FOURTH ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2011-03453-5

	COUNSEL: YES
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

The Board reconsider his request to:  

1.	Correct his record to show he was permanently medically retired at 60 percent (or more) effective 4 Sep 06; 

2.	Receive back pay from the above date of retirement and he and his family be reimbursed for all medical bills from the effective date of his permanent retirement; and, by amendment; 

3.	Be placed on active duty orders and afford him the opportunity to enter a military health facility at the Air Force’s expense for further medical rehabilitative evaluation and treatment.

RESUME OF THE CASE

On 28 Feb 13, the Board considered and denied the applicant’s initial request for correction of military records.  The applicant states he was ordered to run, contrary to Air Force Reserve policy, when his unit medical staff knew he had high blood pressure, and subsequently, the Air Force failed to properly process him through the military medical and physical disability evaluation systems after suffering an acute left basal ganglion cerebral vascular accident (stroke) with Dysarthria and a right Hemiparesis secondary to uncontrolled hypertension.  The Board took notice of the applicant's complete submission and his rebuttal in judging the merits of the case; however, found no evidence that the applicant had been a victim of an error or injustice.  The Board noted his assertion that the Air Force failed to properly address his medical status prior to clearing him to participate in the Self-Paced Fitness Improvement Program (SFIP), and the applicant, other than his own assertions, provided no evidence showing his substantial rights were violated, his case was not properly processed, or he was miscounseled (Exhibit G).  

On 3 Jul 13, the applicant submitted a request for reconsideration (Exhibit H).  In his request, he provided supporting evidence from his physicians, commanders, and his unit’s customer support section NCOIC.  He contends he suffered from undiagnosed homocysteinemia, which irritates arteries and can cause spasms during vigorous exercise.  He further contends he was performing Inactive Duty Training (IDT) by exercising in the SFIP when the stoke occurred, should have had a Line of Duty (LOD) performed, and (subsequently) placed on orders, received per diem while receiving medical treatment, and received a disability retirement.  

On 11 Aug 14, the AFBCMR Executive Director determined the applicant’s request did not meet the criteria for reconsideration stating reconsideration is authorized only where newly discovered relevant evidence is presented which was not available when the application was submitted (Exhibit I).  

On 13 Oct 17, the U.S. District Court of Federal Claims issued a Memorandum Opinion and Final Order directing the AFBCMR to reconsider the applicant’s case (Exhibit J) within 120 days in light of the new evidence provided by both parties.  The order states that both parties submitted supplemental declarations of relevant witnesses to include the Department of Veterans Affairs-provided servicemember treatment record and USAF medical records.  The examination of these witnesses and relevant records warrants review and reconsideration by the AFBCMR (Exhibit J).

On 11 Apr 18, the Board considered and denied the applicant’s request by court order remaining unpersuaded the evidence presented demonstrated the existence of an error or injustice and agreed with the previous Board’s decision.  The Board noted in order for the applicant’s stroke to be considered in the line of duty as a traditional reservist, it must be determined it was the proximate result of performing military service.  The Board differed from the AFRC/JA opinion in that they agreed the applicant was lawfully ordered to participate in the SFIP; however, the Board agreed with AFRC/JA that the applicant could not be lawfully ordered to participate in SFIP while in civilian status.  The Board also found that he was not in a duty status when he incurred the stroke.  The Board further agreed with the AFRC/JA opinion that adherence to SFIP could only be legally mandated when the applicant was in a duty status and that SFIP training is no different than any other daily routine to maintain fitness between drill periods.  Continued adherence to any fitness routine while in civilian status is highly encouraged, but cannot be and is not mandated.  The Board agreed with AFRC/JA and found the applicant’s contention that all reservists should be in a duty status when they are maintaining their fitness to meet Air Force fitness standards not only overbroad, but misconstrues the statute.  For an accounting of the applicant’s original requests and the rationale of the earlier decisions, see the Letter and Record of Proceedings at Exhibit P.

On 11 Sep 18, the Claims Court granted the government’s motion and on 5 Nov 18, the applicant appealed.  

On 15 Nov 19, the United States Court of Appeals for the Federal Circuit issued an order remanding the case to the Air Force Board for Correction of Military Records for further assessment in accordance with the Court of Appeal’s directive.  The Court found both the Board and the Claims Court erred in concluding that the applicant was not lawfully ordered to perform the SFIP designed for him.  The consequence of that error is the absence of any consideration of the applicant’s request for disability retirement in the light of the fact that he was ordered to perform exercises that caused his stroke and hence his retirement.  Thus the argument the applicant was in a non-duty status when ordered to perform his SFIP is no longer a valid rationale for denying his disability retirement.  The Court’s decision is limited to a determination that the applicant was ordered to engage in the SFIP when in a duty status.  The remand order is at Exhibit Q.

On 24 Jan 20, the United States Court of Federal Claims issued an order remanding the applicant’s case back to the AFBCMR for further consideration in accordance with the Court of Appeals’ directive.  The United States Court of Federal Claims remand order is at Exhibit R.

On 11 May 20, the Board reconsidered the applicant’s request in accordance with the court order and remained unconvinced the evidence presented demonstrated an error or injustice.  The Board reviewed the Court of Appeals’ determination and agreed that the applicant was lawfully ordered by his commander while in a duty status to participate in the SFIP; however, the Board still found his stroke occurred during a non-duty, civilian status.  Furthermore, the Board reviewed the applicable authority and 10 U.S.C. 101(d)(7)(B).  The Board agreed with the AFRC/JA broader opinion that reservists engaging in fitness activities to maintain military fitness standards or other actions to maintain compliance with other military standards, such as grooming and appearance, while in a non-duty status, do not warrant placement in an IDT status.  For an accounting of the applicant’s original request and the rationale of the earlier decisions, see the AFBCMR Letter and Record of Proceedings at Exhibit X.

On 11 Sep 20, the United States Court of Federal Claims remanded the case back to the AFBCMR finding the Board’s conclusion the applicant was not in IDT status at the time of his injury inconsistent with the Federal Court’s decision; therefore, the Board’s conclusion denying the applicant benefits on that basis is vacated as arbitrary and capricious.  That determination did not end the inquiry.  The issue remains whether the applicant was required to satisfy the administrative prerequisites to be on IDT.  Because the Board did not address whether the requirements of AFMAN 36-8001 applied to the applicant, the Court remanded this for further consideration.  The AFMAN specifies that an airman going into IDT status must initiate and complete specific paperwork to qualify for such status.  

The remand order states the AFMAN requires IDT to be performed for pay or points.  The applicant argues that the provisions of the AFMAN do not apply to IDT performed pursuant to subparagraph (B) of the statute. Subparagraph (A) of the statute, he argues, refers to IDT for pay, and subparagraph (B) refers to IDT without pay.  Specifically, the applicant interprets the word “voluntary” in subparagraph (B) to mean “without pay.”  Because the applicant did not receive pay or points for participation in the SFIP, he argues that subparagraph (B) applies, and that the AFMAN’s procedural requirements do not apply. The Air Force interprets the word “voluntary” in subparagraph (B) of the statute to refer to “free will” and argues that the requirements of the AFMAN apply to all IDT.  The Board did not address this issue; given it found the order was not enforceable.

The remand order states the Board did not consider whether the plaintiff was required to satisfy the requirements of the AFMAN to qualify for IDT status.  That decision turns on the question of whether the AFMAN’s provisions are applicable to IDT pursuant to subparagraph (B). The Board has the expertise and the experience to construe the statute, evaluate its applicability to the AFMAN in the first instance, and determine whether the plaintiff had to comply with the AFMAN’s IDT requirements. The Court leaves in the first instance this decision to the Board.  The United States Court of Federal Claims remand order is at Exhibit Y.

APPLICABLE AUTHORITY

Air Force Manual 36-8001, Reserve Personnel Participation and Training Procedures, dated 22 Jan 04, Chapter 4, Inactive Duty Training (IDT), outlined IDT requirements that was applicable at the time in question.

Title 10 U.S.C. 12315, Reserves: duty with or without pay, states any Reserve may be ordered to active duty or other duty (1) with the pay and allowances provided by law; or (2) with his consent, without pay.  Duty without pay shall be considered for all purposes as if it were duty with pay.  

Title 10, United States Code, section 101(d)(7) defines the term “inactive-duty training.”

The applicable authorities are at Exhibit Z.      

AIR FORCE EVALUATION

AFRC/JA recommends denying the requested relief since the administrative requirements of AFMAN 36-8001 apply to Title 10 U.S.C. 101(d)(7) subparagraph (B) of the statutory definition of inactive-duty training including unpaid IDTs.  

The court did not accept the Board’s conclusion that the applicant was not in military status when he engaged in the self-paced fitness improvement program (SFIP) activities between Unit Training Assemblies (UTAs), on the basis that the order to participate in SFIP between UTAs, although deemed to be lawful when given, was unenforceable when the applicant was not in IDT status.  However, the court stated that determination did not end their inquiry.  The court specifically noted their opinion [the Board] did not expressly answer the sole remaining question of whether the applicant was in IDT status at the time of his injury.  That issue turns on whether the applicant was required to satisfy the administrative prerequisites to be in an IDT status, found in the Air Force Manual in effect at the time, (AFMAN) 36-8001, Reserve Personnel Participation and Training Procedures, dated 22 Jan 04.  Because the Board did not address whether the requirements of AFMAN 36-8001 applied to the applicant, the matter was remanded.  

AFMAN 36-8001, paragraph 4.2, implements the statutory definitions and outlines the regulatory and procedural requirements for a reservist to be lawfully placed in an IDT status.  All IDTs must:
	
Have advance authorization from the member's unit commander (or designated representative) for unit personnel. For Individual Reservists the authorizing authority is the supervisor or program manager (This is done in Block III of the AF Form 40A).

Ensure appropriate and adequate training is provided.  All IDT periods must be approved in advance, in writing, by the member’s supervisor with an information copy to the appropriate assigned Program Manager, in advance of performing any IDT period.

Be performed for pay and points, or points only as an USAFR member without pay from another US government source (i.e. no dual compensation). 

Reservists are citizen-airmen and their participation in the Reserve is generally not mandated, but is voluntary, meaning it requires their consent. They must actively seek, and often compete, for membership in the Reserve. With rare exceptions, including, but not limited to, statutory involuntary recall, a reservist can be ordered to participate (meaning be placed into military status) only with their consent.  Reservists vote with their feet.  If they no longer wish to participate, they can simply request reassignment to the inactive reserve, request retirement if eligible, in the case of officers, resign their commission, or in the case of enlisted, fail to reenlist, or request separation. 

This is consistent with the court’s analysis of the word “voluntary.”  Participation in the special additional duties referred to in subparagraph B would still require the member’s consent.  In this context, an exercise of free will requires a reservist to consent or not.  This is so whether the IDT is paid or unpaid, because 10 U.S.C. 12315(a)(2) which provides for duty without pay, still specifically requires the member’s consent.  Thus, even assuming the applicant was in IDT status when he performed SFIP between UTAs, it would have required his consent, an exercise of free will. 

The administrative requirements of AFMAN 36-8001 apply to subparagraph (B) of the statutory definition of IDT. 10 U.S.C. 101(d)(7) is that law and AFMAN 36-8001 is that policy. The AFMAN implements 10 U.S.C. 101(d)(7) by providing the procedures for scheduling and authorizing IDTs and the method for ensuring the proper accounting for each IDT.

Even assuming the applicant was in an unpaid IDT status, 10 U.S.C. 12315 requires such unpaid IDT be treated as a paid IDT, thus, the administrative requirements of AFMAN 36-8001 apply.  The member must have the commander’s (or designee) authorization in advance to perform an IDT.  The applicant did not request or have any authorization.  Although the commander issued the applicant an order to perform the SFIP between UTAs, there is no evidence he also authorized IDTs for that purpose.  There are no completed AF Forms 40A for any of the periods of SFIP the applicant performed for over two years.  Further, the applicant admits he did not request to be placed in IDT status for any of these periods or, in fact, comply with any of the provisions of AFMAN 36-8001.

10 U.S.C. 12315 provides for duty without pay but specifically states that duty without pay shall be considered for all purposes [emphasis added] as if it were duty with pay. Thus, even assuming the applicant’s argument that “voluntary” in subparagraph of the statute meant “without pay,” the SFIP performed by the applicant would still have to meet the AFMAN 36-8001 requirements because the statute requires it be treated as a paid IDT.  Paid IDTs, as noted by the court in its 11 Sep 20 opinion, are subject to the requirements of AFMAN 36-8001.

The complete advisory opinion is at Exhibit AA.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 3 Nov 20 (dated 21 Oct 20) for comment (Exhibit AB), and the applicant replied on 20 Nov 20.  In his response, the applicant contends, through counsel, that the Court of Federal Claims has ruled, once again the lawful order was enforceable.  The only remaining issue is the AFMAN’s applicability to the case.  The applicant disagrees and believes that this issue has already been resolved by the Federal Circuit decision. 

Both levels of the federal judiciary have been consistent that the AFMAN does not apply to this case as it only addresses those instances where a reservist seeks pay and/or points for the time spent on reserve matters.  The applicant did not seek pay or points and did not complete a Form 40A as the time spent was under 2 hours each day of exercise.  The applicable statute and DoD guidance allows for reserve duty without pay and the applicant ran as ordered without pay.  It can no longer be questioned that the valid order to run without pay, which the court found enforceable, established the applicant’s right to a line of duty finding.  

The newest JA argument regarding consent is nonsensical and not on point.  The Form 40A only applies if the Reservist seeks pay or points; there is not only no obligation to put in a Form 40A if one is not seeking pay – to do so violates the applicable rules and constitutes fraud.  The JA opinion also notes that this statute states that non-paid duty is to be treated as if it was for pay. Therefore, in the applicant’s view, he should have been treated as if he was injured in the line of duty, doing unpaid duties as instructed by his commanders.

The Court of Appeals for the Federal Circuit has heard the current JA advisory AFMAN argument and did not address it, instead flatly ignoring the argument that the Air Force made at that Court when striking down the BCMR and Court of Claims’ analysis that the applicant was not lawfully ordered to participate in the SFIP.  The Federal Circuit had the AFMAN issue squarely before it (see Exhibit D).  Knowing what the position was of the Air Force that the applicant did not run for pay or points and could not be therefore on IDT status was understood to be an invalid argument. This is so because if the Air Force’s AFMAN argument to the Court and which it makes now is correct, the Court could still have found the order valid – but the AFMAN would have overridden the ultimate decision.  Simply put, even if the order was valid, the Court could have stated so and then stated that the 40A argument precluded the remand to the Court of Federal Claims on that basis. This case would have been over or appealable at that point. 

Judicial estoppel will be invoked by the Court of Federal Claims or the Federal Circuit should the Board adopt the JA advisory position in this matter. First, the Air Force is clearly and deliberately changing positions according to the exigencies of the moment.  It first argued the applicant was not lawfully ordered to run, then argued, even if he was, it was not an enforceable order.  But now, it argues since the applicant was ordered to run the element of “consenting” to the unpaid duty is not met for the purpose of unpaid IDT or the statute.  The Air Force cannot keep changing positions to meet the realities of its litigation posture when it keeps losing in Federal Court.  Second, if the Air Force succeeds in this argument there is no doubt that the Federal Circuit and Court of Federal Claims were misled about consent versus being ordered, this issue was squarely before each Court and resolved in the applicant’s favor. Third, the Air Force is deriving an unfair advantage or imposing an unfair detriment on the applicant.  He is the one who has been consistent in his legal position and the Air Force has not. In this way, the Air Force position is clearly not now mistaken or inadvertent.  It is deliberate.

The AFMAN does not apply to duties not performed for pay or points and the JA advisory contradicts federal statute and DoD guidance.  On the face of the statute, the definition of inactive duty training, 10 U.S.C. § 101(d)(7)(B), does not mention any requirement for compensation for inactive duty training or for the utilization of USAF Form 40A as required for duty falling under 10 U.S.C. § 101(d)(7)(A).  This interpretation of Section 101(d)(7)(B) is further supported by Department of Defense, Financial Management Regulation (FMR), Volume 7A, Chapters 57 and 58, which provides in part as follows: “Inactive Duty Training Without Pay. Members of the Reserve Components may, with their consent, be ordered to inactive duty training without pay when authorized by the Secretary of the Military Department concerned (or designee).”  The Joint Federal Travel Regulations (JTR) similarly note that inactivity duty training may be performed without pay.  Importantly, 10 U.S.C. § 12315 expressly authorizes IDT without pay or points and the DoD likewise authorizes IDT without pay or points. The applicant was lawfully ordered to perform SFIP under a valid, vetted AFI approved by the Secretary of the Air Force as held by the Court of Appeals, which Order has been found to be enforceable by the Court of Federal Claims. This holding is not subject to any further debate and must be followed.

Instead of following it, however, the Air Force now, instead of saying he “volunteered” or “consented” to the SFIP in the absence of a valid order (as it has the entire time this case has been at issue, until it was overturned twice), turns the argument on its head and says, since he did not consent to running without pay (and instead was ordered), he cannot be in a non-pay status and these provisions do not apply.  The Air Force cannot have it both ways.  Either he consented or he did not; either he was ordered or he was not.  Changing its position every time it loses an argument in Court is not reasonable, and is thus arbitrary and capricious.  More importantly, its constant flip flopping will not be tolerated in the Federal Courts.

The Air Force first took the position that the order was unlawful, and when found lawful, argued that the applicant should have disobeyed it, as it was unenforceable. Now, faced with a finding that it was indeed an enforceable lawful order, the advisory takes the exact opposite position – that the applicant’s alleged lack of consent to the order somehow vitiates his right to a finding he was in the line of duty, because he could not run in a non-pay status because he lacked consent or free will.  This is not only inconsistent with prior public positions in two federal courts, the applicant argues consent is not even relevant. The advisory is playing with words, which can be argued the exact opposite way.  If the Air Force’s position is now that consent is required to serve on reserve IDT status for no pay or points, then of course, the applicant should have won his line of duty determination the first time around at the BCMR when the Air Force argued he was running and participating in the SFIP of his own free will and accord.  Instead, the Air Force has insisted he did not have a valid order and that if valid, it was not enforceable. This is an argument that never ends and as noted, is the polar opposite of all of the positions it has taken thus far. The Court will not take well to this change of position, one which has been fundamental to the Board’s decisions.

Further, the Air Force continues to ignore the relevant case law.  In Wake v. United States, 89 F.3d 53, 55-56 (2d. Cir. 1996), a cadet was in a non-pay, civilian status.  The Appellant applied for VA disability benefits, and the VA determined the injury occurred “while on active duty for training status” and granted a one hundred percent (100%) disability rating. The Second Circuit held that the appellant was performing inactive duty training, stating, “voluntary activities that are authorized are considered ‘duty.’” Id. at 59 (citing 10 U.S.C. § 101(d)(7)(B)).  The Second Circuit clearly held that the appellant in Wake was in an inactive duty status, notwithstanding the lack of military orders for pay and the appellant’s non-pay military status at the time of her injury. See id. at 60, 61.  The fact that the issue was VA benefits is irrelevant.  The Court was looking at the statute that the applicant points the Board to in this matter. 

Like the appellant in Wake, the applicant’s injuries occurred in a military capacity.  He is currently rated by the Department of Veterans Affairs (VA) as one hundred (100%) service-connected disabled. On 16 May 18, the Board of Veterans’ Appeals found that the applicant was entitled to service-connection for residuals of a CVA (i.e., stroke).  The Board held that the residuals of the CVA incurred in 2006 were related to Appellant’s military service. His resultant benefits letter is attached as Exhibit G.

The applicant and his peers were ordered to not seek pay or points for their participation in the new fitness program.  As the applicant recalls, a wing-wide briefing was held by the then wing commander, and conducted by the primary fitness program coordinator for the wing in approximately September 2003. It was repeatedly emphasized during the briefing that the new performance standards and testing criteria required regular exercise (Exhibit F).  Traditional reservists were directed to exercise on their own between UTAs every week.  During the briefing, the specific issue as to Form 40As and points was addressed by leadership.  Traditional reservists could not receive pay or points for IDT via an AF Form 40A, because an AF Form 40A could only issue for a four-hour contiguous block of time and the exercises would take an hour at the most.  It was also repeatedly emphasized that the program was a mandatory part of the unit’s training programs.  No pay or points were authorized, and the applicant was repeatedly told that he could not receive pay or points for performing the ordered SFIP.  The applicant regarded the orders to perform SFIP and to exercise under the program in general as legal and enforceable at least along the same lines as the enforceability of all general orders (e.g., no dating subordinates, no illegal drug use, etc.).

The applicant and others similarly situated were ordered not to put in Form 40As for their exercise regime. To have done so would have been insubordinate at best. As an officer supervising enlisted in the wing, the applicant was very aware of the rules and procedure surrounding the use and authorization of Form 40As.  He himself had approved and referred AF Form 40As for further processing to place enlisted subordinates into a formal military status to receive either points alone or both pay and points depending on available funding. In all cases of which he was aware, AF Form 40As could only be issued for a minimum 4-hour block of training time. All such AF Form 40As were submitted to the squadron commander and ultimately referred to the orderly room and wing finance/personnel section for approval. The applicant coordinated all such authorized, compensated IDT under AFMAN 36-8001 authority with his immediate commander.  He also authorized personnel to perform military tasks - IDT - without pay or points for less than 4-hours between UTAs as permitted by his commanders, which he also coordinated with his commander.

The Air Force in this matter has repeatedly urged that the applicant cannot be considered to have performed IDT, because he did not receive pay and/or points. Yet, he was ordered to perform the Fitness Program, as spelled out in a Secretary-approved AFI, and his activities met the definitions of IDT spelled out by Federal statute, DoD guidance, and relevant AFI.  Instead of acknowledging the error of its interpretation, the Air Force has flagrantly argued repeatedly and voraciously that the applicant should have ignored these orders and taken criminal actions that violated multiple UCMJ provisions and would have led him to be disbarred and court-martialed.  If the applicant had followed any of these suggestions and was currently advancing the JAG legal positions, you can be certain the JAG would be advancing the applicant’s arguments instead.  These positions taken by the JAG are a classic “heads we win; tails you lose” argument, are without any merit, and should be rejected.

The applicant’s complete response, with attachments, is at Exhibit AC.

FINDINGS AND CONCLUSION

After reviewing all Exhibits, the court order, the applicant’s rebuttal, and the referenced case law, the Board remains unconvinced the evidence presented demonstrates an error or injustice.  The Board concurs with AFRC/JA’s rationale and recommendation and finds a preponderance of the evidence does not substantiate the applicant’s contentions that he was in an IDT status at the time of his stroke, therefore warranting a LOD determination.  Specifically, in keeping with the court order, the Board finds the AFMAN 36-8001 administrative requirements apply to both 10 U.S.C. 101(d)(7), subparagraphs (A) and (B).  

In review of the AFRC/JA advisory opinion, the Board agrees AFMAN 36-8001 implements 10 U.S.C. 101(d)(7) by providing the procedures for scheduling and authorizing IDTs, paid or unpaid, and the method for ensuring the proper accounting for each IDT.  The Board notes the applicant’s counsel argues the applicant willfully volunteered to participate in the SFIP and notes this could be interpreted to fall within the statutory definitions under 10 U.S.C. 101(d)(7), subparagraph (B) and 10 U.S.C. 12315 (a)(2).  While it is clear the applicant participated in the SFIP and followed the order of his commander to exercise, in order to have his exercise construed as an IDT status, paid or unpaid, it would require advanced commander (or designee) authorization.   In this regard, the Board agrees with AFRC/JA that even if the applicant met the eligibility of being in an unpaid IDT status, 10 U.S.C. 12315 requires such unpaid IDT be treated as a paid IDT; therefore, the AFMAN’s administrative requirements apply.  Specifically, members must have the commander’s (or designee) authorization in advance to perform an IDT, paid or unpaid.  

Although the commander issued the applicant a lawful order to perform the SFIP between UTAs, after a review of the entire case file, to include the applicant’s rebuttal, the Board finds no documented evidence of advance IDT authorization by the commander (or designee) for exercising.  The Board did not find a completed AF Forms 40A for any of the SFIP periods the applicant performed for over the two-year period in question, from the initial order by his commander to the date of his stroke.  Even if the Board was to support the applicant’s claim that an AF Form 40A would not be required for placement in a no pay/no points IDT status, the Board finds that the case turns on whether the applicant had prior commander authorization to be in a no pay/no points IDT status.  While the commander ordered the applicant to exercise, the Board finds this order does not automatically authorize IDT, paid or unpaid.  In rebuttal, the evidence provided by the applicant makes clear that his leadership did not authorize pay and/or points IDT to exercise.  After a review of the entire submission, the applicant failed to provide evidence that reflects his commander instead authorized a no pay/no point IDT status in order to perform the ordered exercise regime.  Absent such evidence, the Board recommends against correcting the applicant’s records.

The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2011-03453-5 in Executive Session on 17 Dec 20:

All members voted against correcting the record.  The panel considered the following:

Exhibit X:	Letter, AFBCMR Exec Dir, w/Record of Proceedings, dated 14 May 20.
Exhibit Y:	Letter, US Court of Federal Claims, w/atchs, 14 Sep 20.
Exhibit Z:	Applicable authority (AFMAN 36-8001 and 10 U.S.C. references).
Exhibit AA:	Advisory opinion, AFRC/JA, dated 2 Nov 20. 
Exhibit AB:	Notification of advisory, SAF/MRBC to applicant, dated 21 Oct 20 (mailed
		3 Nov 20).
Exhibit AC:	Applicant’s response, w/atchs, dated 20 Nov 20.
Exhibit AD:	Lexis Nexus court case extracts.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.