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: 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.