RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2004-00181 XXXXXXX COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ _ APPLICANT REQUESTS THAT: While the applicant’s request is not readily apparent, it appears as though she is requesting the following: 1. She be issued a DD Form 214, Certificate of Release or Discharge from Active Duty, documenting her full-time Air Reserve Technician (ART) service from Dec 95 through Jan 97. 2. She be provided the appropriate awards and decorations related to her service with units that participated in Operation DESERT SHIELD/STORM. 3. Her record be corrected to reflect she was promoted to the grade of master sergeant (E-7). ________________________________________________________________ _ APPLICANT CONTENDS THAT: 1. She served on full time active duty as an Air Reserve Technician (ART) and her service should be documented on a DD Form 214. 2. She was active duty Operations DESERT SHIELD/STORM and should have received her medal and creditability, along with other service members of the units she was assigned to during the matter under review. 3. She should have been promoted to technical sergeant (E-6) and master sergeant (E-7) as she was assigned to a master sergeant (E-7) slot. 4. Her honorable discharge was constructed for the reasons of physical disability. Since then, her records have been missing and/or incorrect and she was left without both civil or military employment due to these suffering and missing personnel files. She has been displaced from government and military, having to rehabilitate her entire life since such incidence. 5. There are critical errors in her Defense Enrollment Eligibility Reporting System (DEERS) records which cannot be corrected without the correction of her military records. In support of her request, the applicant provides several personal statements along with copies of active duty orders, a timeline of her career, Congressional responses, select copies of her discharge package, a DD Form 214 for the time she spent in Basic Military Training (BMT), and a copy of her Point Credit History. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: The applicant enlisted in the Air Force Reserve on 2 Dec 88 and was progressively promoted to the grade of staff sergeant (E- 5), effective and with a date of rank of 1 Jul 93. On 31 Mar 89, the applicant was ordered to active duty to attend Basic Military Training (BMT) and Technical Training. On 24 Jul 89, she was released from active duty upon completion of her initial active duty for training and reverted to her status as a traditional (part-time) member of the Air Force Reserve. On 11 Dec 95, according to a Standard Form 50, Notification of Personnel Action, provided by the applicant, she was appointed to an Air Reserve Technician (GS-0303-05) position as a Personnel Liaison Clerk. An ART, also known as a dual status technician, is a full-time Federal civil service employee serving in a position that requires an active Reserve assignment in a Reserve unit. As a condition of employment, ARTs must be Ready Reservists assigned to and training with the unit in which they are employed and must occupy an equivalent traditional (part-time) Reserve military position with a comparable military rank or grade. On 9 Dec 96, according to a Standard Form 50, Notification of Personnel Action, provided by the applicant, she was terminated from her Air Reserve Technician status. According to the applicant’s point credit summary, she was credited with 79 points for her military service during her period of employment as an ART as follows: 17 paid active duty points (annual active duty training), 47 paid inactive duty points (monthly drill weekends), and 15 unpaid membership (gratis) points. In the years subsequent to her dismissal from her ART position, she continued to serve as a traditional (part- time) reserve member. On 19 Nov 98, the applicant was notified that she was being recommended for discharge from the Air Force Reserve for physical disqualification. According to AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation, Members of the Reserve components who are not on a call to active duty for more than 30 days and who are medically disqualified for impairments unrelated to their military duties shall be referred into the Disability Evaluation System for a fitness determination. If determined fit, the member is deemed medically qualified for retention in the Ready Reserve in the same specialty for which he or she was found fit. If the member is found unfit, they are discharged in accordance with the provisions of AFI 36-3209, Administrative Separation of Airmen. On 9 Aug 99, AFRC/DPM notified AFPC/DPPDS of their determination that the applicant was disqualified for worldwide duty due to her recurrent major depression and recommended the applicant not be retained, citing the potential negative impact of the applicant’s condition on the unit’s mission. On 18 Aug 99, the Informal Physical Evaluation Board (IPEB) found the applicant unfit to perform the duties of her office, grade, rank or rating for her recurrent major depression. On 26 Aug 99, the applicant was notified of the IPEB’s determination and advised her of her rights to have the decision reviewed by the Formal Physical Evaluation Board (FPEB). On 1 Sep 99, the applicant acknowledged receipt of the notification; however, other than a short note that she apparently typed on the 18 Aug 99 IPEB letter indicating that she suffers from severe work related stress caused by the Air Force, there is no evidence that she exercised her right to have the decision reviewed by the FPEB or submitted any evidence that her condition was incurred or aggravated in the line of duty while on active duty for more than 30 days. On 11 Jan 00, the Vice Commander, Air Force Reserve Command, directed the applicant’s discharge from the Air Force Reserve due to Physical Disqualification in accordance with paragraph 3.14 of AFI 36-3209, Administrative Separation of Airmen, and she was relieved from her assignment with the Air Force Reserve and furnished an honorable discharge. ________________________________________________________________ _ AIR FORCE EVALUATION: ARPC/DPT recommends denial of the applicant’s request for a DD Form 214 to document her service as an ART, indicating there is no evidence of an error or injustice. A review of her participation records did not reveal that she performed a period of qualifying continuous active service of 90 days of more which would support the creation of a DD Form 214. Additionally, no source documents are available to support the applicant’s claim and her record reflects a combination of active duty and inactive duty participation indicative of a Traditional United States Air Force Reserve member. A complete copy of the ARPC/DPT evaluation is at Exhibit C. ________________________________________________________________ _ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant reiterates that she should be entitled to a DD Form 214 for her ART service regardless of what the Air Force office of primary responsibility (OPR) contends. The Equal Employment Opportunity (EEO) reports show consistent days of performance at her duty station. The Special Examining Unit (SEU) evaluation rating results, military work classification form, personnel actions of contract acceptance, and performance promotion appraisal ratings and othe documents support her contention she performed more than 90 days of service. Her injuries were acquired during this time of her service and they should be acknowledged. She has been unable to process any veteran benefits or employment rights as a veteran due to records missing from her files. She is unable to pay for the medication that these injuries cause. The applicant’s complete response, with attachments, is at Exhibit E. ________________________________________________________________ _ THE BOARD CONCLUDES THAT: 1. The applicant has not 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 an error or injustice. Among her many contentions, the applicant argues that she should have been issued a DD Form 214 to document her full-time service as an Air Reserve Technician (ART). However, we do not find her arguments or the documentation presented sufficient to convince us she is the victim of an error or injustice. In this respect, we note that a DD Form 214 is required to be issued when a member has performed at least 90 days of continuous active service. While ART service is full-time service, it clearly does not constitute active military service as defined in Title 10 of the United States Code (USC). Rather, ART service is full-time Federal civil service under Title 5, USC that is conditioned upon traditional (part-time) membership in the Air Force Reserve. Therefore, we do not find the applicant’s arguments sufficient to conclude that she performed the requisite active service for her to be issued a DD Form 214 for the noted period. The applicant also contends that she should have been promoted to the grade of master sergeant (E-7) as said grade was the authorized grade for her part-time military position. While she argues that her record of service indicates she should have earned such promotion, recommendation for promotion is solely within the discretion of the commander and, absent any specific evidence that her commander abused his discretionary authority or treated the applicant unfairly, we are not inclined to substitute our judgment for that of the commander almost 16 years after the events under review. While she contends that she was the victim of unfair treatment at the hands of her leadership, and the alleged mistreatment was apparently the subject of her Equal Employment Opportunity (EEO) and other complaints, other than conjecture and argument, she has presented no evidence, such as a substantiated finding in her favor, to indicate that her inability to earn promotion constitutes and error or injustice. The applicant also contends that her discharge from the Air Force Reserve for physical disqualification was conjured and based on erroneous and/or missing records. However, once again, other than conjecture, the applicant has provided no evidence to indicate that her discharge was somehow erroneous or should have formed the basis for any military disability benefits. Based on the evidence of record, it appears as though the applicant’s disqualifying medical condition was not incurred in the line of duty while on active duty and, thus, formed the appropriate basis for her administrative discharge, which was carried out in accordance with the governing instruction. Finally, the applicant makes a variety of assertions regarding her Defense Enrollment Eligibility Reporting System (DEERS) records; however, because this Board is charged with correcting Air Force records to resolve an error or remove an injustice, DEERS is a Department of Defense (DoD) System of Record and, as such this Board is without authority to correct the applicant’s DEERS record. Therefore, in view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. ________________________________________________________________ _ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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-2004-00181 in Executive Session on 6 Sep 12, under the provisions of AFI 36-2603: Ms. XXXXXXXXXX, Panel Chair Ms. XXXXXXXXXX, Member Mr. XXXXXXXXXX, Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2004-00181 was considered: Exhibit A. DD Form 149, dated 28 Nov 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, ARPC/DPT, dated 6 Jan 12. Exhibit D. Letter, SAF/MRBR, dated 13 Jan 12. Exhibit E. Letter, Applicant, dated 18 Jan 12. XXXXXXXXX Panel Chair