RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-03089

XXXXXXXXXXXXX	COUNSEL: NONE	 

  	HEARING REQUESTED: YES	 

APPLICANT’S REQUEST

1.   Her voluntary placement on the Inactive Ready Reserve (IRR) List be reversed.

2.   She be placed into an overage position for her Air Force Specialty Code (AFSC) or in a pseudo 8 position as previously requested.

3. She be placed on pre-medical continuation (Pre-MEDCON) and medical continuation (MEDCON) orders.  

4.  She be compensated for time and pay lost.

5.  Her TRICARE authorization for continuity of care be reinstated.

6.  Her outstanding medical bills be paid.

7.  Her original retirement application per her MyPers request to retire from her unit effective 31 Dec 21 be approved.  

APPLICANT’S CONTENTIONS

She was placed into the IRR based on false information.  She did not volunteer to go into the IRR.  It was submitted without her knowledge.  Instead, she applied for retirement which was denied.  Her commander refused to grant her priority placement into another position when there were no other available positions, in accordance with DAFI 36-2110, Total Force Assignments.  As a displaced member, she should have been placed into an overage position.  

Her placement in the IRR prevented her from completing the MEDCON process.  The MEDCON process for her case was not processed in accordance with DAFI 36-2910, Line of Duty (LOD) Determination, Medical Continuation (MEDCON) and Incapacitation (INCAP) Pay.  As a result, TRICARE has refused to pay for pre-approved authorizations from an in the line of duty (ILOD) injury due to the IRR status.  She is currently trying to resolve medical bills over $2,000.00.  There was no medical hold initiated although her commander was aware of her MEDCON application.  Her physician extended her AF Form 469, Duty Limiting Condition Report, for her profile to expire on 31 Dec 21.  However, she was not properly coded in the system and was erroneously updated as requesting voluntary reassignment into the IRR.  

She submitted an Inspector General (IG) complaint and the AFRC/IG failed to investigate her concerns and provided no assistance.  She also submitted her complaint to the DAF/IG.  On 6 Jul 21, DAF/IG issued a memorandum stating they verified there was no pending action to place her into the IRR.  However, she was placed into the IRR two days later.  Both IG cases were closed with erroneous conclusions and false information.  The ARPC/DPAA Superintendent admitted the mistake in assigning her to the IRR but stated they could not reverse the action unless her unit corrected the erroneous information submitted.

She requested to be placed in an overage position for six months so she could retire on her expiration term of service (ETS) date; however, her request was denied.  In a response to her Congressman, her commander stated it was not standard procedure to extend an overage position in order to allow a member to retire at a later date.  However, her commander maintains an overage program in accordance with DAFI 36-2110, which allows extending individual mobilized augmentees (IMA) in overage positions.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS	

The applicant is a master sergeant (E-7) on the Air Force Reserve Retired List. 

On 17 Sep 18, the applicant entered a period of active duty.  

On 13 Mar 20, the applicant was notified her position was changed on the unit manning document and her Air Force Specialty Code (AFSC) no longer matched the requirements for the new position.  Since she was in Reserve sanctuary, she could remain in the Selected Reserve (SELRES) until obtaining 20 years of satisfactory service (20 Jun 21).  The applicant was informed of two options: (1) Request to transfer voluntarily to the IRR or (2) Request reassignment to another SELRES position in coordination with the unit and respective career functional manager.  On 18 Mar 20, the applicant acknowledged the notification of manpower authorization change and that she would be reassigned involuntarily to the IRR on 21 Jun 21 unless she secured a funded position to the SELRES, transfer to another component or transfer voluntarily to the IRR.  

On 21 Apr 20, the applicant reported initial onset of pain in her right wrist following a snap feeling while doing push-ups. 

AF Form 348, Line of Duty Determination, dated 1 Sep 20, documents the applicant had an unspecified sprain of right wrist while doing push-ups on 21 Apr 20.  Treatment was provided on 22 Apr 20 and physical therapy from May 20 to Jul 20 with no improvements.  The injury was determined not to have existed prior to service (EPTS No).  On 6 Jan 21, the approving authority found the applicant’s injury in the ILOD per the AF Form 348, Line of Duty Determination, dated 1 Sep 20.  

The applicant provides AF Form 469, dated 23 Jul 20, showing she was placed on mobility restrictions through 1 Jan 21.  There were no duty restrictions.  She was not cleared for the run component of the fitness assessment (FA) program and it stated physical therapy exercises were prescribed.  

On 18 Aug 20, per her DD Form 214, Certificate of Release or Discharge from Active Duty, the applicant was released from active duty.  She was credited with 1 year, 11 months and 2 days of active duty service for the period.  

AF Form 2096, Classification/On-the-Job Training Action, dated 27 Apr 21 shows the applicant was placed in a pseudo 8 position number for an overage code due to her position being changed to an AFSC she did not qualify for.  It stated the applicant was sanctuary and the unit agreed to retain her until her Retention/Retirement (R/R) of 22 Jun 21.  

On 14 May 21, the applicant submitted an IG complaint to DAF/IG regarding being forced into an involuntary IRR status negatively impacting her retirement benefits.  She also stated her Reserve retirement application was denied with false claims.    

In an email dated 17 Jun 21, the AFRC/IGQI informed the applicant the IG was unable to place the applicant in an assignment nor prevent the applicant from being transferred to the IRR.  The applicant was advised her issues were command issues and there was no evidence there was a violation of law, instruction, regulation or policy that had occurred and; therefore, they were unable to refer her issues to the command.  The applicant was further informed the IGQI could assist with the possibility of being placed on MEDCON orders if surgery was required. 

On 21 Jun 21, the applicant was transferred and assigned to the IRR per Reserve Order DA-01303 dated 1 Jul 21.  The order stated the assignment reason was voluntary.  

On 21 Jun 21, the applicant submitted a complaint to the DoD IG Hotline indicating she submitted complaints to the DAF and AFRC IGs as she had concerns with her complaint being handled in a fair and unbiased manner.  The investigating officer attempted to intimidate her into changing her comments.  

In a memorandum dated 6 Jul 21, DAF/IGQ informed the applicant they were closing her case regarding her reassignment to the IRR.  The memorandum stated the AFRC/IG was handling her case and the AFRC/IG verified at the time she was not projected to move to the IRR.  

The applicant provides AF Form 469 dated 21 Jul 21 in which her provider recommended she be placed in a duty and mobility restriction through 31 Dec 21.  It stated the applicant was not cleared to test on the run or push up components of the FA.  The AF Form 469 does not show a squadron commander’s review/signature.    

In a memorandum dated 16 Aug 21, AFRC/IGQ informed the applicant they were closing her complaint filed through the DAF/IG Hotline on 14 May 21.  The applicant’s complaint was reviewed and determined there was no credible evidence a violation of law, instruction, regulation or policy occurred.  The AFRC/A1 and AFRC/JA verified the applicant was eligible for transfer to the IRR and the transfer was authorized per AFI 36-2110.  With respect to the request for MEDCON orders, the applicant was previously advised ARC CMD managed the MEDCON program and she was advised she could be placed on MEDCON, if approved.  

In a memorandum dated 17 Aug 21, the HQ RIO Det 5/CC stated the applicant was notified on 13 Mar 20 that the unit manpower document was changed and she no longer matched to the AFSC.  As a result, she was notified she would no longer remain in the position after 20 Jun 21 and would be involuntarily assigned to the IRR unless she requested a voluntary transfer to the IRR or requested reassignment to another SELRES position.  The notification did not include her right to retire because at the time, the applicant was not eligible to retire.  The applicant was allowed to remain in the overage position through 20 Jun 21, which was the date the applicant became eligible for retirement.  On 27 Apr 21, her request for retirement was denied because she had a pending transfer to the IRR and she was requesting to retire after the transfer date.  It was not standard procedure to extend an overage position in order to allow a member to retire at a later date.  The applicant would suffer no detriment from submitting her retirement from her current status in the IRR.  Her retirement benefits will be identical to what she would have received from her previous SELRES status.  The applicant has suffered no detriment.  

The applicant provides TRICARE Explanation of Benefits dated 18 Aug 21, showing her bill in the amount $1,877.80.  

Per Reserve Order dated 24 Aug 21, the applicant was placed on the Retired Reserve List effective 31 Dec 21, eligible to receive retired pay except for attainment of eligibility age.   

The applicant provides MyPers discussion thread dated 26 Aug 21, in which she was advised her MEDCON package could not be processed since she was not in an active military status.  

In a memorandum dated 7 Sep 21, the ARPC/A1 informed her Congressman the applicant was placed on the Retired Reserve List, effective 31 Dec 21.  With respect to her request for audit of her communication, the applicant was encouraged to make a Freedom of Information Act (FOIA) inquiry to the AFRC FOIA office.  The applicant was informed she could appeal to the AFBCMR if she felt she was the victim of an error or injustice.  

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

APPLICABLE AUTHORITY/GUIDANCE

AFR 36-2110, Total Force Assignments, paragraph 9.7.14.  By Pass Authorizations (Pseudo 8).  Any requests for by pass positions are an exception to policy and are to be temporary in nature to generate a “holding” place for members whose funded manpower authorizations have been deleted from the unit manning documents, one deep officer overage positions, force structure announcements, medical shortfall AFSCs or professional military education.  Paragraph 9.7.14.3 states, For the IMA program, assignments to a by-pass position number should be limited to a new or realigned position pending manpower update. A copy of the manpower change request must be submitted with the assignment action to justify placing an IMA in a by-pass position number with an overage code and expiration date six months from the effective date of change of strength accountability.  

AFI 36-2910, Line of Duty (LOD) Determination, Medical Continuation (MEDCON) and Incapacitation (INCAP) Pay, paragraph 6.2, MEDCON eligibility requires an LOD determination and a finding by a credentialed military medical provider that the member has an unresolved health condition requiring treatment that renders the member unable to meet retention or mobility standards in accordance with DAFMAN 48-123, Medical Standards.  

AFI 48-210, TRICARE Operations and Patient Administration, paragraph 2.2.1, When not in an Extended Active Duty military status (orders for greater than 30 days), TRICARE Early Mobilization or Transitional Assistance Management Program status; Reserve Component member military health care is limited.  Paragraph 2.2.2.2, Military Treatment Facilities will ensure Reserve Component members undergoing an LOD in accordance with paragraph 4.12 receive thorough hand off between facility providers and supporting Reserve Medical Unit (RMU) or civilian providers.  Paragraph 4.12.3, following the start of a LOD determination, initial direct care and/or TRICARE network healthcare may not be denied to any service member or Reserve Component service member.  

AIR FORCE EVALUATION

ARC CMD (AFPC/DPFA) recommends denial.  Although the applicant inquired about MEDCON orders, she would not have met eligibility as she did not have a profile initiated at the time of the request and there was no established treatment plan that would have met eligibility.  Her profile created on 1 Jul 21 may have made her eligible if her injury was aggravated but no documentation was submitted for review.  The RIO was correct in stating the applicant was not eligible for MEDCON at the time she inquired based on the documents provided.  

The applicant was on orders from 17 Sep 18 to 18 Aug 20 and sustained a wrist injury on 21 Apr 20 performing push-ups.  She sought care the following day and began physical therapy in May 20, which ended in Jul 20, with no improvements noted.  Specific dates of treatment, modalities and frequency are unknown as no progress notes were provided.   She was initially profiled on 23 Jul 20 for wrist pain through 1 Jan 21.  An LOD was initiated on 1 Sep 20 and found ILOD on 6 Jan 21.  There are no notes available to determine what care, if any, the applicant was receiving during the timeframe.  After an MRI and X-rays revealed mild positive ulnar variance bilaterally with no osseous abnormality or significant degenerative change, she was prescribed 12 weeks of therapy via a home exercise program (HEP) two to three times per week.  On 6 Jul 21, the applicant was seen by an occupational therapist who prescribed four weeks of occupational therapy two times per week but no additional documents stating treatment was followed or extended were provided.  Members who require HEP are not brought on MEDCON as they are not being followed consistently by a provider.

On 21 Jun 21, the applicant was placed in the IRR.  On 13 Mar 20 she signed acknowledging the position she was assigned was transitioning to an AFSC she did not possess.  On 30 Jun 21, she submitted documents for consideration for MEDCON and RIO informed her she was not eligible for MEDCON since she was in the IRR.  On 1 Jul 21, the applicant was profiled a second time for her right wrist through 31 Dec 21. On 13 Aug 21, RIO closed and returned the MEDCON request without action since the applicant is not on an active status and the system prevents further actions.  Without knowing all the facts of her case, ARC CMD encouraged her to submit an AFBCMR prior to IRR actions.  They also informed the applicant that RIO would have to submit her MEDCON request on her behalf in order for a determination to be made.  

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 8 Dec 21 for comment (Exhibit D).  On 9 Dec 21, the applicant provided TRICARE Summary of Benefits dated 18 Nov 21, showing she owed her provider $3,725.80 and no payment was made by TRICARE.  The summary listed dates of hospital services.  The applicant also provides TRICARE memorandums dated 10 Jun 21 and 24 Jun 21, which shows Health Net Federal Services approved the services listed under the applicant’s TRICARE benefits.    

The RIO/CC advised the reason she was placed into the IRR was she never requested to be transferred.  She provides proof to dispute this statement and proof she requested to be placed on Pre-MEDCON and MEDCON and also requested a list of vacancies for assignments.  She provides a letter from the RIO/CC to her Congressman dated 2 Dec 21.  On 16 Apr 21, her retirement request was denied due to the manpower surplus notification and the requested retirement date outside the window.  

In an e-mail dated 20 Jan 22, she states she received a copy of her medical record that shows she will still attending virtual appointments with the physical therapist at Buckley AFB, CO in Jun 21, until she was able to get an appointment with the orthopedic surgeon she was referred to.  She asks this information be considered to show she was not medically coded in the personnel system, which allowed her involuntary transfer to the IRR and led to TRICARE refusing to pay her medical bills.  

The applicant’s complete response is at Exhibit E.

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 concurs with the rationale and recommendation of AFPC/DPFA and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The applicant contends she was unjustly released from active duty and transferred to the IRR in lieu of MEDCON orders; however, she has provided insufficient evidence to show she was eligible for MEDCON orders as noted by AFPC/DPFA.  The applicant also contends her placement in the IRR resulted in a negative impact on her retirement benefits; however, no evidence has been presented to substantiate she was harmed with regards to her retirement eligibility.  The applicant was notified in Mar 20 of the UMD change and the applicant was retained on active duty until 18 Aug 20 in an overage position.  The applicant was then transferred to the IRR in Jun 21 based on her R/R year and subsequently transferred to the Retired Reserve.  In this respect, the Board finds the applicant was afforded full consideration and the actions of her unit permitted her transfer to the Retired Reserve upon eligibility.  While the Board recognizes the applicant also desired to remain on active duty in an overage position until her retirement, it is not a reasonable request given the change of AFSC on the UMD which no longer made her eligible for the position.  Further as pointed out by the AFRC/IG on 16 Aug 21, an investigation revealed no evidence of any violations had occurred with regards to the applicant’s transfer to the IRR.  In view of the above, the Board finds no reason to place the applicant on a period of active duty solely to permit payment of her outstanding TRICARE bills.  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-2021-03089 in Executive Session on 23 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 19 Sep 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, ARC CMD (AFPC/DPFA), dated 17 Nov 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 8 Dec 21.
Exhibit E:	Applicant’s Response, w/atchs, dated 9 Dec 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.