RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-02001

XXXXXXXXXXXXXX	COUNSEL: NONE	 

	HEARING REQUESTED: YES	

APPLICANT’S REQUEST

He receive pay and points for the period of 7 Aug 16 to 3 Aug 19 for monthly unit training assemblies (UTA) and annual tour (AT).  

APPLICANT’S CONTENTIONS

His time spent in a no pay-no points status was unjust due to his doctors recommendations he continue to perform his duties.  

On 7 Aug 16, his commander contacted him and advised he was going to be placed in a no pay-no points status.  In Jan 17, he contacted his commander and attempted to return to duty (RTD).  His attempt was unsuccessful and he remained in a no pay-no points status despite the local deployment availability working group (DAWG) recommended he be continued with an assignment limitation code (ALC-C3).  

During his 3 years in a no participation status, he was not allowed to reenlist but was forced to request an extension every 6 months.  He was only allowed to report to a UTA as “guest” whenever he needed to submit paperwork or complete a requirement.  He was punished by the Air Force, although he had done nothing wrong.  As a result of the injustice, he will not have 20 years of satisfactory service and be eligible to retire until Feb 22.    

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

The narrative summary (NARSUM) for worldwide duty evaluation dated 19 Jun 12, stated the applicant was diagnosed with ulcerative colitis, which was disqualifying for continued military service.  The medical provider stated his colitis was stable on medications, he was asymptomatic and could perform his civilian police officer duties without problems.  He was a valued member of the squadron and it was recommended he be retained with an ALC-C1.

On 30 Nov 12, the applicant’s Reserve Medical Unit (RMU) notified his commander the applicant had a medical condition which did not meet the medical standards in AFI 48-123, Medical Examination and Standards.  He was placed in a code “37” profile and restricted from participation for pay or points.  The applicant’s medical condition would be evaluated and his case forwarded to AFRC/SGP for determination of his fitness to serve.

On 22 Mar 13, AFRC/SGPA found the applicant fit for duty and RTD, with ALC-C2.  The applicant was restricted from occupying a mobility position or perform duties in field conditions.  He could participate in UTA, AT and man days at CONUS locations with a fixed military treatment facility (MTF).  The restrictions were permanent and could not be removed without prior approval from AFRC/SG.  

On 6 Mar 16, an intermediate review in lieu of (I-RILO) evaluation was conducted.  The provider stated ulcerative colitis was a chronic condition.  He was placed on biologic immunotherapy and occasional prednisone and was therefore not an appropriate risk for deployments outside of the CONUS.  The DAWG recommended he be continued with ALC-C2.  

On 7 Aug 16, his commander notified him he was placed in a no participation, no pay-no points, status due to his mobility restriction.  

On 11 Sep 16, the RMU informed his commander the applicant was found to have a medical condition which did not meet the medical standards in AFI 48-123.  It stated the applicant’s condition would be evaluated and submitted to AFRC/SGP for their review and disposition on his medical qualification for worldwide duty.  On 11 Sep 16, the applicant signed the Physical Evaluation Board (PEB) Fact Sheet.  

The 5 Mar 17 I-RILO evaluation noted the applicant was on biologic immunotherapy and occasional prednisone and was not an appropriate risk for deployments outside of the CONUS. The DAWG recommended the applicant be continued with ALC-C3.

In a response to the applicant’s Congressman dated 13 Dec 19, his wing commander (WG/CC) stated he entered the medical process in Aug 16 as a result of a chronic medical condition.  Due to procedural oversight, manning issues and resource challenges, the applicant’s case was not processed in a timely fashion. On 13 Sep 18, an I-RILO was completed and he was disqualified from further military duty.  This determination entitled him to a full review by a PEB; however, his case was not prepared for review until Mar 19 and was not forwarded to the PEB until 6 Nov 19.  Regarding the applicant’s placement in a no pay-no points status, AFRC/SG policy prevented the applicant’s participation pending the outcome of the I-RILO.  A subsequent change to the AFRC/SG policy now allows participation at the discretion of the unit commander.  In Sep 19, his commander RTD while undergoing adjudication by the PEB.  

The military personnel data system (MilPDS) shows the applicant has an approved projected retirement date of 1 Mar 22.  

For more information, see the excerpt of the applicant’s record at Exhibit B.  

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 published a policy memorandum that directed immediate implementation of  a mandatory change to Air Force Instruction 36-2254 Volume I, Reserve Personnel Participation.  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 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. 

1.7.2. Reservists with any expired Individual Medical Readiness (IMR) requirement as defined in AFI 10-250 will not participate in any point-gaining activities other than a military medical/dental evaluation or examination consistent with DoDI 1215.06. (T-0) This also includes reservist’s failing to provide required medical records from private providers to facilitate a determination of the reservist’s fitness for duty. Exception: A detachment commander may authorize participation for other than medical/dental evaluation or examination if the expiration was caused by the availability of medical provider(s) rather than delinquency of the reservist. 

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 (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)

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 not the victim of an error or injustice.  The Board finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The applicant contends his time spent in a no pay-no points status was unjust since his doctors recommended his participation with an ALC.  However, the evidence shows the applicant was notified by his commander on 7 Aug 16 he was placed in a no pay-no points status due to his chronic medical condition which was contradictory to retention standards as directed by AFI 36-2254. This same instruction provides guidance on waiving restrictions to allow participation; however, no evidence has been provided to show a participation waiver was ever initiated causing him to remain in a no pay-no points status.  Moreover, the applicant states in Jan 17 he again attempted to request his RTD; however, his request was denied by his chain of command.  Again, there was no evidence a participation waiver was requested.  Because the applicant was placed on restrictions and no participation waiver was requested, the policy supported the applicant to be in a no pay-no point status.  While the Board acknowledges there were delays in the processing of his MEB/PEB, the Board does not find the delays justify warranting the requested relief.  Therefore, the Board recommends against correcting the applicant’s records.  

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 Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

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-2021-02001 in Executive Session on 17 Feb 22:

 , Panel Chair
 , Panel Member
 , Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 17 May 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.

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.