RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2005-00307
		INDEX NUMBER:  136.00

	 	COUNSEL:   

	 	HEARING DESIRED: NO

MANDATORY CASE COMPLETION DATE:  29 JUL 2006

___________________________________________________________________

APPLICANT REQUESTS THAT:

He be eligible for benefits under the Combat-Related Special Compensation (CRSC) program.

___________________________________________________________________

APPLICANT CONTENDS THAT:

Based on outdated CRSC criteria, DFAS disallowed concurrent-receipt payments to a Title 10, USC, Chapter 61 retiree who was approved for CRSC payments.

In support of his appeal, applicant submitted a personal statement; a copy of a letter from HQ AFPC/DPPD/CRSC, dated 20 Jul 04; his letter forwarded to the Defense Finance and Accounting Service (DFAS), dated 5 Oct 04; Retirement Order, RO EK-1651, dated 6 Feb 90; and other supporting documents to his claim.

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

___________________________________________________________________

STATEMENT OF FACTS:

On 5 Nov 89, applicant was transferred to the USAF Reserve Retired List.  He was credited with 22 years, 2 months, and 24 days of satisfactory Federal service, based on Reserve Order EK-1651, dated 6 Feb 90.  

Subsequent to his transfer to the USAF Reserve Retired List, on 1 and 30 Nov 89, the applicant appealed to the Air Force Board for Correction of Military Records (AFBCMR) requesting that he be reinstated to active duty in accordance with 32 USC 502(f), with the award of all back pay and allowances; he be reinstated to active Reserve status as a Reserve of the Air Force; his separation status be corrected; and his records be corrected to show he was promoted to the grade of lieutenant colonel, with a date of rank of 29 September 1988; all derogatory or unfavorable  information (subsequent to 14 July 1988) be deleted from his records; his Officer Effectiveness Report (OER) closing 19 July 1988 be voided in its entirety; (by amendment) his records be corrected to show that he was retired by reason of physical disability, with the award of an appropriate percentage of disability; his OER closing 19 July 1989 be removed from his records; and he be afforded any other relief deemed appropriate.  

On 25 April and 20 Jun 91, the Board considered his requests and recommended that his OER closing 19 Jul 88 be voided and removed from his records; the Field Grade Officer Performance Report (OPR) closing 19 Jul 89 be voided and removed from his records; all documents and references pertaining to his involuntary release from his tour of active duty under 32 USC 502(f), and the removal of his name from the listing of officers who were selected for promotion by the FY88 USAFR Lieutenant Colonel Selection Board be voided and removed from his records; upon Senate confirmation he be promoted to the Reserve grade of lieutenant colonel effective 29 September 1988; and that his records reflect that he was not released from active duty on 15 Nov 88, but was continued in an active duty status until 4 Dec 89, at which time he was honorably released from active duty by reason of completion of his Active Guard Reserve (AGR) military duty tour, and was honorably discharged from the Air National Guard and transferred to the Air Force Reserve.  He was advised that his request for reinstatement to the Air National Guard was outside of the Board’s purview.  The Board denied his request for disability retirement.

On 25 Jan 94, the Board favorably considered applicant’s request that he be retired by reason of physical disability, effective 4 Dec 89.  He was awarded a compensable disability rating of 30% based on the diagnosis of “Major Depression, industrial impairment – definite.”  The Board denied his request for reinstatement on active duty beyond his date of separation with entitlement to back pay and allowances.  The Board was without authority to act on his requests for attorney’s fees and other damages not listed in the statute.

On 1 Feb 96, the Board favorably considered applicant’s request that his compensable disability rating be increased from 30 percent to 50 percent, effective 4 Dec 89.

He was credited with 11 years, 7 months, and 8 days of active duty service.  

___________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPD recommends denial of applicant’s request stating, in part, that applicant does not meet the basic eligibility requirement of 20 years of active duty or retirement at age 60 for Reservists. 

The Combat-Related Special Compensation (CRSC) program, established by Public Law (PL) 107-314, provides compensation to certain retirees with combat-related disabilities.  A retired member of the Uniformed Services must meet each of the four following conditions to meet the preliminary CRSC criteria:

	a.  Has 20 or more years of active service in the Uniformed Services for the purpose of computing the amount of retired pay, or is entitled to retired pay under section 12731 of Title 10, United States Code, unless such retirement is under section 12731b of that same title.

	b.  Is in retired status.

	c.  Is entitled to retired pay, notwithstanding that such retired pay may be reduced due to receipt of Department of Veterans Affairs (DVA) disability compensation.

	d.  Has qualifying disability ratings (percentages) [retiree must be entitled to compensation for service-connected disabilities under 10 USC 38 by the DVA].

Qualifying Combat-Related Disability:  Member has combat-related disabilities (which includes any Purple Heart disabilities) that are compensated by the DVA.

The complete evaluation is at Exhibit C.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant indicates that after the CRSC program was amended by Public Law 108-136, a Disabled American Veterans (DAV) service officer, who had presented his case to the DVA, advised him that he was now qualified based on the amendment.  He found information on the HQ AFPC, DFAS, and other military web sites which showed that he indeed met the CRSC II 2004 criteria.

Applicant’s complete response is at Exhibit E.

___________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

HQ USAF/JAA reviewed this application and recommended denial.  They gave the following analysis of the case:

	To be eligible for CRSC, a retiree must have completed at least 20 years of service creditable for computing retired pay and have a qualifying combat-related disability.  As of 1 Jan 04, the criteria was expanded to include those entitled to retired pay under Section 12731, Title 10 and any combat-related disability rated at least 10% disabling.  This is the change referred to as “CRSC II.”  Despite the change, the first criterion prevents the applicant from receiving CRSC.

To prove he qualifies for CRSC, applicant points to various documents, including the RO EK-1651, dated 6 Feb 90, and AFPC approval of CRSC, dated 20 Jul 04.  Unfortunately, those documents are incomplete or inaccurate as to the ultimate circumstances of the applicant’s retirement or the facts of his service time.  Furthermore, applicant fails to account for the differences between types of retirement and service time when he concludes that he is entitled to CRSC because he is a Chapter 61 retiree with 20 years of service and a retired reservist over the age of 60.  Adding to the confusion, DFAS and AFPC gave varying and wrong information to the applicant on his eligibility for CRSC.  Despite the applicant’s understandable bewilderment about his eligibility for CRSC, the decision by DFAS to deny him CRSC was correct.  Applicant does not meet the statutory criterion of 20 years of credible service or entitlement under 12731 and there is no injustice or error to correct.

The complete evaluation, with attachments, is at Exhibit F.

___________________________________________________________________

ADDITIONAL APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states the HQ USAF Judge Advocate General (JAA) evaluation was replete with misinformation and flawed conclusions.  He says it (JAA evaluation) never addressed the central issue of why DFAS and ARPC inappropriately evaluated his application under the older CRSC I criteria instead of the current CRSC II criteria, established under Public Law 108-136.

He reiterated his original contentions and added a request for benefits under the Concurrent Receipt of Disability pay (CRDP).

Applicant’s complete response is at Exhibit H.

___________________________________________________________________

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.  After a thorough review of the evidence of record and applicant's submission, we are not persuaded that his assertions, in and by themselves, are sufficiently persuasive to override the rationale provided by the Air Force.  The Air Force offices of primary responsibility, including the Air Force Legal Services Agency, have addressed the issues presented by the applicant and we are in agreement with their opinions and recommendations.  Therefore, we adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  In view of the foregoing, and in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this appeal.  

___________________________________________________________________

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.

___________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-2005-00307 in Executive Session on 13 October 2005, under the provisions of AFI 36-2603:

					 , Chair
					 , Member
					 , Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 17 Jan 05, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ AFPC/DPPDC, dated 28 Jan 05.
    Exhibit D.  Letter, SAF/MRBR, dated 4 Feb 05.
    Exhibit E.  Letter, Applicant, dated 15 Feb 05, w/atchs.
    Exhibit F.  Letter, HQ USAF/JAA, dated 18 Apr 05.
    Exhibit G.  Letter, AFBCMR, dated 29 Apr 05, w/atchs.
    Exhibit H.  Letter, Applicant, dated 9 May 05, w/atchs.

 
                                   Chair