RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: 01-00690

	 	COUNSEL:  

	 	HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His records be corrected to show that he retired for length of service, rather than separated under the Special Separation Benefit (SSB) program, with all benefits and entitlements associated with retirement.

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THE APPLICANT CONTENDS THAT:

At the time of his separation, he was not fully or properly counseled on all of the options available to him (i.e., retirement, early retirement, or medical retirement), and the effect his medical conditions and only six months of retainability would have on his eligibility for programs such as entering the Reserve and on the Enlisted SSB Agreement he signed.  Had he been properly briefed and his commander not wrongfully threatened disciplinary action and misrepresented information regarding his continued eligibility to serve in the Reserve, he would not have separated but instead remained on active duty until he was eligible to retire for length of service.

The applicant states that he was never informed that he had a Reenlistment Eligibility (RE) Code of 4K which appears to be in direct conflict with the SSB contract because he was medically disqualified for continued service and awaiting a Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  He was also never informed that his Medical Record - Narrative Summary, dated 8 August 1994, would be used to determine future entry into the Reserve.  After his separation, he contacted a reserve recruiter and was advised that although his DD Form 214 indicated he was issued an RE Code of 3S, his records contained an RE Code of 4K.  Based on the RE Code of 4K, his less than six months of retainability, and his medical conditions, he was ineligible to enlist in the Reserve.  His SSB processing was completed within 72 hours while he was an inpatient at Tripler Medical Center for treatment of alcoholism and depression.  Furthermore, he never received a separation physical, despite the fact that one was required in accordance with the governing regulation, and only the AFMPC/SGM could waive the physical requirement upon presentation of substantial medical information to warrant changing separation/retirement processing.  

In support of his appeal, the applicant submits extracts from his military records.

Applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 2 June 1975.  He was progressively promoted to the grade of master sergeant.

On 15 June 1994, the applicant took an overdose of alcohol, acetaminophen and codeine-like compound sold over-the-counter in Australia and hooked a garden hose to his automobile exhaust and into the back window of his car.  He left a suicide note that was discovered before he lost consciousness.

As a result of his 15 June 1994 suicide attempt, the applicant was admitted to Tripler Medical Center Psychiatry Center on 18 June 1994.  The principal diagnosis of his condition was alcohol dependence, with nicotine dependence, pathologic gambling, alcoholic pancreatitis (resolving), alcoholic liver disease (resolving), and aortic valve insufficiency.  He successfully completed an intensive inpatient alcoholism rehabilitation program, was declared fit for duty, and was discharged from the medical facility on 5 August 1994.

On 8 August 1994, the applicant signed an Enlisted SSB Agreement whereby he agreed to separate from active duty and accept an enlistment or transfer to a component of the Ready Reserve for a period of three years beyond any existing reserve obligation.  He acknowledged that his date of separation (DOS) from active duty would be 6 October 1994 and he would receive $73,936.80 in special separation pay.

In a letter, dated 8 August 1994, the applicant was advised that a medical examination was required prior to his separation.  By first indorsement, the applicant indicated that he did not desire a medical examination and that his decision would have to be approved by AFMPC/SGM.

The applicant was placed on Permissive Temporary Duty (PTDY) and terminal leave consecutively during the period 10 August 1994 through 5 October 1994.

On 6 October 1994, the applicant was released from active duty and transferred to the Reserve under the SSB program.  He received special separation pay in the amount of $73,936.08, and was issued RE Code 3S.  He completed 19 years and 4 months of active service.

In an application to the AFBCMR, dated 27 April 1995, the applicant requested that his RE Code of 4K be changed to 3S, as indicated on his DD Form 214.  In a letter, dated 23 May 1995, AFMPC/DPMAPE advised the applicant that his RE Code was accurately reflected as 3S (separated under the SSB with a lump sum payment), and they were unable to determine why he was informed that his RE Code was 4K.

The applicant was relieved from assignment and honorably discharged from the Reserve on 6 October 1997.

In a letter, dated 19 June 2000, a Reserve Recruiter indicated the applicant had the following disqualifications, which prevented his enlistment processing into the Reserve:

	a.	Retainability - only 6 months of retainability before 20 years for retirement.

	b.	Suicide attempt - mental health prognosis.

	c.	Holosystolic heart murmur - aortic valve insufficiency.

	d.	Alcohol dependence - narrative summary (final diagnosis).

	e.	Nicotine dependence - narrative summary (final diagnosis).

	f.	Pathologic gambling - narrative summary (final diagnosis).

Applicant’s performance profile, since 1990, follows:

       PERIOD ENDING              EVALUATION OF PERFORMANCE

          1 Apr 90                           5
         14 Jul 91                           5
         14 Jul 92                           5
          8 Mar 93                           5
         31 Oct 93                           5

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AIR FORCE EVALUATIONS:

The BCMR Medical Consultant recommends the application be denied, and states, in part, that it is inconceivable that this very intelligent, well-recognized and decorated senior Noncommissioned Officer (NCO) would not know the advantages and disadvantages of taking an early out vice staying on active duty a few more months to fulfill a 20-year career for length of service retirement.  It is equally inconceivable that personnel in the separation process did not point out the same advantages/disadvantages to him since he was so close to retirement.  On the surface it would appear that the lure of the SSB in the face of his financial problems was the driving force behind his decision to separate when he did, rather than staying to his 20-year point, but this is conjecture, only.  His concern that the RE Code of 4K prevented his return to reserve status was resolved in 1995 but he failed to continue pursuit of reserve status and thereby abrogated his right to return at the later date without having to meet stricter enlistment vice retention medical standards.  The medical conditions that were listed in the narrative summary of hospitalization in August 1994 were not, in and of themselves, necessarily unfitting for continued medical service, and, indeed, had not been shown to have interfered in any way with his duty performance that had remained stellar through his last performance report, dated 31 October 1993.  The evidence of record fails to show that any error or injustice occurred in his separation processing that would support his current request for retirement consideration.

The BCMR Medical Consultant’s evaluation is at Exhibit C.

AFPC/DPPD recommends the application be denied and states, in part, that the applicant has not provided any material or documentation to show why he should be awarded a length of service or disability retirement under current Air Force directives.  The applicant was never referred through the Air Force Disability Evaluation System.  Although he was not provided a separation physical at the time of his release from active duty, the hospital medical summary completed just prior to his approved separation found him fit for duty.

The AFPC/DPPD evaluation is at Exhibit D.

AFPC/DPPRR recommends the application be denied and states, in part, that in the fall of 1992, Congress enacted legislation and the Secretary of Defense approved the use of provisions to retire members from the active military with as few as 15 years of creditable active service.  This temporary legislation was a force-shaping drawdown tool and not an entitlement, i.e., all members meeting minimum eligibility criteria may not necessarily apply.  The legislation clearly permitted each service to target segments of its eligible population where it would most like to have losses occur.  In addition, under the FY94 Voluntary Early Retirement Program enlisted members below the grade of chief master sergeant at Continental United States (CONUS) bases or units that were publicly announced to close in FY94 were eligible to apply.  Since the applicant was stationed at Hickam AFB, HI, he was not eligible to apply for early retirement.  However, he was eligible to apply under the eligibility criteria for the SSB program.  When enlisted members applied for separation under the SSB, they had to have the commander’s recommendation.  They rely on commanders to question the decision of a member when they have over 19 years of service.  They deduce that the applicant was fully aware of his decision to separate.

The AFPC/DPPRR evaluation is at Exhibit E.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

Complete copies of the Air Force evaluations were forwarded to the applicant on 17 August 2001 for review and response within 30 days.

Per the applicant’s 12 September 2001 request, on 21 September 2001, his application was administratively closed until such time as he was ready to proceed.

In an application to the AFBCMR, dated 6 October 2002, the applicant designated counsel and indicated that he desired for his case to be reopened.  The applicant states that his commander compelled him to separate under the threat of disciplinary action under the Uniform Code of Military Justice (UCMJ) and administrative discharge action.  His commander either deliberately or recklessly provided misinformation to him about his ability to continue his career in the Reserve.  Had his commander not done so, he would have remained on active duty until he was eligible for retirement for length of service.

In further support of the appeal, the applicant submits statements from his former commanders in Australia who state that when they approached the 6005th AIRPS commander and told him of the applicant’s desire to remain in the Air Force, they were told that he could not remain on active duty, and if he chose to do so, he would have administrative action which would affect his retirement.

The applicant’s complete responses, with attachments, are at Exhibits I and J.

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  After a thorough review of the evidence of record and applicant’s submission, we are not persuaded that he was incapable of making a reasoned decision at the time he chose to separate under the SSB program, or that he was not aware of the consequences of his decision.  The statement from the applicant’s former immediate commander is noted; however, this statement, in and of itself, does not convince us that he has been the victim of an error or injustice.  It appears that based on the applicant’s financial situation at the time, he chose to take the lump sum payment under the SSB program, and now seeks to change his decision.  The offices of primary responsibility have adequately addressed applicant’s contentions and we agree with their opinions and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden that he has suffered either an error or an injustice.  Hence, we find no compelling basis to recommend granting the relief sought.

4.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered Docket Number 01-00690 in Executive Session on 13 February 2003 under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 5 mar 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, BCMR Medical Consultant, dated 27 Jun 01.
    Exhibit D.  Letter, AFPC/DPPD, dated 19 Jul 01.
    Exhibit E.  Letter, AFPC/DPPRR, dated 13 Aug 01, w/atch.
    Exhibit F.  Letter, SAF/MRBR, dated 17 Aug 01.
    Exhibit G.  Letter, Applicant, dated 12 Sep 01.
    Exhibit H.  Letter, AFBCMR, dated 21 Sep 01.
    Exhibit I.  DD Form 149, dated 6 Oct 02, w/atchs.

                                   
                                   Panel Chair