RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-00653
		INDEX CODE:  108.02
		COUNSEL:  XXXXX

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

Her discharge for misconduct be changed to reflect that she was medically retired.

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APPLICANT CONTENDS THAT:

Based upon all of her medical records, it would appear that she should have been medically retired instead of discharged for misconduct.

In support of her request, applicant provided extracts from her medical records, her active duty training orders, documentation associated with her Medical Evaluation Board  (MEB) processing, her discharge documents, and documentation extracted from her Department of Veterans Affairs (DVA) records.  Her complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 3 Mar 75 and was progressively promoted to the grade of sergeant.  On 4 Apr 80, she was honorably discharged for hardship reasons.  She served 5 years, 1 month, and 2 days on active duty.  

On 1 Oct 91, applicant enlisted in the Air Force Reserves in the grade of sergeant.  On 11 Jan 00, applicant was notified by her commander that he was recommending that she be discharged from the Air Force in accordance with AFI 36-3209, paragraph 3.21.2.2., for a pattern of misconduct.  She was advised of her rights in this matter.  She acknowledged receipt of the notification and requested an administrative discharge board hearing on 19 Jan 00.  On 7 Feb 00, after consulting counsel, applicant waived her right to a hearing before an administrative discharge board on the condition that she receive an honorable discharge.  In a legal review of the case, the Director, Military Law, found the case legally sufficient and recommended that she be discharged with an honorable discharge, without probation and rehabilitation.  On 4 May 00, the discharge authority concurred with the recommendation and directed that she be discharged without probation and rehabilitation.  Applicant was discharged from the Air Force Reserves on 19 May 00.  She completed 12 years, 1 month, and 2 days of satisfactory Federal service.

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AIR FORCE EVALUATION:

AFRC/DPZ recommends denial.  DPZ states that the applicant was discharged for cause on 19 May 00.  The action was taken due to her own misconduct.  Based on her diagnosis of a personality disorder, consideration was given to processing her under the Conditions That Interfere with Military Service, provision of AFI 36-3209.  However, discharge action under that provision is not appropriate if a member's record supports discharge for another reason, such as misconduct.  The documentation she provided does not warrant change in discharge status.  For her conduct, the preponderance of evidence supported the type of discharge provided.  Since the Physical Evaluation Board (PEB) did not find her unfit for duty, but instead cleared her medically to return to military duty, there is no basis for a medical retirement or discharge.  It should be noted that a member should serve satisfactorily for a minimum of 15 years, with the last 6 years of qualifying service in the Reserve component to be eligible for a service retirement for medical reasons.  At the time of her discharge, she served 12 years, 1 month, and 2 days of satisfactory service toward retirement.  Thus, she would not have met the minimum 15 years necessary to be eligible for early Reserve retirement for medical reasons.  The DPZ evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel states that subsequent to her discharge from the military the applicant received s service-connected disability rated at 50 percent.  Such a service connection should be sufficient to allow her medical discharge from the Air Force.  

Applicant states that she never received any letters addressing misconduct or has been counseled.  The administrative discharge action was initiated after she wrote a detailed letter to her Congressman in regards to harassments perpetrated by her commander and is obviously retaliation for her letter.  Applicant rebuts the circumstances surrounding the incidents which led to her discharge and states that she was never advised by the Physical Evaluation Board that she was told to return to duty.  

In support of her request, applicant provided a personal statement, her counsel's brief, documentation extracted from her administrative discharge package, documentation extracted from her Department of Veterans Affairs (DVA) records, documentation extracted from her military medical records.  Her complete submission, with attachments, is at Exhibit E.
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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.  We see no evidence of an error in this case and after thoroughly reviewing the documentation provided in support of her appeal, we do not believe that she has been the victim of an injustice.  We are not persuaded that the actions taken by her commander to affect her discharge were improper or that she abused her discretionary authority in doing so.  With respect to her request that her discharge be changed to reflect that she was medically retired, we note that for an individual to be considered unfit for military service, there must be a medical condition so severe that it prevents performance of any work commensurate with rank and experience.  In this case, her condition did not render her unfit for continued service.  Because a person can acquire physical conditions that, although not unfitting at the time of separation, may later progress in severity and alter the individual's lifestyle, the DVA compensation system was written to allow awarding compensation ratings for conditions that were not unfitting for military service.  This is the reason why an individual with a medical condition that does not render the individual unfit for service at the time of separation can soon thereafter receive a compensation rating from the DVA for the service connected, but not militarily unfitting condition.  In addition, we note that at the time of her discharge, she had only completed 12 years, 1 month, and 2 days of satisfactory service and would not have met the minimum 15 years satisfactory service required by law to be eligible for an early Reserve medical retirement.  Therefore, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  In the absence of evidence to the contrary, we find no basis to recommend the relief sought in this application.

4.  We note that the applicant has indicated that she did not receive a DD Form 214 upon separation and her requests for issuance of a DD Form 214 have gone unanswered.  The DD Form 214, is a Certificate of Release or Discharge from Active Duty.  Since the applicant was discharged from the Air Force Reserves, and not from an active component, issuance of a DD Form is not required.

5.  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 AFBCMR Docket Number BC-2003-00653 in Executive Session on 29 Oct 03, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 21 Aug 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFRC/DPZ, dated 11 Sep 03.
    Exhibit D.  Letter, SAF/MRBR, dated 26 Sep 03.

                                   
                                   Vice Chair