Awaiting AFRC LOD for Medcon!!

89Falcon

PEB Forum Regular Member
PEB Forum Veteran
I am an AFR LtCol...my duty history:
-approx 7000 AD points (over 19 years)
-over 7500 total points (AD, AT and IDT)
-have been on orders for the bulk of the last 8 years....only came off orders to do annual tour and IDTs every year.

While on my last set of orders (220 days), injured right foot running, on base, at work. Hurt to walk, so got a referral for on base care...foot Dr recommended surgery...was on a mobility restricting profile prior to surgery....got surgery approx 2 weeks prior to end of orders....submitted LOD paperwork a month before surgery...RMG sat on the LOD paperwork until a week before orders ended, and then sent it back to me while I was on Conv leave....RMG JA "wanted EPTS statement".....Went to Dr, got statement....sent back to RMG.

My orders are now lapsed (ended on the 15th)....apparently RMG/Medcon submitted CMAS request for medcon, but nothing back yet....Local RMG det tells me that 80% of medcon requests are turned down...I consider my case a "no-brainer"....I was on orders for WELL in excess of 31 days.....I HAVE a DLC with block 31 checked on my 469...duration of 6 months.....if I heal, NO need for a board.

Am I missing something? I did have a conversation with a certain SMSgt who informed me I wasn't eligible if I could do "any military duties"...ie if I could get to work on crutches and sit at a computer...I'm not eligible, and shouldn't get medcon....and I could apply for incompat pay...I called him out on it on the spot. They have even really tried to hep me out by offering up a participation waiver while my medcon orders are pending....WHAT A BARGAIN!!!! I turned that one down flat....THANK YOU VAJUMPER!!

I have the complete support of my SES boss. Is there anything I need to be concerned about?
 

VAJumper

Moderator
PEB Forum Veteran
The laws and regs are clear--you are supposed to remain on orders until your condition can no longer be materially improved or you are processed through the DES. They don't however, follow that and adapt policies contary to DOD directives and law. Two people from this site have filed for wrongful termination in federal claims court. One was placed on orders since he met the "sanctuary provisions" which it appears you do to. He just retired. "MAC", any guidance for this gent? The second is filing his case on his own since he doesn't have an attorney.

Please review this document I uploaded which contains all the applicable regulations and law. I was completely disabled at home for 7 months and not on orders or receiving any pay whatsoever. They offered me the participation waiver too, which only applies to those who need to obtain 50 points for a "good year" and those who have little to no disability.

Incapacitation pay must be requested by the individual after he/she declines active duty order entitlements. They've got a SRNCO at RMG who likes to play doctor and make decisions that are well above his level of responsibility. He even had the gall to sign four of my LODs where the physician is supposed to sign and placed incorrect speculation as to the cause of my conditions (ie claimed gout was caused by inactivity). They're still breaking the law down there and will continue until a federal case is finally won which enforces exisiting law.

AFRC IG COMPLAINT - Downloads - Physical Evaluation Board Forum

Don't forget to take the POLL: http://www.pebforum.com/f47/arc-des-issues-congressman-wittman-7-may-10-a-19025/#post55796
 

Jason Perry

Benevolent Leader
Site Founder
Staff Member
PEB Forum Veteran
Registered Member
89Falcon,

The need for an MEB is usually what trips the entitlement to stay on orders. So, ideally, you would have had 37, rather than 31, checked on your AF Form 469. I think I would look at whether your condition should have triggered an MEB in the first place to see if you have a clear cut entitlement to stay on orders. One thing that concerns me is that if you are being told to apply for INCAP pay, it would indicate to me that you can't perform your duties at the moment. Why did they end your orders ?(It sounds like in the past they re-issued orders, minus breaks for AT and IDT...this all sounds fishy to me, by the way. I have seen some reserve units use orders for contingencies in order to support an organic training, non-contingency mission....and then require folks to pull additional reserve duty. There are potential issues with this practice, though, they generally don't give rise to additional entitlements for members who fall into this category). Were you scheduled to go back on orders? I don't get why, if your condition was not clearly going to interfere with duty performance, they cut off follow on orders. Seems to me they were indicating you actually had a questionable case...and needed an MEB.

Seems to me that you can wait to see if they approve MEDCON orders. If they do, then you are in good shape. Having an SES with your back doesn't hurt things, obviously. Maybe, with his support, they can cut regular orders for you? Have you explored this?

The best news is that no matter what, with your current points, you will get no less than an active duty retirement. Your 7500 pts, divided by 360 gets you to 20.83 years. Of course it is beneficial to have more points/time in service, but it is a huge benefit to have gotten to 20 because you will get no less than 50% of your retired base pay and be eligible for CRDP.

Hope all goes well for you!
 

Ruptured Duck

Moderator
PEB Forum Veteran
What they are doing is totally illegal. They just want you to go away. Since the majority of ANG/ARC they unlawfully terminate from orders after an injury do nothing they expect you to do the same. That's the game they play.

Your job now is to force them to follow the law and place you back on orders.

I sent you a contact number in the private messages.

We (Jason, VA Jumper) will show you how to do it.

-duck
 

Ruptured Duck

Moderator
PEB Forum Veteran
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.
 

Ruptured Duck

Moderator
PEB Forum Veteran
1. What concerns me is the statement from your local JAG about your LOD being EPTS...that's BS.

You fall under what is called "The eight year rule"...

TITLE 10 > Subtitle A > PART II > CHAPTER 61 > § 1207a

(a) In the case of a member described in subsection (b) who would be covered by section 1201, 1202, or 1203 of this title but for the fact that the member’s disability is determined to have been incurred before the member became entitled to basic pay in the member’s current period of active duty, the disability shall be deemed to have been incurred while the member was entitled to basic pay and shall be so considered for purposes of determining whether the disability was incurred in the line of duty.

(b) A member described in subsection (a) is a member with at least eight years of active service.


2. One thing you also need to be aware of. If for some reason they enter you in the PDES to medically separate you, you will be retired based on your total retirement points and not on your TAFMS (active duty).

7200 reserve points works out to 20 years IAW 10 USC Chapter 61 1208b

§ 1208. Computation of service

(a) For the purposes of this chapter, a member of a regular component shall be credited with the service described in paragraph (1) or that described in paragraph (2), whichever is greater: (1) The service that he is considered to have for the purpose of separation, discharge, or retirement for length of service.
(2) The sum of— (A) his active service as a member of the armed forces, a nurse, a reserve nurse, a contract surgeon, a contract dental surgeon, or an acting dental surgeon;
(B) his active service as a member of the National Oceanic and Atmospheric Administration or the Public Health Service; and
(C) his service while participating in exercises or performing duties under sections 502, 503, 504, and 505 of title 32.
For the purpose of paragraph (2), active service as a member of the National Oceanic and Atmospheric Administration includes active service as a member of the Environmental Science Services Administration and of the Coast and Geodetic Survey.



(b) A member of the armed forces who is not a member of a regular component shall be credited, for the purposes of this chapter, with the number of years of service that he would count if he were computing his years of service under section 12733 of this title.
 

89Falcon

PEB Forum Regular Member
PEB Forum Veteran
Well, over a week after my MPA orders ended, I got this:

"The MEDCON request was declined by AFMOA with the following justification: ** Request Declined To Submitter** Because: Per A1, Information provided does not support placing member on MEDCON orders. To constitute a physical disability, the medical impairment or physical defect must be of such a nature and degree of severity as to interfere with the member`s ability to adequately perform his or her (military) duties`. AFMOA must clearly communicate in their validation statement the degree of severity of the medical condition and how such impairment renders the member unable to perform military duties. The Line of Duty condition must be medically severe enough that a level of incapacitation exists that renders the member physically unable to perform military duties. If the member can perform military duties but cannot return to their civilian job they may be eligible for incapacitation pay IAW SAF/MR policy letter 7 Jan 05 and DODD 1241.1 and DoDI 1241.2. This case is declined at this time. Please let me know if I can be of any additional assistance. Thank you."

I'm on a PROFILE that prevents me from DOING MILITARY DUTIES!!!

YGTBFSM!!
 

Jason Perry

Benevolent Leader
Site Founder
Staff Member
PEB Forum Veteran
Registered Member
I hate reading things like this....The problem is they are using non-sensical definitions that are irrelevant to their decision. They are mixing up concepts and using the wrong definitions. Now, if you were cynical, you would say that this is a tactic; using erroneous definitions and standards and then saying you don't meet them, thereby making you confused about the real standards and tricking you into wasting time and energy in what then becomes a war of attrition.

Seems clear you are due Incapacitation pay. That is the least desirable compensation, though. I think your issue lies with whether you have a condition that should be subject to MEB. If so, then you should stay on orders.
 

89Falcon

PEB Forum Regular Member
PEB Forum Veteran
I hate reading things like this....The problem is they are using non-sensical definitions that are irrelevant to their decision. They are mixing up concepts and using the wrong definitions. Now, if you were cynical, you would say that this is a tactic; using erroneous definitions and standards and then saying you don't meet them, thereby making you confused about the real standards and tricking you into wasting time and energy in what then becomes a war of attrition.

Seems clear you are due Incapacitation pay. That is the least desirable compensation, though. I think your issue lies with whether you have a condition that should be subject to MEB. If so, then you should stay on orders.
Yep....I especially like this part:
"to constitute a physical disability, the medical impairment or physical defect must be of such a nature and degree of severity as to interfere with the member`s ability to adequately perform his or her (military) duties`."

So that makes me ask a couple questions....
1. Where did that little nugget come from? why it's part of the definition of physical disability.....
2. So is deploying, running, completing at PT test, ect NOT military duties? So being on crutches DOESN'T interfere with mil duties? Wow....
3. So how is a blurb contained in the regs governing med board actions relevant to someone not currently scheduled for a med board.....
 

Ruptured Duck

Moderator
PEB Forum Veteran
"The MEDCON request was declined by AFMOA with the following justification: ** Request "Declined To Submitter** Because: Per A1, Information provided does not support placing member on MEDCON orders. To constitute a physical disability, the medical impairment or physical defect must be of such a nature and degree of severity as to interfere with the member`s ability to adequately perform his or her (military) duties`. AFMOA must clearly communicate in their validation statement the degree of severity of the medical condition and how such impairment renders the member unable to perform military duties. The Line of Duty condition must be medically severe enough that a level of incapacitation exists that renders the member physically unable to perform military duties. If the member can perform military duties but cannot return to their civilian job they may be eligible for incapacitation pay IAW SAF/MR policy letter 7 Jan 05 and DODD 1241.1 and DoDI 1241.2. This case is declined at this time. Please let me know if I can be of any additional assistance. Thank you."

THIS IS THE SECOND TIME I'VE SEEN THIS EXACT QUOTE USED TO DENY AN INJURED AIR FORCE MEMBER MEDCON ORDERS.

This is a canned response that they are using. There is no such thing as a coincidence.
 

Ruptured Duck

Moderator
PEB Forum Veteran
"They" are deliberately cherry picking and miss-quoting the DoD's to unlawfully deny Air Force Members medical continuation orders.

Here's what the DoD actually states:

DoDD 1241.1 Reserve incap pay: DoDD 1241.01 Reserve Component Medical Care and Incapacitation Pay for Line of Duty Conditions (150.1 KB)

1. REISSUANCE AND PURPOSE This Directive:

1.1. Reissues reference (a) to update policies and assign responsibilities under references (b), (c), and (d), to authorize medical and dental care for members of the Reserve components who incur or aggravate an injury, illness, or disease in the line of duty, and provide pay and allowances to those members while being treated for or recovering from a service-connected injury, illness, or disease, or who demonstrate a loss of earned income as a result of an injury, illness, or disease incurred or aggravated in the line of duty.

1.2. Establishes policies for ordering a member to active duty or continuing a member on active duty, with the consent of the member, to receive authorized medical care, to be medically evaluated for disability or other purposes, or to complete a required Department of Defense (DoD) healthcare study, which may include associated medical evaluation of the member.

1.3. Establishes policies for ordering a Reserve component member to active duty or continuing the member on active duty while being treated for (or recovering from) an injury, illness, or disease incurred or aggravated in the line of duty.

1.4. Authorizes the issuance of DoD Instruction 1241.2 (reference (e)), to prescribe procedures for the management of the Reserve component member who incurs or aggravates an injury, illness, or disease in the line of duty.

3. DEFINITIONS

3.1. Incapacitation. Physical disability due to injury, illness, or disease that prevents the performance of military duties as determined by the Secretary concerned, or which prevents the member from returning to the civilian occupation in which the member was engaged at the time of the injury, illness, or disease.

3.2. Line of Duty. A finding after all available information has been reviewed that determines an injury, illness, or disease was incurred or aggravated as a result of military duty not due to gross negligence or misconduct of the member. This includes a Reserve component member on inactive duty training, funeral honors duty, traveling directly to or from such duty or training, or while remaining overnight, immediately before the commencement of or between successive periods of such duty.

3.3. Military Duties as Determined by the Secretary Concerned. The duties of a Service member's office and grade, and not necessarily the specialty or skill qualification held by the member prior to incurring or aggravating an injury, illness, or disease in the line of duty.

4. POLICY

It is DoD policy that:

4.4. Reserve component members who have been continued on active duty for medical reasons for more than 30 days are entitled to medical and dental care on the same basis as a member of the regular component.

4.5. The Military Departments shall authorize pay and allowances, to the extent permitted by reference (c), for a Reserve component member who is not medically qualified to perform military duties, as determined by the Secretary concerned, because of an injury, illness, or disease incurred or aggravated in the line of duty, or to provide pay and allowances to a member who is fit to perform military duties, but experiences a loss of earned income because of an injury, illness, or disease incurred or aggravated in the line of duty. This is commonly referred to as incapacitation pay.

4.6. Where applicable, a line of duty determination approved by the Service component designated authority shall serve as basis for eligibility and continuation of medical and dental care and incapacitation benefits.

4.7. Medical and dental care authorized under this Directive shall be provided until the member is fit for duty, or the condition cannot be materially improved with continued treatment and the member has received a final disposition under the Disability Evaluation System, as prescribed in DoD Directive 1332.18 and DoD Instruction 1332.38 (references (f) and (g)).


DoDI 1241.2 (30 May 2001): Reserve Component Incapacitation Pay Management (30 May 2001) (109.6 KB)

6.6.3. Active Duty for More Than 30 Days

6.6.3.1. A Reserve component member who has been ordered to active duty under subparagraph 6.6.1. or subparagraph 6.6.2.1., above, or has been continued on active duty under subparagraph 6.6.1. or subparagraph 6.6.2.2., above, so as to result in a continuous period of active duty of more than 30 days, is entitled to medical and dental care on the same basis and to the same extent as a member covered under Section 1074(a) of reference (b).

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.
 

Ruptured Duck

Moderator
PEB Forum Veteran
Several people (including Rowdy) are now at this time trying to find a copy of "SAF/MR policy letter 7 Jan 05" IF it still exist.

However, in the mean time look at this I found and stole off the web...

Policy Letter Information and Example

Policy Letters

AFI 33-360, Publications and Forms Management, states in Para 2.7: "Policy Letters, standard memoranda, guides, and bulletins are not recognized as part of the publishing program so are not considered official guidance; attempts to issue guidance in ?policy letters, standard memoranda, guides, or bulletins only create conflicts with official guidance. Commanders/Directors must refrain from issuing these types of documents if their intent is to require implementation or compliance. Official guidance must be established in a publication type described in this Instruction and processed accordingly."

What I understand this to mean is that:

  • Policy letters are not recognized as an authority requiring compliance.
  • Policy letters should not be written to establish authority for compliance.
  • Policy letters may be written to clarify issues not described in enough detail in Air Force pubs or to provide local guidance.
  • Not being part of the Air Force publishing program, policy letters are not subject to the rules guiding that program (my opinion).

Although AFI 33-360 claims policy letters are not part of the publishing program, AFI 33-361 contains guidance for Policy Memorandums.


Policy Memorandums

See AFI 33-361, Publishing Process and Procedures Attachment 3 and 4. It lists examples of "Policy Memorandums" which are documents issued at the HAF and Field Level and lists the requirement (in the example attachment) to include the statement, "The directions of this memorandum become void after 180 days have elapsed from the date of this memorandum, or upon publication of an Interim Change or rewrite of the affected publication, whichever is earlier." and cites AFI 33-360, Para 2.12.5.2.13.2 as the authority.


It looks like the 180 day lifespan applies to Policy Memorandums but not Policy Letters. Somebody correct me if I'm wrong."
 

Ruptured Duck

Moderator
PEB Forum Veteran
The question now becomes by what authority (or by whom) allows someone at AFMOA to dismiss Primary Federal Law (United States Code), Secondary Law (DoD Directives and Instructions) and Tertiary Law (Air Force Instructions- AFI's) and use a "Policy Letter" to unlawfully discharge someone?
 

Ruptured Duck

Moderator
PEB Forum Veteran
As of 11 April 2011:

AFI 33-360 Paragraph 2.7 Page 39 Note 2:

"Policy Letters" standard memoranda, guides, and bulletins are not recognized as part of the publishing program so are not considered official guidance; attempts to issue guidance in "policy letters", standard memoranda, guides, or bulletins only create conflicts with official guidance. Commanders/Directors must refrain from issuing these types of documents if their intent is to require implementation or compliance. Official guidance must be established in a publication type described in this Instruction and processed accordingly.
 

Renoload

Member
Registered Member
I'm a MSgt Loadmaster with the NVANG. I was injured on March 19th during a flight in Afghanistan. An LOD was completed and approved. A request for Med Con has been denied twice even though I'm receiving treatment. A Guard LtCol named Armbruster at Scott is the denying individual. I have an e-mail from Col Wyrick (the Guard Surgeon General) who disagreed with AFMOA and said I should receive Med Con. My command went from "we'll fight to the end" to "oh well we tried" after the OG spoke to someone high up at Scott. I have contacted Matt at Sen. Harry Reid's office who is investigating the matter. Everyone needs to file a complaint with their Senator / Congresman if we want to fix the problem.
 

Ruptured Duck

Moderator
PEB Forum Veteran
Actually no...

You need to file for wrongful discharge in the United States Court of Federal Claims (USCFC) against the United States aka United States Air Force...
 

89Falcon

PEB Forum Regular Member
PEB Forum Veteran
The plot thickens.....

I was given this reference as justification:

DoD 7000.14-R, VOLUME 7A, CHAPTER 57
“RESERVE ENTITLEMENTS FOR ACTIVE DUTY (NOT EXTENDED)”
570604

C. Termination of Pay and Allowances. Subject to the provisions in Table 57-3, a member’s entitlement to pay and allowances while disabled terminates upon:
1. Retirement.
2. Separation for physical disability.
3. Determination by Military Service medical personnel that the member has recovered sufficiently to perform normal military duties, or when actually restored to normal military duties, whichever occurs first. A member must submit to timely Service medical examination(s) necessary for preparation of required medical certificate(s) in order to extend entitlement to pay and allowances beyond the ordered duty or training period. This provision does not apply to Table 57-3, rules 2, 5, and 8 since the member’s entitlements therein are based upon lost civilian income. Civilian earned income does not include retirement income.



Ironically, their own resource now provides an even lower threshold for receiving medcon orders.....ability to perform "NORMAL" military duties.....not "any" military duties, but NORMAL military duties!

They are doing their own creative interpretation of "military service medical personnel"......they take that to mean the nurses on staff at AFMOA.....even if their professional judgement is at odds with the judgement of a AF Col and Dr with over 20 years in uniform.....
 

Maxschnell

PEB Forum Regular Member
I got pretty lucky since my MEDCON request was just approved for ulcerative colitis. Not sure how or why mine was approved when others who have more serious issues were not. The approval came unexpectedly after three months and I was given back pay.*

My issue now is my RMG supt who says I'm not eligible because I'm not debilitated and cites my current civilian job as justification that I've returned back to the state to where I can perform my primary duties.*My division hired me as a contractor when my orders ended btw.

The MEDCON POC concurred and gave me this response:
"[She] is correct; MEDCON orders are for members that are debilitated
to the point they cannot perform their primary duties.
Since you were able to work in a civilian capacity then the Line of Duty is
sufficient to cover your medical entitlements.
If you have any work days missed due to health appointments then you may
file for incapacitation pay to cover your loss of wages."*

This is subjective and not IAW the law and regulations, think we have already agreed on that.

Since I have an approved CMAS should I still request orders in AROWS? I'm thinking I will need the rejection of my approved orders for my case down the road.*
 
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