RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:			DOCKET NUMBER:  BC-2014-01410
		
						COUNSEL:

						HEARING DESIRED:  NO



APPLICANT REQUESTS THAT:

His civilian leave time (annual and sick) used, and his copays paid for medical evaluation and treatment for his injury sustained while on active duty (AD) be restored and/or paid. 


APPLICANT CONTENDS THAT:

He has had to use his civilian annual and sick leave, as well as pay copay costs for medical evaluation and treatment to address his injury sustained while on active duty (AD).  Upon returning from his AD deployment in 2012 he was denied Medical Continuation (MEDCON) orders and pay by his medical group, and he should have been considered for a Medical Evaluation Board (MEB).  

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


STATEMENT OF FACTS:

During the matter in question the applicant was serving in the Air National Guard (ANG) as a dual-status technician in the grade of master sergeant (E-7). 

On 22 Oct 11, the applicant entered AD, served 4 months and 11 days of active service, and released from this period of AD on 2 Mar 12.

On 25 Sep 12, according to the documents provided by the applicant, he filed a claim with the Connecticut inspector general (IG) regarding the following:

      1.  He should have been retained on MEDCON orders upon redeployment and post-mobilization.  
	
      2.  He was issued conflicting guidance relating to his deployment injury and injury that occurred post-mobilization.  
On 12 Dec 12, the Connecticut IG rendered a determination that the applicant’s contested injury was incurred while serving on AD, and, as he was found “fit for duty,” no MEDCON orders were warranted.  Further, the IG determined it was appropriate, as a dual-status technician, that the applicant was placed in a “leave status” while attending medical and physical therapy appointments, and that he incurred costs associated with said medical appointments.  The IG concluded that no regulations were violated and closed the applicant’s case.  

On 13 Jul 13, the NGB Chief, Flight Medicine and Medical Standards, after completing a referral report on the applicant’s case, recommended that the applicant be accommodated to the extent that an injury sustained while in a duty status does not utilize his technician benefits to remedy.  Reverse the classification of time taken for medical treatment from either sick or accrued time off to LWOP for the period of one year after the end of AD status.  The 103rd MDG completed an AF Form 348 to document the LOD, and that the applicant should be paid with incapacitation pay for the time taken for the medical appointments—including time for travel to distant locations.

The remaining relevant facts pertaining to this application are described in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are included at Exhibits C and D.


AIR FORCE EVALUATION:

AFPC/DPFA recommends denial, indicating there is no evidence of an error or injustice regarding the applicant not receiving MEDCON orders and pay.  According to SAF MEDCON guidelines (Aug 12) 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 Airman unable to perform military duties.  MEDCON eligibility requires a LOD determination and a finding by a credentialed military health 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 Examinations and Standards, Chapters 5 and 13.  After reviewing the documents submitted by the applicant, the command man-day allocation system (CMAS) database, and his records in aerospace information management system (ASIMS) during the period of time (Aug 11 to Sep 12) in question, there is no record of a mobility restriction, nor a record of MEDCON request on behalf of the applicant.  Therefore, he would not have been eligible for MEDCON orders under the existing or current MEDCON eligibility guidance.  

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

NGB/A1PS recommends the applicant apply for INCAP pay once his unit completes the processing of his line of duty (LOD) determination, provided that the LOD result in a finding of LOD-Yes, or LOD-Existed Prior to Service (EPTS), service aggravated.  They concur with the NGB subject matter expert (SME), Chief, Flight Medicine and Medical Standards, Referral Completion Report findings that the 103rd Medical Group (MDG) should initiate an AF Form 348 to document a LOD determination.  They provided excerpts from DoDI 1241.2, Reserve Component Incapacitation System Management, regarding incapacitation pay for Reserve component members unable and able to perform military duties.  They concluded by stating that if the LOD determination (AF Form 348) is found to be “In the Line of Duty,” or existed prior to service (EPTS), service aggravated, the applicant may apply for incapacitation pay.

A complete copy of the NGB/A1PS evaluation is at Exhibit D. 


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant disagrees with the AFPC/DPFA recommendation made in this case, and argues that his contested injury is documented (AF Form 348) as having occurred while on AD deployed to CENTCOM AOR during the winter of 2011 – 2012.  He provided copies of the AF Form 348, leave statements, AF Forms 469, and the 31 Jul 13 Referral Completion Report (Exhibit F ).


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.  In this respect, 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.  The Air Force office of primary responsibility has reviewed this application and indicated there is an available avenue of administrative relief the applicant has not first pursued.  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.  In this respect, we note that the applicant has not applied for medical continuation (MEDCON) orders, nor has he applied for incapacitation (INCAP) through existing administrative channels.  Therefore, in view of the above, we find no basis to recommend granting the relief sought in this application. 


THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. 


The following members of the Board considered AFBCMR Docket Number BC-2014-01410 in Executive Session on 21 Apr 15 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-2014-01410 was considered:

	Exhibit A.  DD Form 149, dated 26 Mar 14, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFA, dated 19 May 14, 
		       w/atchs.
	Exhibit D.  Memorandum, NGB/A1PS, dated 10 Jul 14, w/atchs.
	Exhibit E.  Letter, SAF/MRBR, dated 17 Nov 14.
	Exhibit F.  Letter, Applicant, dated 5 Dec 14, w/atchs.