RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-00804
		INDEX CODE:  111.05
	XXXXXXX	COUNSEL:  NONE
		HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE: 16 SEPTEMBER 2008

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APPLICANT REQUESTS THAT:

His records be corrected to show he retired in the grade of major.

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APPLICANT CONTENDS THAT:

He was selected for promotion to major but was forced to retire for medical reasons prior to the public release of the board results.  Since he was in fact selected by the board for promotion and did not voluntarily retire, he believes his retired grade should be corrected.

In support of his request, applicant provided a memorandum from his former commander, a congratulatory letter and a website printout.

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

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STATEMENT OF FACTS:

In October 2003, applicant was diagnosed with lymphoma of the tonsils which required a tonsillectomy and various cancer treatments including radiation.

On 11 August 2006, he met a Medical Evaluation Board (MEB) and his case was referred to an Informal Physical Evaluation Board (IPEB). 

On 17 August 2006, the IPEB found him to have an 80% physical disability and recommended permanent retirement.

On 21 August 2006, the applicant disagreed with the findings and recommendation, and requested a Formal PEB (FPEB) hearing.

On 1 September 2006, the FPEB concurred with the finding of 80% physical disability and recommended permanent retirement.

The applicant disagreed with the recommendation of the FPEB and requested his case be submitted to SecAF for a final decision.

On 11 September 2006, the CY06B Major Central Selection Board convened.

The Deputy Director for SecAF Personnel Council issued a memorandum dated 14 September 2006, directing the applicant be permanently retired effective 2 November 2006, with a disability rating of 80%. 

On 22 September 2006, the CY06B promotion board adjourned.  The applicant was selected for promotion by the Board.

On 27 October the SecAF approved the selection list, and on 27 November 2006, the list was approved by the Principal Deputy Under Secretary of Defense.

On 19 December 2006, the promotion list was publicly released.

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AIR FORCE EVALUATION:

HQ AFPC/DPPPO, recommends approval.  DPPPO states the statute only requires that the officer would have been promoted had it not been for the physical disability for which he retired.  At the time the applicant was retired for physical disability, he was recommended for promotion by a selection board which was approved by the SecAF on 27 October 2006.  Although the results were not approved for release, DPPPO believes as of the board adjournment date, 22 September 2006, the applicant was a select/recommended for promotion.  Therefore, had he not been retired, he would have been promoted to major.  At no time, based on his impending separation, was his name removed from the list.  There is nothing in Section 1372 that dictates that an officer must be on an approved promotion list in order to be retired in the higher grade when the retirement is based on physical disability.  The statue only requires that the officer would have been promoted had it not been for the physical disability for which he retired. At the time the applicant was retired for physical disability, he was recommended for promotion by a selection board which was approved by the SecAF on 27 October 2006.   Therefore, pursuant to Section 1372, the applicant should be retired as a major.  

The complete HQ AFPC/DPPPO evaluation is at Exhibit C.

AFPC/DPPD recommends denial.  DPPD states Title 10, section 1372 states "Unless entitled to a higher retired grade under some other provision of law, any member of an armed force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the temporary disability retired list under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following:  ...(3)  The permanent regular or reserve grade to which he would have been promoted had it not been for the physical disability from which he is retired and which was found to exist as a result of a physical examination,  (4)  The temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of physical examination."  In 2002, a legal opinion was rendered regarding an officer who had a line number and the SecAF determination for unfitness for duty was signed prior to the promotion effective date.  The legal opinion stated that because the member already had a line number, no propriety action was needed to delay the member's promotion until the time of retirement.  At the time of the legal opinion, AFI 36-2501, Officer Promotions and Selective Continuation, Para A2.5.4 provided that officers are not eligible for consideration by a selection board or for promotion (emphasis added) if they have been determined by the SecAF to be unfit to perform the duties of the office or grade because of physical disability.  The member had a line number and clearly would have been promoted had it not been for the physical disability for which he was retired.  In this case, the applicant had been a select/recommendation for promotion as of adjournment of the board on 22 September 2006.  He had been determined to be unfit prior to the adjournment of the board.  DPPD believes that in the applicants case, neither 10 USC 1372 (3) nor (4) apply.  Therefore, DPPD recommends denial because the preponderance of evidence reflects that no error or injustice occurred during the disability process. 

The complete DPPD evaluation is at Exhibit D.

HQ AFPC/JA recommends approval.  JA states the statute only requires that the officer would have been promoted had it not been for the physical disability for which he retired.  At the time the applicant was retired for physical disability, he was recommended for promotion by a selection board which was approved by the SecAF on 27 October 2006.  Therefore, pursuant to Section 1372, the applicant should be retired as a major.  

The complete HQ AFPC/DPPPO evaluation, with attachment, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 27 July 2007 for review and comment within 30 days. As of this date, this office has received no response (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 timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice warranting corrective action.  We carefully considered the evaluations, the applicant's submission, and the evidence of record.  The Officer Promotion, Appointment, and Selective Continuation Branch and the Office of the Judge Advocate provided opinions to the Board which in essence provide their interpretation of statutes to state that since the applicant would have been promoted had it not been for his disability separation, he is entitled to be retired in the next higher grade.  On the other hand, the USAF Physical Disability Division does not believe the statutes are applicable in this case opining that since his disability separation was approved prior to the adjourning of the selection board, he was no longer eligible for promotion consideration.  Notwithstanding the varying opinions offered by competent authorities, we believe sufficient evidence has been provided to show an injustice exists warranting favorable consideration of his request.  In this regard, whether or not the applicant's records should have remained eligible for promotion consideration aside, his records were indeed considered by the board, he was selected for promotion, and his name remained on the list when signed by the approval authority.  If in fact an error existed in the promotion consideration process, the error was through no fault of the applicant and we believe it is an injustice for him to suffer the consequences thereof.  Therefore, we believe that under the circumstances of this case, it is appropriate to resolve this matter in the applicant's favor.  Accordingly, we recommend his records be corrected to the extent indicated below.

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 RECOMENDS:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show effective 2 November 2006, he was permanently disability retired in the retired pay grade of major.

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The following members of the Board considered Docket Number BC-2007-00804 in Executive Session on 12 September 2007, under the provisions of AFI 36-2603:

			XXXXXXXXXX, Panel Chair
			XXXXXXXXXX, Member
			XXXXXXXXXX, Member

All members voted to correct the records, as recommended.  The following documentary evidence pertaining to Docket Number BC-2007-00804 was considered:

    Exhibit A.  DD Form 149, dated 15 February 2007, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  AFPC/DPPPO Letter, dated 30 April 2007.
    Exhibit D.  AFPC/DPPD Letter, dated 11 June 2007.
    Exhibit E.  AFPC/JA Letter, dated 23 July 2007.
    Exhibit F.  Letter, SAF/MRBR, dated 27 July 2007.

		XXXXXXXXXX
		Panel Chair

AFBCMR BC-2007-00804

MEMORANDUM FOR CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to XXXXXXX, XXXXXXX, be corrected  to show effective 2 November 2006, he was permanently disability retired in the retired pay grade of major.

                             			 	    XXXXXXXXXX
                                   			  	    Director
                            			  	    Air Force Review Boards Agency