RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-01214

XXXXXXXXXXXXXX	COUNSEL: NONE	 

  	HEARING REQUESTED: YES

APPLICANT’S REQUEST

1. He be awarded sufficient points for retention/retirement (R/R) years May 17 to May 19 for two
years of satisfactory service.

2. He be paid his reenlistment bonus not received due to his no pay-no points status.

3. His date of rank (DOR) and effective date for promotion to the rank of master sergeant (E-7)
be backdated to 1 May 19.

APPLICANT’S CONTENTIONS

Upon his return from deployment in 2015, the Veterans Affairs (VA) representative encouraged him to see the VA for any health-related issues and submit a VA disability claim.  He received service-connected disability ratings for his conditions of chronic left wrist sprain, sleep apnea/fatigue, tinnitus, thoracolumbar myofascial pain syndrome, ilotibial band syndrome (right hip), iliotibial band syndrome (left hip) and trauma and stressor related disorder with subclinical post-traumatic stress disorder (PTSD), effect 4 Mar 15.  

He continued to serve until May 17 with no issues, scored 100 percent on his fitness assessments (FA) and had no health-related issues performing his duties as an explosive ordnance disposal (EOD) technician.  However, in 2017, his Reserve Medical Unit (RMU) accessed his VA medical records and found he was receiving VA disability.  This led to him receiving a certified letter requesting his VA medical records be provided.  He was required to sign a physical evaluation board (PEB) election form and was placed in a medical evaluation board (MEB) code “37.”  It was explained to him the medical disqualification was his sleep apnea and subclinical PTSD.  After the May 17 unit training assembly (UTA), he was placed in a no pay-no points status.

His unit submitted a participation waiver, but the request was denied by AFRC/SGO in Jul 17.  It was explained to him AFRC/SG had mishandled the process for numerous airmen.  After two years, AFRC reversed course and changed AFI 36-2254, Volume 1, Reserve Personnel Participation, to allow unit commanders the ability to allow members to participate on drill status while awaiting the decision on their medical case.

The RMU was negligent.  During the two years his case was pending, he never received a single email or phone call.  In 2019, after his commander approved his return to duty (RTD), he learned the RMU had never submitted his MEB case as required.  He lost two years of his career, income and reenlistment bonus.  He also had to resubmit his paperwork to AFRC/SGO due to the age of the case.  In Jan 21, he was RTD,  He provides letters of support and witness statements attesting to the timelines and delays.
The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an Air Force Reserve master sergeant (E-7), with DOR and effective date for promotion of 1 Mar 21.

The applicant served in the Regular Air Force from 4 Jan 05 to 3 Mar 11 and was released from active duty.  He was credited with 6 years and 2 months of active duty service.  On 4 Mar 11, he enlisted in the Air Force Reserve.

On 19 Apr 17, the applicant was placed in a no pay-no points status due to medical conditions. 

On 11 Mar 19, the applicant was notified by his commander he elected to remove the restrictions on his participation status, and he could resume participating for pay or point activity.

The applicant provides an email dated 2 Aug 19 from his RMU apologizing for not submitting his MEB for review.

On 20 Jan 21, the AFRC/SG found the applicant qualified for service. He was RTD with an indefinite assignment limitation code (ALC-C1).

He provides a memorandum from his commander dated 7 Mar 21.  It states he was placed in a master sergeant billet on 1 Oct 18 and would have been promoted to master sergeant on 1 Oct 18 had it not been for the medical clearance and retainability (due to medical clearance).  

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory opinions at Exhibits C and F.  

APPLICABLE AUTHORITY

AFI 36-2254 V1, Reserve Personnel Participation, dated May 2010:   

1.6.1. All members must meet the medical standards in AFI 48-123, Volume I, and applicable Reserve medical guidance to be considered medically qualified to participate in any pay or point gaining active duty.

1.6.3. A member identified as having a potentially disqualifying condition in accordance with AFI 48-123…will not be allowed to participate in any pay or point gaining activity until the disqualifying condition has been removed or an approved waiver is received from AFRC/SG in accordance with AFI 48-123.  Any IDT which is missed due to this medical limitation will be considered excused.  Member will be excused from any type of military duty requirements until the profile has been finalized by AFRC/SGP or removed.  

On 8 Feb 19, AF/RE published a policy memorandum that directed immediate implementation of
a mandatory change to Air Force Instruction 36-2254 Volume I.  The memorandum removed the guidance that required a member with a duty limiting condition to immediately be placed in a no-pay, no-points status, but instead placed the decision at the discretion of the unit commander.

AFMAN 36-2136, Reserve Participation, dated 6 Sept 19:

1.7.1. All reservists must meet the medical standards in AFI 48-123 and the associated Medical Standards Directory (MSD) to be considered medically qualified to fully participate in the Air Force Reserve. (T-2) Note: Air Force Reserve commanders may initiate involuntary transfer to the Individual Ready Reserve for failing to meet medical standards. 

1.7.3. A member placed on a Duty (DR), Mobility (MR) or Fitness (FR) restrictions via an AF Form 469, Duty Limiting Condition Report, issued by any Air Reserve Component or active duty medical squadron may participate for pay and points within the restrictions outlined on the member’s AF From 469. The commander will carefully consider the member’s documented physical limitations, safety (to include travel to and from duty location) and mission requirements and allow the member to participate within the restrictions outlined on the member’s AF Form 469. (T-2) Commanders choosing to restrict a member’s participation will formally notify them in writing. (T-2) A copy of the notification letter restricting the member from participation must be sent to the servicing FSS (Force Support Squadron) who will update the member’s Duty Status Code to 14 in Military Personnel Data System AFMAN36-2136 6 SEPTEMBER 2019 13 (MILPDS). (T-2) The Commander must formally notify the FSS in writing when a member’s previous restriction is removed or finalized. (T-2) Additionally, any Inactive Duty Training (IDT) which is missed due to medical limitations will be considered excused. (T-2) If the commander determines a member may safely perform any duties, a letter outlining these duties and restrictions must be presented to and acknowledged by the member. (T-2) When applicable, the Personnel Data System (PDS) will be updated to reflect the member as excused. See attachments 6 through 8 for sample memos. (T-2).  

AIR FORCE EVALUATION

AFRC/SGO states because the applicant was placed on duty and mobility restrictions and the requested waiver did not include enough information to support the restrictions on participation to be lifted; the policy supported he be in a no pay-no points status for the period.

The applicant was placed on duty and mobility restrictions on 18 Apr 17 due to multiple medical conditions that contradicted retention standards in accordance with AFI 48-123, Duty Limiting Conditions, AFI 48-123, Medical Examinations and Standards, and the associated Medical Standards Directory.  Because the applicant was placed on restrictions and did not meet standards, a review in lieu of (RILO) MEB was required and he was placed in a no pay-no points status in accordance with AFI 36-2254, until the restrictions were lifted by his commander in writing on 11 Mar 19.  

There is an option in AFI 36-2254 to waive restrictions on a member’s participation.  A waiver request was submitted on 26 Jun 17 and the Air Force Reserve Command Surgeon General (AFRC/SG) denied the waiver on 14 Jul 17 due to there not being enough information.  It was recommended the participation waiver be resubmitted to include pertinent and current documentation; however, there are no indications a subsequent waiver was requested.  

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 1 Mar 22 for comment (Exhibit D), and the applicant replied on 6 Mar 22.  In his response, the applicant contended his RMU was grossly negligent in handling these cases.  There are also inconsistencies in the regulations that need to be clarified regarding the waiver process.  In support of his request, he provides a letter issued in another similar case where the participation waiver was denied due to lack of clinical information.  He was not aware a participation waiver had been requested and would have been happy to provide any required information AFRC/SGO may have needed.  As revealed now, he should never have been put on a restrictive status for the conditions.  

The failures at the local level are enough to warrant getting his two years back for good service.  How the cases were handled incorrectly by AFRC/SGO were detrimental to AFRC and unit readiness and to the members.  So much that the policy was changed by AF/RE for commanders to determine participation when guidance requires placement in a no pay-no points status.  His disabilities never impacted his ability to perform his duties and his record is impeccable. 

The applicant’s complete response is at Exhibit E.

ADDITIONAL AIR FORCE EVALUATION

AFRC/A1KK recommends partial grant for DOR calculation and the total bonus payment owed to the applicant.  However, there is no evidence of an error or injustice pertaining to participation points from 18 Apr 17 to 9 Feb 19.

The applicant provided a memorandum from his commander dated 7 Mar 21, which stated he was placed in a master sergeant billet on 1 Oct 18 and would have been promoted on 1 Oct 18 vice 1 Mar 21 had it not been for the medical limitations and lack of retainability.  With the applicant being returned to duty on 1 May 19, he should have been eligible for promotion to master sergeant on 1 May 19.  

On 11 Jun 15, the applicant reenlisted in the Air Force Reserve for a period of three years.  His Duty Air Force Specialty Code (DAFSC) was listed on the FY15 Master Incentive Bonus List.  This would make the applicant potentially eligible for a reenlistment incentive if he met the eligibility factors outlined in AFI 36-2638, Air Force Reserve Enlisted Incentives.  AFRC/A1KK bonus records indicate the applicant was approved for a reenlistment bonus payment up to $7,500.  His leave and earning statements (LES) show he received payments totaling $4,921.56.  Since his point credit accounting reporting system (PCARS) record shows he participated fully for all three years of his bonus period, he would be entitled to the full bonus amount.  The applicant is due $2,578.44 due to the miscalculation of payment to the applicant.

On 18 Apr 17, the applicant was placed in a no points-no pay status due to multiple medical conditions that contradicted participation and retention standards.  Accordingly, he should not receive pay or points from 18 Apr 17 to 1 May 19.  However, during this time he should have been granted credit for missed unit training assemblies (UTA) in accordance with AFI 36-2638 for the incentive program and payment.  

On 8 Feb 19, AF/RE released a memorandum allowing members placed on duty, mobility or fitness restrictions via an AF Form 469, Duty Limiting Condition Report, the ability to participate for pay and points at the discretion of the unit commander.  On 11 Mar 19, the applicant was notified by his commander that the restrictions on participation had been removed and he could resume participating for pay and/or point activity.  He returned to participation on 1 May 19.  The current policy does not authorize a return of points for members who, prior to the policy update, were considered ineligible to participate.

The complete advisory opinion is at Exhibit F.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 8 Aug 22 for comment (Exhibit G), and the applicant replied on 23 Aug 22.  The recommendation for correcting his DOR and bonus installments for the period he was removed from participation for pay contradicts the denial for pay and points and time lost because of the failures of his RMU and AFRC/SGP.  If the Air Force Reserve is willing to provide him with his missed bonus payment and correct his DOR, the same logic would apply to providing him with the minimum points required to have two good years of service.  He was unable to serve for two whole years waiting for an outcome of his case only to find his RMU never properly or timely submitted his case and was mishandled by AFRC/SGP.  It was improperly handled as they found it necessary to issue a memorandum that immediately allowed commanders to waive duty restrictions for members who could perform their duties.  It is only fair that Reservists are afforded the same entitlement as an active duty members, participation while awaiting the results of a medical evaluation.  In his case, he incurred an injustice both by his local RMU and AFRC.  

The applicant’s complete response is at Exhibit H.    

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board concludes the applicant is the victim of an error or injustice.  The Board notes AFRC/SGO and AFRC/A1KK recommend denial for the requested participation points stating the applicant was placed on duty and mobility restrictions on 18 Apr 17 and in a no pay-no points status in accordance with regulations.  However, the Board finds the unwarranted and the extended time for AFRC to review the applicant’s medical fitness to serve and the administrative errors by his RMU resulted in an injustice to the applicant.  In this respect, there is no evidence the applicant failed to disclose the medical conditions he incurred while on active duty when he enlisted in the Air Force Reserve.  Moreover, there is no evidence the applicant was unable to perform his duties in the Air Force Reserve.  However, it appears the applicant’s receipt of VA disability compensation triggered a review of his medical records and subsequent placement in a no-pay-no points status for an excessive length of time.  The Board also finds the applicant’s commander’s request for a participation waiver and the subsequent AFRC/SGO decision to return the applicant to duty with an assignment limitation code further substantiates the applicant’s placement in a no pay-no points status and unsatisfactory participation from May 17 to May 19 resulted in an injustice to the applicant.  With respect to the request that he be paid the missed reenlistment bonus payments and his DOR and effective date for promotion to the rank of master sergeant be retroactively corrected, the Board concurs with the rationale and recommendation of AFRC/A1KK and finds a preponderance of the evidence substantiates the applicant’s contentions.  Therefore, the Board recommends correcting the applicant’s records as indicated below. 

4.  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 pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show:

a.	He be awarded an additional 31 participation points from 20 May 17 to 19 May 18 and 31 participation points from 20 May 18 to 19 May 19; resulting in receiving an additional two (2) good years of career satisfactory service.   

b.	His date of rank (DOR) and effective date for promotion to the rank of master sergeant (E-7) be 1 May 19, instead of 1 Mar 21; and he be paid the retroactive back pay.  

c.	He be paid the remainder of his FY15 Incentive Bonus for his reenlistment in the Air Force Reserve on 11 Jun 15 for a period of three years.      

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-2021-01214 in Executive Session on 17 Feb 22 and 16 Sep 22:

 , Panel Chair
 , Panel Member
 , Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 23 Apr 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, NGB/SGO, dated 18 Oct 21.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 1 Mar 22.
Exhibit E: Applicant’s response, w/atchs, undated.
Exhibit F:	Advisory opinion, AFRC/A1KK, w/atchs, dated 5 Jul 22.
Exhibit G: Notification of advisory, dated 8 Aug 22.
Exhibit H: Applicant’s response, dated 23 Aug 22.  
 
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.