RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  2004-01788
		
		COUNSEL:  NONE

	XXXXXXX	HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His military records be corrected to reflect his active duty service and service for pay to 20 years and 28 days to qualify for Concurrent Retirement and Disability Payments (CRDP).  
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APPLICANT CONTENDS THAT:

His retirement date from the Air Force should read 1 April 1978, per Special Orders AC-007859, dated 8 April 1977, giving him 20 years and 28 days of the active military service to qualify for CRDP.

In support of his appeal, applicant submits a copy of his DD Form 214, Findings and Recommended Disposition of USAF Physical Evaluation Board, AF Form 2653, Retirement Special Order-Physical Unfit, AFMPC Form 134, Retirement Order, Department of the Air Force, Special Orders, AC-007859, and letters from USAF/LETTA and Department of Veterans Affairs.  

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

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STATEMENT OF FACTS:

On 3 March 1958, the applicant enlisted in the Regular Air Force in the grade of airman second class.  He was progressively promoted to the grade of staff sergeant (E-5) with a date of rank of 1 June 1966.

On 24 November 1976, the applicant submitted a voluntary application for retirement, with an effective date of retirement of 1 April 1978.  A retirement order, DAFSO AC-007859, 8 April 1977 was published approving his service retirement.  

On 9 November 1977, the Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB) found the applicant unfit for continued military service for his Rheumatoid Arthritis and Hypertension, and placed his name on the Temporary Disability Retired List (TDRL) due to physical disability under the provisions of AFM 35-4.  He remained on the TDRL until 2 September 1980, at which time he was removed and permanently retired with a 50 percent disability rating under the provisions of Title 10, USC, Section 1201.  Military personnel records reflect he completed 19 years, 8 months and 7 days of total active military service.

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AIR FORCE EVALUATION:

AFPC/DPPD recommended the application be denied and stated it was determined no correction to the service military records or his disability retirement order concerning his active and pay periods were necessary since the data is correct in relation to his process through the Disability Evaluation System (DES).  They also concluded the approved service retirement order for his projected retirement date on 1 April 1978, under Title 10, USC, Section 8914, was invalid and should have been revoked following his entrance into the Air Force DES.  Following their assessment of the applicant’s records, it appears he meets the basic CRDP 20 year service eligibility criteria established under Public Law 108-136.  The Department of Veterans Affairs (DVA) and the Defense Finance and Accounting Service - Cleveland Center (DFAS-CL), normally initiate eligibility for CRDP compensation; at the time the veteran meets the eligibility criteria.  Qualified retirees will automatically receive their CRDP and there is no application process necessary.  

AFPC/DPPD complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the Air Force evaluation and stated he would like to use the recent AF/JAA ruling citing that military personnel, who retired prior to 1 January 1982, should have their retired pay computed using Title 10, USC, Section 1401, “six-month rounding up rule.”  He would like to use those rulings as justification to obtain his CRDP.  He was in 19 years, eight months, and seven days of active military service, and he should fall under the “six-month rounding up rule.

Applicant’s complete response in at Exhibit E.

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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, after careful review of the available records, it appears that he has been credited with all active service creditable under the governing regulation and laws in effect at the time of his disability retirement.  We therefore agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. The Board also notes that a recent AF/JAA ruling has clarified the law regarding the crediting of retired pay for military personnel who had at least 19 years, six months prior to 1 January 1982. We recommend the applicant contact the Department of Veterans Affairs concerning CRDP compensation/eligibility.  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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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 14 September 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 1 Jun 04 w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPPD, dated 14 Jun 04.
     Exhibit D.  Letter, SAF/MRBR, dated 18 Jun 04.
	Exhibit E.  Letter, Applicant, dated 1 Jul 04.