RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-03497
		INDEX CODE:  

		COUNSEL:  NONE

		HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

His retirement grade be changed from Senior Master Sergeant (SMSgt/E-8) to Chief Master Sergeant (CMSgt/E-9) pursuant to 10 U.S.C. Section 1372 and Air Force Instruction (AFI) 36-3212, paragraph 5.15.4.

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APPLICANT CONTENDS THAT:

He was recommended for promotion to the rank of CMSgt and would have been promoted but for a medical injury incurred while on active duty overseas in support of Operation Enduring Freedom.  He was put on a 4T Profile and entered the Air Force Disability Evaluation System (DES), which ultimately led to his disability discharge.  Air Force Personnel Center (AFPC) deferred to the Air National Guard (ANG) on his promotion issue and retirement grade.  ANG/DPFOC initially did not adjudicate his retirement grade, yet when queried, DPFOC denied his claim.

In support of his appeal, the applicant has provided copies of an excerpt from AFI 36-3212, an National Guard Bureau (NGB) Form 22, Report of Separation and Record of Service, a DD Form 214, Certificate of Release or Discharge from Active Duty, a Reserve order assigning him to the Retired Reserve, select documents from his application for transfer to the Retired Reserve, pertinent e-mail trails, a letter of support from his commander, his promotion recommendation, select copies from his DES file, and select pertinent copies of his medical record.

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

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STATEMENT OF FACTS:

Applicant joined the XXXXX ANG (XX ANG) on 21 February 1987.  On 17 October 2001, he was ordered to active duty where he served until 29 July 2003.  In January 2002, while on active duty in Southwest Asia, he injured his back.  He was subsequently placed in a 3T profile and then a 4T profile because of his inability to perform his duties.  A Medical Evaluation Board (MEB) was initiated on 14 April 2003 to determine his fitness for further military service.  The Board found him unfit for continued military service and directed he be discharged with severance pay and a 10% disability rating.  Since he had over 20 years of satisfactory service he was given the choice of the severance package and disability rating or apply for the Retired Reserve and collect Reserve retirement at age 60.  On 27 June 2003, he chose to transfer to the Inactive Status List Reserve Section and placement on the USAF Retired List.  He will be eligible for Reserve retired pay on 9 January 2021.  He was transferred to the Retired Reserve effective 1 August 2003, as an SMSgt, after 23 years, 10 months, and 17 days of combined active and Reserve component service.

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AIR FORCE EVALUATION:

AFPC/DPPD recommends denial.  DPPD states the rules for determining a member’s grade on retirement at the time of a disability retirement/separation include the following:

	a. Grade on Disability Retirement: Unless entitled to a higher grade under some other provision of law, members permanently retired for disability or placed on the Temporary Disabled Retired List (TDRL) retire in the highest grade promoted to.  Service members who are processed through the disability system on or after 23 September 1996 may be retired in their Regular or Reserve grade to which they had been selected and would have been promoted, had it not been for the physical disability for which they were retired.

	b. Grade on Disability Separation: The discharge grade will be the rank of the member held at the time of discharge, unless a higher grade has been determined by the Secretary of the Air Force (SAF).  Service members who have been projected to a higher grade and who are discharged under the disability system are released from active duty in their current grade; however, their disability severance pay is calculated in their newly promoted rank.

Since the preponderance of the evidence does not support that the applicant was medically retired under the provisions of AFI 36-3212, the Grade on Disability Separation rule, item b above, applies.  DPPD notes the rules clearly state that in order to be promoted to a higher retired grade in the disability system, the promotion would be effective on the date the individual was permanently retired or placed on the TDRL.  This did not occur in the applicant’s case as, with only a 10% rating, he was not eligible for either.  

DPPD’s complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states he did not volunteer to be released from his assignment.  Either of the two resultant options he was offered would both have resulted in separation.  He would have preferred to stay in the military.  

An MEB found that he was 10% disabled as a result of a herniated disk experienced while on active duty in a war zone.  He states the 10% was assigned for pain associated with a herniated disk.  He contends regulations state 40% to 60% of all active duty airmen have a herniated disk but only a small percentage of the affected personnel suffer from associated pain, as he does.  The same regulations, he states, considers a 10% rating a mild case.

He states the total time lost from his duties as a result of this injury was less than a week over a two-year time frame.  And the lost time was mostly because of doctor appointments.  He states that even when placed on a 4T profile he still performed his duties as a wire superintendent.

He contends he would have been promoted if his career had not been terminated as a result of his injuries.  He contends he was denied promotion twice as a result of being on profile.  The first promotion opportunity was missed, as his medical squadron did not know he could be promoted while on 3T profile and had mistakenly informed his personnel squadron he was not eligible.  He was subsequently put in for promotion again, effective 1 November 2002.  On 30 October 2002 however, he was placed on a 4T profile that did make him ineligible for promotion.  He was then told that a promotion to Chief Master Sergeant would be waiting for him when he got off profile.

His unit, Group and Wing commander’s, along with the Adjutant General (AG) have all indorsed a letter recommending he be promoted to CMSgt.  Their request was sent to the MEB and to HQ ANG and no response has been received.  He asks that the Secretary of the Air Force award him the promotion that he would have earned if not for being injured in the line of duty during a time of war.  He indicates he would return to duty if asked.

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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 timely filed.

3.  Although there appears to be no error, per se, in this case, there are factors present within the realm of equity that reach to the injustice aspect of our recommending authority.  In this respect, we note that:

	a.  Applicant was selected and submitted for promotion to the Reserve grade of CMSgt by his previous commander on 23 October 2002 while under a Title 10 Partial Mobilization.  During the mobilization, he injured his back in the line of duty while deployed to Al Udeid, Qatar.  Upon his return, he was assigned a 3T medical profile, during which his commander submitted him for promotion to CMSgt.  Prior to completion of the promotion process, an air surgeon determined his condition had deteriorated and placed him on a 4T profile, making him no longer eligible for promotion.

b.  A Medical Evaluation Board (MEB) was initiated on 14 April 2003.  The final outcome resulted in the Office of the Secretary of the Air Force finding the applicant physically unfit for continued military service and directing discharge with severance pay with a 10% disability rating under the provisions of Title 10, United States Code, Section 1203.  Disability discharge date was established as 23 July 2003.  Because the applicant had over 20 years of satisfactory service, he was given the choice of either applying for a Reserve retirement under Title 10, USC, Section 1231 or electing discharge with entitlement to disability severance pay under the provisions of Title 10, USC, Section 1203.  On 27 June 2003, he elected to transfer to the Inactive Status List Reserve Section (ISLRS), with the option to receive retired pay upon becoming 60 years of age.

c.  AFI 36-3212 (Physical Evaluation for Retention, Retirement, and Separation) states, among other things, that service members who are processed through the disability system on or after 23 September 1996 may be retired in their Regular or Reserve grade to which they had been selected and would have been promoted had it not been for the physical disability for which they were retired.  (Emphasis Added).

d.  This AFI goes on to state that service members who have been projected to a higher grade and who are discharged under the disability system are released from active duty in their current grade; however, their disability severance pay is calculated in their newly promoted rank.  (Emphasis Added.).

e.  The Office of Primary Responsibility (OPR) recommends denial of applicant’s request for retirement in the grade of CMSgt because he did not meet eligibility requirements for a disability retirement at the time of his approved disability discharge.  It is conceded, however, that had he elected to receive disability severance [pay in lieu of a Reserve retirement], his severance pay would have been calculated at the CMSgt (E-9) rate.  (Emphasis Added).  The rules clearly state that in order to be promoted to a higher retired grade in the disability system, the promotion is effective on the date the individual is permanently retired or placed on the TDRL.  This did not occur in the applicant’s case.  Since his medical condition was only rated as 10% disabling, he was only authorized a disability discharge.

4.  The applicant’s assertion that he was recommended for promotion to the rank of CMSgt and would have been promoted but for a medical injury incurred while on active duty overseas in support of OPERATION ENDURING FREEDOM is substantiated by the evidence of record.  However, since he injured his back and was given a physical profile of 4T prior to the promotion being consummated, he was ineligible for promotion as long as he remained in that status.  Unfortunately for the applicant, the Secretary of the Air Force Personnel Council found him unfit and directed discharge with entitlement to disability severance pay.  [The applicant asserts that he was denied promotion twice.  Once because medical personnel misinformed his Military Personnel Flight (MPF) representative that he was ineligible for promotion to the next higher grade because of his physical profile of 3T when, in actuality, only a profile of 4T or higher would have made him ineligible.  The record does not substantiate this assertion.]  Because of the applicant’s unique circumstances, however, the fact that he was not promoted to the grade of CMSgt in strict compliance with the governing AFI is not dispositive of the merits of his case.  Specifically, the applicant is a Reservist who was fully qualified for promotion, assigned to an authorized CMSgt position and had the concurrence of the commander, the wing commander and the XXXXX Adjutant General (AG).  Since unanimous recommendations, to file valid promotion authorizations, from State officials are rarely, if ever, rejected by the National Guard Bureau, the applicant’s recommendation was tantamount to being selected for promotion to the higher grade.  In view of the foregoing and because it appears that the only reason the applicant was not eligible for promotion was the fact that he could not qualify for disability retirement (disability rating of 30% as opposed to 10%), we believe that equity and justice demands that he be promoted and retired in the grade of CMSgt as an exception to policy. 

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that:

a.	He was promoted to the grade of Chief Master Sergeant effective and with a date of rank of 1 July 2003. 

b.	On 1 August 2003, he was transferred to the Retired Reserve in the grade of Chief Master Sergeant.

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The following members of the Board considered this application in Executive Session on 2 March 2004, under the provisions of AFI 36‑2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 22 Sep 03, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPD, dated 7 Jan 04.
    Exhibit D.  Letter, SAF/MRBR, dated 16 Jan 04.
    Exhibit E.  Applicant’s Response, dated 10 Feb 04.

                                   

 DEPARTMENT OF THE AIR FORCE
WASHINGTON DC

Office Of The Assistant Secretary

BC-2003-03497

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that:

a.	He was promoted to grade of Chief Master Sergeant effective and with a date of rank of 1 July 2003.

		b.    On 1 August 2003, he was transferred to the Retired Reserve in the grade of Chief Master Sergeant.