RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  04-00457
		INDEX NUMBER:  145.00
		COUNSEL:  NONE
		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His retirement order be changed to reflect that he received a non-disability retirement and that his AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, Item 10c, be changed to read that his medical conditions were received in line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred during a period of war.  

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APPLICANT CONTENDS THAT:

He had enough time in service to take a non-disability retirement and was not given that option.

In support of his application, the applicant provides a copy of his retirement order with amendment and a copy of his AF Form 356 dated 11 October 1995.  Applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Records reflect that the applicant is a former noncommissioned officer who was relieved from active duty effective 8 December 1995 and his name was placed on the Temporary Disability Retired List (TDRL) in the retired pay grade of technical sergeant effective 9 February 1995, with a physical disability rating of 30 percent.  Applicant’s unfitting conditions were left shoulder, neck and arm pain of uncertain etiology associated with adjustment disorder with mixed anxiety and depressed mood with no social and industrial impairment (incurred in 1994); and, bilateral foot pain secondary to metatarsus primus varus, hypermobile pes planus, status post bilateral osteotomy of first metatarsals age 15 (existed prior to service and aggravated by service).  It was noted that the applicant had not served in the Gulf War Theater of Operations after 1 August 1990.  A combined compensable rating of 30% was assigned.  He was credited with 19 years, 2 months and 25 days of total active duty service for retirement and 19 years, 3 months and 20 days for basic pay.  

On 19 June 1997, an Informal Physical Evaluation Board (IPEB) found that the applicant’s medical conditions had not significantly changed since he was placed on the TDRL and remained unfitting for further military service.  The IPEB recommended permanent retirement.  On 1 July 1997, applicant acknowledged receipt and concurred with the recommended findings of the IPEB.  On 9 July 1997, the Secretary of the Air Force directed that his name be removed from the TDRL and he be permanently retired.  Effective 29 July 1997, his name was removed from the TDRL and he was retired in the grade of technical sergeant with a disability rating of 30 percent.  

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AIR FORCE EVALUATIONS:

AFPC/DPPD recommends the application be denied.  AFPC/DPPD states that the applicant failed to provide documentation to justify why his medical conditions identified at the time of his disability processing were the result of an armed conflict during a period of war or caused by an instrumentality of war.  In addition, AFPC/DPPD advises that the applicant’s request to have his disability retirement changed to a non-disability retirement is counterproductive since he does not have the mandatory twenty years of active military service to be considered for a retirement for years of service.  The AFPC/DPPD evaluation is at Exhibit C. 

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APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

On 27 February 2004, a copy of the Air Force evaluation was sent to the applicant for review and comment.  As of this date, this office has not received a response.  

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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.

    a.  Evidence has not been presented which would lead us to believe that the applicant’s disability retirement was improper or contrary to the provisions of the governing instructions, which implement the law.  We note his contention that he had enough time in service to qualify for a non-disability retirement but was not given the option.  However, his personnel records indicate that he had only completed 19 years, 2 months, and 25 days of active duty service, which is insufficient to be considered for a retirement for length of service.  The record shows that military medical authorities determined that the applicant’s physical defects rendered his fitness for continued service questionable and he was referred for disability processing.  Once it was determined that the applicant was physically unfit for continued service, in accordance with the law, he was relieved from active duty and retired at the earliest practicable date.  It appears that responsible officials applied appropriate standards in effecting the disability retirement.  The applicant has not provided persuasive evidence demonstrating that he was not afforded all the rights to which entitled or that the findings of unfitness were based on factors other than sound medical principles.  It is interesting to note that, at the time, the applicant did not object to the recommended disposition in his case.  In the absence of evidence indicating the contrary, favorable consideration of the applicant’s request for a length of service retirement is not appropriate.

    b.  As to the applicant’s request that his medical records be corrected to show his conditions were received in line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred during a period of war, neither does the record reveal nor has the applicant provided evidence that would lead us to believe his unfitting conditions were incurred in a manner that met the statutory and regulatory criteria required for such a finding.

    c.  In view of the above and absent evidence to the contrary, we agree with the assessment of the Air Force office of primary responsibility and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden that he has suffered either an error or an injustice.  Therefore, we find no compelling basis to recommend granting the relief sought.  

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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 this application in Executive Session on 29 April 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered for AFBCMR Docket Number 04-00457:

	Exhibit A.  DD Form 149, dated 2 Feb 04, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFPC/DPPD, dated 20 Feb 04.
	Exhibit D.  Letter, SAF/MRBR , dated 27 Feb 04.

		   Panel Chair