RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-03937 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: He be granted full compensation with corresponding points beginning 30 December 2006 to 7 September 2007. _________________________________________________________________ APPLICANT CONTENDS THAT: 1. On 13 January 2007, he was unjustly discharged while on a Profile 4 status. 2. He has been subjected to the injustices, insults, maltreatments, harassments, and denial of pay through conscious acts or omission and all sorts of abuse willfully committed by his superiors. 3. The vengeful, bias, and malicious actions of his superiors caused gross psychological harm, gross injustice with resounding bigotry, prejudice, and hatred that resulted in intimidation and humiliation. 4. His superiors committed fraud and waste by denying him proper authorization for continued medical care and abusing their official authority and power as commissioned officers by hiding behind their ranks and grades to justify their malicious motives and used that as a means of punishment to him while he was on a Profile 4 status. 5. Pertinent information was intentionally withheld at pre-Unit Training Assemblies (UTAs) meetings, unit formations and commander’s call, although he and the first sergeant prepared all the materials for the commander. 6. During the period 1 October 2006 to 29 December 2006, he was placed on a Profile 4 status and on 90-day Military Personnel Appropriation (MPA) medical orders. In support of his request, the applicant provides a 22-page narrative with attachments. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: Data extracted from the Military Personnel Data System (MilPDS) indicates the applicant initially entered uniformed service on 1 February 1974. He was partially mobilized from 13 February 2004 to 9 March 2005 in support of Operations NOBLE EAGLE and ENDURING FREEDOM. He served in support of these Operations during the following periods: 3 February 2001 to 4 January 2002; 15 October 2001 to 18 November 2001; 7 January 2002 to 15 February 2002 and 10 March 2005 to 30 September 2006. On 18 August 2006, the applicant was notified that it was his last official day as a first sergeant. The reason for this action was he refused to take a voluntary demotion which would have qualified him for a position in the squadron. On 30 December 2006, the applicant was placed on a “4T” not worldwide qualified profile, with an expiration date of 1 Apr 2007. The record reflects the applicant had a previous “2T” worldwide qualified profile which was subsequently changed back to a “4T” not worldwide qualified, effective 8 June 2007. However, there is no documentation covering the period 2 April 2007 to 7 June 2007, but the most recent profile documentation supplied, reflects he had been in a “2” profile status for his upper extremities. In addition, the only other profile documentation supplied was initiated on 8 June 2007, with an expiration date of 7 September 2007. _________________________________________________________________ AIR FORCE EVALUATION: HQ AFRC/SGP states no further waivers were requested or granted during the period the applicant has requested compensation. The applicant incurred bilateral epicondylitis while on active duty orders from 1 October 2005 to 30 September 2006. He was continued on medical continuation orders from 1 October 2006 to 29 December 2006 during which time he underwent surgery. The applicant was profiled unfit for military duty “U4T” for the period requested. Additionally, an Informal Line of Duty (ILOD) determination was accomplished and found the condition “in the line of duty.” During the period 12 January 2007 to 12 April 2007, the applicant was granted a participation waiver. In accordance with (IAW) the 18 December 2006, HQ USAF/RE memorandum, change to AFMAN 36-8001, Reserve Personnel Participation and Training Procedures, in effect at the time, members granted such a waiver are deemed able to perform military duty and thus not eligible for medical continuation orders. Further, no request for medical continuation orders or revoking of the participation waiver was received by HQ ARPC/SGP for the second elbow surgery on 7 February 2007. Another request for medical continuation orders was made on 18 May 2007, by which time the applicant was considered a good candidate for the participation waiver. The complete SPG evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: By letter dated 12 February 2011, the applicant states he wants to reinstate his claim for all pay and allowance entitlements as follows earned between December 2006 and September 2007: a. Full base pay for master sergeant at the 26-year rate. b. Full basic allowance for housing at the zip code 94014 rate. c. Full per diem at the 2007 rates, approximately $41 per day. d. Full family separation pay at the 2007 rates, approximately $250/$275. e. Full separate rations pay at the 2007 rates, approximately $7.50 per day. f. Full vacation days earned, cashed in and added on to the tally. By undated letter, the applicant states he claimed pay and allowance benefits for the majority of the periods between 30 December 2006 and 7 September 2007, but not the entire time as implied. In his report, he excluded 8 June 2007 to 8 July 2007 and apologizes because he forgot to mention and include the days his superiors “forced” him to report for UTAs. During these weekends, he was threatened with being absent without leave (AWOL), if he did not report, even though his superiors knew he was still on a U4T profile. IAW DODI 1241.2, Reserve Incapacitation System Management, members who are rendered unfit by a condition incurred in the line of duty while in status for 31 days or more are to be continued on active duty orders until found fit or separated via the disability evaluation system” this never happened. The denial of the DODI ruling is what triggered the whole Congressional Inquiry. Their prejudicial behavior was merely a veneer but in reality an astute “payback” on behalf of Technical Sergeant H. DODI 1241.2 and 1241.01 are the same exact rules they knowingly and intentionally violated and outwardly disobeyed. As a result, he was denied medical continuation orders despite all the right medical reasons and documentation. His attending physician Dr. (Lieutenant Colonel) T. declared him NOT fit for duty and that he was NOT worldwide qualified until he was OFFICIALLY MEDICALLY declared and found him to be “Fit for duty” and that happened only on 7 September 2007.” This petition is not about whether Colonel G’s little guess work has proved anything based on his assumptions and usage of terminology such as “deemed” and “waiver.” Bottom line, you cannot substitute those words and try to squeeze it in to change the big picture and total outcome. He was treated with contempt, and became a victim of injustice and his superiors need to be reprimanded and punished for the crimes they perpetrated and skillfully crafted together against him. The applicant’s complete submission, 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 an error or injustice warranting partial relief. In this respect, we note the applicant was on active duty orders in support of Operation ENDURING FREEDOM and Operation NOBLE EAGLE and was diagnosed with a medical injury. Subsequently, the injury was found to be In the Line of Duty (ILOD). However, contrary to established guidance dictating that he remain on active duty status until processed through the disability evaluation system, it appears he was released from active duty without due process. Although the applicant requests full compensation with corresponding points beginning 30 December 2006 to 7 September 2007, we note his AF Form 422 dated 8 June 2007 reflects his previous profile as “2” which would indicate he was worldwide qualified and therefore could not have been on medical continuation orders. Therefore, based on the available evidence, we recommend his records be corrected to reflect he was on medical continuation orders for the periods 30 December 2006 to 1 April 2007 and 8 June 2007 to 7 September 2007. Therefore in the interest of equity and justice, we recommend his record be corrected to the extent indicated below. 4. The applicant alleges he has been the victim of reprisal and has not been afforded full protection under the Whistleblower Protection Act (10 USC 1034). Based upon our own independent review, we have determined the applicant has not established that the reason he was denied medical continuation orders was motivated by retaliation for making protected communications. We also find no evidence he filed a reprisal complaint with the Inspector General as required when reprisal is alleged. ________________________________________________________________ THE BOARD DETERMINES THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that: a. He was not released from active duty on 30 December 2006, but on that date he continued to serve on active duty until 1 April 2007. b. He was not released from active duty on 8 June 2007, but on that date he continued to serve on active duty until 7 September 2007. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-03937 in Executive Session on 18 August 2011, 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 10 October 2010, w/atchs. Exhibit B. Applicant’s Master Personnel Record. Exhibit C. AFRC/SGP, Letter, dated 21 December 2010. Exhibit D. SAF/MRBR, Letter, dated 14 January 2011. Exhibit E. Applicant’s Rebuttal, Letter, undated, w/atchs. Panel Chair