Jason Perry
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The attached case is a major AFBCMR decision concerning MEDCON orders/separation from active duty while needing MEB/PEB processing.
I was the attorney in this case (and while I have my client's permission to publicly discuss this case, I have redacted his name from the decision). Essentially, my client was released from active duty orders in March 2010, and was found unfit by the IPEB in August, 2010. He was ultimately permanently retired for disability by the AF on 24 SEP 2010. We filed suit in the Court of Federal Claims in December, 2010. The case was remanded to the AFBCMR by the court. A few days ago, the AFBCMR ruled in my client's favor and found he was improperly separated from active duty. He is being credited with the active duty pay and allowances between his separation and ultimate disability retirement. (Please note that the outcome in this case does not mean that anyone will reach a similar result- the specifics of each case will determine the outcome).
What is important to note is that the Reserve Command Office of the Surgeon General recommended denial based on a policy memo, while the The Judge Advocate General of the Air Force (Administrative Law Division), agreed with my argument that the policy memo contradicted superior statutory and regulatory provisions:
"AF/JAA indicates the applicant's request for back-dated orders
to satisfy pay and allowance benefits was inappropriately
recommended for denial by AFRC/SG. To the extent the 2 0 0 6
AF/RE Policy memo, Change to AFMAN 36-8001, contradicts DODI
1241.2, paragraph 6.6.3.2., AFI 36-3212, paragraph 8.6.2, or
AFI 36-8001, paragraph 1.6.3., it is invalid. Both DoDI 1241.2
and AFI 36-3212 dictate that a reserve member on active duty
under order to active duty specifying a period of more than
30 days, who incurs or aggravates an injury, illness, or
disease in the LOD shall be continued on active duty until the
member is determined fit for duty or the member is separated or
retired as a result of the Disability Evaluation System (DES).
While paragraph 6. 6. 3. 2 of DoDI 1241.2 does not specifically
provide that the members of the DES make the "fit for duty"
determination, the paragraph's clear intent is that a member
undergoing a DES remains on active duty until the results of
the DES are known. In this case, AFRC/SGP' s decision to deny
the applicant's request for medical continuation orders was
based upon AFRC/SGP's determination the applicant was able to
perform military duty, effective 18 Mar 10. However, this
decision was not made as a result of the DES, since the DES did
not make its decision until 13 Aug 10. In addition, the
individual who made the "fit for duty" determination was not a
member of the DES; he was, instead, an AFRC/SGP physician.
Finally, the applicant's orders were terminated on 28 Mar 10 by
AFRC/SGP, well prior to a final disposition by the DES on
13 Aug 10."
The BCMR agreed with me and the AF/JAA and recommended my client be credited with active duty pay and allowances between his separation from active duty and ultimate disability retirement.
This AFBCMR decision stands for the proposition that the AFRC/SG (and often, AFMOA) cannot contradict superior regulations requiring retention of reservists on active duty for DES processing and separate reservists from active duty prior to disposition of their Disability Evaluation System case. This is an important decision that potentially will impact many AFRC/ANG members.
I will comment further on the implications in the future, however, I wanted to get this case "out to the field" as soon as possible.
I was the attorney in this case (and while I have my client's permission to publicly discuss this case, I have redacted his name from the decision). Essentially, my client was released from active duty orders in March 2010, and was found unfit by the IPEB in August, 2010. He was ultimately permanently retired for disability by the AF on 24 SEP 2010. We filed suit in the Court of Federal Claims in December, 2010. The case was remanded to the AFBCMR by the court. A few days ago, the AFBCMR ruled in my client's favor and found he was improperly separated from active duty. He is being credited with the active duty pay and allowances between his separation and ultimate disability retirement. (Please note that the outcome in this case does not mean that anyone will reach a similar result- the specifics of each case will determine the outcome).
What is important to note is that the Reserve Command Office of the Surgeon General recommended denial based on a policy memo, while the The Judge Advocate General of the Air Force (Administrative Law Division), agreed with my argument that the policy memo contradicted superior statutory and regulatory provisions:
"AF/JAA indicates the applicant's request for back-dated orders
to satisfy pay and allowance benefits was inappropriately
recommended for denial by AFRC/SG. To the extent the 2 0 0 6
AF/RE Policy memo, Change to AFMAN 36-8001, contradicts DODI
1241.2, paragraph 6.6.3.2., AFI 36-3212, paragraph 8.6.2, or
AFI 36-8001, paragraph 1.6.3., it is invalid. Both DoDI 1241.2
and AFI 36-3212 dictate that a reserve member on active duty
under order to active duty specifying a period of more than
30 days, who incurs or aggravates an injury, illness, or
disease in the LOD shall be continued on active duty until the
member is determined fit for duty or the member is separated or
retired as a result of the Disability Evaluation System (DES).
While paragraph 6. 6. 3. 2 of DoDI 1241.2 does not specifically
provide that the members of the DES make the "fit for duty"
determination, the paragraph's clear intent is that a member
undergoing a DES remains on active duty until the results of
the DES are known. In this case, AFRC/SGP' s decision to deny
the applicant's request for medical continuation orders was
based upon AFRC/SGP's determination the applicant was able to
perform military duty, effective 18 Mar 10. However, this
decision was not made as a result of the DES, since the DES did
not make its decision until 13 Aug 10. In addition, the
individual who made the "fit for duty" determination was not a
member of the DES; he was, instead, an AFRC/SGP physician.
Finally, the applicant's orders were terminated on 28 Mar 10 by
AFRC/SGP, well prior to a final disposition by the DES on
13 Aug 10."
The BCMR agreed with me and the AF/JAA and recommended my client be credited with active duty pay and allowances between his separation from active duty and ultimate disability retirement.
This AFBCMR decision stands for the proposition that the AFRC/SG (and often, AFMOA) cannot contradict superior regulations requiring retention of reservists on active duty for DES processing and separate reservists from active duty prior to disposition of their Disability Evaluation System case. This is an important decision that potentially will impact many AFRC/ANG members.
I will comment further on the implications in the future, however, I wanted to get this case "out to the field" as soon as possible.