RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-03472 COUNSEL: NONE HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: 1. She be reinstated into the Selected Reserve or Inactive Ready Reserve (IRR). 2. She receive all back pay and allowances. 3. Her twice deferred for promotion to lieutenant colonel be removed from her records and she receive Special Selection Board (SSB) consideration for promotion to the grade of lieutenant colonel. 4. She be exonerated and all documents be removed from her unfavorable information file (UIF). 5. She be considered fit for duty. 6. She receive be placed on medical continuation order or receive incapacitation pay for the period she was unable to earn income. _________________________________________________________________ APPLICANT CONTENDS THAT: 1. Her career, health, life, and earning capacity have been adversely impacted without cause by her. 2. She did not commit any act to warrant or encourage the hostile work environment that she endured over a 5-year period. The Individual Mobilization Augmentee Program Management support office constantly harassed her; they tried to assassinate her character and person. In addition, the Line of Duty Determination to the Secretary of the Air Force, as part of her retirement package, for his consideration of granting her a medical retirement was omitted. 3. After retiring on 19 Aug 09, she was advised on 30 Jun 10 that her records had been updated to reflect that she was twice deferred for promotion making her ineligible for accession to a participating status and established a mandatory separation date of 30 Jun 10 (the same date that she was notified of the twice deferred promotions). This was in contradiction to what she had been previously advised by the retirements section; she had 5- years from her date of retirement again for accession to an active participating status. 4. She never possessed the authority by appointment or assumption in a position that may have afforded her the opportunity to commit any of the said and/or written allegations against her. She did not lie or misrepresent herself or her position at any time In support of her request, the applicant provides personal statements, excerpts from her medical and personnel records, e- mail communications, and more than a few documents pertaining to her request. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 18 Aug 09, the applicant submitted a formal complaint to the 56th Fighter Wing (AETC) Inspector General’s office; however, it was determined the complaint needed to be directed to the Air Force Reserve Command’s IG office. The Secretary of the Air Force (SECAF) approved the applicant’s retirement on 19 Aug 09. On 3 Sep 09, the AFRC/IG office determined that the issues were more appropriate for command channels. AFRC/IG directed the RMG/CC to conduct a review and respond directly to the complainant with courtesy copy to their office. In a letter that is addressed to the AFRC/IGQ, but appears to be directed to the applicant, the RMG/CC examined the applicant’s complaints to the IG and provided the following: a. On 6 Aug 09, the applicant’s Line of Duty Determination (LOD) was determined to be in the line of duty (ILOD). b. On 13 Aug 09, AFRC/SG informed the applicant’s Program Manager’s (PM) office (Det 11) that the Military Treatment Facility (MTF) which initiated the LOD could not also initiate a Medical Evaluation Board (MEB) because an MEB has to be at a regular Air Force MTF. Therefore, on 17 Aug 09, her medical records were sent to the Base Individual Augmentee Administrator (BIMAA) at the Pentagon in order for the clinic to initiate the MEB. On 19 Aug 09, the clinic informed the BIMAA they could not initiate MEBs. The applicant’s records were taken to the Andrews AFB MTF on 20 Aug 09, but they were unable to assist because she did not live in the District of Columbia (DC) area. The Det 11 Superintendent was in contact with the Lackland AFB MTF about initiating the MEB when the SECAF approved the applicant’s retirement. c. The purpose of an MEB is to determine fitness for continued duty. Since the applicant’s retirement was under review and was ultimately approved, no MEB was required. Her completed LOD ensured she was entitled to care for her condition. The discharge action against her would have proceeded and the fitness for duty was no longer a consideration. d. On 20 Jul 09, Det 11 Superintendent advised the applicant of the steps to take in order to request incapacitation pay. On 10 Aug 09, the applicant submitted an incomplete package, which was returned. At that time, the applicant asked about medical continuation orders. On 17 Aug 09, the Superintendent tried to reach the applicant by phone; however, the phone number was no longer valid. The Superintendent e-mailed the applicant and again informed her of the steps required to initiate incapacitation pay. On 1 Sep 09, the applicant submitted another incomplete incapacitation pay package. On 2 Sep 09, the applicant submitted the complete package which was being processed for the inclusive dates of 6-18 Aug 09. In addition, AFRC/SG and Det 11 discussed the applicant’s case and AFRC/SG agreed to review her case to determine whether she should have been placed on medical hold to undergo an MEB. However, AFRC/SGP reviewed her current medical status and found she did not overcome the presumption of fitness IAW the governing regulations and they did not recommend placing her on medical hold. It was recommended she be allowed to retire on her established retirement date of 19 Aug 09. e. On 14 Sep 09, AFRC/A1 notified the RMG that since the applicant is currently retired that she would need to file for incapacitation pay with the AFBCMR. f. The applicant’s third complaint concerned receiving pay for Transition Assistance Program (TAP) attendance. Det 11 erred by allowing her to attend the TAP; however, they have agreed to forward the paperwork that will allow her to be paid. Documentation provided by the applicant reflects she received: a. A Letter of Reprimand (LOR) on 12 Jul 05 for attempting to misuse Military Personnel Appropriation (MPA) funds allocated to AF/XO and misrepresented mission requirements in the development of official MPA orders for not only herself, but other personnel within AF/XO and other Air Staff organizations. b. A LOR on 31 May 06 for being derelict in two of her duties: 1) she did not make herself available to receive an order from Lt Col B while in Reserve status between on or about 28 Mar 05 and on or about 4 May 05; and 2) she neglected to notify the finance office that she was receiving pay and allowances to which she was no longer entitled. The applicant’s two responses to theLORs are attached (see Exhibit A, Tab LOR Response (1stand 2nd)). The applicant processed an AF IMT 1288, Application for Ready Reserve Assignment, through her supervisor instead of through herPM office for release. The 113thWing processed her accession with the DC Air National Guard. However, the ANG terminated her appointment once they realized the error. Twoweeks later, the applicant processed another AF IMT 1288 through her assigned unit. 11 WG/CV indorsed the AF IMT 1288 and assigned her to HAF/XPX on 1 Mar 05 to be effective on 14 Mar 05. A 29 Jun 09 LOD determined the applicant’s medical condition was in the line of duty (ILOD). AIR FORCE EVALUATION: RMG/CC recommends denial. The details of the case indicate that the applicant received a LOR/UIF on 19 Dec 06 for misusing her government travel card. On 13 Apr 07, the RMG/CC recommended separation due to her misconduct. The applicant was scheduled tomeet an administrative discharge board on 1 May 08; however, she elected to retire in lieu of being discharged. The RMG/CC notified her that an officer grade determination (OGD) was required. The applicant responded to the OGD on 16 Mar 09 and on27 Mar 09, her commander recommended her to be retired in the grade of major (0-4). On 11 Aug 09, the applicant was notified that she was not recommended for promotion and would be transferred to the retiredreserve list on her mandatory separation date due to her second deferral for promotion. On 15 Sep 09, the applicant’s retirementapplication was approved and she was assigned to the retired reserve. Her career events were effected correctly and judicially; therefore, they do not recommend any changes to her record or status. The RMG/CC complete evaluation is at Exhibit B. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The commander’s recommendation “not” to change her record or status was based on partial facts, half truths, and without regard to the willful nefarious actions to destroy her career. The command supposes that her “career events, though disappointing, were effected correctly and judicially” is, in andof itself, disappointing. Many of the offices and individuals the commander coordinated with for review of the details of her case were directly involved and responsible for some of the improprieties that happened and they will never admit to any wrongdoing to protect themselves. Her commander’s recommendation was based in part on an LOR/UIF that was later removed based on a CDI and the government travel card issue was not an issue as the use was authorized by the 10th Air Force Chief of Staff for interviewing purposes; that resulted in her selection for the position of executive officer. The applicant’s complete submission is at Exhibit D. _________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: AFRC/JA recommends awarding incapacitation pay in the amount of $4321.22 and denies all other requests, as the applicant's grievances were investigated thoroughly and either found to be lacking in merit, or corrective action was taken. Although she requests “exoneration, correction, promotion and restitution,” she does not cite any specific records in her personal statement that she seeks to have corrected. JA responds to each of the applicant specific requests in their advisory at Exhibit F (paragraph 3 and subparagraphs d through e). The complete AFRC/JA evaluation is at Exhibit G. AFRC/SG recommends denial, stating, in part, that although AFRC/CV found her condition ILOD, only a Physical Evaluation Board can apply Title 10 U.S.C 1207a that would result in such a finding, based solely on the combination of greater than 31 day orders and over 2920 active duty points. Without this procedural error her iron deficiency anemia would have been found EPTS (Existed Prior to Service)/LOD not applicable. This error allowed the applicant to be awarded medical benefits to which she would not have been otherwise entitled. In addition, given the fact that she was able to complete her duties for over 2 and one-half years without difficulty, she would not overcome the presumption of fitness. Given the sum total of the medical and mental health evidence presented, the applicant has not overcome the presumption of fitness for further military duties during the periods in question. However, SG does not believe the applicant should be penalized with an overturn of her ILOD. The complete AFRC/SG evaluation is at Exhibit H. _________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: AFRC/JA and AFRC/SG did not and are not practicing due diligence with regard to her career injustices that she has requested to be corrected. Specifically, AFRC/SG contradicts his opinion when he submitted that the “LOD Board on 6 August 2009…was procedurally in error…” Only the PEB can apply 10 U.S.C. 1207a to result in a finding of “In the Line of Duty” yet he did so, independently, by concluding “Without this procedural error, her iron deficiency anemia would have been found EPTS/LOD NA.” AFRC/JA provides a contradicting evaluation by stating she did not completely accomplish and submit incapacitation paperwork timely; however, she did and AFRC/JA is aware that she did because they reference the dates she reported not to have been employed which was contained in the package. She was then told to submit the paperwork to the AFBCMR, but recommended an amount they now believe that she may be entitled to which was based on the dates they found in the package. AFRC/JA and AFRC/SG both signed and concurred with the finding of ILOD. The applicant’s complete submission is at Exhibit I. _________________________________________________________________ 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 to warrant incapacitation pay for the period from 5 through 18 August 2009. In this respect, we agree with the Deputy Chief of Adverse Actions that it appears the applicant was entitled to incapacitation pay for the period 5-18 August 2009 due to her loss of earned income as a civilian because she experienced some medical problems which occurred while on active duty and were determined to be ILOD. However, she retired prior to doing so and as such, has had to avail herself to the correction of records process. Therefore, we recommend that her record be corrected as indicated below. 4. Notwithstanding the above, we find insufficient relevant evidence has been presented to demonstrate the existence of an error or an injustice to warrant favorable consideration of the remainder of her requests. We have thoroughly reviewed the complete body of evidence provided by the applicant in support of her request and find it insufficient to recommend the relief she seeks or to determine that she has been treated any differently than other officers who were similarly situated. The applicant’s broad allegations of “willful nefarious actions to destroy her career” are noted; however, again, the evidence is insufficient to support this contention. Moreover, we note that she had an opportunity to contest the administrative discharge action initiated against her before an Administrative Discharge Board (ADB) and instead opted to apply for retirement in lieu of discharge, the day prior to the ADB convening. Based on the foregoing, and in the absence of evidence to the contrary, 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, other than our recommendation to award incapacitation pay for the period 5 through 18 August 2009, there exists no basis upon which to recommend favorable consideration of her requests. 5. 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 APPLICANT be corrected to show that she was awarded incapacitation pay for the period of 5 through 18 August 2009. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-03472 in Executive Session on 4 Jan and 6 Jun 12, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence for Docket Number BC-2010-03472 was considered: Exhibit A. DD Form 149, dated 13 Jul 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFRC/IGQI (Withdrawn) Exhibit D. Letter, RMG/CC, dated 18 Feb 11. Exhibit E. Letter, SAF/MRBR, dated 4 Mar 11. Exhibit F. Letter, Applicant, dated 29 Mar 11. Exhibit G. Letter, AFRC/JA, undated. Exhibit H. Letter, AFRC/SG, undated. Exhibit I. Letter, Applicant, dated 8 May 12.