RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2014-05181
		
						COUNSEL:  NONE

						HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

1.  He be placed on Medical Continuation (MEDCON) orders from 19 May 13 through 31 May 13 and 1 Oct 13 through 23 Oct 13.

2.  He receive travel pay, per diem, benefits and entitlements for the period of 20 May 13 through 28 Oct 14.

3.  He receive a formal retirement ceremony with accolades and proper recognition and an official letter of apology from his wing commander. (Outside the Board’s purview)

APPLICANT CONTENDS THAT:

On 19 May 13, he was removed from active duty orders despite the fact he incurred a Line of Duty (LOD) medical condition.  However, on 1 Jun 13, he was placed on Title 10 Military Personnel Appropriation (MPA) orders at Buckley Air Force Base, Colorado.

On 1 Oct 13, he was again removed from active duty orders and his leadership explained that it was due to the government shutdown.  He should have been continued on active duty orders until he was determined to be fit for duty or separated or retired as a result of the Integrated Disability Evaluation System (IDES).  On 22 Jan 14, he was taken off of MPA orders and placed on Reserve Personnel Appropriation (RPA) MEDCON orders.

In support of his requests, the applicant provides copies of his AF Forms 938, Request and Authorization for Active Duty Training/Active Duty Tour, to include associated amendments indicating whether or not he was authorized per diem and travel entitlements; AF Forms 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, with attachments; extracts from his medical records and various other documents associated with his requests.  

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

STATEMENT OF FACTS:

The applicant’s DD Forms 214 for the periods in question reflects that he served on active duty from 1 Jan 13 to 19 May 13; 1 Jun 13 to 30 Sep 13; and 24 Oct 13 to 21 Jan 14.

According to the applicant’s AF Form 938, Request and Authorization for Active Duty Training/Active Duty Tour, for the period of 2 Jan 13 through 27 Mar 13, he was on  active duty orders at Schriever Air Force Base (AFB), Colorado (CO).  During this time, the applicant’s Home of Record (HOR) was listed as Iowa City, Iowa (IA).  On 27 Mar 13, this order was extended through 15 Apr 13.  The applicant was authorized per diem in the amount of $9,705.39 as a result of this active duty tour to include all amended orders.

According to the applicant’s AF Form 938, amended on 3 Sep 13, his Home of Record (HOR) changed to Denver, CO on 16 May 2013.

According to the JTR, Chapter 7, Part K, Section B, Travel and/or transportation allowances are not authorized for travel between the primary residence and the place of active duty when:  (a) Both are in the corporate limits of the same city/town; (b) The member commutes daily between primary residence and the place of active duty; or (c) The AO/Installation commander determines that both are within reasonable commuting distance of each other IAW par. 2800-B; and the duty involved permits commuting.

On 2 Aug 13, the applicant was diagnosed with Meniere’s disease. On 5 Sep 13, a Line of Duty (LOD) determination was conducted and on 27 Nov 13, the applicant’s diagnosis of Meniere’s disease was found to be In the Line of Duty (ILOD).

On 18 Aug 14, an IPEB found the applicant’s Meniere’s Disease to include tinnitus was unfitting and recommended permanent retirement with a 100 percent combined compensable disability rating.  On 26 Aug 14, the applicant agreed with findings of the IPEB and waived his right to a Formal PEB hearing.  On that same date, the Secretary of the Air Force (SECAF) directed the applicant be permanently retired under the provisions of Title 10 USC § 1201.

According to Special Order Number ACD-03480, dated 10 Sep 14, the applicant was relieved from active duty on 28 Oct 14 and on 29 Oct 14, he was permanently retired for physical disability with a combined disability rating of 100 percent.  He was credited with 4 years, 10 months, and 24 days of total active service.

In a letter dated 27 Jan 15, SAF/MRBR notified the applicant that the Board cannot direct an official letter of apology, nor can they direct a retirement ceremony with accolades and proper recognition.  

AFI 36-3203, Service Retirements, paragraph 2.1.2. Reserve Retirement Eligibility states, “Title 10 USC §12731 establishes that ANG or AFR members must have at least 20 years of creditable years to qualify for a Reserve retirement.  Members serving on active duty who have completed 20 years of creditable years through combination of active duty and reserve service also qualify for a reserve retirement even though they may not have enough Total Active Military Service to qualify for an active duty retirement.”

AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation, Attachment A4.1.4. DD Form 363AF, Certificate of Retirement states, “Give to all members retiring for disability (permanently, or placed on the TDRL) with enough creditable service to qualify for nondisability retirement.  Prepare the certificate as outlined in AFI 36-3203 and present in a Retirement Binder (National Stock Number 7510-00-134-8179) at a suitable ceremony.”

The remaining relevant facts pertaining to this application are described in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are included at Exhibits D, E, and G.

AIR FORCE EVALUATION:

AFPC/DPFA recommends denial of the applicant’s request for MEDCON orders indicating he does not meet the criteria for the MEDCON program.  There is no evidence the applicant attempted to submit documentation requesting MEDCON, nor is there evidence he was unable to perform military duties.

On 29 Oct 14, the applicant was relieved from active duty and placed in a disability retired status and there is no evidence that he filed for MEDCON orders or attempted to appeal any decisions related to MEDCON in accordance with SAF MEDCON policy guidelines.  

A complete copy of the AFPC/DPFA evaluation is at Exhibit D.

The AFBCMR Medical Consultant recommends approval of the applicant’s request for active duty pay and entitlements for the periods 20 May 13 through 31 May 13 and 1 Oct 13 through 23 Oct 13 indicating his orders should have been continued along the continuum of time, from the date of expiration of orders on or about 19 May 13 through the date of his permanent retirement via the DES.

IAW DoD Instruction 1241.2 and AFRC Instruction 36-3004, Reservist who experience an illness or injury affecting duty while on active duty orders, will be maintained on active orders until released from any duty restrictions or processed out through the DES.  Additionally, the applicant’s duties were not impacted by his evolving symptoms, however, at some point, he became a mission risk and his commander removed him from mission-related duties.
 
A complete copy of the AFBCMR Medical Consultant evaluation is at Exhibit E.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 3 Sep 15 for review and comment within 30 days (Exhibit F).  As of this date, no response has been received by this office.

ADDITIONAL AIR FORCE EVALUATION:

AFRC/A1K recommend approval of the applicant’s request to receive a formal retirement ceremony.  AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members para 6.1.2 states in part that as a courtesy, offer the retiring member a formal ceremony in keeping with the customs and traditions of the Service.  
Should the Board elect to grant the request, the applicant should be informed of his entitlement to a retirement ceremony at the applicant’s expense in a location selected by the applicant – not in a military status.  

A complete copy of the AFRC/A1K evaluation is at Exhibit G.

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the additional Air Force evaluation was forwarded to the applicant on 12 May 16 for review and comment within 30 days (Exhibit H).  As of this date, no response has been received by this office.

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 an error or injustice to warrant awarding the applicant travel benefits and entitlements for the contested period.  The applicant has not provided substantial evidence to show that he is entitled to additional travel pay or per diem for the period of 20 May 13 through 28 Oct 14 and according to the Joint Travel Regulation, Chapter 7, Part K, Section B, because his home of record changed to within the corporate limits of his place of active duty, he is not entitled to travel and transportation allowances.  However, we  do believe the relief recommended below, which includes medical continuation orders for the periods 20 May 13 through 31  May 13 and 1 Oct 13 through 23 Oct 13, provides the applicant full and fitting relief.  Although AFRC/A1K recommends approval of the applicant’s request for a formal retirement ceremony, as noted in the SAF/MRBR letter to the applicant dated 27 Jan 2016, the Board cannot direct an official letter of apology, nor can they direct a retirement ceremony with accolades and proper recognition.  Nevertheless, we considered correcting the applicant’s record to show that he was issued a DD Form 363AF, Certificate of Retirement, however the applicant does not have enough creditable service to qualify for a nondisability retirement, which is a perquisite to receive a DD Form 363AF.  In view of the above, we find no basis to grant any of the relief sought in this portion of the application.

4.  Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice to warrant medical continuation orders.  Although AFPC/DPFA recommends denial stating there is no evidence the applicant meets the criteria for medical continuation orders, we disagree.  In this respect, we note the applicant was on active duty orders and was diagnosed with Meniere’s disease.  Subsequently, this condition was found to be In the Line of Duty (ILOD).  However, contrary to established guidance dictating that he remain on an active status until processed through the disability evaluation system, it appears he was released from active duty prematurely.  Therefore, we agree with the opinion and recommendation of the AFBCMR Medical Consultant and adopt the rationale expressed as the basis for our conclusion the applicant is the victim of an error and injustice.  Accordingly, we recommend his record be corrected to the extent 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 placed on active duty, for the purpose of medical continuation for the period of 20 May 13 through 31 May 13 and 1 Oct 13 through 23 Oct 13.

The following members of the Board considered AFBCMR Docket Number BC-2014-05181 in Executive Session on 11 Jun 16 under the provisions of AFI 36-2603:

					 , Panel Chair
				   , Member
					    , Member

All members voted to correct the records as recommended.  The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 10 Dec 14, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, SAF/MRBR, dated 27 Jan 15.
	Exhibit D.  Memorandum, AFPC/DPFA, dated 26 Mar 15.
	Exhibit E.  Memorandum, AFBCMR Medical Consultant, dated 
  28 Aug 15.
	Exhibit F.  Letter, SAF/MRBR, dated 3 Sep 15.
	Exhibit G.  Memorandum, AFRC/A1K, dated 11 May 16.
	Exhibit H.  Letter, AFBCMR, dated 12 May 16.