RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-03171 

 

 COUNSEL: 

 

 HEARING DESIRED: NO 

 

________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

His records be corrected to reflect he was not released from 
active duty on 28 Mar 10, but was instead retained on active 
duty for medical continuation (MEDCON) until he was disability 
retired on 24 Sep 10. 

 

________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

He filed a case in the United States court of Federal Claims and 
his request was remanded by Judge Wheeler to the Air Force Board 
for Correction of Military Records (AFBCMR). He was disabled 
while he served on active duty having served 30 days or more and 
should have been placed on medical continuation (MEDCON) until 
his disability retirement in Sep 10. Since he was not retained 
on active duty, he was denied entitlements to basic pay and 
allowances. AFI 36-3212, Physical Evaluation for Retention, 
Retirement and Separation, states that members who incur or 
aggravate an injury, illness or disease in the line of duty 
(LOD) while on orders for more than 30 days are not 
involuntarily released from those orders until final disposition 
of their disability case. He should not have been involuntarily 
separated on 28 Mar 10, but should have been retained on active 
duty until his medical retirement on 24 Sep 10. 

 

In support of his request, the applicant provides a statement of 
counsel. 

 

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

 

_________________ ______________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant’s military personnel records indicate he served as 
a member of the Air Force Reserve in the grade of master 
sergeant (E-7) during the matter under review. 

 


According to the applicant’s DD Form 214, Certificate of Release 
or Discharge from Active Duty, the applicant was ordered to 
active duty in support of Operation NOBLE EAGLE on 29 Dec 03. 
On 28 Mar 10, the applicant was released from active duty and 
reverted to his status as a traditional (part-time) member of 
the Air Force Reserve. 

 

On 13 Aug 10, the Informal Physical Evaluation Board (PEB) found 
the applicant unfit for further service due to his unfitting 
medical conditions which were incurred in the LOD and granted 
him a compensable disability rating of 50 percent. On 23 Sep 
10, he was relieved from active duty and was permanently retired 
for physical disability, effective 24 Sep 10. 

 

On 14 Dec 10, the applicant filed litigation against the United 
States of America, Case #10-860C, contending that he was 
wrongfully discharged for the Air Force and was denied military 
pay and entitlements as a result of his disabilities which were 
incurred in the in the LOD (Exhibit B). 

 

The remaining relevant facts pertaining to this application are 
contained in the letters prepared by the appropriate offices of 
the Air Force, which are attached at Exhibits C and F. 

 

________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFRC/SG recommends denial, indicating the applicant incurred two 
disqualifying medical conditions during a period of active duty 
for which LOD determinations were accomplished. Both conditions 
were found to be in the LOD. 

 

A request for medical continuation orders was received by 
AFRC/SGP on 18 Mar 10 and denied as the applicant was deemed to 
be able to perform military duty and eligible for a 
participation waiver in accordance with the policy in effect at 
the time, AF/RE policy change to AF Manual 36-8001, Reserve 
Personnel Participation and Training Procedures. Air Force 
Reserve members eligible for such a waiver are not entitled to 
medical continuation orders. 

 

A complete copy of the AFRC/SG evaluation is at Exhibit C. 

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

The applicant challenges the legal authority of the policy 
memorandum noted in the AFRC/SG evaluation as it contradicts 
Title 37 USC, Section 204; DoDI 1241.2, Reserve Component 
Incapacitation System Management; and AFI 36-3212, Physical 
Evaluation for Retention, Retirement and Separation. Air Force 
Instruction 36-3212, states that Reserve component members who 


incur or aggravate an injury, illness or disease in the LOD 
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. DODI 1241.2 
states that a Reserve component member on active duty under a 
call or order to active duty specifying a period of 31 days or 
more, who incurs or aggravates an injury, illness, or disease in 
the LOD shall, with the member’s consent, be continued on active 
duty upon the expiration of call or order to active duty until 
the member is determined fit for duty or separated or retired as 
a result of a Disability Evaluation System determination. The 
DoDI is superior authority than the memorandum cited in the 
AFRC/SG advisory opinion and to the extent it contradicts the 
DoDI, it is ineffective and contrary to binding regulations. 

 

A complete copy of the applicant’s response is at Exhibit E. 

 

________________________________________________________________ 

 

ADDITIONAL AIR FORCE EVALUATION: 

 

AF/JAA indicates the applicant’s request for back-dated orders 
to satisfy pay and allowance benefits was inappropriately 
recommended for denial by AFRC/SG. To the extent the 2006 
AF/RE Policy memo, Change to AFMAN 36-8001, contradicts DODI 
1241.2, paragraph 6.6.3.2., AFI 36-3212, paragraph 8.6.2, or 
AFI 36-8001, paragraph 1.6.3., it is invalid. Both DoDI 1241.2 
and AFI 36-3212 dictate that a reserve member on active duty 
under order to active duty specifying a period of more than 
30 days, who incurs or aggravates an injury, illness, or 
disease in the LOD shall be continued on active duty until the 
member is determined fit for duty or the member is separated or 
retired as a result of the Disability Evaluation System (DES). 
While paragraph 6.6.3.2 of DoDI 1241.2 does not specifically 
provide that the members of the DES make the “fit for duty” 
determination, the paragraph’s clear intent is that a member 
undergoing a DES remains on active duty until the results of 
the DES are known. In this case, AFRC/SGP’s decision to deny 
the applicant’s request for medical continuation orders was 
based upon AFRC/SGP’s determination the applicant was able to 
perform military duty, effective 18 Mar 10. However, this 
decision was not made as a result of the DES, since the DES did 
not make its decision until 13 Aug 10. In addition, the 
individual who made the “fit for duty” determination was not a 
member of the DES; he was, instead, an AFRC/SGP physician. 
Finally, the applicant’s orders were terminated on 28 Mar 10 by 
AFRC/SGP, well prior to a final disposition by the DES on 
13 Aug 10. 

 

A complete copy of the AF/JAA evaluation is at Exhibit F. 

 

________________________________________________________________ 


APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 

 

A copy of the Air Force evaluation was forwarded to the 
applicant on 13 Sep 12, for review and comment within 30 days. 
As of this date, no response has been received by this office 
(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. Sufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice. The 
applicant contends that he should not have been released from 
active duty, but retained on active duty for medical 
continuation (MEDCON) until the final disposition of his 
disability case. After a thorough review of the evidence of 
record and the applicant’s complete submission, we agree. We 
note the comments of AFRC/SG indicating that even though the 
applicant’s medical condition rendered him unfit for duty, he 
was not eligible for MEDCON orders because he qualified for a 
“participation waiver” in accordance with a 2006 AF/RE policy 
memo titled “Change to AFMAN 36-8001, Reserve Personnel 
Participation and Training Procedures.” However, we are not 
convinced the noted policy memo constitutes a sufficient basis 
with which to deny a request for MEDCON orders in the face of 
obviously unfitting medical conditions. In this respect, we 
note the comments of AF/JAA indicating that the noted policy 
memo contradicts the relevant provisions of Title 37, United 
States Code; DODI 1241.2; and AFI 36-3212, all of which indicate 
that a reserve component member such as the applicant, who 
incurs or aggravates an injury, illness, or disease in the line 
of duty (LOD) while on orders for more than 30 days, is not 
involuntarily released from those orders until final disposition 
of their case through the disability evaluation system (DES). 
However, despite the existence of these well-established 
provisions, the AF/RE policy memo seems to allow AFRC/SGP, on 
its own motion, to determine if such a member should be granted 
a “participation waiver” that, in our view, seemingly serves no 
practical purpose other than to preclude members such as the 
applicant from exercising their rightful entitlement to 
continuation on active duty until final disposition of their DES 
case. Therefore, in view of the above, we believe corrective 
action is warranted and recommend the applicant’s records be 
corrected as indicated below. 

 

________________________________________________________________ 

 

 


THE BOARD RECOMMENDS THAT: 

 

The pertinent military records of the Department of the Air 
Force relating to the APPLICANT be corrected to show that he was 
not released from active duty on 28 March 2010, but remained on 
active duty for the purpose of medical continuation until 
23 September 2010, on which date he was relieved from active 
duty and permanently retired for physical disability, effective 
24 September 2010. 

 

________________________________________________________________ 

 

The following members of the Board considered AFBCMR Docket 
Number BC-2011-03171 in Executive Session on 23 Oct 12, 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, 5 Aug 11, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFRC/SG, dated 30 Nov 11. 

 Exhibit D. Letter, SAF/MRBR, dated 7 Feb 12. 

 Exhibit E. Letter, Counsel, dated 12 Mar 12. 

 Exhibit F. Letter, AF/JAA, dated 27 Aug 12. 

 Exhibit G. Letter, AFBCMR, dated 13 Sep 12. 

 

 

 

 

 

 Panel Chair