 
there were no new injuries that occurred after he was released 
from orders.  However, he provides AF Form 469 dated 5 Aug 
11 directing further limitations but no mobility restrictions 
and AF Form 469 dated 8 Sep 11 resulting in his being mobility 
restricted.  The timeline of the referrals and subsequent AF 
Forms 469 show that these were not new injuries.  Instead, when 
combined with his medical records, they show continuing care for 
the original injuries and a progression of increasing 
limitations over time eventually resulting in the mobility 
restrictions.   

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


THE BOARD CONCLUDES THAT:

1.  The applicant has not 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 error or injustice.  We note this 
Board is the highest administrative level of appeal within the 
Air Force.  As such, an applicant must first exhaust all 
available avenues of administrative relief provided by existing 
law or regulations prior to seeking relief before this Board, as 
required by the governing Air Force Instruction.  In this 
respect, we note the SAF/AA policy memorandum states that SAF/MR 
is the appeal authority for denied MEDCON requests.  However, 
there is no evidence to indicate the applicant submitted an 
appeal to SAF/MR IAW established policy prior to submitting his 
application to the Board.  In view of this, we find this 
application is not ripe for adjudication at this level as there 
exists a subordinate level of appeal that has not first been 
depleted.  Therefore, in view of the above, we find no basis to 
recommend granting the relief sought in this application.

4.  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 DETERMINES THAT:

The applicant be notified that he has not exhausted all 
available avenues of administrative relief prior to submitting 
his application to the BCMR; and the application will only be 
reconsidered upon exhausting all subordinate avenues of 
administrative relief.


The following members of the Board considered AFBCMR Docket 
Number BC-2014-01087 in Executive Session on 26 Feb 15 under the 
provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 3 Mar 14, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFA, dated 8 Apr 14.
        Exhibit D.  Memorandum, AFPC/JA, dated 20 May 14.         
        Exhibit E.  Memorandum, BCMR Medical Consultant, dated 
24 Oct 14.
        Exhibit F.  Letter, SAF/MRBR, dated 24 Nov 14.
        Exhibit G.  Letter, Applicant, dated 5 Dec 14, w/atchs.