RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-05004 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: His official records be corrected to show he was afforded sanctuary protection on 15 May 11, and was not involuntarily released from active duty, but was extended on active duty until eligible for Active Duty Retirement, and he received all back pay, allowances, and benefits to which he would have been entitled. ________________________________________________________________ APPLICANT CONTENDS THAT: 1. On or about 9 Mar 10, he entered the sanctuary protection zone while on Military Personnel Appropriation (MPA) orders for a period of 276 days. His orders began on 30 Oct 10 and ended on 1 Aug 10; were followed by Annual Tour orders from 2 Aug 10 to 13 Aug 10; then additional MPA orders from 14 Aug 10 to Sep 10; then additional MPA orders which, after being amended five times, extended for 223 days from 2 Oct 10 through 15 May 11. Title 10 U.S.C, § 12686(a) provides: A member of a reserve component who is on active duty (other than for training) and is within two years of becoming eligible for retired pay or retainer pay under a purely military retirement system, may not be involuntarily released from that duty before he becomes eligible for that pay, unless release is approved by the Secretary. Air Force Instruction (AFI) 36-2131, Administration of Sanctuary in the Air Reserve Components, (27 Jul 11), Chapter 3, provides: (3.1.) Members who are in or whose upcoming tour would qualify them for sanctuary protection must affirmatively waive the applicability of Title 10 § 12686(a) in order to perform any voluntary tour of active duty (other than training) of less than 180 days. Additionally, if any published order (other than training) of less than 180 days, currently covered by a waiver, is extended: an additional waiver for the period of the extension is required before the amendment can be published. (3.1.1.) An extension of an active duty waiver cannot commence without an additional waiver for the period of the tour of extension. (3.1.2.1.) If an active duty tour covered by an approved sanctuary waiver is curtailed for any reason, and the member requests another voluntary tour of active duty; the member is required to initiate a new waiver. AFI 36-2131 (17 Jan 03), Chapter 3, provided: (3.1) Waivers must be submitted before each group of orders and active duty tours for less than 180 days (other than for training) performed in accordance with 10 U.S.C., § 12301. Blanket waivers are not authorized. (3.1.1.) An active duty tour (other than for training) requiring a waiver may not be extended without an additional waiver for the period of extension. (3.1.1.1.) If an active duty tour is curtailed for any reason and the member requests another active duty tour, a new waiver is required even if the subsequent tour will be completed during the original waiver period. 10 U.S.C, § 12686(a) and AFI 36-2131 do not permit the Air Force to require waivers for members who are ordered to active duty for a period of 180 days or more. Moreover, AFI 36-2131 requires a new waiver request whenever MPA orders are amended, as occurred several times in the applicant’s case. Thus, the applicant could not be involuntarily released from active duty until eligible for active duty retirement pay. The applicant clearly indicated, prior to the end of his MPA tour, his desire to remain on active duty by his request for medical continuation orders. Most importantly, because the applicant was on orders of 223 days, he would not waive his rights. Given the fact the applicant was in the active duty sanctuary zone, without a valid sanctuary waiver, at the time of his release from active duty orders, the release was illegal. 2. He was inappropriately removed from active duty while undergoing medical evaluation and treatment. While on active duty orders, the applicant sustained a foot injury, which rendered him “unfit for military duty” for the period 28 Feb 11 through 26 Sep 11. On 28 Apr 11, the applicant underwent foot surgery for the injury to correct the disqualifying service related condition. On 13 May, the applicant requested Medical Continuation (MedCon) orders, clearly establishing his desire to remain on active duty. Those orders were illegally declined. In the Air Force’s 11 Oct 11 letter in response to an inquiry by the applicant’s Senator, the AF acknowledged the applicant was not fit for military duty. Then he was denied MedCon orders, and the reason cited for the denial was he did not have a completed LOD determination. Air Force Reserve Command Instruction 36-3004, Incapacitation Pay and Management of Reservist Continued on Active Duty Orders, Chapter 1, provides: (1.3) Members on active duty orders for a specified period of 31 days or more are not involuntarily released from their orders if they incur a line of duty medical condition. AFI 36-2910, Chapter 2, Line of Duty (Misconduct) Determination, provides: (2.2.3.) Members should not be separated or retired while a Line of Duty (LOD) Determination is pending. Since the applicant was on Extended Active Duty at the time of his injury, he should not have been released from orders until the completion of his LOD. In support of his appeal, the applicant provides an expanded statement from his counsel, and copies of multiple e-mails associated with his request for sanctuary, MedCon Orders, and INCAP Pay, orders and amendments, waivers, and his PCARs history. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant was commissioned after graduating from the United States Air Force Academy on 31 May 1989. On 2 Nov 98, the applicant separated from the active Air Force and entered the Air Force Reserve. The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force offices of primary responsibility which are included at Exhibits C, F, and I. ________________________________________________________________ AIR FORCE EVALUATION: RMG/CC recommends denial of the applicant’s request for sanctuary protection based upon his having entered the sanctuary protection zone while on Military Personnel Appropriation (MPA) orders for a period of 276 days, indicating there is no evidence of an error or injustice. The applicant would have entered the sanctuary protection zone in Mar 10. However, the applicant waived his right to invoke sanctuary protection. The applicant accepted MPA orders for the following periods: (1) 30 Oct 09 thru 1 Aug 10 (2) 14 Aug 10 thru 30 Sep 10 (3) 2 Oct 10 thru 15 May 11 The members signed sanctuary waivers to cover the following periods of voluntary active service: (1) 27 Oct 09 thru 22 Apr 10 (2) 23 Apr 10 thru 18 Oct 10 (3) 19 Oct 10 thru 15 Apr 11 (4) 16 Apr 11 thru 11 Oct 11 A complete copy of the RMG/CC evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In response to the RMG/CC evaluation, counsel reiterates the applicant’s initial contention the applicant could not waive his rights to sanctuary protection for orders in excess of 179 days per the plain language of the aforementioned federal statutes and AFIs, blanket waivers are not authorized, and each tour of duty requires a new waiver. In addition, counsel notes RMG/CC does not address or dispute the dispositive facts of the case, the applicable laws, or address his removal from active duty orders was unlawful because he was undergoing medical evaluation at the time of removal (Exhibit E). ________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: AFMOA/SGHI recommends denial of the applicant’s request for sanctuary protection based upon his being inappropriately removed from active duty while undergoing medical evaluation and treatment. While the applicant was on voluntary MPA tour between 1 Jan 11 and 15 May 11, he underwent an elective surgery on his foot without prior approval from Air Force Reserve Command. The condition was subsequently found to be not in the line of duty. Since the condition was found to be not in the line of duty by the AFRC LOD Review Board and the surgery was not approved in advance by AFRC as all elective surgeries are required to be, recommend denial. A complete copy of the AFMOA/SGHI evaluation is at Exhibit G. ________________________________________________________________ ADDITIONAL APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Counsel disagrees with AFMOA/SGHI’s recommendation, and again points-out the applicant was placed on orders well in excess of 179 days while in the sanctuary protection zone. While not relevant to the sanctuary claim of the applicant, counsel rebuts two statements from AFMOA/SGHI. First, where SGHI states the applicant’s condition was determined to be “not in the line of duty,” counsel point out that it was actually found to have “Existed Prior to Service (EPTS), LOD NA,” and then counsel questions the validity of the EPTS-LOD NA determination because the formal investigation required to reach this conclusion was not conducted. Second, counsel states that although, as SGHI states, the applicant’s surgery was not approved in advance by AFRC, the law is clear that a member on active duty over 30 days is entitled to the same medical care as an active duty member. Therefore, it appears the applicant was not required to seek AFRC permission because of his active duty status (Exhibit H). ________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: SAF/MRB Legal Advisor recommends approval. The applicant served on active duty orders for two periods longer than 180 days each. Accepting four consecutive six-month waivers from him to cover these periods was inconsistent with the provisions of AFI 36- 2131 in effect at the time. The two periods of active duty extended to 276 and 226 days respectively. Title 10 U.S.C. 12686 (b) empowers reservists to waive the statutory protection, but limits the availability of such waivers to cases of reservists who are serving “pursuant to an order to active duty that specifies a period of less than 180 days...” At least one of our sister correction boards accepted this reasoning and held that waivers longer than 179 days are void. In this case, the applicant signed four consecutive waivers, the first for 178 days and then three in a row for 179 days. By stringing them together consecutively, the applicant has, in essence, executed a 715 day waiver. Allowing reservists to waive sanctuary for a period of 715 consecutive days, even if technically accomplished via four separate forms, would frustrate Congressional intent. Further, the applicant’s consecutive waivers were not associated with specific orders to active duty or specific amendments to such orders. They were in effect “blanket orders,” which AFI 36-2131, dated 7 Jan 03, directly prohibits. Thus, the Air Force obtained the benefit of the applicant’s active duty for a period in excess of 179 days after the applicant had entered sanctuary. The government should not profit from such circumstances. Notwithstanding the above, the applicant’s request for medical continuation orders is the functional equivalent of a request for sanctuary, and is not supportable. Each of the four sanctuary waivers the applicant signed included the following statement, which the applicant initialed: “I understand that while performing the approved tour I may not claim sanctuary.” This certainly put the applicant on notice that any application for sanctuary would not be accepted. To the extent be believed this provision applied to actual sanctuary requests, it would have applied all the stronger to a constructive request based on application for medical continuation. As for the applicant’s medical condition itself, it could plausibly have served as the basis for a 30-day extension of his MPA orders to allow for completion of the LOD determination. However, the member has the burden of proof to establish that his original condition as it existed before his non-emergent surgery was actually unfitting for military duty. The evidence in the file though, suggest that although the member would not have been able to deploy based on his original condition, it is also apparent the applicant continued reporting to work beyond the termination date of this MPA tour—and was therefore apparently able to perform his primary military duty. Further, the applicant’s assertion, that the prohibition in AFI 36-2910 against “separation or retirement” while a LOD determination is pending, misses the mark. The language in AFI 36-2910 refers to separation or retirement from service, not expiration of MPA orders. He was neither separated nor retired from service. While it is true that Department of Defense Instruction 1241.2, Reserve Component Incapacitation System Management, creates an entitlement for reservists to pay and allowances pending resolution of an LOD determination, the instructions does not specify medical continuation orders as the necessary means to provide such pay and allowances. A complete copy of the SAF/MRB Legal Advisor’s evaluation is at Exhibit I. ________________________________________________________________ ADDITIONAL APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Through counsel, the applicant agrees with the Air Force Legal Advisor’s recommendation to grant the applicant the requested relief based upon the illegality of the applicant’s release from active duty while in the sanctuary protection zone. In addition, he takes several exceptions to the Air Force Legal Advisor’s opinion that the applicant’s request for medical continuation orders is not supportable. Counsel argues that termination of the applicant’s active duty orders was in fact a “separation” from active duty; DoDI 1241.2 unambiguously precluded the removal of the applicant from active duty prior to a final determination f his medical status; and, an LOD was not required in this case because the applicant’s injury arose while he was on active duty orders in excess of 31 days and therefore was entitled by law to all of the procedural protections afforded a member of the active component (Exhibit K). ________________________________________________________________ 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. We took notice of the applicant’s complete submission in judging the merits of the case, and we agree with the opinion and recommendation of the SAF/MRB Legal Advisor and adopt his rationale as the basis for our conclusion the applicant has been the victim of an error. Given the Board’s determination the requested relief should be granted based upon his having served in the sanctuary protection zone while on orders of over 180 days through the use of unauthorized blanket waivers, the Board did not consider his remaining contention concerning being inappropriately removed from active duty while undergoing medical evaluation and treatment. Therefore, we recommend his records be corrected as indicated below. 4. 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 the APPLICANT be corrected to show that: a. He was granted sanctuary protection on 18 February 2010. b. He was not released from active duty on 15 May 2011, but on 15 May 2011 he continued on active duty until 18 February 2012, at which time he qualified for active duty retirement. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-05004 in Executive Session on 20 Nov 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, dated 7 Dec 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, RMG/CC, dated 28 Feb 12, w/atchs. Exhibit D. Letter, SAF/MRBR, dated 29 Feb 12. Exhibit E. Letter, Counsel, dated 28 Mar 12. Exhibit F. Letter, AFMOA/SGHI, dated 30 Jul 12, w/atch. Exhibit G. Letter, AFBCMR, dated 2 Aug 12. Exhibit H. Letter, Counsel, dated 24 Aug 12, w/atchs. Exhibit I. Letter, SAF/MRB legal Advisor, dated 3 Oct 12. Exhibit J. Letter, AFBCMR, dated 18 Aug 12. Exhibit K. Letter, Counsel, dated 6 Nov 12, w/atchs.