RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-05004 


 COUNSEL: 

 

 HEARING DESIRED: YES 

 

 

________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

His official records be corrected to show he was afforded 
sanctuary protection on 15 May 11, and was not involuntarily 
released from active duty, but was extended on active duty until 
eligible for Active Duty Retirement, and he received all back 
pay, allowances, and benefits to which he would have been 
entitled. 

________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

1. On or about 9 Mar 10, he entered the sanctuary protection 
zone while on Military Personnel Appropriation (MPA) orders for 
a period of 276 days. His orders began on 30 Oct 10 and ended 
on 1 Aug 10; were followed by Annual Tour orders from 2 Aug 10 
to 13 Aug 10; then additional MPA orders from 14 Aug 10 to 
Sep 10; then additional MPA orders which, after being amended 
five times, extended for 223 days from 2 Oct 10 through 15 May 
11. 

 

Title 10 U.S.C, § 12686(a) provides: A member of a reserve 
component who is on active duty (other than for training) and is 
within two years of becoming eligible for retired pay or 
retainer pay under a purely military retirement system, may not 
be involuntarily released from that duty before he becomes 
eligible for that pay, unless release is approved by the 
Secretary. 

 

Air Force Instruction (AFI) 36-2131, Administration of Sanctuary 
in the Air Reserve Components, (27 Jul 11), Chapter 3, provides: 
(3.1.) Members who are in or whose upcoming tour would qualify 
them for sanctuary protection must affirmatively waive the 
applicability of Title 10 § 12686(a) in order to perform any 
voluntary tour of active duty (other than training) of less than 
180 days. Additionally, if any published order (other than 
training) of less than 180 days, currently covered by a waiver, 
is extended: an additional waiver for the period of the 
extension is required before the amendment can be published. 
(3.1.1.) An extension of an active duty waiver cannot commence 
without an additional waiver for the period of the tour of 
extension. (3.1.2.1.) If an active duty tour covered by an 


approved sanctuary waiver is curtailed for any reason, and the 
member requests another voluntary tour of active duty; the 
member is required to initiate a new waiver. 

 

AFI 36-2131 (17 Jan 03), Chapter 3, provided: (3.1) Waivers 
must be submitted before each group of orders and active duty 
tours for less than 180 days (other than for training) performed 
in accordance with 10 U.S.C., § 12301. Blanket waivers are not 
authorized. (3.1.1.) An active duty tour (other than for 
training) requiring a waiver may not be extended without an 
additional waiver for the period of extension. (3.1.1.1.) If 
an active duty tour is curtailed for any reason and the member 
requests another active duty tour, a new waiver is required even 
if the subsequent tour will be completed during the original 
waiver period. 

 

10 U.S.C, § 12686(a) and AFI 36-2131 do not permit the Air Force 
to require waivers for members who are ordered to active duty 
for a period of 180 days or more. Moreover, AFI 36-2131 
requires a new waiver request whenever MPA orders are amended, 
as occurred several times in the applicant’s case. Thus, the 
applicant could not be involuntarily released from active duty 
until eligible for active duty retirement pay. The applicant 
clearly indicated, prior to the end of his MPA tour, his desire 
to remain on active duty by his request for medical continuation 
orders. Most importantly, because the applicant was on orders 
of 223 days, he would not waive his rights. Given the fact the 
applicant was in the active duty sanctuary zone, without a valid 
sanctuary waiver, at the time of his release from active duty 
orders, the release was illegal. 

 

2. He was inappropriately removed from active duty while 
undergoing medical evaluation and treatment. While on active 
duty orders, the applicant sustained a foot injury, which 
rendered him “unfit for military duty” for the period 28 Feb 11 
through 26 Sep 11. On 28 Apr 11, the applicant underwent foot 
surgery for the injury to correct the disqualifying service 
related condition. On 13 May, the applicant requested Medical 
Continuation (MedCon) orders, clearly establishing his desire to 
remain on active duty. Those orders were illegally declined. 

 

In the Air Force’s 11 Oct 11 letter in response to an inquiry by 
the applicant’s Senator, the AF acknowledged the applicant was 
not fit for military duty. Then he was denied MedCon orders, 
and the reason cited for the denial was he did not have a 
completed LOD determination. 

 

Air Force Reserve Command Instruction 36-3004, Incapacitation 
Pay and Management of Reservist Continued on Active Duty Orders, 
Chapter 1, provides: (1.3) 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. 

 


AFI 36-2910, Chapter 2, Line of Duty (Misconduct) Determination, 
provides: (2.2.3.) Members should not be separated or retired 
while a Line of Duty (LOD) Determination is pending. 

 

Since the applicant was on Extended Active Duty at the time of 
his injury, he should not have been released from orders until 
the completion of his LOD. 

 

In support of his appeal, the applicant provides an expanded 
statement from his counsel, and copies of multiple e-mails 
associated with his request for sanctuary, MedCon Orders, and 
INCAP Pay, orders and amendments, waivers, and his PCARs 
history. 

 

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

 

________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant was commissioned after graduating from the United 
States Air Force Academy on 31 May 1989. 

 

On 2 Nov 98, the applicant separated from the active Air Force 
and entered the Air Force Reserve. 

 

The remaining relevant facts pertaining to this application are 
described in the letters prepared by the Air Force offices of 
primary responsibility which are included at Exhibits C, F, 
and I. 

 

________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

RMG/CC recommends denial of the applicant’s request for 
sanctuary protection based upon his having entered the sanctuary 
protection zone while on Military Personnel Appropriation (MPA) 
orders for a period of 276 days, indicating there is no evidence 
of an error or injustice. The applicant would have entered the 
sanctuary protection zone in Mar 10. However, the applicant 
waived his right to invoke sanctuary protection. The applicant 
accepted MPA orders for the following periods: 

 

 (1) 30 Oct 09 thru 1 Aug 10 

 (2) 14 Aug 10 thru 30 Sep 10 

 (3) 2 Oct 10 thru 15 May 11 

 

 

 

 

 

 


The members signed sanctuary waivers to cover the following 
periods of voluntary active service: 

 

 (1) 27 Oct 09 thru 22 Apr 10 

 (2) 23 Apr 10 thru 18 Oct 10 

 (3) 19 Oct 10 thru 15 Apr 11 

 (4) 16 Apr 11 thru 11 Oct 11 

 

A complete copy of the RMG/CC evaluation is at Exhibit C. 

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

In response to the RMG/CC evaluation, counsel reiterates the 
applicant’s initial contention the applicant could not waive his 
rights to sanctuary protection for orders in excess of 179 days 
per the plain language of the aforementioned federal statutes 
and AFIs, blanket waivers are not authorized, and each tour of 
duty requires a new waiver. In addition, counsel notes RMG/CC 
does not address or dispute the dispositive facts of the case, 
the applicable laws, or address his removal from active duty 
orders was unlawful because he was undergoing medical evaluation 
at the time of removal (Exhibit E). 

 

________________________________________________________________ 

 

ADDITIONAL AIR FORCE EVALUATION: 

 

AFMOA/SGHI recommends denial of the applicant’s request for 
sanctuary protection based upon his being inappropriately 
removed from active duty while undergoing medical evaluation and 
treatment. While the applicant was on voluntary MPA tour 
between 1 Jan 11 and 15 May 11, he underwent an elective surgery 
on his foot without prior approval from Air Force Reserve 
Command. The condition was subsequently found to be not in the 
line of duty. Since the condition was found to be not in the 
line of duty by the AFRC LOD Review Board and the surgery was 
not approved in advance by AFRC as all elective surgeries are 
required to be, recommend denial. 

 

A complete copy of the AFMOA/SGHI evaluation is at Exhibit G. 

 

________________________________________________________________ 

 

ADDITIONAL APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

Counsel disagrees with AFMOA/SGHI’s recommendation, and again 
points-out the applicant was placed on orders well in excess of 
179 days while in the sanctuary protection zone. While not 
relevant to the sanctuary claim of the applicant, counsel rebuts 
two statements from AFMOA/SGHI. First, where SGHI states the 
applicant’s condition was determined to be “not in the line of 


duty,” counsel point out that it was actually found to have 
“Existed Prior to Service (EPTS), LOD NA,” and then counsel 
questions the validity of the EPTS-LOD NA determination because 
the formal investigation required to reach this conclusion was 
not conducted. Second, counsel states that although, as SGHI 
states, the applicant’s surgery was not approved in advance by 
AFRC, the law is clear that a member on active duty over 30 days 
is entitled to the same medical care as an active duty member. 
Therefore, it appears the applicant was not required to seek 
AFRC permission because of his active duty status (Exhibit H). 

 

________________________________________________________________ 

 

ADDITIONAL AIR FORCE EVALUATION: 

 

SAF/MRB Legal Advisor recommends approval. The applicant served 
on active duty orders for two periods longer than 180 days each. 
Accepting four consecutive six-month waivers from him to cover 
these periods was inconsistent with the provisions of AFI 36-
2131 in effect at the time. The two periods of active duty 
extended to 276 and 226 days respectively. Title 10 U.S.C. 
12686 (b) empowers reservists to waive the statutory protection, 
but limits the availability of such waivers to cases of 
reservists who are serving “pursuant to an order to active duty 
that specifies a period of less than 180 days...” At least one 
of our sister correction boards accepted this reasoning and held 
that waivers longer than 179 days are void. In this case, the 
applicant signed four consecutive waivers, the first for 
178 days and then three in a row for 179 days. By stringing 
them together consecutively, the applicant has, in essence, 
executed a 715 day waiver. Allowing reservists to waive 
sanctuary for a period of 715 consecutive days, even if 
technically accomplished via four separate forms, would 
frustrate Congressional intent. Further, the applicant’s 
consecutive waivers were not associated with specific orders to 
active duty or specific amendments to such orders. They were in 
effect “blanket orders,” which AFI 36-2131, dated 7 Jan 03, 
directly prohibits. Thus, the Air Force obtained the benefit of 
the applicant’s active duty for a period in excess of 179 days 
after the applicant had entered sanctuary. The government 
should not profit from such circumstances. 

 

Notwithstanding the above, the applicant’s request for medical 
continuation orders is the functional equivalent of a request 
for sanctuary, and is not supportable. Each of the four 
sanctuary waivers the applicant signed included the following 
statement, which the applicant initialed: “I understand that 
while performing the approved tour I may not claim sanctuary.” 


This certainly put the applicant on notice that any application 
for sanctuary would not be accepted. To the extent be believed 
this provision applied to actual sanctuary requests, it would 
have applied all the stronger to a constructive request based on 
application for medical continuation. As for the applicant’s 
medical condition itself, it could plausibly have served as the 
basis for a 30-day extension of his MPA orders to allow for 
completion of the LOD determination. However, the member has 
the burden of proof to establish that his original condition as 
it existed before his non-emergent surgery was actually 
unfitting for military duty. The evidence in the file though, 
suggest that although the member would not have been able to 
deploy based on his original condition, it is also apparent the 
applicant continued reporting to work beyond the termination 
date of this MPA tour—and was therefore apparently able to 
perform his primary military duty. Further, the applicant’s 
assertion, that the prohibition in AFI 36-2910 against 
“separation or retirement” while a LOD determination is pending, 
misses the mark. The language in AFI 36-2910 refers to 
separation or retirement from service, not expiration of MPA 
orders. He was neither separated nor retired from service. 
While it is true that Department of Defense Instruction 1241.2, 
Reserve Component Incapacitation System Management, creates an 
entitlement for reservists to pay and allowances pending 
resolution of an LOD determination, the instructions does not 
specify medical continuation orders as the necessary means to 
provide such pay and allowances. 

 

A complete copy of the SAF/MRB Legal Advisor’s evaluation is at 
Exhibit I. 

 

________________________________________________________________ 

 

ADDITIONAL APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

Through counsel, the applicant agrees with the Air Force Legal 
Advisor’s recommendation to grant the applicant the requested 
relief based upon the illegality of the applicant’s release from 
active duty while in the sanctuary protection zone. In 
addition, he takes several exceptions to the Air Force Legal 
Advisor’s opinion that the applicant’s request for medical 
continuation orders is not supportable. Counsel argues that 
termination of the applicant’s active duty orders was in fact a 
“separation” from active duty; DoDI 1241.2 unambiguously 
precluded the removal of the applicant from active duty prior to 
a final determination f his medical status; and, an LOD was not 
required in this case because the applicant’s injury arose while 
he was on active duty orders in excess of 31 days and therefore 
was entitled by law to all of the procedural protections 
afforded a member of the active component (Exhibit K). 

 


________________________________________________________________ 

 

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. We took 
notice of the applicant’s complete submission in judging the 
merits of the case, and we agree with the opinion and 
recommendation of the SAF/MRB Legal Advisor and adopt his 
rationale as the basis for our conclusion the applicant has been 
the victim of an error. Given the Board’s determination the 
requested relief should be granted based upon his having served 
in the sanctuary protection zone while on orders of over 
180 days through the use of unauthorized blanket waivers, the 
Board did not consider his remaining contention concerning being 
inappropriately removed from active duty while undergoing 
medical evaluation and treatment. Therefore, we recommend his 
records be corrected as indicated below. 

 

4. The applicant’s case is adequately documented and it has not 
been shown that a personal appearance with or without counsel 
will materially add to our understanding of the issues involved. 
Therefore, the request for a hearing is not favorably 
considered. 

 

________________________________________________________________ 

 

THE BOARD RECOMMENDS THAT: 

 

The pertinent military records of the Department of the Air 
Force relating to the APPLICANT be corrected to show that: 

 

 a. He was granted sanctuary protection on 18 February 2010. 

 

 b. He was not released from active duty on 15 May 2011, but 
on 15 May 2011 he continued on active duty until 18 February 
2012, at which time he qualified for active duty retirement. 

 

________________________________________________________________ 

 

 


The following members of the Board considered AFBCMR Docket 
Number BC-2011-05004 in Executive Session on 20 Nov 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, dated 7 Dec 11, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, RMG/CC, dated 28 Feb 12, w/atchs. 

 Exhibit D. Letter, SAF/MRBR, dated 29 Feb 12. 

 Exhibit E. Letter, Counsel, dated 28 Mar 12. 

 Exhibit F. Letter, AFMOA/SGHI, dated 30 Jul 12, w/atch. 

 Exhibit G. Letter, AFBCMR, dated 2 Aug 12. 

 Exhibit H. Letter, Counsel, dated 24 Aug 12, w/atchs. 

 Exhibit I. Letter, SAF/MRB legal Advisor, dated 3 Oct 12. 

 Exhibit J. Letter, AFBCMR, dated 18 Aug 12. 

 Exhibit K. Letter, Counsel, dated 6 Nov 12, w/atchs. 

 

 

 

 

 

 Panel Chair