AFBCMR Claim Forwarded To The Board

So, we are in the same situation. Submitted the original application in November 2014. Received the official correspondence, dated December 16, 2014, that said it was "in the cue." Received our advisory opinions, dated October 27, 2015. The person in charge of sending out correspondence, however, mis-mailed our letter, and we didn't get it until our 30-day window to respond was nearly expired, so we asked for an extension via email (we also needed more time because a FOIA request went unanswered, for like 3 months, and we were waiting for it, as it helped prove our point). Reopened our case and submitted our response to the March 2, 2016. My husband wanted to clarify that they did, indeed, have our correct address on file, and he received this canned response: "Your request is currently undergoing active consideration by the AFBCMR. Because of a number of unpredictable variables and a fluctuating workload, we cannot predict when a particular case will be decided. We can assure you, however, that the Board will process your application as quickly as possible and give it full and fair consideration. You should know that in accordance with our governing statute (10 USC 1557); the AFBCMR must adjudicate 90 percent of its cases within ten months but may take up to 18 months from the date an application was received to render a final decision."

So, we waited. If you calculate the 18 months from December 16, 2014 (date BCMR acknowledged receipt), that would put it at 21 months as of September 16, 2016; subtract the 3 months+1 week we had our case on hold, and that puts it at 18 months as of September 23, 2016. So, we wrote to the generic email once this deadline had passed with no word, and just heard back. But this time they wrote this (slightly edited) canned response:

"Your request is currently undergoing active consideration by the AFBCMR. Because of a number of unpredictable variables and a fluctuating workload, we cannot predict when a particular case will be decided. We can assure you, however, that the Board will process your application as quickly as possible and give it full and fair consideration. You should know that in accordance with our governing statute (10 USC 1557); the AFBCMR must adjudicate 90 percent of its cases within ten months but may take up to 18 months from the date YOUR APPLICATION WAS REOPENED to render a final decision (emphasis added).

So, now their story is that they actually get a total of up to 36 months to render a decision? Seems like they only changed it because we called them on already missing the suspense? My reading of that law is that it is from the time they received the initial application. Is this a bull$(#& and do you think we should we write to our senator, as well?
 
I guess my fear with sending in a Congressional is that they would feel like we're being pushy and if they're on the fence, they'll just find a way to deny out of aggravation of being told they didn't meet the suspense. Our case is a complicated one, but according to a former Army BCMR person, the recommendation, while a denial, was "VERY POSITIVE" and read as though injustice had been done in our case--so we don't want to take any positive momentum away from that. On the other hand, don't want to wait another (potential) 3-11 months, either.
 
Today, someone from the AFBCMR let me know that my claim has been forwarded to the board. I have some concerns/questions that I am hoping some of you excellent guys and gals can help with.

It appears that ARC Case Management is recommending denial for back pay for the times I was taken off orders while receiving medical treatment for Meniere's Disease. Also, the BCMR Medical Consultant is recommending that I be granted the back pay.

Both entities referenced MEDCON policy multiple times when deciding the outcome. The medical consultant did reference DoDI 1241.2 & AFRCI 36-3004, however, he semi-misquoted those regulations to include the words: "affecting duty." Those regs, along with Title 37, Ch 3, Section 204 and AFI 36-3212, do NOT include the requirement that my illness must affect duty in order to be kept on AD orders. However, SAF MEDCON policy does state that the member must be unable to perform military duties in order to obtain MEDCON orders. Doesn't Title 37 law take precedence?

According to the review board office, I have 30 days to include additional info before the board meets on my case. I originally referenced all these regulations in my claim letter and attached the sections of those regulations to my claim package.

My question is: Should I send the regulations (Title 37, DoDI, AFI, AFRCI) to include, even though I already sent them? Or, should I just wait it out and seek legal counsel when/if they deny me? I feel that maybe they will not be included in the package that the board sees and seeing that most of the claims get denied, I want to make sure I get a fair shake at this...

Please see that I have attached the 3 letters I received from AFBCMR, today.

Also, I had other claims in my original BCMR claim. I should have been authorized travel bennies while on AD orders (med consultant mentions this in his letter) and I was not given a retirement ceremony. Awhile back, AFBCMR stated that they do not have authority to order anyone to give me a retirement ceremony, unfortunately.

I asked them, via email, if the travel bennies claim will be handled separately from the back pay claim. Still waiting on their reply.
Looking over the board's statement of facts, they state this:

"According to the applicant's AF Form 938, amended on 3 Sep 13, his Home of Record (HOR) changed to Denver, CO on 16 May 2013."

The Form 938 is the order itself. In the remarks of the order, they stated:

"n. Member just obtained lease for new HOR on 5/16/13 and will be in commuting area. New address is ........"

However, the remarks also state:

"h. For this order, member will depart from Iowa City, IA and return to Iowa City, IA."
 
Hello, I have been looking within the BCMR reading rooms for cases similar to mine..would you be willing to share the outcome of your case or send final findings.....I would like to submitt the cases along with mine to set a precedence for backdated orders re: injuries incurred in the line of duty. I like so many other RC soldiers was not extended on Title 10, 12301(h) medical continuation orders for those injuries. Thanks, Ocean
 
Unfortunately BCMR conditions are not binding or precedent setting onto future decisions; however, they may be useful in lending support to your argument.
 
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