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

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
 
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BoSox,

It is very common (especially from what I have seen in the AF Reserve Components), for units to suggest that they can cut members who are injured on orders of 31 days or more. They can't. The law that prevents them from doing so is the Military Pay Act, 37 U.S.C § 204. The Military Pay Act provides that a reservist who is disabled while on active duty is entitled to the pay and allowances of a member of a regular component with a corresponding grade and length of service.

It is also common for the unit to use some kind of pressure or to suggest that the member has to "contract" or agree to do something in order to get their orders. I have fought this several times with units and commands. They oftentimes do not understand or get this wrong because they "have always done it" one way or another. If the unit does not get it, then you can sue directly in the US Court of Federal Claims.

Best of luck, I hope your surgery goes well, too!
 
BoSox,

How did this turn out for you? An LOD was completed for my back in 2010 and since I returned from Iraq in worse shape earlier this year, the doc has determined I am unfit. I was forced off of orders (I tried to fight it) and now that I found someone down at Lackland that is willing to push my MEDCON orders once I go into the DES, the question will come up about AD Sanctuary. I am nearing the 18 year AD Sanctuary zone. Did you sign a waiver for MEDCON orders?

Does anyone know if there is any guidance out there I can take to my unit showing I do not have to sign a waiver when it comes time to submit the orders request in CMAS?
 
I look at it the other way- the entitlement to remain on active duty if you were disabled with an LOD condition states nothing about Sanctuary waivers. But, if they "won't" place you on orders if you don't sign the waiver, then you are stuck with fighting out your entitlement. As an aside, though, Sanctuary won't save you from separation or retirement if you are unfit, so in some cases, it may be a non-issue in the big picture.
 
rickman said:
BoSox,

How did this turn out for you? An LOD was completed for my back in 2010 and since I returned from Iraq in worse shape earlier this year, the doc has determined I am unfit. I was forced off of orders (I tried to fight it) and now that I found someone down at Lackland that is willing to push my MEDCON orders once I go into the DES, the question will come up about AD Sanctuary. I am nearing the 18 year AD Sanctuary zone. Did you sign a waiver for MEDCON orders?

Does anyone know if there is any guidance out there I can take to my unit showing I do not have to sign a waiver when it comes time to submit the orders request in CMAS?
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The sanctuary reg just changed.....AFI 36-2131

2.4. Continuation for Medical Evaluation: The ability to recall or continue a Reserve Component (RC) member for medical evaluation under Title 10 USC § 12301(h) is independent from the member’s sanctuary right under Title 10 USC § 12686.
2.4.1. If a RC member is placed on Title 10 USC § 12301(h) orders and has 18 but less than 20 years of active duty service, the member is requested to process a sanctuary waiver while under medical treatment (attachment 3 or 4 as applicable).
2.4.2. If the continued medical care or recall for medical evaluation occurs during the period of an already established sanctuary waiver period, the member is not required to process another sanctuary waiver unless the Title 10 USC § 12301(h) orders will take the member beyond the previously established waiver period. If the continued medical care or recall for medical evaluation occurs during the period of the waiver, the member may not claim sanctuary.
2.4.2.1. If the medical evaluation finds the member medically unfit for duty he/she would be processed for a medical evaluation board review under Reserve regulations and the authority of the Secretary. If the member is not medically disqualified and does not have a waiver in place, he/she would continue on AD under the terms of the 12301(h) AD order.


Sounds to me like the AF WILL ask you to sign one....but CAN'T force you. If you do sign it, they'll try to hold you to it....personally, I don't think the reg is legal...But I wouldn't want to be the guy who has to fight it in court. Best thing to do is get them to commit to orders, THEN try to make you sign a waiver.
 
89Falcon,

Thanks for pointing me to the new reg. If my Sanctuary right is INDEPENDENT (meaning separate) from MEDCON orders, then signing a sanctuary waiver is not a condition for being put on MEDCON orders, right? If I am correct, I can see a disagreement down the road with my unit and my command about this.
 
Rickman, (Falcon, BoSox,),

We had this issue with one of my guys at the 105th AW. (Jason helped/advised me with it). The ANG Service Member (SMSgt C5 FE) was on Title 10 U.S.C. He called me at the end Dec. 2009 while Jason and I were working on my complaint to the USCFC (almost two years into my MEDCON issues), complaining about diabetic symptoms. At that time he had 17 years 9 months AD on the books and was on a current MPA order 10 USC 12301 (d) 1 Oct 2009 to 30 March 2010. He had signed a sanctuary waiver for that current set of orders.

As usual with most SM, he didn't want to report anything because he knew that the "usual idiots" in medical at the 105th and the moron we had as a CO (a United pilot sucking up all the AD he could, who BTW, ran away from the ANG when the anthrax shots started up and then came crawling back when United went bankrupt), would kick him off AD and then out of the Guard before he could get to 20 years AD.

After almost a month of arguing with him I finally convinced him he had to go and take care of himself and get medical treatment, which he did. He was diagnosed with diabetes and was in critical shape. That was 5 February 2010. I knew that once his MPA ended (12301 (d)) they would have to issue medcon orders (12301 (h)). I instructed him in no uncertain terms that no matter what, he was not to sign another sanctuary waiver.

My intention was for him to declare sanctuary as soon as the mecon orders were issued. However, since he got the medcon orders 1 April 2010 and my case was in the spot light before the USCFC, I decided not to have him declare sanctuary right away and decided to wait until we felt it was necessary.

As a indirect result of my case, once they were forced to return me to duty retroactively after 6 months and $68K in back pay, the Defense (EG United States aka USAF), stated in one of their arguments to dismiss my case, I was already in sanctuary and their was no chance for the AF to make "this error" again. (That just show's the absolute disconnect between what is suppose to happen and what actually does happen out in the ARC world). To support their claim they cited the newly minted ANGI 36-101, the AGR instruction with the sanctuary provisions just put in. Since I was not a AGR and not on 32 USC 501, the ANGI didn't apply to me but since they made the claim and I believe the ANG put it in because of my case, Jason and I believed it would be a good time to declare sanctuary for the aforementioned SM on 26 July 2010, while he was on the current medcon orders which we did and gave the package to his worthless/toxic CO. I knew fully well that this moron would sit on the package and when the time came, I could smack him and them hard once they realized he was in sanctuary and they would try (as they always do), to try to kick him off AD before he went to a MEB.

That eventuality came in September 2010, when the AD people tried to make it a condition for his next set of orders that he sign a sanctuary waiver and his twit CO tried then to make him sign a waiver knowing fully well that the SM had already declared sanctuary and he (the CO) was illegally sitting on the package. (As a side note, I already had shown what a miserable lying worm this guy's CO was in several other actions).

At that time I put together a complaint for the SM to give to the CG (another even more useless officer) and made it clear that the SM had already declared sanctuary and that his CO was deliberately sitting on it. This was three days before his medcon orders were to have ended. He had his new orders in hand 24 hours later...

And then even more magic...the next day he was told to report to McGuire for a MEB the next week.

At this point I need to explain a few things.

As Jason stated, 37 USC 204, aka Military Pay Act, is the law that states if you are on orders for more than 30 days you are considered on AD.

THERE IS A LOT MORE TO THIS STORY AND A LOT MORE TO WHAT THE USEFUL IDIOTS TRY TO DO WITH THIS BUT RIGHT NOW I HAVE TO GET SOME THINGS DONE WHILE THERE"S SOME DAY LIGHT LEFT.

I'll be back later this night to finish the story and explain how afu the AF is and how they try to circumvent the sanctuary law...

I know you guys are going to find it interesting. Btw- I'll send you guys the bs memo they use and the Art 138 complaint this turn into...

btw- my buddy went over 20 last April and is about to retire on AD...and we got to slam a real moron in the process. :cool:
-mac
 
WOW! Characters you are dealing with sounds like some people in my unit and in my wing. Please do provide the "rest of the story"!!! Good read...
 
Has there been any changes in the other services since this post requiring sanctuary waivers for reservists as a condition to extend a Marine on medical hold orders? The Marine Corps recently came out with an opinion in response to an IG complaint that states they can withhold medical hold orders from Marines until the Marine submits a sanctuary waiver and it is approved by Headquarters Marine Corps. They even will demobilize the injured Marine while the sanctuary request is "pending" that approval.
 
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