RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-01934
				INDEX CODE:  115.02
	XXXXXXXXXXXXXX	COUNSEL:  NONE

	XXXXXXXXX	HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His disability retirement be changed to a service retirement for years of service or he be returned to active duty with no break in service in order to achieve retirement eligibility.  

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APPLICANT CONTENDS THAT:

He is entitled to a full military retirement.  He served 12 years on active duty and it was not his choice to retire.  He would have received a full retirement had he been allowed to stay on the Temporary Disability Retirement List (TDRL) beyond 15 years of service; however, he was intentionally retired prior to reaching 15 years service so he would purposely lose his full retirement.  

In support of his appeal, the applicant includes a personal statement and copies of medical documentation from his civilian provider.  The applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

On 29 April 1988, the applicant enlisted in the Regular Air Force at the age of 20 in the grade of airman basic (E-1) for a period of four years.  He was trained as a Surgical Service Craftsman.  The applicant was progressively promoted to the grade of staff sergeant (E-5) effective 1 December 1996.  

The applicant’s military medical record indicates he underwent percutaneous renal biopsy on 18 January 2000, which revealed he had IgA nephropathy.  On 7 May 2000, despite maximum medical therapy, the applicant progressed to end stage renal disease and was place on hemodialysis on 10 May 2000.  On 2 June 2000, his case was referred for Air Force Reviewing Authority for review.  On 29 June 2000, his records met a Medical Evaluation Board (MEB).  The MEB’s findings and diagnoses were End Stage Renal Disease Secondary to IgA Nephropathy, Nephrotic Syndrome, Hypertension, and Hyperlipidemia; all incurred while entitled to basic pay.  The MEB referred the case to a Physical Evaluation Board (PEB).  The Informal Physical Evaluation Board (IPEB) findings, dated 12 July 2000, cited the following diagnosis:  Category I - Unfitting Conditions which are Compensable and Ratable:  End stage renal disease secondary to IgA nephropathy associated with nephrotic syndrome and hypertension (incurred in the line of duty and while entitled to receive basic pay with a disability rating of 100%; Category II - Conditions that can be unfitting but are not currently compensable or ratable:  none; Category III - Conditions that are not separately unfitting and not compensable or ratable:  Hyperlipedemia.  The IPEB found the applicant unfit for further service and recommended placement on the Temporary Disability Retirement List at a compensable rating of 100% in accordance with Department of Defense (DoD) and Veterans Administration Schedule for Rating Disabilities (VASRD) guidelines to see if renal transplant would stabilize renal function.  On 18 July 2000, the applicant agreed with the IPEB findings and recommendations and waived his right to a Formal PEB hearing.  On the same day, the Secretary of the Air Force directed the applicant be placed on the TDRL under the provisions of Title 10, United States Code, Section 1202.  

On 29 August 2000, the applicant was relieved from active duty and on 30 August 2000, placed on the TDRL in the retired pay grade of staff sergeant per AFI 36-3212, with compensable percentage for physical disability of 100%.  A message from ARPC/DPPDS, dated 20 July 2000, concerning the applicant’s retirement stated, “Due to a change in policy, all members retired for disability with at least 15 years of active service are authorized retirement certificates and ceremonies.”  The applicant served 12 years, 4 months and 1 day on active duty.  

The applicant’s medical documentation indicates he underwent a living-related-donor kidney transplantation on 26 November 2001.  A TDRL reevaluation, dated 25 October 2002, cites the applicant’s condition had improved substantially since the transplant; however, would not likely change over the next several years.  The IPEB found the applicant unfit for continued active service and recommended he be permanently retired with a disability rating of 30% in accordance with DoD and VASRD guidelines.  On 18 November 2002, the applicant submitted a rebuttal non-concurring with the recommended findings but waived his right to a formal hearing.  On 23 January 2003 after considering the applicant’s rebuttal, the Secretary of the Air Force directed that the applicant’s name be removed from the TDRL and that he be permanently retired because of physical disability at a disability rating of 30%.  On 13 February 2003 the applicant’s name was removed from the TDRL and he was retired in the grade of major with a compensable percentage of 30%.  

Information from the Department of Veterans Affairs (DVA) indicates the applicant is currently receiving disability pay at a combined degree of disability at 70% for the following diagnoses:  Kidney transplant at 60%; Diabetes Mellitus at 20%; Hypertension at 10%, and Deformity of the Penis at 0%. 

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AIR FORCE EVALUATION:

AFPC/DPPD recommends denial of the applicant’s request.  DPPD states the applicant’s contention that he would have received a full retirement if he stayed on the TDRL past 15 years is without merit.  At one time, Title 10 United States Code (USC), Section 8914, authorized 15-year retirements for enlisted personnel under the Temporary Early Retirement Authorization (TERA) Program.  The program existed during the period beginning 1 October 1992 and ended on 1 October 1995 and was not in existence prior to or at the time of the applicant’s placement on the TDRL.  It is DPPD’s opinion that the applicant’s belief that actions were taken to deny him full retirement benefits appears to be presumptive on his part and, certainly is far from the manner in which the Air Force treats its veterans.  

DPPD states the applicant’s request to be returned to active duty cannot be honored in that he has already been found medically disqualified for continued military service under the Air Force Disability Evaluation System (DES).  It is DPPD’s opinion that the applicant was treated fairly throughout the military DES process, that he was properly rated under Federal disability guidelines at the time of his disability process, and he was afforded the opportunity for further PEBs as required by Federal law and policy.  DPPD states that they found no discrepancies during the MEB/PEB process, which would warrant the applicant’s return to active duty for the purpose of remaining there until eligible for a retirement for years of service.

The DPPD 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 9 July 2004 for review and response within 30 days.  As of this date, this office has received no 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 timely filed.

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 and do not find that it supports a determination that his permanent retirement because of physical disability in 2003 was improper or contrary to the provisions of the governing regulations.  We note the applicant’s assertion that he would have been entitled to a full military retirement if he had been allowed to remain on the TDRL beyond 15 years; however, according to governing regulations in effect at the time, he would not have qualified for retirement for length of service even if he had accumulated 15 years of active duty.  The evidence indicates that following the applicant’s receipt of a kidney transplant on 26 November 2001, his condition had improved substantially; however, an IPEB found him unfit for continued active service and recommended he be permanently retired with a disability rating of 30% in accordance with DoD and VASRD guidelines.  Neither does the record reveal nor has the applicant provided any evidence that would lead us to believe that he was physically fit within the meaning of the governing regulation, which implements the law, to return him to active service.  In view of the above, we agree with the opinions and recommendation of the Air Force office of primary responsibility and adopt their conclusions as our findings in the case.  Accordingly, the applicant’s request is not favorably considered.  

4.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

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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 15 September 2004, under the provisions of AFI 36‑2603:

The following documentary evidence for AFBCMR Docket Number 
BC-2004-01934 was considered:

	Exhibit A.  DD Form 149, dated 13 Apr 04, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFPC/DPPD, dated 29 Jun 04.
	Exhibit D.  Letter, SAF/MRBR, dated 9 Jul 04.