RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-03683
		INDEX CODE:  108.10

		COUNSEL:  

		HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

He receive back pay for the period 1 May 2003 through 9 October 2003 for being prematurely removed from active duty status prior to the complete disposition of his medical condition, and that he receive any leave he would have accrued while on active duty.
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APPLICANT CONTENDS THAT:

On 20 June 2002, while on active duty and deployed to the United Arab Emirates (UAE), he injured his back while unloading a truck.  After returning to the US he was sent to a Navy hospital for a follow-up examination where he was told that he would need surgery.  Since the doctor’s told him the surgery may have little affect on him, he declined to undergo it.  On 30 April 2003, he was told that he would no longer be on active duty orders and that because he refused the back surgery, he would not be offered MPA days until he received the results of the physical evaluation board (PEB).  He states he received the results of the PEB on 9 October 2003.

In support of his appeal, the applicant has provided a personal statement, copies of an excerpt from AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation, AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, a ground mishap report, pertinent email traffic, and a message regarding procedures for extending Air Reserve component members on active duty.

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

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STATEMENT OF FACTS:

The applicant, a member of the XXXXX Air National Guard (XXANG), was on active duty and deployed to UAE when, on 20 June 2002, he injured his back unloading a truck.  Upon his return to the US he was separated from the ANG under the authority of a Formal PEB (FPEB) that determined he was not fit for continued duty.  Applicant had requested to remain on active duty during the FPEB process.  Air Mobility Command (AMC) denied the request for MPA days because he had refused an evaluation by a neurosurgeon.  His refusal to be evaluated made him ineligible for continued active duty via MPA days and provided the authority for continued processing of separation actions.

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AIR FORCE EVALUATION:

ANG/DPP recommends denial.  DPP cites AFI 48-123, Medical Examinations and Standards, wherein it states “ANG members with a known medical or dental condition who refuse to comply with a request for medical information or evaluation are considered medically unfit for continued military duty and are processed in accordance with AFI 36-3209, Separation and Retirement Procedures for ANG and AFR Members.”  

DPP notes that while AFI 36-3212 states members will remain in an active status until completion of their board hearing, interim guidance has modified that policy.  The interim policy now states that in order for mobilized members to remain on active duty they have to be undergoing active treatment or diagnosis.  However, military units may request MPA days from the gaining major command to maintain the member in an active status pending results of a board.  The intent being to allow injured members, who are unable to complete their civilian jobs, to remain in an active status until board results are received.  While major commands are encouraged to supply the MPA days for this purpose, they must do so as long as they have the resources and the allotment of resources will not affect mission accomplishment.  By refusing evaluation, the applicant effectively removed himself for consideration of continued active duty status via MPA days.

DPP’s complete evaluation, with attachments, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air National Guard evaluation was forwarded to the applicant on 28 May 2004 for review and comment within 30 days.  As of this date, no response has been received by this office.

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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 opinion and recommendation of the Air National Guard office 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.  Applicant applied for MPA days in order to remain on active duty, after demobilization, until the FPEB finalized its decision.  However, when he refused recommended medical treatment, his request for continuation on MPA days was denied and he was separated under the auspices of AFI 48-123 and in accordance with AFI 36-3209.  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 AFBCMR Docket Number BC-2003-03683 in Executive Session on 15 July 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 29 Oct 03, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ANG/DPP, dated 19 Apr 04,w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 28 May 04.