Can LOD medical orders be denied if you refuse to sign a Sanctuary Waiver?

BoSox

BoSox

PEB Forum Regular Member
Hey Guys & Gals,

Background: I'm an AF reservist currently on voluntary long tour MPA orders. Because I am currently in the 18-20 yrs of AD window I require a sanctuary waiver, which I currently have in place, in order to obtain any "voluntary" MPA orders.
I recently injured myself which requires a surgery. LOD paperwork is completed, approved and my surgery is scheduled. My current long tour orders are about to expire and I am still awaiting medical orders for the above mentioned surgery and recovery. These new medical orders that I am waiting on will take me PAST MY SANCTUARY WAIVER DATE.

:confused:Here's my questions:
1. Can my leadership deny these LOD medical orders if I refuse to sign another sanctuary waiver extending me past the LOD medical orders end date (effectively preventing me from being able to declare sanctuary)?
2. Since it was determined that I require medical attention via the LOD process, are medical orders considered voluntary for purposes relating to the sanctuary process? What I'm getting at here is; can they legally withhold these medical orders because they consider them voluntary and I am refusing to sign a sanctuary waiver?

As always any references to regs/instructions are very helpful if you can provide....

Thanks all for any help/advice,
BoSox
 
Technically they could, but the policy is that they do not deny MEDCON orders for someone that refuses to sign the sanctuary waiver. The reason is because they HAVE to put you on, if this has happened to you, it is not correct. Are you an IMA
 
I do not agree, but it may be semantics. I think they cannot deny orders. The Military Pay Act (37 United States Code Section 204) mandates entitlement to active duty pay and allowances for a reservist injured on orders. So, if they drop him off of orders because they request a sanctuary waiver and he refuses, then he is still entitled to the pay and allowances of someone on active duty (what gets interesting is that, as the statute reads on its own, the only entitlement is to the money, not to orders...but I think that read together with other statutes and the necessary mechanisms and regulations to pay people through finance systems/DFAS, the result is "orders").
 
Jason is absolutely right. "They", in this case meaning the ANG or ARC cannot make anyone sign a sanctuary waiver for MEDCON orders as requirement before issuing them. Jason and I filed a wrongful discharge case in the United States Court of Federal Claims for the denial of MEDCON orders and when the case was filed the Air Force issued orders back dated to the wrongful discharge date (almost seven months).


Here is the LAW:

Pursuant to 37 U.S.C. § 204(a)-(b);

(a) The following persons are entitled to the basic pay of the pay grade to which assigned or distributed, in accordance with their years of service computed under section 205 of this title—
(1) a member of a uniformed service who is on active duty; and
(2) a member of a uniformed service, or a member of the National Guard who is not a Reserve of the Army or the Air Force, who is participating in full-time training, training duty with pay, or other full-time duty, provided by law, including participation in exercises or the performance of duty under section 10302, 10305, 10502, or 12402 of title 10, or section503, 504, 505, or 506 of title 32.
(b) For the purposes of subsection (a), under regulations prescribed by the President, the time necessary for a member of a uniformed service who is called or ordered to active duty for a period of more than 30 days to travel from his home to his first duty station and from his last duty station to his home, by the mode of transportation authorized in his call or orders, is considered active duty.

DoDI 1241.2;

6.6.3.2. 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.

AFI36-3212;

8.6.2. ARC members who incur or aggravate an injury, illness or disease in the line of duty while onorders for more than 30 days are not involuntarily released from those orders until final disposition oftheir disability case. These members' entitlement to full pay and allowances and benefits continue tothe same extent provided by law or regulation to regular component members.
 
I signed the waivers because they would not give me orders if I didn't. It took me seven months to finally get uninterrupted medical continuation orders even without the waiver.

While the following paragraph does not specifically say "sanctuary waiver" the implication is that orders will be extended regardless.

[FONT=&quot]"AFRCI 36-3004 4.3.3. Reservists who incur a line of duty injury while serving on orders for 31 consecutive days or longer, and are retained on active duty as a result of an injury, illness, or disease do not require a waiver beyond the 179 day RPA limit.[/FONT]"

I suspect the ARPC response will be, "if you don't sign the waiver you won't be eligible for orders--but you can apply for incapacitation pay and still use military treatment facilities for your care." Don't fall into that trap. The people managing INCAP at ARPC don't know what they're doing. If you want more info on this, PM me.
 
Jason said:
then he is still entitled to the pay and allowances of someone on active duty (what gets interesting is that, as the statute reads on its own, the only entitlement is to the money, not to orders
Click to expand...

That's where incapacitation pay comes into play...it gives you full pay and allowances of someone on active duty. The problem is, the AF Reserves misapply and deny. They will tell someone who is injured that 1. They can only get INCAP if they're on a P-4 profile, 2. They can only get incap if they can prove a loss of civilian income.

1. is incorrect for several reasons...there is no P-4 profile in the Air Force anymore. They now use a duty limiting condition report which details a members limitations. If in the opinion of ARPC/SGP the member would be able to perform some level of duties, INCAP is denied. The SGP at ARPC who signed off on every one of my documents is an enlisted administrative specialist. He even signed my LODs.

2. is incorrect because it's and "either or" not "and". If the person is not fit for duty OR they can show a loss of civilian income, they are entitled to INCAP. I have it in writing from the same NCO above that it is "not fit for duty AND can show a loss of civilian income" to qualify for INCAP [NOT!!!]

In the case of someone on extended MPA orders--they do NOT accept that as civilian income. The end result after being told they can apply for INCAP is that ARPC will deny it. They also will not accept unemployment compensation as a loss of civilian income. One can't get unemployment if they are unable to work due to injuries/illness.

STAY AWAY FROM INCAP!
 
Be careful not to confuse the issue here Jump. Sanctuary waviers under 10 U.S.C., Section 12686 are only for VOLUNTARY ORDERS and not for INVOLUNTARY orders such as Medical Continuation Orders which are MANDATORY under the Law.


The Sanctuary Law is as follows:

Pursuant to 10 U.S.C. § 12686 (a) Reserves on active duty within two years of retirement eligibility: limitation on release from active duty;

(a) Limitation. Under regulations to be prescribed by the Secretary concerned, which shall be as uniform as practicable, a member of a reserve component who is on active duty (other than for training) and is within two years of becoming eligible for retired pay or retainer pay under a purely military retirement system (other than the retirement system under chapter 1223 of this title), may not be involuntarily released from that duty before he becomes eligible for that pay, unless the release is approved by the Secretary.

(b) Waiver.— With respect to a member of a reserve component who is to be ordered to active duty (other than for training) under section 12301 of this title pursuant to an order to active duty that specifies a period of less than 180 days and who (but for this subsection) would be covered by subsection (a), the Secretary concerned may require, as a condition of such order to active duty, that the member waive the applicability of subsection (a) to the member for the period of active duty covered by that order. In carrying out this subsection, the Secretary concerned may require that a waiver under the preceding sentence be executed before the period of active duty begins.

Key words being "as a condition of such order" meaning you do not have to sign anything. If they still bring you on AD for whatever reason it will be involuntary and then you then have the right to invoke sanctuary. Section 12301 pertains to reserve component call up generally.

AFI 36-2131 amplifies getting a sanctuary waiver before accepting a VOLUNTARY TOUR like MPA etc...

Administration of Sanctuary in the Air Reserve Components If a member is in or nearing the sanctuary zone (between 18-20 yrs total active federal military
service (TAFMS) (6570-7300), a signed/approved sanctuary waiver must be on file prior to the tour start date in order for the member to perform a voluntary tour of active duty (other than for training). A waiver may only be requested for 179 days each; however, a member may sign additional waivers for 179 days each (back-to-back) to cover the entire tour requested with separate orders for each tour.

Once again, the key words are "to perform a voluntary tour of active duty"...
 
The bottom line is they cannot deny you MEDCON orders if you are about to enter into or are within the 18 to 19 year TAFMS period and you have been on active duty orders (EITHER Title 10 OR 32) for more than 30 days-DO NOT SIGN A SANCTUARY WAIVER AS A CONDITION TO MEDCON ORDERS!

I know somebody who they tried this on, thinking that he was too stupid to know any better. Once we raised the BS flag he had orders within 36 hours...more on that later...

I can personally guarantee they will try to screw you once you sign a waiver. If you're returned to duty at either the MEB or PEB and you go back to ARC status, you will never do another day of AD for the rest of your life. Then they will then try to separate you for the very same condition the regular Air Force said you can stay in with.

We are on to their game...

In the mean time if this happens to any of you PM ONE OF US OR CALL JASON ASAP...

regards...
 
This is a good discussion. The reserves would argue that MEDCON orders are VOLUNTARY since receiving them is optional on the part of the member--they are not mandatory unless the member wants them. The member can decline MEDCON orders and opt for incapacitation pay--or nothing. IN this context, the orders are voluntary.

Where they tried to screw me was by twisting this and saying, "we are taking you off of orders, but you can apply for INCAP pay"--that was illegal and began my 7 month fight to get back on orders. I wanted to stay on orders and they involuntarily removed me. Had I volunteered for INCAP, it would have been a whole different story.
 
You're right jump, this is a good topic but we have to be careful not to confuse our cases with the issue at hand. Both of us have had wrongful discharge cases but for different reasons and in different status.

The issue here is about someone who is on orders for more than 30 days at the time of the medical condition. Therefore, 37 U.S.C. 204(a)(b) applies and that is the primary law. That overrides everything else.

Say high to Viv for me.

regards,

-mac
 
Generally speaking, I think INCAP orders are the least attractive option available to most members. You do not accrue points, you cannot perform any duty, your retirement pay calculations are not based on increasing time in service/time in grade/annual bonus rates, you don't get to add the time on INCAP for purposes of the 8 year rule, and if you have additional health issues (or a worsening of your current issues) those conditions would almost certainly not be covered nor be compensable (although, this last point can get complicated...especially in regard to worsening conditions).

I do think that there may be some validity and/or legal basis for the military to create categories or types of orders that may be voluntary or have certain restrictions on them. So, in those instances, the military may argue that they can do what they want based on their lawful regulations. The fault in this logic, though, is that while the regulations may be legal in some instances, where they conflict with statute, they are not legal (or in the above discussion, take either INCAP or MEDCON orders...while these may result in some payment or lawful placement on status, they are not necessarily the only payment/orders a member is entitled to; the member should get the maximum of what they are entitled to, not what the minimum offered payment is). I would argue (and have succesfully) that the Military Pay Act trumps the regulations in dealing with an injured servicemember.

Like most legal issues, the facts of each case are what drive the analysis. So, while useful to talk about what is generally the rule about a given situation, it is really vital to look at the facts to see what is the correct legal outcome.
 
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