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