RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00907
		INDEX CODE:  136.00

		COUNSEL:  NONE

		HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

A waiver be granted that will enable his type of discharge to be changed to a retirement, he be eligible for access to the commissary, he be eligible for TriCare health benefits, and access to other base privileges.

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APPLICANT CONTENDS THAT:

He was discharged after serving 19 years, 4 months, and 13 days of active and Air National Guard (ANG) service, making him just seven months and a few days short of qualifying for retirement.  He was involved in a car accident on his way to a Unit Training Assembly (UTA) wherein he was injured.  He was medically discharged instead of medically retired.  The Department of Veteran’s Affairs (DVA) has granted him 100% service-connected disability with unemployability.

In support of his appeal, the applicant has provided copies of his WG AGO Form 53-280, Enlisted Record and Report of Separation Certificate of Service, his National Guard Bureau (NGB) Form 22, Report of Separation and Record of Service, and a DVA rating decision.

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

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STATEMENT OF FACTS:

Applicant served in the Regular Army as an infantryman from 28 July 1948 to 27 July 1949.  He then served nine years with the Army Reserve.  On 19 October 1974, he enlisted into the North Dakota ANG (NDANG) and was progressively promoted to the rank of technical sergeant with a date of rank of 16 October 1976.  On 2 November 1982 applicant was traveling to duty when a train struck him. A Line of Duty (LOD) determination of “YES” was completed 8 November 1982.  On 22 January 1984 a Medical Evaluation Board (MEB) found him medically disqualified for general military service and worldwide duty. His last day of disability continuation pay was 1 March 1984. He was honorably discharged from the NDANG On 1 March 1984, after having served for nine years, four months, and thirteen days.  He had a total of 19 years, 4 months, and 13 days of combined active and Reserve service at the time of his discharge. 

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AIR FORCE EVALUATION:

ANG/DPPI recommends denial.  DPPI states that retirement sanctuary under Title 10 United States Code (U.S.C.), Section 1176(b) and Section 1246 (a)(b)(e) is provided for Air Force Reserve (AFR) and ANG members serving in a active Reserve status who have completed at least 18 but fewer than 20 years of satisfactory service.  Enlisted eligibility further states that enlisted members in an active status selected to be involuntarily separated for physical disqualification or for cause are not eligible for reserve sanctuary.  The National Defense Authorization Act for FY95 approved a temporary special retirement qualification authority that allowed ANG members medically disqualified with over 15 years but less than 20 years of satisfactory service to submit a request to receive retired pay at age 60.  This authority went into effect on 27 September 1994.  Since the member was discharged in March 1984, he is ineligible for retirement.

DPPI’s complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 4 February 2004 for review and comment within 30 days.  As of this date, no response has been received by this office.

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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.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  There appears to be no provision of law wherein the applicant may be considered for retirement.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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RECOMMENDATION OF THE BOARD:

A majority of the panel finds insufficient evidence of error or injustice and recommends the application be denied.

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The following members of the Board considered AFBCMR Docket Number BC-2004-03782 in Executive Session on 8 March 2005, under the provisions of AFI 36-2603:

By a majority vote, the Board voted to deny the request.  Mr.XXXXX voted to correct the record and does not desire to submit a minority report.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 9 Mar 04, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ANG/DPPI, dated 25 Jan 05.
    Exhibit D.  Letter, SAF/MRBR, dated 4 Feb 05.

                                   

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
			      FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of APPLICANT

	I have carefully reviewed the evidence of record and the recommendation of the Board members.  A majority found that the applicant had not provided sufficient evidence of error or injustice and recommended the case be denied.  I concur with that finding and their conclusion that relief is not warranted.  Accordingly, I accept their recommendation that the application be denied.

	Please advise the applicant accordingly.