RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-02258

						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

His fifteen membership points from Retirement Year Ending (RYE) 2013, fifteen membership points from RYE 2014, and six active duty points from 28 Feb 15 to 5 Mar 15, be combined for one satisfactory year for Retention Retirement (R/R) year 6 Nov 14 through 5 Nov 15, for a twentieth satisfactory service year.  

APPLICANT CONTENDS THAT:

Had he been granted a local area participation waiver, he would have been able to earn the necessary points for his twentieth retirement year of satisfactory service.  He was no longer qualified to participate in Reserve Officer Sanctuary due to his medical retirement process; however, he continued to perform the same job as an Air Reserve Technician (ART), despite being placed in no-points no-pay status.  

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 13 Dec 88.  

On 1 Aug 92, the applicant was furnished an honorable discharge, and was credited with three years, seven months, and nineteen days of active service.  

On 6 Nov 97, the applicant enlisted in the Air Force Reserve.  

From Nov 04 until 29 Apr 11, according to documentation submitted by the applicant, he was on active duty orders in support of the Patrick AFB Honor Guard.  

On 16 Nov 11, according to documentation submitted by the applicant, he was rendered a line of duty (LOD) determination as a result of repeated heavy lifting leading to back pain and a diagnosis of Intervertebral Disc Disorder.  

On 27 Nov 12, according to documentation submitted by the applicant, he was denied a local participation waiver based on multiple disqualifying conditions.  

On 31 Mar 14, according to documentation submitted by the applicant, the 920 OG/CC provided a memorandum to the Medical Evaluation Board (MEB) regarding the effect of the applicant’s medical condition on the unit mission.  

On 18 Sep 14, the applicant received an AF Form 469, Duty Limiting Condition Report, restricting him from participation for pay or points pending an MEB, and his Local Participation Waiver request was denied by AFRC/SGP.   

According to documentation submitted by the applicant his commander confirmed he continued to perform his daily functions (identical and inextricably linked to his military position) as the 920th Operations Group Executive Officer in his Air Reserve Technician (ART) status while restricted from physical training (PT) and deployment requirements, and in a no-pay, no-points status.

On 16 Oct 14, MEB findings recommended the applicant be referred to an Informal Physical Evaluation Board (IPEB).  

On 12 Dec 14, the IPEB findings recommended the applicant be discharged with severance pay (DWSP), with a combined compensable percentage of 20 percent.  

According to documentation submitted by the applicant, the Branch Chief, Formal Physical Evaluation Board, concluded in her email dated 26 Feb 15, that IAW AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation, an ARC member who incurs or aggravates an injury, illness or disease in the line of duty while on orders for more than 30 days is entitled to Medical Continuation orders until the final disposition of his disability evaluation.

On 2 Mar 15, the 920 OG/CC provided a letter of suitability for the applicant to the Formal Physical Evaluation Board (FPEB).  

On 3 Mar 15, the FPEB findings recommended the applicant receive permanent retirement, with a combined compensable percentage of 40 percent.  

On 27 Apr 15, the applicant was relieved from active duty, and permanently disability retired effective 28 Apr 15.  

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force office of primary responsibility (OPR) and the AFBCMR Medical Consultant, which are attached at Exhibits C and F.    

AIR FORCE EVALUATION:

ARPC/DPTS recommends denial indicating there is no evidence of an error or an injustice.  The applicant’s R/R runs from 6 Nov through 5 Nov; he was medically retired on 27 Apr 15, more than six months before his R/R year ended.  As a result of this break-in-service, they surmise the applicant did not meet the minimum retirement point requirements for his service to be credited as a partial year, in accordance with DoDI 1215.07, Service Credit for Non-Regular Retirement.  The applicant was denied a local participation waiver because he was restricted from participating for pay or points pending his MEB results, which, resulted in a FPEB determining he was not medically fit for continued worldwide duty and retention, and he was medically retired 27 Apr 15.  Regarding his requested relief of combining his points from previous years; combining points from multiple years is contrary to 10 U.S.C. 12732 (a) (2) expanded in DoDI 1215.07.  There are no provisions in law for combining points from multiple years to form a full year.  From the standpoint of transferring points between R/R years, the applicant’s case is no different than the cases of similarly situated Reserve Component members addressed by ARPC.  Granting the applicant the relief he requests may likely set an untenable precedent.

A complete copy of the ARPC/DPTS evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant refutes virtually every point made by the OPR and argues that contrary to the OPR’s contention that DoDI 1215.07 indicates that combining of points is not supported by the instruction, he interprets that as the excerpt sited states, “Partial years of qualifying service may be combined and credited towards total qualifying service.”  He reiterates the timeline with specific medical conditions of the matter in question, and he questions the authority level of approval/denial of local area participation waivers as a result of his first request being denied at the local commander level, and subsequent requests being denied at AFRC/SGP level.  Lastly, he appeals to the board to grant the relief sought due to the perceived injustice and/or error in handling his requests for local area participation.  He wanted to remind the Board that during the matter in question he served as an ART, required to be in uniform as an officer of the Air Force, and perform customs, courtesies, and authorities granted to him as a commissioned officer while in a civilian status.  During that time he was denied service credit and points.   

A complete copy of the Applicant’s rebuttal is at Exhibit E.

ADDITIONAL AIR FORCE EVALUATION:

The AFBCMR Medical Consultant recommends granting partial relief, indicating sufficient evidence has been presented to demonstrate the existence of error or injustice.  Without actual documents, e.g., service treatment records, all AF Forms 469, the Medical Consultant cannot corroborate all of the applicant’s contentions.  The supplied record indicated the applicant had issues with his back dating [by history] to at least CY 06.  Although the LOD determination for this condition was not initiated until Jul 11, there is no accompanying Air Force Form 422 or AF Form 469, Duty Limiting Condition Report, supplied, as would be expected, to indicate whether the condition impacted duty or mobility at that time, e.g., coded 31 or 37 or was left blank.  No medical documents are supplied for an independent assessment of the applicant’s functional capacities, except for the suggestion he was unable to perform certain components of the Fitness Assessment and was non-deployable.

The Medical Consultant acknowledged existence of policies for retaining Reservists on active duty orders when an illness or injury occurs while serving a period of more than 30 days, until a final disposition of either returning to duty without restrictions or processed via the Disability Evaluation System.  Consequently, absent clinical documentation of care following the LOD of Jul 11 and absent the relevant AF Form 469 at or about this period [from Jul 11 through its approval date in Nov 11 and immediately thereafter], this reviewer found no objective basis upon which to make an independent assessment of the applicant’s functional impairment or incapacity to justify medical continuation (MEDCON) orders along a continuum following his 2011 LOD Determination for low back pain.  However, the fact the AFRC/SG officials placed the applicant in no points no pay status, reportedly due to “multiple disqualifying medical conditions” does raise the question of the applicant’s eligibility for MEDCON orders [or INCAP Pay] while awaiting the outcome of his LOD and thereafter; subsequently requiring either a WWE [worldwide duty evaluation] if not in line of duty versus an MEB.  However, documents submitted indicate the applicant was eager to perform his military duties as an Air Reserve Technician, but was denied; a capability reportedly demonstrated during his civilian status.  

Procedurally, the Medical Consultant opines the applicant should have been considered for placement on some type of active orders at some point in time; but particularly for the period he was designated no pay and no points status in 2012 due to “multiple disqualifying conditions” for which he was denied a participation waiver.  MEDCON eligibility requires a LOD determination and a finding by a credentialed military medical provider that the member has an unresolved health condition requiring treatment that renders the member unable to meet retention or mobility standards.  There is no service evidence, other than the instant appeal, that the applicant desired, applied for, or was denied MEDCON orders.  The single supplied AF Form 469, initiated on 18 Sep 14 and coded “37,” is an indicator of an unresolved medical condition requiring MEB/PEB action.  This date is generally determined to be a point at which a treating provider has determined the individual is functionally impaired to the extent that requires medical separation.  

With respect to the applicant’s FPEB hearing, email traffic from the Branch Chief, Formal Physical Evaluation Board, dated 26 Feb 15, confirmed the applicant’s eligibility for placement on 3 days of active military orders for a TDY to attend his FPEB hearing, IAW AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation.  The official clarified, “These orders are different from orders for unit participation purposes and thus are an exception to his P-4 status.”  The official continued, “In fact an ARC member who incurs or aggravates an injury, illness or disease in the line of duty while on orders for more than 30 days is entitled to Medical Continuation orders (active orders) until the final disposition of his disability evaluation.”

The Medical Consultant opines granting the applicant the points to cover his FPEB hearing is appropriate.  With respect to justification for other active duty points that might be accrued via MEDCON orders, MPA vs RPA, in the conflicted context of a desire for retention to reach 20 satisfactory years of service and the absence of sufficient documentation, making such a recommendation would be based upon conjecture or opinion, as opposed to objective evidence.

A complete copy of the AFBCMR Medical Consultant evaluation is at Exhibit F.

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The applicant responds to the additional Air Force evaluation by arguing that he was intentionally led astray by the 920 Aeromedical Staging Squadron (ASTS) initially by advising he was not eligible for MEDCON orders, and taking an excessive time (in his case 11 months) to process LOD determinations.  He argues that his LOD initiation date was 23 Feb 11, not 9 Jul 11 as the AFBCMR Medical Consultant summarizes in his evaluation, and supports this allegation by providing a narrative submission to the 920 ASTS regarding the events leading to his medical condition.  He argues that had he been placed on MEDCON orders prior to his Active Duty orders ending in Apr 11, as the Branch Chief, Formal Physical Evaluation Board, infers in her email dated 26 Feb 15, or given a Local Area Participation Waiver, he would have attained the necessary points for his 20th retirement year of satisfactory service.  Regarding the Medical Consultant’s reference to discrepancies in the MEB process and timing of reviews and availability of AF Forms 469 and 422, he provided copies of those documents in his possession.  Additionally, he provided a copy of the 23 Feb 11 letter to the 920 ASTS, subject: Statement of Events Leading to Medical Condition.

He stated that he is no longer in the service and is limited to access of pertinent emails and documents of his past, and that he has provided all the documentation the Air Force has presented to him, minus several hundred pages of medical notes from Air Force physicians.  

A complete copy of the applicant’s rebuttal to the additional Air Force evaluation is at 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.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice warranting granting the applicant’s request for combining his points from previous years for one satisfactory year for retention/retirement (R/R) year 6 Nov 14 through 5 Nov 15, for a twentieth satisfactory service year.  We took notice of the applicant’s complete submission in judging the merits of the case, to include his rebuttals; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility (OPR), and adopt their rationale as the basis for our conclusion that there are no provisions in law for combining points from multiple years to form a full R/R year.  Additionally, we note the AFBCMR Medical Consultant’s recommendation to grant the applicant the points to cover his FPEB hearing, however, a review of the applicant’s Service History Point Credit Accounting and Reporting System (PCARS) revealed he received six points credit for his Formal Physical Evaluation Board (FPEB) hearing participation 28 Feb 15 to 5 Mar 15.  Accordingly, the applicant’s request for combining his points from previous years for one satisfactory year for R/R year 6 Nov 14 through 5 Nov 15, for a twentieth satisfactory service year is not favorably considered.  

Notwithstanding our findings above, we believe the preponderance of evidence presented warrants partial relief to mitigate an injustice.  In this respect, we note the Branch Chief, Formal Physical Evaluation Board, infers in her email dated 26 Feb 15, that IAW AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation, “an ARC member who incurs or aggravates an injury, illness or disease in the line of duty while on orders for more than 30 days is entitled to Medical Continuation orders (active orders) until the final disposition of his disability evaluation.”  Additionally, the applicant’s commander attested he continued to perform his daily functions (identical and inextricably linked to his military position) as the 920th Operations Group Executive Officer in his Air Reserve Technician (ART) status while restricted from physical training (PT) and deployment requirements, and in a no-pay, no-points status.  We are compelled to believe had his LOD processing not taken almost six months (23 Feb 11 to 9 Jul 11), and he had been placed on MEDCON orders prior to his Active Duty orders ending on 29 Apr 11, or given a Local Area Participation Waiver, he would have attained the necessary points for a satisfactory R/R year, resulting in his 20th retirement year of satisfactory service.  Therefore, we 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 earned 47 non-paid inactive duty points and 7 membership points from 6 November 2014 through 5 November 2015, qualifying him for a satisfactory year for Retention Retirement (R/R), and 20 satisfactory service years.  

The following members of the Board considered AFBCMR Docket Number BC-2015-02258 in Executive Session on 18 Aug 16 under the provisions of AFI 36-2603:

All members voted to correct the records as recommended.  The following documentary evidence pertaining to pertaining to AFBCMR Docket Number BC-2015-02258 was considered:

	Exhibit A.  DD Form 149, dated 27 May 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, ARPC/DPTS, dated 8 Jun 15, w/atchs.
	Exhibit D.  Letter, SAF/MRBR, dated 14 Aug 15.
	Exhibit E.  Letter, Applicant, dated 2 Sep 15, w/atchs.
	Exhibit F.  Memorandum, AFBCMR Medical Consultant, dated
			  1 Jun 16.
	Exhibit G.  Letter, SAF/MRBR, dated 2 Jun 16.  
	Exhibit H.  Letter, Applicant, dated 13 Jun 16, w/atchs.