RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-02863
		INDEX NUMBER:  128.01
	XXXXXXXXXXXXXX	COUNSEL:  None

	XXX-XX-XXXX	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

He be authorized entitlement to Family Separation Allowance (FSA) for the period he was assigned to his first active duty station.

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APPLICANT CONTENDS THAT:

Prior to accepting his first active duty assignment, he was advised by his recruiter of the Exceptional Family Member Program (EFMP) as a means of ensuring adequate medical care for his ill dependent son.  He was advised that he could not enroll his son until he was on active duty.  Prior to leaving for his first duty station he tried without success to find if there would be adequate medical care for his son.  He then made the decision to leave his family behind as he reported to his first duty station, although his orders authorized dependent travel.

When he arrived at his duty station, he began to ask about the availability of medical care for his son.  He was asked by his squadron commander to delay enrolling his son in the EFMP while it was researched to see if care was available.  This amounted to four months at which time it was determined that care was not available.  At that time, an Air Force Form 1466 (Medical and Educational Clearance for Travel) was initiated, which officially prevented his son from joining him at his duty station until the required medical care was available or his son no longer needed such care.

He requested to be reassigned to the base in the area where his family was already located.  He had supporting documentation from medical authorities certifying that moving his son would not be in his best interest.  His request was denied and he received orders to report in May 02 to Wilford Hall Medical Center in Texas.  The medical team that was already caring for his son advised against relocating him to Texas.  He requested and received authorization for a later reporting date, reporting in Oct 02, still against the recommendation of his son’s doctors.

Since reporting to his new duty station in Oct 02, he has been maintaining two households and is serving a tour of duty where his son is not authorized to join him.  He has applied for family separation allowance (FSA) (Type II-R) several times to offset the financial burden this has caused.  His requests have been denied on the grounds that he must be stationed overseas to be eligible.  He has researched and studied the DOD directives and the U.S. Code and has not found any references to support this ruling.

In support of his appeal, applicant provides documentation about his son’s medical condition, his efforts to obtain FSA, and letters from medical doctors and specialists that care for his son.

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

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STATEMENT OF FACTS:

The relevant facts pertaining to this application are contained in the evaluations prepared by the appropriate offices of the Air Force found at Exhibits C, F, G, and J.

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AIR FORCE EVALUATION:

HQ USAF/DPPCC recommends that the applicant’s request for FSA be denied.  DoD Directive 1315.7 does not identify any restrictions for the movement of dependents to a member’s permanent duty station within the Continental United States (CONUS).  A dependent restricted tour is defined as any overseas duty station with an established tour that does not permit command-sponsored dependents.  FSA is paid to members when the movement of dependents is not authorized.

Prior to reporting to his first duty station, applicant was paid FSA for the period 8 Oct through 14 Nov 01 due to being in temporary duty (TDY) status for more than 30 days.  DoDFMR, Vol 7A, paragraph 270104-A3 authorizes this payment in such circumstances.

The complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the Air force evaluation, applicant states that he is not claiming that his first CONUS duty station was a dependent restricted tour as implied in the evaluation.  Although his orders did authorize his dependents to travel at government expense, the AF Form 1466 that was later completed officially denied his son permission to accompany him.  As a new accession, this form could not be completed until he arrived on station and had his medical records reviewed and he consulted with the primary medical team.

He states that DoD 7000.14-R, Vol 7A, Chapter 27, paragraph 270104 (A)(1) provides that a member is eligible for FSA II-R if transportation of dependents is not authorized at government expense, and the dependents do not live in the vicinity of the member’s permanent duty station.  There is no requirement for the member to be stationed outside the CONUS.  The applicant states that while this regulation does not make mention of a dependent’s medical problems as grounds for qualifying for FSAII-R, USC 37, Section 427, paragraph(c)(2), addresses his situation.

The applicant states that everyone who reviews his case is simply looking at his orders and determining that dependent travel was authorized.  They have overlooked the AF Form 1466 that denied his son travel to his first duty station.  He believes two conflicting military documents, his accession orders and the AF Form 1466 that restricts his son from accompanying him cause the confusion.

The applicant’s complete response is at Exhibit E.

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ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s request, additional Air Force evaluations were prepared to address issues contained in the applicant’s rebuttal above.

The Chief, Medical Standards Branch makes no recommendation regarding the applicant’s request as they are not the office of primary responsibility for FSA or the AF Form 1466.  They do provide details regarding the medical condition of the applicant’s son.  They opine that the decision not to relocate his family was the applicant’s personal choice.  He was aware of his son’s medical needs at the time he accepted the Active Duty Service Commitment (ADSC) and related bonuses.

The complete evaluation is at Exhibit F.

AFPC/DPAPO provided an evaluation addressing the applicant’s EFMP assignment.  They indicate that if the applicant was told he could only initiate the paperwork for an EFMP assignment after he arrived at his permanent duty station, he was misinformed.  They indicate that EFMP requests are routinely received from officers while in training at Maxwell AFB.  They attach a copy of a response that was provided to a Congressional inquiry regarding the applicant’s assignment, which provides a complete background on the applicant’s case.

The complete evaluation, with attachment, is at Exhibit G.

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APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The applicant responded to the additional Air Force evaluations by indicating that they contained numerous inaccuracies.

In addition to pointing out administrative errors in several of the letters, the applicant challenges the information and conclusions drawn in the letters.  The applicant contends that a letter written to his Congressman by the Air Force in response to a Congressional Inquiry omits information provided by one of his son’s providers.  He also contends that some of the information contained in the letter misquotes his son’s health care providers.  The applicant also disagrees with a statement that he failed to provide certain key information in documentation provided to humanitarian officials.

The applicant addresses several points in the letter written by the Chief of the Medical Standards Branch.  He states that all of the pediatric sub specialists required by his son are available in the Great Falls, Montana area contrary to their statement that only some are available.  He also disagrees with their assessment that there in no recent assessment of his son’s medical needs and that his son is being assessed on an ongoing basis.  He further points out that some of the comments in the evaluation appear to give the impression that the Air Force was not aware of the seriousness of his son’s medical condition before he was assigned to Mountain Home AFB.  He states that he made his son’s medical needs well known before he was offered a commission.  The applicant states that while he was aware of the needs of the Air Force, he also knew that the Air Force was aware of the needs of his son.  He accepted his appointment and assignment to Mountain Home with the understanding that he was going to a duty station where his family was authorized to accompany him, or so he was told.  The applicant responds that the Chief of Medical Standard’s assertion that he was not officially denied dependent travel to either Mountain Home or the Boise area, as the Boise area had appropriate medical care available for his son is wrong.  Medical care, particularly that of a pediatric pulmonologist, was not available according to the Mountain Home EFMP officer in his memorandum, dated 8 Mar 02.  The applicant also discusses the AF Form 1466 and opines that it was “clearly evident” that his son was officially denied dependent travel.  He states that the AF Form 1466 only allows two options, recommended or delayed.  

The applicant states that he does not understand why AFPC/DPAPO was asked to do an advisory, since he is not asking for another EFMP assignment.

The applicant concludes his response by reiterating the conditions that entitle him to Family Separation Allowance II-R under DoD regulations and the United States Code.  He states that he is requesting resolution of the issues by the Board granting him the FSA to which he is legally entitled.

The applicant’s complete response is at Exhibit I.

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SECOND ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s request, HQ USAF/JAG provided a second additional evaluation of the applicant’s case.  They conclude that the applicant’s request for FSA II-R should be denied.

The applicant confuses several key terms and their application.  First, the Delayed Dependent Travel determination documented by the AF Form 1466, Request for Family Member’s Medical and Education Clearance for travel, is only to determine the applicant’s eligibility for EFMP and does not conflict, negate or otherwise amend his original Extended Active Duty (EAD) Orders.  In fact, AFI 36-2110, Atch 1, defines the term “Delayed Dependent Travel (For EFMP only)” in reference to overseas (OS) locations.  The primary point is when the determination was made to delay the applicant’s dependent son’s travel, the determination was for EFMP purposes only.  Therefore, the Delayed Dependent Travel determination has no relevance to his original Continental United States (CONUS) EAD orders, which authorize the transportation of dependents at government expense.

The applicant also cites a statutory exception as authority to grant FSA II-R payment.  Specifically, the applicant states       37 U.S.C., Section 427(c)(2), authorizes FSA II-R payment when a member elects to serve a unaccompanied tour of duty because a dependent cannot accompany the member to or at that permanent station for certified medical reasons.”  Once again, AFI 36-2110, Atch 1, defines “Unaccompanied” in conjunction with “OS Tour;” and “certified medical reasons” is only used in reference to FSA-II payment waiver authority in circumstances when a member is “ordered to a new overseas duty station where medical reasons involving family members or terrorist activity would make it inappropriate for dependents to accompany the member.”  The statutory authority and the implementing Air Force instruction effectively negate applicant’s interpretation.

Finally, it should be noted that the applicant submitted a FSA II-R payment waiver request through Headquarters, Air Combat Command to AF/DPRC, the Air Force designated waiver authority.  After review, AF/DPRC denied the applicant’s request and recommends the Board deny the applicant’s BCMR request.  The Air Force has consistently applied its regulatory guidance to the applicant’s case and is entitled to a presumption of regularity.  The applicant has failed to provide sufficient evidence to overcome the presumption of statutory and regulatory regularity.

The complete evaluation is at Exhibit J.

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APPLICANT’S REVIEW OF SECOND ADDITIONAL AIR FORCE EVALUATION:

A copy of the second additional Air Force evaluation was forwarded to the applicant on 21 Apr 03 for review and comment within 30 days.  To date, a response has not been received.

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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 opinions and recommendations of 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.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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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.

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The following members of the Board considered Docket Number BC-2002-02863 in Executive Session on 19 June 2003, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 4 Sep 02.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFPC/DPPCC, dated 2 Oct 02
    Exhibit D.  Letter, SAF/MRBR, dated 1 Nov 02.
    Exhibit E.  Memorandum, Applicant, dated 18 Nov 02.
    Exhibit F.  Memorandum, AFPC/DPAMM, dated 23 Jan 03.
    Exhibit G.  Memorandum, AFPC/DPAPO, dated 3 Feb 03.
    Exhibit H.  Letter, SAF/MRBR, dated 7 Feb 03.
    Exhibit I.  Letter, Applicant, dated 1 Mar 03.
    Exhibit J.  Memorandum, HQ USAF/JAG, dated 16 Apr 03.
    Exhibit K.  Letter, AFBCMR, dated 21 Apr 03.