Taken off AD orders, yet LOD still processing.

[Hawkeye99]

Greetings all!
I was hoping someone could provide some guidance on how I should proceed with this. I'll keep it as short as possible.

Started RPA orders 1 Jan 2013. Late January came down with symptoms that ended up being diagnosed as Meniere's Disease. I was taken off orders 19 May 2013 due to a 139 day PCS rule, or at least that is what I was told. I started MPA orders 1 Jun 2013 and continued on those orders through 30 Sep 2013. My LOD began 3 Aug 2013 and at the time my unit CC agreed that I have to be kept on AD orders. Since then, the budget issue, etc. happened & I was taken off MPA orders. My unit CC still agrees that I should be kept on orders, but Wing CC disagrees.

I filed an IG complaint with AFRC IG and a Major with their office initially told me that instructions (DoDI 1241.2, AFI 36-3212, AFRCI 36-3004) don't state that I should be continued on AD status. She stated that I just needed to have my current orders run out IAW those regs. Today she sent me an email stating that because my orders were stopped in May, I have to have an "ALOD" to be placed back on orders. Assuming she means approved LOD based on phone conversation with her. I know that AFI 36-2910 states that the condition is presumed in the LOD until proven otherwise. Seems a little odd that her reasoning changed.

Also: my AD doctor has stated that my condition is clearly in the LOD and did not exist prior to service, yet the Reserve doctor that has never seen me before, apparently put down in writing somewhere that she thinks it is not in the LOD. I know that AFI 36-2910 specifically states that the dr. initiaing the LOD should NOT state whether he/she thinks it is or isn't in the LOD. Not sure if she put this on the LOD form or some other document. My unit CC told me that he was putting in the LOD on the form but couldn't guarantee anything else beyond that point.

My plan as of now is to file with the SECAF IG and write all my congress reps. I'm wondering if I need to contact a lawyer soon or if there is some other avenue I am not thinking of. Anyone have any ideas how to resolve this? Any help/advice will be greatly appreciated.

 

[snag41]

I know from personal experience that without a completed LOD there will be no medical orders. I was on a long term tour several months ago and was taken off orders early because of a medical condition which had existed for several years in my medical records and is potentially unfitting. I already had a VA rating of 30% and service connection, but the clinic still had to initiate the LOD, and when the medical orders were rejected it was b/c there was no LOD. I found it funny that it the medical orders were denied for the lack of LOD, considering I was in actual combat and have two separate awards for valor, not to mention the fact that VA found my condition service connected.

I'm not too familar with the interim LOD, but believe that could've been used at the time to put me on medical orders. However, I have a very strong suspicion (just read some of the posts here) that the Air Force ins't interested in putting anyone on medical orders, and pretty much actively resists all attempts, so even if I had tried for an interim LOD, it still would've been denied for some other reason.

What I've learned since then is that I shouldn't have been taken off orders. The code 37 on the Form 469 only prevents starting a new actie duty tour; doesn't mean you need to end your current tour (as a matter of fact, on an active duty tour of greater than 60 days your MPA tour cannot be curtailed without 60 days notice, unless the reservist agrees to it)! That's from a 2011 or 2012 memorandum signed by the Undersecretary of Defense for Manpower and Reserve Affairs.

Anyway, I'm preparing an appeal to the AFBCMR to correct the record to show that I should not have been taken off orders and to have the record reflect that I served my tour through my original tour end date.

As for your situation, I don't know what to say. I know that the Air Force will only put an airman on medical orders for treatment or to process through the DES. If your case isn't something that may force you out (i.e. might not result in an MEB) then your chances for medical orders are not good. The Air Force will tell you that you can be treated without being placed on orders. Good luck to you.

 

[Hawkeye99]

Thanks for responding. I too have the code 37 on Form 469. The form actually states "This member is undergoing an MEB to determine medical fitness for continued worldwide duty and retention." To my knowledge, the MEB actually hasn't started because the LOD determination isn't complete. The law is clear, I should not be taken off orders. I have a feeling I'm going to have to lawyer up and go to court to get this corrected.

Any idea where I could find that 60 day memo? I still have to file my IG complaint with SECAF IG and that would also be nice to have.

 

[snag41]

I tried looking for the memo just now on google, but couldn't find it. I was at the base when I saw it and I saved it and the link, so the next time I'm there (Tue or Wed), I'll send it to my personal email and will get it to you here. I actually found it by accident, and although it's not central to my AFBCMR argument, I thougt it would be useful to have for the future...

I too was a code 37 from the outset. They still took me off orders. I also filed an IG complaint, but not much came of it. I didn't get to see any of the IG's investigative results, simply an email stating that my case was considered closed and the IG recomended that I seek correction to my record with the AFBCMR. I already knew about the BCMR -- I hoped the IG would provide something with "teeth" such as a conclusion that my case was mishandled, but nothing like that at all. It was pretty unexciting. I did contact my local congressman, but that in itself is a long process. I wound up going back to my civilian job which was fine as I have a pretty good job that pays well, so I really didn't suffer by coming off orders. It's just that it wasn't right how I was treated.

One thing you may want to do is contact the Air Force WWI2 (wounded warrior and injured/illness) program. It's now open to anyone looking at being medically forced out, not just those in combat. They can at least offer you some advice and help to watch out for your case. Same with the Recovery Care Coordinators -- if you're at an active duty base, there should be one at the active duty clinic. Again, they can at least help you out with ideas and suggestions and let you know if they think your case is being mishandled (not that they really have the authority to do anything about it).

 

[snag41]

I couldn't find the memo, even though I saved it. But I did find the AFI which states the same. Look at AFI 10-402, which was updated around 2012. Chap 6.3.6, page 27 states the requirement to give 60 days notice when ending an MPA tour or the reservist needs to agree to it (and it's only required to give the 60 days notice if the original end tour date is changed or amended from the original end date).

As far as teh memo, it was a pdf that I stumbled upon and it was an MPA policy update dealing with leave, etc for reservists on active duty. It stated the same thing as the AFI (or I should say the AFI states teh same thing as the DoD policy, which makes sense).

 

[Jason Perry]

Two options- file an AFBCMR application or sue in Federal Court. (Though, suit in court may well end up with a remand to the AFBCMR).

The AF is really bad about keeping folks on orders. I have had several AFBCMR cases where AFMOA and or SGH cites a bogus policy memorandum as a reason to deny my request for back pay and placement on orders. I have pointed out the discrepancies between these memos/policies and higher authority (including AFIs/DoDIs/and statutes) and have prevailed because the higher authority says folks with a condition incurred on orders of 31 days or more need to be kept on orders until final disposition of their MEB/PEB case. (I have a recent case where the AFBCMR sought advisory opinion from SGH, which recommended denial based on various policies, memos, etc. I responded, pointing out that the cited authorities conflict with applicable higher authority. AFBCMR then sought advisory opinion from Judge Advocate General Admin Law division, which stated that my arguments were correct and the policies conflict with higher authority. AFBCMR ruled in my client's favor).

 

[Hawkeye99]

Snag41,
Thank you finding this. The way it reads, I would think it applies to my situation. I do wonder if they would just say it is only for contingency MPA orders though. Mine were for non-contingency.

Mr. Perry,
I guess the question I have is if the AFBCMR would help me get back on orders or would it only be for obtaining back pay? I've been told that when a budget deal is passed, I will be allowed to be placed back on orders. I'm skeptical of this, but should probably know something tomorrow. Only problem though, is that the orders wouldn't be back dated to 1 Oct.

I think you mentioned before that you were an attorney that dealt with these issues. I'm in Colorado, do you think it would be possible to work on my case if I need to go that route or do you think I should find someone local?

 

[Jason Perry]

Mr. Perry,
I guess the question I have is if the AFBCMR would help me get back on orders or would it only be for obtaining back pay?

You can apply for both.

I think you mentioned before that you were an attorney that dealt with these issues. I'm in Colorado, do you think it would be possible to work on my case if I need to go that route or do you think I should find someone local?

I represent clients world-wide. If you have questions, feel free to send me an email at [email protected].