RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-03071
		INDEX CODE:  129.04
		COUNSEL:  NONE

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His records be changed to reflect that he was retired effective 31 Aug 86 and he receive all back pay and allowances.

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APPLICANT CONTENDS THAT:

Title 10 USC states that any member with between 18 and 20 years of service be retained until qualified for longevity retirement.  He honorably served over 18 years and was then denied reenlistment.  He received no counseling regarding his rights.  

In support of his request, applicant provided a personal statement and documentation associated with his discharge.  His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air Force on 23 Aug 66.  He was progressively promoted to the grade of master sergeant, having assumed that grade effective and with a date of rank of 1 Jun 81.  Applicant was honorably discharged at the completion of his extended enlistment on 26 Oct 84.  He served 18 years, 1 month, and 28 days on active duty.  He was assigned reenlistment eligibility code 4J, which denotes "Entered into Phase I of the Air Force Weight Management Program (WMP).  This code applies, unless superseded by a higher priority code, whether the member is making satisfactory or unsatisfactory progress in Phase I of the WMP.

The following is a resume of the applicant's last five Airman Performance Report (APR) profile:

	Period Ending		Promotion Recommendation
	30 Jul 84				8
	01 Aug 83				9
	01 Aug 82				9
	01 Aug 81				9
	25 Sep 80				8

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AIR FORCE EVALUATION:

AFPC/DPPRSP states the discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discretion of the discharge authority.  The DPPRSP evaluation is at Exhibit C.

AFPC/DPPAE recommends denial.  DPPAE states there is no reason to change his RE code making him eligible to reenlist and he provided no documentation showing his RE code was in error.  As he was on the WMP at the time of his separation, his RE code is valid and should not be changed.  The DPPAE evaluation is at Exhibit D.

AFPC/DPPRRP recommends denial.  DPPRRP states 10 USC section 1176 states "a regular enlisted member...whose term of enlistment expires and who is denied reenlistment, and who on the date which the member is to be discharged is within two years of qualifying for retirement under...section 8914 of this title...shall be retained on active duty until the member is qualified for retirement...unless the member is sooner retired or discharged under any other provision of law."  This provision was added on 23 Oct 92, many years after the applicant was discharged and was not in effect when he was denied reenlistment.  The DPPRRP evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states the Air Force evaluation states he involuntarily separated.  This action was forced upon him.  He was denied reenlistment against his will.  He did not desire to separate and was not afforded the opportunity to serve the remaining 22 months to qualify for retirement.  The fact that the law was passed in 1992 and he was discharged in 1984 does not make his discharge unfair or unjust.  He could have retired if he had reenlisted for 8 years in 1978 instead of 6 years.  

The control roster was due to a weight problem.  He was diagnosed with bulging discs and spinal stenosis.  He had been active in several sports to assist in controlling his weight.  He was suddenly prohibited from physical activity by medical profiles and was told if he injured himself during such activity it would lead to court-martial.  He was instead ordered to go to the sauna each day.  The side effects of the medications prescribed by his military physicians included weight gain, drowsiness, fatigue, depressed mood, and abnormal thinking.  These symptoms were presented by his commander in his request for a medical review.  He was considered by Physical Evaluation Board and was advised by his counsel that the PEB decision "would not be in his best interest" and he was returned to duty.  His commander was not satisfied with the PEB decision and requested a medical review for the purpose of cross-training or medical retirement.  His actions clearly demonstrate he would take whatever step necessary to remove him.  He was determined to be fit for duty under the "presumption of fitness" rule because he was within one year of retirement or separation.  

In support of his request, applicant provided a personal statement, documents extracted from his medical records, and a statement of his personal experience.  His complete submission, with attachments, is at Exhibit G.

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ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends denial.  The Medical Consultant states despite difficulties with back pain and physical limitations, the applicant was not medically excused from compliance with the WMP.  Exercise is not an absolute requisite for weight loss, but augments and helps maintain weight loss as well as overall physical and psychological health benefits.  Thus, the diets prescribed to the applicant were sufficient to induce weight loss over the period of time his weight was a focus of attention by his commander.  Although his final performance report indicates he was making satisfactory progress at the time, weights in the medical record reflect no significant progress after that time and would not likely have influenced a favorable appeal of his nonselection for reenlistment.  There is no documentation to show he appealed his commander's recommendation for nonselection of reenlistment.  

The PEB twice returned him to duty despite the physical limitations.  These decisions appear to have been based on his ability to satisfactorily perform administrative and supervisory duties commensurate with his grade.  Medical authorities at the time were not persuaded his back pain was an insurmountable obstacle to maintaining weight within Air Force standards.  Testimony during the Formal PEB indicates the board considered application of the presumption of fitness provision but the degree to which the board applied the provision is not clear from documentation.  Speculating that the FPEB would have instead found him unfit for continued duty, it is unlikely that his condition would have rated high enough to warrant a disability retirement.  It is likely the FPEB would have recommended separation with severance pay at 10 percent and no more than 20 percent.  This impression is supported by the Department of Veterans Affairs disability rating of zero percent for several years after his discharge from the Air Force.  The Medical Consultant evaluation is at Exhibit H.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant states that he dealt with his weight problems in an appropriate manner as evidenced by the lack of disciplinary action and his outstanding performance reports.  The only disciplinary action was his placement on the control roster in 1984, which led to his denial of reenlistment.  His regular physician that saw him in pain and physical distress, stated "I do not believe his is fit for worldwide duty" on his narrative summary.  This also reinforces the statement by his commander.  This was not the case for the 1984 FPEB, at which time he was stabilized with medications, but not pain free.  The Medical Consultant quotes the presumption of fitness as stating "active duty members who develop medical problems..."  He did not develop this condition in the final 12 months.  It developed in July 1981.  Although the presumption of fitness was not included in the final written decision of the FPEB, his counsel felt strongly enough to use that as his basis for his appeal.  He also asked the members to give him the benefit of the doubt because he had concern as to the application of this directive.  The subject was approached immediately prior to the break for the board to reach a decision.  Regarding his decision not to appeal his denial of reenlistment, applicant states he was not counseled or afforded the opportunity to appeal.  

In retrospect, it appears to the applicant that the FPEB was confident that an appeal would be unsuccessful and he would be discharged due to the control roster action, and this would be in the best interest of the Air Force.  The board did not give favorable consideration to any evidence presented on his behalf including 18 years of outstanding service, medical records diagnosing bulging discs with radiating pain, and the statements from the referring physician, his wife, and commander.

His complete response, with attachments, is at Exhibit 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.  Applicant contends that because he had served for over 18 years at the time of his discharge, he should have been allowed to remain on active duty until he reached 20 years of service.  We note that the statute providing for individuals in the "sanctuary" was not established as law until after the applicant was discharged and was not applied retroactively.  Therefore, it is our opinion that since the law was not in effect at the time of his discharge, the applicant has not been the victim of an error or injustice.  We took under consideration whether or not the applicant should have qualified for a medical retirement at the time.  However, after a thorough review of the evidence of record, we do not believe the decision to return him to duty was inappropriate at the time nor are we persuaded that the decision was made without taking all the appropriate factors into consideration.  Therefore, in the absence of evidence that persuasively refutes the opinions and recommendations of the Air Force offices of primary responsibility, we are compelled to agree with their recommendations and adopt their rationale as basis for our conclusion that he has not been the victim of an error or injustice.

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 AFBCMR Docket Number BC-2003-03071 in Executive Session on 17 Feb 04, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 9 Sep 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRSP, dated 7 Oct 03.
    Exhibit D.  Letter, AFPC/DPPRRP, dated 31 Dec 03, w/atchs.
    Exhibit E.  Letter, AFPC/DPPAE, dated 16 Dec 03.
    Exhibit F.  Letter, SAF/MRBR, dated 9 Jan 04.
    Exhibit G.  Letter, Applicant, dated 3 Feb 04, w/atchs.
    Exhibit H.  Letter, BCMR Medical Consultant, dated 13 Apr 04.
    Exhibit I.  Letter, SAF/MRBC, dated 19 Apr 04.
    Exhibit J.  Letter, Applicant, dated 26 Apr 04, w/atchs.