RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-03683
            INDEX CODE:  108.10

            COUNSEL:  DAVID J. DICENSO

            HEARING DESIRED: NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

He receive back pay for the period 1 May 2003 through 9  October  2003
for being prematurely removed from active duty  status  prior  to  the
complete disposition of his medical condition, and that he receive any
leave he would have accrued while on active duty.
_________________________________________________________________

APPLICANT CONTENDS THAT:

On 20 June 2002, while on active duty and deployed to the United  Arab
Emirates (UAE), he injured his back while unloading  a  truck.   After
returning to the US he was sent to a Navy  hospital  for  a  follow-up
examination where he was told that he would need surgery.   Since  the
doctor’s told him the surgery  may  have  little  affect  on  him,  he
declined to undergo it.  On 30 April 2003, he was told that  he  would
no longer be on active duty orders and that  because  he  refused  the
back surgery, he would not be offered MPA days until he  received  the
results of the physical evaluation board (PEB).  He states he received
the results of the PEB on 9 October 2003.

In support of his  appeal,  the  applicant  has  provided  a  personal
statement, copies of an excerpt from AFI 36-3212, Physical  Evaluation
for Retention, Retirement, and Separation, AF Form 356,  Findings  and
Recommended Disposition of USAF Physical Evaluation  Board,  a  ground
mishap report,  pertinent  email  traffic,  and  a  message  regarding
procedures for extending Air Reserve component members on active duty.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant, a  member  of  the  Rhode  Island  Air  National  Guard
(RIANG), was on active duty and deployed to UAE when, on 20 June 2002,
he injured his back unloading a truck.  Upon his return to the  US  he
was separated from the ANG under the authority of a Formal PEB  (FPEB)
that determined he was not fit  for  continued  duty.   Applicant  had
requested to remain on active  duty  during  the  FPEB  process.   Air
Mobility Command (AMC) denied the request for MPA days because he  had
refused an evaluation by a neurosurgeon.  His refusal to be  evaluated
made him ineligible  for  continued  active  duty  via  MPA  days  and
provided the authority for continued processing of separation actions.

_________________________________________________________________

AIR FORCE EVALUATION:

ANG/DPP recommends denial.  DPP cites AFI 48-123, Medical Examinations
and Standards, wherein it states “ANG members with a known medical  or
dental condition who refuse to  comply  with  a  request  for  medical
information or evaluation are considered medically unfit for continued
military duty and  are  processed  in  accordance  with  AFI  36-3209,
Separation and Retirement Procedures for ANG and AFR Members.”

DPP notes that while AFI 36-3212 states  members  will  remain  in  an
active  status  until  completion  of  their  board  hearing,  interim
guidance has modified that policy.  The interim policy now states that
in order for mobilized members to remain on active duty they  have  to
be undergoing active treatment or diagnosis.  However, military  units
may request MPA days from the gaining major command  to  maintain  the
member in an active status pending results of  a  board.   The  intent
being to allow injured members,  who  are  unable  to  complete  their
civilian jobs, to remain in an active status until board  results  are
received.  While major commands are encouraged to supply the MPA  days
for this purpose, they must do so as long as they have  the  resources
and the allotment of resources will not affect mission accomplishment.
 By refusing evaluation, the applicant effectively removed himself for
consideration of continued active duty status via MPA days.

DPP’s complete evaluation, with attachments, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air National  Guard  evaluation  was  forwarded  to  the
applicant on 28 May 2004 for review and comment within 30 days.  As of
this date, no response has been received by this office.

_________________________________________________________________

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  opinion  and  recommendation  of  the  Air
National Guard  office  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.  Applicant applied  for  MPA
days in order to remain on active duty,  after  demobilization,  until
the FPEB finalized its decision.  However, when he refused recommended
medical treatment, his request for continuation on MPA days was denied
and he  was  separated  under  the  auspices  of  AFI  48-123  and  in
accordance with AFI 36-3209.  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 AFBCMR Docket Number BC-
2003-03683 in Executive Session on 15 July 2004, under the  provisions
of AFI 36-2603:

      Mr. David W. Mulgrew, Panel Chair
      Mr. James E. Short, Member
      Mr. Gary G. Sauner, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 29 Oct 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ANG/DPP, dated 19 Apr 04,w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 28 May 04.




                                   DAVID W. MULGREW
                                   Panel Chair