RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-03169
		INDEX CODE:  110.00

	XXXXXXX	COUNSEL:  NONE

	XXXXXXX	HEARING DESIRED: YES

___________________________________________________________________

APPLICANT REQUESTS THAT:

It appears applicant is requesting her disability discharge be changed to a medical retirement.

___________________________________________________________________

APPLICANT CONTENDS THAT:

The current law, Title 10, USC, Sections 12731a and b, and 1207a do not allow her to be eligible for retirement based on her conditions being found to be in the line of duty.

The USAFR allows retirement at 15 years of service with the last six years spent in a reserve component.  She states she was eligible for this until 10 USC 12731a and b were established.

In support of her appeal, applicant submitted a copy of AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, and excerpts from Title 10, USC, 12731a and b.

Applicant’s complete submission is at Exhibit A.

___________________________________________________________________

STATEMENT OF FACTS:

Prior to the events under review, applicant served on active duty from 7 Oct 87 to 17 Mar 96.  She transferred to the Air Force Reserve on 18 Mar 96, and reenlisted on 9 Jan 00, for a period of four years in the grade of master sergeant.

Applicant was recalled to extended active duty (EAD) on 21 Sep 01, for a period of 24 months.  While on EAD, a medical evaluation board (MEB) evaluated the applicant on 17 Jun 03, and referred the results to the Informal Physical Evaluation Board (IPEB).  On 7 Jul 03, the IPEB recommended discharge with severance pay and a 10 percent disability rating based on a diagnosis of non-specific ulcerative colitis associated with irritable bowel syndrome.  

On 11 Jul 03, the Special Assistant to the Secretary of the Air Force Personnel Council determined applicant was physically unfit for continued military service and directed discharge with severance pay under the provisions of Title 10, USC, 1203, with a discharge effective date of 25 Aug 03.  

On 25 Aug 03, applicant was released from active duty and honorably discharged from the Air Force Reserve with disability severance pay in the grade of master sergeant with a compensable percentage for physical disability of 10 percent.  She completed 12.56 years of service under Title 10, USC, Section 1208.

___________________________________________________________________

AIR FORCE EVALUATION:

HQ AFRC/DPM reviewed this application and recommended denial.  Applicant’s disability case does not meet the requirement of 10, USC, Sections 12731b and 1201 for retirement.

DPM states applicant is correct that Title 10, USC, 12731b - Special Rule for Members with Physical Disabilities not Incurred in Line of Duty, does not allow for early retirement if the medically disqualifying condition was incurred in the line of duty.  Nor does applicant qualify for retirement under Title 10, USC, 1201 - Regulars and Members on Active Duty for more than 30 days: Retirements, because the USAF Physical Evaluation Board (PEB) did not rate the applicant with at least a 30 percent compensable disability percentage.  She was rated at 10 percent.

A complete copy of the evaluation is at Exhibit C.

HQ AFPC/DPPD reviewed this application and recommended denial.  The purpose of the military disability evaluation system (DES) is to maintain a fit and vital force by separating or retiring members who are unable to perform the duties of their office, grade, rank or rating.  Members who are separated or retired by reason of a physical disability may be eligible for certain disability compensation.

Disability processing records reveal a Medical Evaluation Board (MEB) was initiated on 17 Jun 03, and the results was referred to the Informal Physical Evaluation Board (IPEB) which ultimately recommended she be discharged with entitlement to disability severance pay with a 10 percent disability rating.  Applicant agreed with the Board’s findings and officials within the Office of the Secretary of the Air Force directed she be discharged with severance pay with a 10 percent disability rating.  Because her disability rating was rated less than 30 percent disabling, she was not eligible for a disability retirement under the provision of Title 10, USC, Section 1201.  

Applicant’s reference to Title 10, USC, Section 1207, was overlooked since this refers to a disability received from the result of intentional misconduct or willful neglect, which is not the case.

Based on a review of the disability processing records they concluded the service member was treated fairly throughout the DES process, and that she was properly rated under disability laws and policy at the time of her medical discharge.

A complete copy of the evaluation is at Exhibit D.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 6 Feb 04 for review and comment within 30 days.  As of this date, no response has been received by this office (Exhibit E).

___________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case; however, we found no evidence which would lead us to believe that the applicant's disability processing and the final disposition of her case were in error or contrary to the governing Air Force instructions, which implement the law.  In addition, we note that on 11 Jul 03, she agreed with the findings and recommendation of the Informal Physical Evaluation Board (IPEB).  The appropriate Air Force offices have addressed the issues presented by the applicant and we are in agreement with their opinions and recommendations.  Therefore, we adopt their rationale as the basis for our conclusion that the applicant 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.

___________________________________________________________________

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.

___________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-2003-03169 in Executive Session on 29 April 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 4 Jul 03, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ AFRC/DPM, dated 29 Oct 03, w/atchs.
    Exhibit D.  Letter, HQ AFPC/DPPD, dated 26 Jan 04.
    Exhibit E.  Letter, SAF/MRBR, dated 6 Feb 04.