RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-02863
            INDEX NUMBER:  128.01
      XXXXXXXXXXXXXX   COUNSEL:  None

      XXX-XX-XXXX      HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be authorized entitlement to Family Separation Allowance (FSA)  for
the period he was assigned to his first active duty station.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Prior to accepting his first active duty assignment, he was advised by
his recruiter of the Exceptional Family Member  Program  (EFMP)  as  a
means of ensuring adequate medical care for his ill dependent son.  He
was advised that he could not enroll his son until he  was  on  active
duty.  Prior to leaving for his first duty station  he  tried  without
success to find if there would be adequate medical care for  his  son.
He then made the decision to leave his family behind as he reported to
his first duty  station,  although  his  orders  authorized  dependent
travel.

When he arrived at his  duty  station,  he  began  to  ask  about  the
availability of medical care  for  his  son.   He  was  asked  by  his
squadron commander to delay enrolling his son in the EFMP while it was
researched to see if care was available.  This amounted to four months
at which time it was determined that care was not available.  At  that
time, an Air Force Form 1466 (Medical and  Educational  Clearance  for
Travel) was initiated, which officially prevented his son from joining
him at his duty station until the required medical care was  available
or his son no longer needed such care.

He requested to be reassigned to the base in the area where his family
was already located.  He had  supporting  documentation  from  medical
authorities certifying that moving his son would not be  in  his  best
interest.  His request was denied and he received orders to report  in
May 02 to Wilford Hall Medical Center in Texas.  The medical team that
was already caring for his  son  advised  against  relocating  him  to
Texas.  He requested and received authorization for a later  reporting
date, reporting in Oct 02, still against  the  recommendation  of  his
son’s doctors.

Since reporting to his new  duty  station  in  Oct  02,  he  has  been
maintaining two households and is serving a tour of duty where his son
is not authorized to join him.  He has applied for  family  separation
allowance (FSA) (Type II-R) several  times  to  offset  the  financial
burden this has caused.  His requests have been denied on the  grounds
that he must be stationed overseas to be eligible.  He has  researched
and studied the DOD directives and the U.S. Code and has not found any
references to support this ruling.

In support of his appeal, applicant provides documentation  about  his
son’s medical condition, his efforts to obtain FSA, and  letters  from
medical doctors and specialists that care for his son.

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

_________________________________________________________________

STATEMENT OF FACTS:

The relevant facts pertaining to this application are contained in the
evaluations prepared by the appropriate offices of the Air Force found
at Exhibits C, F, G, and J.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ USAF/DPPCC recommends that  the  applicant’s  request  for  FSA  be
denied.  DoD Directive 1315.7 does not identify any  restrictions  for
the movement of dependents to a member’s permanent duty station within
the Continental United States (CONUS).  A dependent restricted tour is
defined as any overseas duty station with  an  established  tour  that
does not permit command-sponsored dependents.  FSA is paid to  members
when the movement of dependents is not authorized.

Prior to reporting to his first duty station, applicant was  paid  FSA
for the period 8 Oct through 14 Nov 01 due to being in temporary  duty
(TDY) status for more than 30 days.  DoDFMR, Vol 7A, paragraph 270104-
A3 authorizes this payment in such circumstances.

The complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the Air force evaluation, applicant states that  he
is not claiming that his first CONUS  duty  station  was  a  dependent
restricted tour as implied in the evaluation.  Although his orders did
authorize his dependents to travel at government expense, the AF  Form
1466 that was later completed officially denied his son permission  to
accompany him.  As a new accession, this form could not  be  completed
until he arrived on station and had his medical records  reviewed  and
he consulted with the primary medical team.

He states that DoD 7000.14-R, Vol 7A,  Chapter  27,  paragraph  270104
(A)(1)  provides  that  a  member  is  eligible  for   FSA   II-R   if
transportation of dependents is not authorized at government  expense,
and the dependents do  not  live  in  the  vicinity  of  the  member’s
permanent duty station.  There is no requirement for the member to  be
stationed outside the CONUS.  The applicant  states  that  while  this
regulation does not make mention of a dependent’s medical problems  as
grounds  for  qualifying   for   FSAII-R,   USC   37,   Section   427,
paragraph(c)(2), addresses his situation.

The applicant states that everyone who  reviews  his  case  is  simply
looking at his  orders  and  determining  that  dependent  travel  was
authorized.  They have overlooked the AF Form 1466 that denied his son
travel to  his  first  duty  station.   He  believes  two  conflicting
military documents, his accession orders and the  AF  Form  1466  that
restricts his son from accompanying him cause the confusion.

The applicant’s complete response is at Exhibit E.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s request, additional Air Force evaluations were
prepared to address  issues  contained  in  the  applicant’s  rebuttal
above.

The Chief, Medical Standards Branch makes no recommendation  regarding
the applicant’s  request  as  they  are  not  the  office  of  primary
responsibility for FSA or the AF Form 1466.  They do  provide  details
regarding the medical condition of the applicant’s  son.   They  opine
that the decision not to  relocate  his  family  was  the  applicant’s
personal choice.  He was aware of his son’s medical needs at the  time
he accepted the Active Duty  Service  Commitment  (ADSC)  and  related
bonuses.

The complete evaluation is at Exhibit F.

AFPC/DPAPO provided an  evaluation  addressing  the  applicant’s  EFMP
assignment.  They indicate that if the applicant  was  told  he  could
only initiate the paperwork for an EFMP assignment after he arrived at
his permanent duty station, he was misinformed.   They  indicate  that
EFMP requests are routinely received from officers while  in  training
at Maxwell AFB.  They attach a copy of a response that was provided to
a Congressional inquiry regarding the  applicant’s  assignment,  which
provides a complete background on the applicant’s case.

The complete evaluation, with attachment, is at Exhibit G.

_________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The applicant responded to the additional  Air  Force  evaluations  by
indicating that they contained numerous inaccuracies.

In addition to pointing out administrative errors in  several  of  the
letters, the applicant  challenges  the  information  and  conclusions
drawn in the letters.  The applicant contends that a letter written to
his Congressman by the  Air  Force  in  response  to  a  Congressional
Inquiry omits information provided by one of his son’s providers.   He
also contends that some of the information  contained  in  the  letter
misquotes  his  son’s  health  care  providers.   The  applicant  also
disagrees with a statement that  he  failed  to  provide  certain  key
information in documentation provided to humanitarian officials.

The applicant addresses several points in the letter  written  by  the
Chief of the Medical Standards Branch.  He  states  that  all  of  the
pediatric sub specialists required by his son  are  available  in  the
Great Falls, Montana area contrary to their statement that  only  some
are available.  He also disagrees with their assessment that there  in
no recent assessment of his son’s medical needs and that  his  son  is
being assessed on an ongoing basis.  He further points out  that  some
of the comments in the evaluation appear to give the  impression  that
the Air Force was not aware of the seriousness of  his  son’s  medical
condition before he was assigned to Mountain Home AFB.  He states that
he made his son’s medical needs well known before  he  was  offered  a
commission.  The applicant states that while he was aware of the needs
of the Air Force, he also knew that the Air Force  was  aware  of  the
needs of his son.  He  accepted  his  appointment  and  assignment  to
Mountain Home with the understanding that  he  was  going  to  a  duty
station where his family was authorized to accompany him, or so he was
told.  The applicant responds that the  Chief  of  Medical  Standard’s
assertion that he was not officially denied dependent travel to either
Mountain Home or the Boise area, as the  Boise  area  had  appropriate
medical  care  available  for  his  son  is  wrong.    Medical   care,
particularly that of a  pediatric  pulmonologist,  was  not  available
according to the Mountain Home EFMP officer in his memorandum, dated 8
Mar 02.  The applicant also discusses the AF Form 1466 and opines that
it was “clearly evident” that his son was officially denied  dependent
travel.  He states that the AF Form  1466  only  allows  two  options,
recommended or delayed.

The applicant states that he does not understand  why  AFPC/DPAPO  was
asked to do an advisory, since he  is  not  asking  for  another  EFMP
assignment.

The applicant concludes his response  by  reiterating  the  conditions
that entitle  him  to  Family  Separation  Allowance  II-R  under  DoD
regulations and  the  United  States  Code.   He  states  that  he  is
requesting resolution of the issues by the Board granting him the  FSA
to which he is legally entitled.

The applicant’s complete response is at Exhibit I.

_________________________________________________________________
SECOND ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s request,  HQ  USAF/JAG  provided  a  second
additional evaluation of the applicant’s case.  They conclude  that
the applicant’s request for FSA II-R should be denied.

The applicant confuses several key  terms  and  their  application.
First, the Delayed Dependent Travel determination documented by the
AF Form 1466, Request for Family  Member’s  Medical  and  Education
Clearance  for  travel,  is  only  to  determine  the   applicant’s
eligibility for EFMP and does not  conflict,  negate  or  otherwise
amend his original Extended Active Duty (EAD) Orders.  In fact, AFI
36-2110, Atch 1, defines the term “Delayed  Dependent  Travel  (For
EFMP only)” in reference to overseas (OS) locations.   The  primary
point is when the determination was made to delay  the  applicant’s
dependent son’s travel, the determination  was  for  EFMP  purposes
only.  Therefore, the Delayed Dependent Travel determination has no
relevance to his original Continental  United  States  (CONUS)  EAD
orders,  which  authorize  the  transportation  of  dependents   at
government expense.

The applicant also cites a  statutory  exception  as  authority  to
grant  FSA  II-R  payment.   Specifically,  the  applicant   states
37 U.S.C., Section 427(c)(2), authorizes FSA II-R  payment  when  a
member elects to serve a  unaccompanied  tour  of  duty  because  a
dependent cannot accompany the  member  to  or  at  that  permanent
station for certified medical reasons.”  Once again,  AFI  36-2110,
Atch 1, defines “Unaccompanied” in conjunction with “OS Tour;”  and
“certified medical reasons” is only used  in  reference  to  FSA-II
payment waiver authority in circumstances when a member is “ordered
to a new overseas duty  station  where  medical  reasons  involving
family members or terrorist activity would  make  it  inappropriate
for dependents to accompany the member.”  The  statutory  authority
and the  implementing  Air  Force  instruction  effectively  negate
applicant’s interpretation.

Finally, it should be noted that the applicant submitted a FSA II-R
payment waiver request through Headquarters, Air Combat Command  to
AF/DPRC, the Air Force designated waiver authority.  After  review,
AF/DPRC denied the applicant’s request  and  recommends  the  Board
deny the applicant’s BCMR request.  The Air Force has  consistently
applied its regulatory guidance to  the  applicant’s  case  and  is
entitled to a presumption of regularity.  The applicant has  failed
to provide sufficient  evidence  to  overcome  the  presumption  of
statutory and regulatory regularity.

The complete evaluation is at Exhibit J.

___________________________________________________________________

APPLICANT’S REVIEW OF SECOND ADDITIONAL AIR FORCE EVALUATION:

A copy of the second additional Air Force evaluation was  forwarded
to the applicant on 21 Apr 03 for  review  and  comment  within  30
days.  To date, a response has not been received.

___________________________________________________________________
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 error or injustice.  We took notice of
the applicant's complete submission in judging the  merits  of  the
case; however, we agree with the opinions  and  recommendations  of
the Air Force offices of primary  responsibility  and  adopt  their
rationale as the basis for our conclusion that  the  applicant  has
not been the victim of an error or injustice.   Therefore,  in  the
absence of evidence to the contrary, we find no compelling basis to
recommend granting the relief sought in this application.

_______________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of material error  or  injustice;  that  the
application was denied without a personal  appearance;  and  that  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 Docket  Number  BC-2002-
02863 in Executive Session on 19 June 2003, under  the  provisions  of
AFI 36-2603:

      Ms. Olga M. Crerar, Panel Chair
      Mr. David W. Mulgrew, Member
      Mr. Vaughn E. Schlunz, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 4 Sep 02.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFPC/DPPCC, dated 2 Oct 02
    Exhibit D.  Letter, SAF/MRBR, dated 1 Nov 02.
    Exhibit E.  Memorandum, Applicant, dated 18 Nov 02.
    Exhibit F.  Memorandum, AFPC/DPAMM, dated 23 Jan 03.
    Exhibit G.  Memorandum, AFPC/DPAPO, dated 3 Feb 03.
    Exhibit H.  Letter, SAF/MRBR, dated 7 Feb 03.
    Exhibit I.  Letter, Applicant, dated 1 Mar 03.
    Exhibit J.  Memorandum, HQ USAF/JAG, dated 16 Apr 03.
    Exhibit K.  Letter, AFBCMR, dated 21 Apr 03.




                                   OLGA M. CRERAR
                                   Panel Chair