RECORD  OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2006-01369
                                       INDEX CODE:  108.00
      XXXXXXXXXXXXXXX                   COUNSEL: NONE

                                             HEARING DESIRED:  NO


MANDATORY CASE COMPLETION DATE:  6 November 2007


_________________________________________________________________

APPLICANT REQUESTS THAT:

He be given pay, allowances, and service credit  (points)  from  7 September
2002 through 29 April 2005.  In addition, he  be  reimbursed  attorney  fees
for  non-related  AFBCMR  services,  compensated  for  the  years  of   lost
promotion opportunities, and out-of-pocket expenses incurred as a result  of
not having TRICARE Health coverage.

_________________________________________________________________

APPLICANT CONTENDS THAT:

While serving on active duty in support of OPERATION  ENDURING  FREEDOM,  he
developed asthma.  In accordance  with  Air  Force  regulations,  he  should
never have  been  released  from  active  duty  while  his  case  was  being
evaluated through medical and personnel actions.

In support of his application, the applicant provides a personal  statement,
a  letter  from  his  civilian  counsel,   and   copies   of   records   and
correspondence in his efforts to correct this error since his  release  from
extended active duty  (EAD).   The  applicant’s  complete  submission,  with
attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving in the Air Force Reserve in the grade  of
staff sergeant (E-5) with a date of rank of  1  July  1997.   On  7  October
2001, the applicant was ordered to  active  duty  in  support  of  OPERATION
ENDURING FREEDOM under Title 10 United  States  Code  (USC)  12302,  Partial
Mobilization, for the period 7 October 2001 to 6 October 2002 at  Charleston
Air Force Base (AFB), South Carolina (SC).  He was subsequently deployed  to
Moron Air Base, Spain on 22 December 2001.

On 8  January  2002,  the  applicant  was  seen  by  medical  personnel  for
complaints of increased blood pressure, flushing,  and  headaches.   He  was
diagnosed   with   probable   Chronic    Obstructive    Pulmonary    Disease
(COPD)/smoker.  In February 2002, the applicant continued on to Rhein  Main,
Germany in support of mission maintenance.  On  26  February  2002,  he  was
seen by medical personnel for complaints of persistent cough and poor  sleep
due to cough and congestion.  He was diagnosed with  post-bronchospasm/upper
respiratory infection.  He returned to Charleston AFB, SC,  in  March  2002.
On 12 April 2002, he was referred for  allergy  skin-testing.   His  allergy
testing revealed a strong reactivity to multiple  agents.   He  was  treated
with medication.  The applicant was involuntarily released from active  duty
on 6 September 2002 due to demobilization.

The applicant performed a special tour of active duty from  16-22  September
2002.  On 22 September 2002, the applicant presented to the  emergency  room
for complaints of shortness of breath and  cough.   He  was  diagnosed  with
bronchitis, possible asthma.  The  applicant  performed  active  duty  tours
from 1-6 October 2002, and 15-18 October 2002.  A follow-up  assessment  and
pulmonary  function  test  in  October  2002,  indicated  he  suffered  from
reactive airway disease, reversible, consistent with asthma.

On 15 July 2003, the applicant was placed on a physical profile  “4T”  until
15 July 2004, restricting him from Reserve participation for pay  or  points
and making him unavailable for  world-wide  duty.   A  Line  of  Duty  (LOD)
investigation was completed on 18 September 2003 indicating the  applicant’s
condition was in the line of duty.  The LOD determination  was  approved  on
27 October 2003.

A Physical  Profile  Serial  Report,  dated  12  July  2004,  indicates  the
applicant’s was referred for evaluation by a Medical Evaluation Board  (MEB)
or Physical Evaluation Board (PEB).  A Medical Board Report  approved  on  3
January 2005, indicates the applicant’s condition  of  asthma  was  incurred
while entitled to basic pay,  did  not  exist  prior  to  service,  was  not
permanently aggravated by service, and  the  condition’s  original  date  of
origin was approximately 1 February 2002.  The MEB referred  the  member  to
an Informal Physical Evaluation Board.

A Chief, Aerospace Medicine Branch memorandum, dated 13 May 2005,  indicates
officials within the Office of the Secretary of  the  Air  Force  determined
the applicant was physically fit for continued military service  and  placed
him indefinitely on Assignment Limitation Code (ALC) “C” status.   The  memo
also indicated the applicant could not be removed from  the  status  without
the Air Force Reserve Command Surgeon General (AFRC/SG).

On 1 June 2005,  the  applicant’s  physical  profile  was  changed  to  “3C”
indicating he is fit for  military  duty;  however,  restricted  to  Reserve
participation in unit training assemblies (UTAs),  annual  tour,  (AT),  and
mandays within the continental United States  (CONUS)  only,  with  no  duty
assignments  under  field  conditions.   The  profile  also  indicates   the
restrictions are permanent and may not be  removed  without  prior  approval
from AFRC/SG.

_________________________________________________________________

AIR FORCE EVALUATION:

AFRC/JA  recommends  approval  of  the  applicant’s  request  for  pay   and
allowances from the time he was taken  off  his  active  duty  orders,  less
funds  he  otherwise  earned  in  the  civilian  sector  to  prevent  unjust
enrichment.  JA states airmen who have disabilities acquired in the line  of
duty should be  offered  orders  extending  them  until  the  disability  is
corrected,   or   completion   of   the   Disability   Evaluation    System.
Additionally, JA recommends approval of the applicant’s  claim  for  medical
expenses for treatment the applicant sought for his line of  duty  condition
of asthma, since the Air Force or Veterans Administration  is  obligated  to
provide care for this condition.

JA recommends  denial  of  the  applicant’s  request  for  reimbursement  of
attorney’s fees.  As noted in OpJAGAF 2000/14, neither the Equal  Access  to
Justice Act (28 USC 2412, which addresses judicial judgments) nor  the  Back
Pay Act (5 USC 5596, which applies to civil servants) gives  permission  for
reimbursement in a case such as this before the Board.

The AFRC/JA evaluation is at Exhibit B.

AFRC/SG recommends approval of the applicant’s request for reimbursement  of
out-of-pocket expenses for all TRICARE Health related expenses  incurred  by
the applicant.

The AFRC/SG evaluation is at Exhibit C.

AFRC/A1B recommends the applicant’s records  be  corrected  to  reflect  the
following pay and points for the period 7 September 2002  through  29  April
2005  in  the  grade  of  staff  sergeant:   75  active  duty   points   for
Retention/Retirement (R/R) Year 17 December 2001 –  16  December  2002;  363
active duty points for R/R year 17 December 2002 –  16  December  2003;  366
active duty points for R/R year 17 December 2003 –  16  December  2004;  and
119 active duty points for R/R year 17 December 2004  –  16  December  2005.
In addition, A1B concurs with AFRC/SG that  the  applicant  is  entitled  to
reimbursement for out-of-pocket expenses incurred  for  all  TRICARE  Health
related expenses.

A1B cannot support the applicant’s request to be compensated  for  years  of
lost promotion opportunities.  Air  Force  Reserve  enlisted  personnel  are
promoted in accordance with Air  Force  Instruction  (AFI)  36-2502,  Airman
Promotion Program, based on unit vacancy.  Enlisted personnel must be  in  a
higher grade position, meet eligibility criteria outlined  in  AFI  36-2502,
Table 4.2, as of the last day of the month prior to the promotion month,  be
recommended by the supervisor, and  approved  by  the  promotion  authority.
The applicant was not in a  higher  graded  position  to  receive  promotion
consideration.  He occupied a staff sergeant  position,  effective  21  June
1996.  However, if the Board’s decision is to grant the relief  sought,  the
applicant should be promoted to technical sergeant  (E-6)  with  a  date  of
rank and effective date or 1 April 2004.

The complete AFRC/A1B evaluation, with attachments, is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel  responds  by  requesting  the  Board  consider  and
address the issue of interest accrued on  back  pay,  if  awarded,  and  any
leave the applicant would have earned during this time period.   Matters  of
leave and interest have not been  explicitly  discussed  in  the  myriad  of
opinions and recommendations forwarded  to  the  Board,  but  certainly  are
intertwined and related to awarding back  pay.   Secondly,  the  applicant’s
request for legal fees is not pursuant to the Equal Access  to  Justice  Act
nor the Back Pay Act.  The request is made in the interest of justice.   The
Board has the power to fashion a remedy that will compensate  the  applicant
for his expenses in obtaining legal representation – even if such  a  remedy
is indirect and not explicitly labeled “award of attorney  fees.”   Thirdly,
the  counsel  disagrees  with  AFRC/JA’s  opinion  that  the  back  pay  and
allowances awarded to the applicant should  be  reduced  by  the  “funds  he
otherwise earned in the civilian sector to prevent unjust enrichment.”   Not
reducing his back pay and allowances is the right thing to do because it  is
a matter of principle and in the  interest  of  justice.   It  is  the  most
feasible way to  reimburse  the  applicant  for  all  of  his  out-of-pocket
expenses, the time and travel he’s spent, and the anguish he has endured  in
trying  to  get  this  issue  resolved.   Additionally,  it  is  a  position
supported by AFI 37-3212.  The counsel requests the Board fashion  a  remedy
that will make the applicant whole again in the most expeditious manner.

The counsel’s rebuttal, with attachments, is at Exhibit F.

The applicant forwarded an additional response  in  rebuttal  to  the  Air
Force Advisory opinions under separate cover.  In it,  he  disagrees  with
AFRC/JA’s opinion that he is not entitled to keep his full civilian pay in
addition to receiving full active duty military pay.

The applicant’s rebuttal is at Exhibit G.

_________________________________________________________________

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 in regard to  the  applicant’s  request  for
payment of his legal fees, a waiver to have his  reimbursement  of  military
pay offset  by  his  civilian  earnings,  and  interest  on  his  reimbursed
military pay.  We note there are no provisions of law that  allows  granting
these requests.  Therefore, we agree with 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  with
respect to those portions of his appeal.   Accordingly,  those  portions  of
the application are not favorably considered.  However, sufficient  relevant
evidence has been  presented  to  demonstrate  the  existence  of  error  or
injustice with respect to the applicant’s request for  pay,  points,  leave,
and reimbursement for out-of-pocket medical expenses incurred  as  a  result
of not having Tricare health  coverage,  for  the  period  7 September  2002
through 29 April 2005.  The Air  Force  offices  of  primary  responsibility
recommend his request for these issues be approved based  on  the  fact  the
Air Force failed to extend the applicant on active duty  for  evaluation  by
the  Disability  Evaluation  System  and  medical  treatment  when  he   was
diagnosed with  asthma  determined  to  be  in  the  line  of  duty.   After
reviewing the evidence of record and the applicant’s submission,  we  concur
with their recommendations.  Accordingly, the applicant’s records should  be
corrected as 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 he was not  released  from  extended
active duty on 6 September 2002, but was ordered in a  permanent  change  of
station (PCS) assignment to his home of record or home  of  selection  until
29 April 2005.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 9 August 2006 under the provisions of AFI 36-2603:

      Mr. Christopher D. Carey, Panel Chair
      Ms. Cheryl V. Jacobson, Member
      Mr. Grover L. Dunn, Member

All members voted to correct the records, as recommended.  The following
documentary evidence for Docket Number BC-2006-01369 was considered:

      Exhibit A.  DD Form 149, dated 26 Apr 06, w/atchs.
      Exhibit B.  Letter, AFRC/JA, dated 30 May 06.
      Exhibit C.  Letter, AFRC/SG, dated 1 Jun 06.
      Exhibit D.  Letter, AFRC/A1B, dated 9 Jun 06.
      Exhibit E.  Letter, SAF/MRBR, dated 16 Jun 06.
      Exhibit F.  Counsel’s Rebuttal, dated 27 Jun 05, w/atchs.
      Exhibit G.  Applicant’s Rebuttal, dated 4 Aug 06, w/atchs.




                                  CHRISTOPHER D. CAREY
                                                   Panel Chair


AFBCMR BC-2006-01369




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air Force
Board for Correction of Military Records and under the authority of
Section 1552, Title 10, United States Code (70A Stat 116), it is directed
that:

      The pertinent military records of the  Department  of  the  Air  Force
relating to XXXXXXXXXXXXXXXXXXXXX, be corrected to  show  that  he  was  not
released from extended active duty on 6 September 2002, but was  ordered  in
a permanent change of station (PCS) assignment to  his  home  of  record  or
home of selection until 29 April 2005.





  JOE G. LINEBERGER

  Director

  Air Force Review Boards Agency