Physical Evaluation Board Forum

I’m an IMA assigned to an active duty unit and while I was on a 227 day active duty tour I was diagnosed with Obstructive Sleep Apnea (OSA) and Diabetes Mellitus (Type 2). On the OSA I had a sleep study done which confirmed the condition. I had a second sleep study on the last day of when my tour ended which confirmed the need for the CPAP device. My understanding this condition renders me unfit and eligible for DES processing. The Type 2 was also diagnosed and further evaluation was deemed necessary. This condition is also considered incompatable with military service and should be evaluated by a MEB.

My scheduled IDT’s and AT were cancelled by AFRC and I had an approved CMAS authorization for a follow along tour which was canceled by HQ/AFRC. I received an email from AFRC informing me that I had a 4T profile and that I was ineligible for pay and points, but AFRC/SGP had waiver authority for 4 T conditions. The waiver stipulated IDT’ and Annual Tour only and that no MPA (active duty) days could be done while on the waiver.

I don’t see any waiver authority in 36-8001, 1.6.3.

1.6.3. A member assigned a “4” under any of the PULHES headings on AF Form 422, Physical Profile Serial Report, or on SF 88, Report of Medical Examination, by any Air Reserve Component (ARC) or AD medical squadron will not be allowed to participate in any pay or point gaining activity until the “4” has been removed IAW AFI 48-123. Any IDT which is missed due to this medical limitation will be considered excused. A member in this status will be excused from any type of military duty requirements until the profile has been removed and the member found fit for duty. The Personnel Data System (PDS) must be updated to reflect the member as excused.

I responded back to the email by referencing 1.6.5 of the AFMAN. I also stated that I was on AD when the conditions were discovered.

1.6.5. Reservists will not be placed on military orders solely for the purpose of receiving military medical/dental care, evaluation, or examination except as identified in AFI 48-123. Reservists receiving medical/dental care beginning during a tour of duty will not have their orders extended to continue treatment except as identified in DoDI 1241.1, Reserve Components Incapacitation Benefits.

My understanding of AFI 48-123 V2, 4.6.2 contains the exception for 4T conditions incurred or aggravated in the Line of Duty, a member will be retained on active orders until processed through the DES. AFI 36-2910, 1.5.4 states that an LOD must be completed for any member of the ARC regardless of medical impact and 3.5.1 of the same AFI states that the immediate commander may request approval from the group commander to start an interim LOD when the LOD can’t be completed within 7 days and there may be a need for continuing medical treatment or there may be a need for incapacitation pay for a member

I received two completed LOD’s four months after I submitted them to AFRC. I submitted the LOD’s which were initiated by the active duty doctor, because the Base IMA Administrator wouldn’t submit the paperwork to the Immediate Commander at my duty station.

The LOD’s from AFRC were taken off the AF 348 and put on a AFRC 348 and the all of the signatures were from AFRC, not my immediate chain of command as outlined by AFI 36-2910 Table 3. The signature for the immediate commander is not correct and the medical officers block is signed by the same person that signed for the unit commander, an AFR E-8 who is not a doctor or my unit commander.

Is this legal?

DoDI.1241, 6.4..1 states that I’m entitled to pay and allowances while the LOD is being conducted and 6.4.2 states that an appropriate approving authority shall issue an interim line of duty determination in sufficient time to ensure that pay and allowances will commence within 30 days of the date that the injury, illness, or disease was reported, unless there is clear and convincing evidence that the injury, illness, or disease was not incurred or aggravated in a duty status described in DoD Directive 1215.6 (reference (g)) and not covered under Sections 1074 or 1074a of reference (b) or Sections 204(g) or 204(h) of reference (c), or was due to gross negligence or misconduct of the member.

6.6.3.2. DoDI 1241.2 states a Reserve component member on active duty under a call or order to active duty specifying a period of 31 days or more, who incurs or aggravates an injury, illness, or disease in the line of duty shall, with the member's consent, be continued on active duty upon the expiration of call or order to active duty until the member is determined fit for duty or the member is separated or retired as a result of a Disability Evaluation System determination.

I petitioned the AFRC IG's office on this issue. I included the same statues that I have previously memtioned. The IG wrote me back that the hospital had returned me to duty therefore I'm fit yet my condtion prevents me from gaining pay and points. The IG left out the part about the final disposition of the DES and he wrote that HQ AFRC/SGP is the ultimate authority in approving orders for medical conditions. I have not received final disposition from the DES yet.

AFI 36-3212, 8.6.2 states:

8.6.2. ARC members who incur or aggravate an injury, illness or disease in the line of duty while on orders for more than 30 days are not involuntarily released from those orders until final disposition of their disability case. These members' entitlement to full pay and allowances and benefits continue to the same extent provided by law or regulation to regular component members

I feel that I should be on orders pending the final disposition of the MEB/PEB and that the orders should be retroactive til the date that my condition was reported as stated in DoDI. 1241.2, 6.4.1 and 6.4.2.

Who is correct here?

YosemiteSam,

In my opinion, you are! You should have been extended on orders. The doctor who diagnosed you should have initiated an MEB when s/he made the diagnosis.

I think you are entitled to INCAP pay.

You mentioned not having a final disposition from DES. Are you going through an MEB?

There are several ways to address this. You could pursue talking with your chain of command, the IG, perhaps a Congressional. You could also petition the AF Board for Correction of Military Records (asking to correct your records to show you were never separated off of active duty; this should have the effect of capturing your back pay, too).

Bottom line, I think they are denying you your rights.

Please let us know any questions.

__________________
Jason

Physical Evaluation Board Forum Administrator
New Members- Read OVERVIEW OF MEB/PEB PROCESS

Jason,

thanks for the quick response and assistance. Yes I'm currently going through an MEB and I have yet to receive the final dispositon. I'm currently reviewing AFRCI 36-3004 incap reg's that I found on this site. Is the most current version? The reason I ask is that AFRC/SG put out a policy letter that they are the waiver authority for in "Line of Duty (MEB)" and not in "Line of Duty (WWD)" conditions. The waiver only allows for IDT's and AT. The waiver states that MPA is not available while on this waiver. That is in direct contradiction to AFRC 36-3004, AFI 48-123, and DoDI 1241.2 and Title 38 USC.

I plan to cite this "irregularity" to Congress. But I what to make sure I am correct in my assertions before I file a Congressional complaint.

What do you think?

Thanks

Sam65