RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-01668 COUNSEL: HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected to reflect he was not released from active duty on 9 Oct 09, but was continued on active duty through completion of his processing through the Disability Evaluation System (DES) on (10 May 10) with any offset for civilian pay earned from onward. _________________________________________________________________ APPLICANT CONTENDS THAT: The applicant’s counsel states the Air Force unlawfully removed the applicant from active duty orders while he was undergoing disability processing through the DES. The applicant was serving on active duty orders for more than 30 days, and the Air Force was required by law to continue him on active duty orders. In May 08, while performing active duty, the applicant developed a serious medical condition for which he underwent extensive evaluation and treatment. The applicant served on active duty continuously from 2004 until 9 Oct 09, the date of his removal from active duty. His removal was based on the erroneous application by the Air Force Reserve of the “participation waiver” provisions of Air Force Manual 36-8001, Reserve Personnel Participation and Training Procedures. The “participation waiver” provision, relied on by the Air Force was clearly inapplicable to the applicant’s situation. It applies only to traditional reservists not on active duty orders for over 30 days. The “participation waiver” provision does not apply to Air Reserve Component (ARC) members on active duty orders for more than 30 days. It does not apply to the applicant because he was never assigned a temporary or permanent profile numerical designator of “4.” To be issued a “4” profile requires a medical finding of very significant duty limitations. The applicant was not a “traditional” reservist because he had served continuously on active duty since Nov 04. He also would not have been eligible for incapacitation pay, and is not eligible, because he lost no civilian earnings. Until 1 Mar 10, he had not held civilian employment since entering active duty in 2004. The Air Force was required to continue the applicant in an active duty status pending the completion of his physical disability processing. The failure to comply with applicable law has caused the applicant serious financial and personal hardship. In support of his request, the applicant provides a memorandum from his counsel, various documents pertaining to his Medical Evaluation Board (MEB), his Counsel’s letter to HQ AFRC and response from HQ AFRC/JA, a congressional inquiry response, AFRC IMT 348, Informal Line of Duty (LOD) Determination; AF Form 422, Notification of Air Force Member’s Qualification Status; AF Form 469, Duty Limiting Condition Report, and a Memorandum from the Chief of Air Force Reserve, dated 18 Dec 06. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant, while a member of the Air Force Reserve, was serving on active duty orders from 1 Jan 08 through 30 Sep 08, when he developed a medical condition. On 25 Oct 08, a line of duty determination (LOD) was initiated, and on 21 Jan 09, a finding of in the LOD was determined. On 17 Sep 09, due to functional and mobility restrictions for more than a year, the applicant underwent an MEB. The MEB established the following diagnosis: multi-level cervical spondylosis with radicalopathy which was determined ILOD. The MEB recommended the applicant be returned to duty. On 30 Sep 09, HQ AFRC/SGP non-concurred with the MEB and referred the case for processing through the Informal Physical Evaluation Board (IPEB). On 7 Oct 09, the applicant’s reserve medical unit requested a participation waiver from HQ AFRC/SGP while the MEB/IPEB processing was ongoing. The waiver was granted and he was removed from medical continuation orders. On 8 Oct 09, the applicant contacted HQ AFRC/SGP directly requesting the participation waiver be denied so he could remain on medical continuation orders. He was advised of the procedures for submitting additional medical documentation for reconsideration. On 24 Feb 10, the IPEB found the applicant unfit and that his disability incurred ILOD and recommended discharge with severance pay with a 10 percent disability rating. On 4 Mar 10, the applicant disagreed with the findings and decision of the IPEB and requested a formal hearing and provided a letter supporting retention from one of his supervisors. On 15 Apr 10, the FPEB approved the applicant’s request to be returned to duty. The FPEB stated the new evidence showed the member had a drastic improvement in his medical condition following epidural shots for treatment. He had no physical restrictions and recently qualified on the M-4/M-1 and M-9. With his updated profile, he met the minimum criteria for deployment. He had strong support for retention from his commander, who supported his retention. On 16 Apr 10, the applicant agreed with the findings and recommendation of the FPEB. On 3 May 10, the Secretary of the Air Force directed the applicant be returned to duty. _________________________________________________________________ AIR FORCE EVALUATION: HQ AFRC/SGP recommends denial. SGP states the DES processing was completed on 10 May 10, and the applicant was found fit and returned to duty by the Air Force PEB. Previous responses to a congressional inquiry on 10 Dec 09, and a letter from the applicant’s lawyer to AFRC/CC on 5 Apr 10, outline the facts concerning the applicant’s condition as well as the policies in place at the time that resulted in removal from medical continuation orders. The new correspondence from the applicant’s lawyer does not present any new evidence or information that was not previously reviewed and considered. The applicant has been advised that despite not being granted medical continuation orders he may be eligible to file for incapacitation pay to satisfy pay and allowance benefits during this period IAW AFRCI 36-3004. The complete SGP evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The advisory opinion does not address the legal citations and arguments presented; demonstrating the applicant’s removal from active duty orders while he was undergoing disability evaluation was prohibited and unlawful. The applicable law could not be clearer. According to AFI 36- 3212, Physical Evaluation for Retention, Retirement, and Separation (2 Feb 06), Chapter 8, Section 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. Department of Defense Instruction (DoDI) 1332.38, (Physical Disability Evaluation), E.3.P.2.7.2.1, permits the release of an officer in such circumstances only if he or she signs a waiver of continuation on active duty: Members of a Reserve component on active duty under a call to duty of more than 30 days may continue disability evaluation upon release from active duty provided they maintain a Ready Reserve status. However, they must sign a waiver declining retention on active duty. Air Force Reserve Command Instruction 36-3004, Chapter 1, Section 1.3, is equally unequivocal: Members on active duty orders for a specified period of 31 days or more are not involuntarily released from their orders if they incur a line of duty 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, or the medical condition has been determined not in the line of duty. See Section 4.1. The suggestion the applicant can pursue compensation for his losses through “incapacitation pay,” is simply wrong, incapacitation pay is available for off-set earnings lost as a result of an injury or condition incurred while performing reserve weekend or annual training, or otherwise incurred while on active duty orders of 30 days or less. The applicant’s removal from active duty has caused significant financial hardship, from which he still suffers. After five years of continuous distinguished active duty service, he suddenly found himself unemployed and without income to support his family. The Counsel's complete response is at Exhibit E. _________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: The BCMR Medical Consultant recommends granting the applicant relief by changing the record to reflect he was retained on active duty orders from 9 Oct 09 through the date he was found fit by the FPEB and returned to duty. The Medical Consultant states the applicant’s case presents a conundrum between his expressed desire (retention) and the route chosen by AFRC/SGP officials in their interpretation of existing policies (also with the goal of retention, but with a waiver). The applicant, already serving a period of greater than 30 days, is correct in the contention that he should not have been released from active duty orders after initiation of MEB processing for a condition determined disqualifying. It is interesting to note the objective of the applicant’s servicing Medical Treatment Facility (MTF) was to return the applicant to duty, while AFRC/SGP officials recommended review by the IPEB (with an implicit awareness of a possible unfit finding); yet did not await completion of the DES analysis before removing the applicant from active duty orders. Whether the action of AFRC/SGP was done solely as a “manday” resource management maneuver or an earnest desire to retain the applicant cannot be determined. Further, even though found unfit by the IPEB, the applicant successfully appealed to remain on duty after an otherwise unexplained significant improvement with one of the same therapies that previously failed to improve his condition. Thus, it would seem that issuing the applicant a waiver to remain on duty for pay and points would have been a desirable outcome; except clearly the applicant believes he should have continued to receive basic pay until the final disposition of his case was achieved; that is either returned to duty (free of duty restrictions) or processed out via the DES. The Medical Consultant opines that although both AFRC/SGP and the applicant both ultimately desired retention (one via an appeal to FPEB after an unfit finding by the IPEB and the other manifested through issuance of a continuation waiver), the applicant should have been retained on active duty orders until the final disposition of this case was reached. Acknowledging the challenges confronted by AFRC/SGP in supporting the mission requirements of commanders, while remaining fiscally responsible to this end. The applicant may yet be still vulnerable for a future change in his duty status, e.g., issuance of a waiver for pay and points, particularly if he requires reinstatement of duty profiles that restrict his worldwide qualification. The complete BCMR Medical Consultant’s evaluation is at Exhibit F. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The Counsel concurs with the advisory opinion and thanks the Medical Consultant for his careful review. The Medical Consultant appears to recommend he be reinstated to active duty from 9 Oct 09 to 10 Apr 10, the date the FPEB adjudicated his appeal. However, the correct end-date of his active duty orders and retroactive pay and benefits should be 14 May 10; the date on which the Air Force formally completed his disability processing. The Counsel provides a memorandum, dated 14 May 10, announcing the completion date of his MEB, and an excerpt from AFI 36-3212. The Counsel’s complete response, with attachments, is at Exhibit H. _________________________________________________________________ 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 an error or injustice warranting corrective action. In this regard, after our review of the evidence before us and noting in particular the evaluation prepared by the BCMR Medical Consultant, it appears the applicant should have remained on medical continuation orders until he was processed through DES. Therefore, we concur with the recommendation of the BCMR Medical Consultant and recommend he be placed on active duty orders from 9 Oct 09 through 3 May 10, the date the Secretary of the Air Force (SECAF) found him fit for duty. We note the applicant’s contention that the correct end- date for his active duty orders and retroactive pay and benefits should be 14 May 10; however, that is the date his unit notified him of the results of his MEB. AFI 36-3212, states that “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.” In this instance, the final disposition date is the date the Special Assistant to the SECAF signed the letter returning the applicant to duty. As such, we conclude the end-date of his active duty orders is 3 May 10. Therefore, in view of the above, 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 on 9 October 2009, he was not released from active duty, rather, on that date he continued to serve on active duty until 3 May 2010, on which date he was released from active duty. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-01668 in Executive Session on 24 May 11, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the records, as recommended. The following documentary evidence pertaining to Docket Number BC-2010-01668 was considered: Exhibit A. DD Form 149, dated 30 Apr 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFRC/SGP, dated 20 Jul 10. Exhibit D. Letter, SAF/MRBR, dated 30 Jul 10. Exhibit E. Letter, Counsel, dated 9 Aug 10. Exhibit F. Letter, BCMR Medical Consultant, 29 Mar 11. Exhibit G. Letter, SAF/MRBR, dated 1 Apr 11. Exhibit H. Letter, Counsel, dated 7 Apr 11. Panel Chair