RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-02048

XXXXXXXXXXXXXX	COUNSEL: NONE	 

  	HEARING REQUESTED: YES	 

APPLICANT’S REQUEST

He receive sufficient points for retention/retirement (R/R) year 11 Jul 18 to 10 Jul 19 for a satisfactory year of service.

APPLICANT’S CONTENTIONS

He was unjustly placed in a no pay-no points status for an injury he sustained in 2010 while deployed to Southwest Asia.  On 7 Apr 18, his commander told him to go home and figure out what to do on his own.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a technical sergeant (E-6) in the Air Force Reserve.

The applicant provides an e-mail from his commander dated 26 Apr 18, informing him he was placed in a no pay-no points status.  He was advised he could not participate in annual tour (AT) or unit training assembly (UTA) events due to medical reasons.  The Reserve Medical Unit (RMU) would be submitting a determination for his fitness to serve.  Until then, he would remain in a no pay-no points status.  His commander also stated he would be provided the letter of notification and the AF Form 469, Duty Limiting Condition Report, describing the medical status.  

The applicant provides medical progress notes dated 18 Jun 18, stating the applicant had pulmonary nodules in his lung and an MRI showed two liver hemangiomas.  It stated he served in Qatar and Afghanistan and had a history of intermittent, non-exertional, substernal chest pain since his return from duty in 2010.  A copy of the AF Form 469 was not provided in the application.   

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

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 reservists 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)

AIR FORCE EVALUATION

ARPC/DPTS recommends denial.  The applicant did not participate for points and does not meet the legal requirements to be awarded points.  He did not earn a minimum of 50 points and was not awarded a satisfactory year.  According to AFMAN 36-2136, points may only be credited to the date a Reservist actually performed the duty and a year of satisfactory federal service for retirement is awarded when a minimum of 50 points (including membership) points are earned. The advisory does not address the applicant’s contentions he was wrongfully restricted from participation for medical reasons.  

The complete advisory opinion, with attachments, is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 17 Aug 21 for comment (Exhibit D), but has received no response.

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.  However, the evidence shows the applicant was notified by his commander on 26 Apr 18 he was placed in a no pay-no points status due to his 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.  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.  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-2021-02048 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 8 May 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, ARPC/DPTS, w/atchs, dated 12 Aug 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 17 Aug 21.

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.