RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-01217

XXXXXXXXXXXXX	COUNSEL: NONE	 

	HEARING REQUESTED: YES	

APPLICANT’S REQUEST

1.   He receive sufficient points for the period of 5 Mar 17 to 2 Mar 19 for two additional years of satisfactory service.  

2.   He be paid two missed reenlistment bonus payments.  

APPLICANT’S CONTENTIONS

He was placed in a no pay-no points status for two years due to unjust medical disqualification and was not paid two enlistment bonus installments.  He requests 50 participation points for the two good years of service.  He provides a timeline of his review in lieu of (RILO) of medical evaluation board (MEB).  

In Mar 07, while on active duty and deployed, his vehicle was attacked by an improvised explosive device (IED).  This left him with a brain and back injury for which he received a Purple Heart and the Air Force Combat Action Medal.  

In 2013, he transitioned from active duty to the Air Force Reserve, with no break in service.  During a transition assistance program (TAP) briefing, a Veterans Affairs (VA) representative assisted him with submitting a VA claim for his injuries sustained on active duty.  He received VA service connected disability ratings for his back injury, post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI) with headaches. 

In 2016, his unit accessed his VA medical records and targeted him for receiving VA disability benefits.  This led to him receiving a certified letter requesting all medical files and an updated letter from his physician addressing his medical issues be provided to the Reserve Medical Unit (RMU).  The letter implied he had not properly reported his injuries to his commander, supervisor or medical personnel in violation of AFI 48-123, Medical Examinations and Standards.  However, all of his injuries are listed clearly in his military medical records.  The letter threatened to place him in a no pay-no points status and administrative action.

On 9 Jan 17, he received another certified letter stating he was medically disqualified for continuous worldwide duty.  He was required to sign a physical evaluation board (PEB) election and provide supporting medical documentation from his civilian provider for his TBI, major depressive disorder (MDD), chronic back pain and insomnia.  He never received treatment for any sort of depression.  He was not allowed to participate for pay and points, regardless of his physician’s recommendations.  

On 6 Feb 18, he reached out to his unit and was advised his case was submitted to a military provider for review on 16 Jan 18.  

In Feb 19, he was allowed to return to duty pending the outcome of the AFRC/SG determination.  He was provided a memorandum from AF/RE implementing a change to allow members to participate at the unit commander’s discretion.  His unit commander immediately allowed him to return to duty.  His only gap of service is the 24 month period from 5 Mar 17 to 2 Mar 19.  The process took four years, and he was not allowed to participate during the first two years.  

His 2013 enlistment in the Air Force Reserve qualified him for a one-time $10,000 bonus.  He only received $7,500 of that bonus.  The unreasonable timeline and process caused his family undue and unjust financial stress.  

Ultimately, no PEB ever took place, In Oct 20, the AFRC/SG determined he was fit to serve after reviewing the records submitted in 2016.  At this point, he had already been allowed to participate for nearly two years.  His satisfactory service should be 18 years, instead of 16.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an Air Force Reserve master sergeant (E-7).   

On 18 May 13, the applicant was honorably discharged from the Regular Air Force and was credited with 10 years and 27 days of active duty service.  

On 19 May 13, the applicant enlisted in the Air Force Reserve for a period of 6 years.  

On 26 Sep 16, the applicant’s RMU informed the applicant that members were required to report any illness, injury, disease, operative procedure, or hospitalization not previously reported to their commander or supervisor and supporting medical facility in accordance with AFI 48-123.  A records review indicated he had a possible history of TBI, depression/anxiety, PTSD, back pain and a prescription for epinephrine.  The applicant was requested to provide the list of documents to the RMU within 60 days.  

On 9 Jan 17, the RMU informed the applicant he was found temporarily medically disqualified for worldwide duty per AF Form 469, Duty Limiting Condition Report, dated 4 Jan 17, which stated he was not allowed to participate for pay and points through 4 Jan 18 due to potentially disqualifying diagnosis. The applicant was requested to sign his PEB election form with supporting medical documentation to the RMU within 60 days.  

The applicant provides AF/RE memorandum dated 8 Feb 19 for distribution implementing policy for change to AFI 36-2254, Volume 1, Reserve Personnel Participation, regarding participation.  Effective immediately, unit commanders would carefully consider a member’s documented physical limitation outlined on the AF Form 469 and could allow the member to participate within the restrictions outlined on the AF Form 469.   

AF Form 422, Notification of Air Force Member’s Qualification Status, dated 9 Oct 20 reflects the applicant was found fit and returned to duty by AFRC/SGP with assignment limitation code (ALC-C1).  

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

APPLICABLE AUTHORITY/GUIDANCE

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 issued policy memorandum allowing commanders to allow members to participate within the limits documented on a member’s AF Form 469.  

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

1.7.1. All reservists have to 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 the applicant was placed on duty and mobility restrictions and no waiver was requested, policy supported he be in a no pay-no points status for the period.

The applicant was placed on duty and mobility restrictions on 5 Jan 17 due to multiple medical conditions that contradicted retention standards in accordance with AFI 10-203 (now 48-133), Duty Limiting Conditions, AFI 48-123, Medical Examination Standards, and the Medical Standards Directory (MSD).  Because the applicant was placed on the restrictions and did not meet standards, this prompted a RILO medical evaluation board (MEB).   The applicant was then placed in a no pay-no points status on 5 Mar 17, in accordance with AFI 36-2254 V1.  There is an option to waive restrictions on member participation; however, there is no indication that one was considered or initiated.  Therefore, the applicant remained in the no pay, no points status until Mar 19.  

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 22 Feb 22 for comment (Exhibit D), but has received no response.

ADDITIONAL AIR FORCE EVALUATION

AFRC/A1KK recommends partial grant for the reenlistment bonus payment.  However, based on the documentation, there is no evidence of an error or injustice pertaining to the applicant’s participation and points between 5 Mar 17 to 8 Feb 19, while he was not deemed medically cleared to participate.  

On 9 May 13, the applicant enlisted in the Air Force Reserve for a period of six years.  The applicant’s Duty Air Force Specialty Code (DAFSC) was listed on the FY13 Master Incentive Bonus List.  This would make the applicant eligible for an affiliation or reenlistment incentive as long as he met all other eligibility factors in AFI 36-2638, Air Force Reserve Enlisted Incentives.  The AFRC/A1KK bonus records indicate an affiliation bonus was approved on 7 Aug 14 for a total of $20,000, with $10,000 initial anniversary payment and five equal payments up to $2,000 on unit training assembly (UTA)/satisfactory participation outline in AFR 36-2254.  The applicant’s leave and earnings statements (LES) show the applicant received a total of $17,000.  This resulted in a miscalculation in the amount of $3,000.  

On 5 Mar 17, the applicant was placed in a no pay-no point status due to medical conditions in accordance with AFI 36-2254 and should not receive pay or points for the period 5 Mar 17 to 8 Feb 19.  However, the applicant should have been granted credit for the missed UTAs in accordance with AFI 36-2638 per the incentive program and payment.  

On 8 Feb 19, AF/RE released a memorandum allowing members placed on a duty, mobility or fitness restriction via an AF Form 469, Duty Limiting Condition Report, the ability to participate for pay and points at the discretion of the unit commander.  The applicant’s commander immediately authorized return to duty and the applicant began to participate and was authorized to receive pay and points from that point forward.  However, 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 E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 19 Jul 22 for comment (Exhibit F).  In a response dated 15 Aug 22, he states his disputes with the advisory opinion are twofold.  First, he was arbitrarily and unfairly placed in a no pay-no point status.  The medical conditions referenced included conditions that occurred nearly a decade earlier while he was on an active duty Air Force deployment and did not result in any new conditions.  He never misled or concealed his injuries, and the Air Force knew about the conditions since they occurred while on duty and were in his medical records.  The injuries do not prohibit him from performing his military duties.  Secondly, the time his RMU and AFRC/SGP took to review and finalize a profile was unjust, negligent and untimely.  The no pay-no points status began in Jan 17 and continued until Mar 19, only because of an AF/RE memorandum dated 8 Feb 19.  Otherwise, the AFRC/SGP did not complete their review until Oct 20.  The 26-month period of no pay-no points status and the 46-month period to finally decide he was found fit and returned duty is not only an error but unfair and unjust.  Not only was the entire process detrimental to his career and personal life, but it negatively affected his unit.  It also discourages veterans and military members from seeking medical care and obtaining benefits afforded by the VA.  

The applicant’s complete response is at Exhibit G.  

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/A1K recommend denial for the requested participation points stating the applicant was placed on duty and mobility restrictions on 5 Jan 17 and in a no pay-no points status in accordance with regulations and his commander did not request a participation waiver.  However, the Board finds the unwarranted and extended time for AFRC to review the applicant’s medical fitness to serve 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 decision to immediately return the applicant to duty upon release of the AF/RE memorandum dated 8 Feb 19 and the AFRC/SGO determination on 9 Oct 20 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 resulted in an injustice to the applicant.  The Board notes the applicant requests points from 5 Mar 17 to 2 Mar 19 for two additional years of satisfactory service.  Based on a review of his points history, the Board recommends he be credited with 10 participation points from 12 Sep 16 to 11 Sep 17 and 35 participation points from 12 Sep 17 to 11 Sep 18.   In this respect, the Board finds this is the proper and fitting relief to credit the applicant for the two additional years of satisfactory service he requests. With respect to the request that he be paid the missed reenlistment bonus payments, 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 the APPLICANT be corrected to show:

a.	 He be awarded an additional 10 participation points from 12 Sep 16 to 11 Sep 17 and 35 participation points from 12 Sep 17 to 11 Sep 18; resulting in receiving an additional two (2) good years of career satisfactory service.   

b.	He be paid the remainder of his FY13 Incentive Bonus for his enlistment in the Air Force Reserve for the period 19 May 13 through 12 Oct 19.  

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-2021-01217 in Executive Session on 8 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 26 Apr 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFRC/SGO, dated 18 Oct 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 22 Feb 21.
Exhibit E:	Advisory opinion, AFRC/A1KK, w/atchs, dated 5 Jul 22.  
Exhibit F:  Notification of Advisory, SAF/MRBC to Applicant, dated 19 Jul 22.
Exhibit G: Applicant’s response, dated 15 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.