RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2007-01927
		INDEX CODE:  110.00
		
		COUNSEL:  NONE
		HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  22 DECEMBER 2008

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APPLICANT REQUESTS THAT:

Her medical retirement for disability be changed to a Temporary Early Retirement Act (TERA) retirement for time in service.

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APPLICANT CONTENDS THAT:

She never had the option to request a TERA retirement anytime prior to or after her permanent disability retirement on 21 Apr 94.

She was never informed of her rights under the TERA program and was forced to take a medical retirement.

Had she known she could have received a TERA retirement based on years of service, she would have taken that instead of appealing the decision of the Physical Evaluation Board (PEB) regarding her retirement at 30 percent disability.  TERA would have given her a 45 percent retirement.

Today, the injustice is even greater.  Those who voluntarily took the TERA retirement for time in service can get concurrent receipt.  

Once she was placed on the TDRL, she did not have the resources or ability to stay up on current USAF personnel issues and therefore could not have found out about TERA.

In support of her request, applicant provided copies of her Temporary Disability Retired List (TDRL) order, a DFAS letter explaining retirement options, an amendment to the TDRL order, AF Form 356, Informal PEB, Formal PEB order, and AFMPC/DPMADS2 Action Memorandum, Removal from TDRL and permanent retirement.

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

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STATEMENT OF FACTS:

The applicant served on active duty in the Air Force from 22 Jul 74 to 18 Aug 92.  Her highest grade held on active duty was Major.

Applicant was relieved from active duty and placed on the TDRL effective 18 Aug 92, with 18 years and 26 days of active service for retirement with a 30 percent disability rating.  This special order was amended on 15 Oct 92, to correct her service for basic pay, which did not affect her compensation.

On 25 Mar 94, the findings and recommended disposition of the AF Physical Evaluation Board (PEB) was to permanently retire the applicant for physical disability.  Effective 21 Apr 94, she was removed from the TDRL and retired in the grade of major with a compensable percentage of 50 percent.  On 25 Mar 94, she agreed with the findings and recommendation of the PEB.

Additional relevant facts pertaining to this application are contained in the evaluation prepared by the appropriate office of the Air Force found at Exhibit C.

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AIR FORCE EVALUATION:

AFPC/DPPRRP recommends denial of the applicant’s request.  The applicant was not eligible to request retirement under TERA on  18 Aug 92 because TERA was not enacted until 23 Oct 92.  The applicant was not eligible to apply for TERA while on the TDRL.  Also, because she was not returned to duty by the PEB, she was not eligible to apply for TERA nor permitted to reach 20 years Total Active Federal Military Service (TAFMS) to retire under 10 USC 8911.

In the National Defense Authorization Act for Fiscal Year 1992 (FY92 NDAA), Public Law (PL) 102-484, 23 Oct 92, Congress enacted TERA, which permitted selected military members to retire early and accrue additional military retirement credits if they gained employment with qualifying public or community service organizations.  Section 534 of that law gives the Secretary of the Air Force (SAF) the authority to permit early retirement for selected military members with more than 15 but less than 20 years of service who agree to register for employment in public or community service organizations.  PL 107-314, NDAA for FY03, Section 554, extended TERA to 1 Sep 02.

The SAF exercised TERA authority beginning 3 May 93 for officers requesting a retirement date between 1 Oct 93 and 1 Sep 94.  The Air Force TERA program was announced in HQ AFMPC/DPMA AIG 8106 message 051600Z Apr 93, FY94 Force Reduction Programs.  Had she been returned to duty on 21 Aug 94, instead of permanently retired, she still could have requested to retire under TERA not later than 1 Sep 94 under the FY94 Force Reduction Program, a later TERA program, or retire at 20 years TAFMS, her mandatory retirement date.

Applicant was placed on the TDRL on 18 Aug 92, prior to the enactment of TERA on 23 Oct 92, so she was not eligible to elect TERA on that date.  Even if TERA had been in effect on 18 Aug 92, her medical condition at the time would have precluded her from requesting retirement under TERA.  Further, members on the TDRL cannot apply for a non-disability retirement for which they are eligible unless they are returned to duty.  The applicant never returned to active duty but was later permanently retired on    21 Apr 94 for disability.

There is no financial advantage for the applicant to retire under TERA with a 45 percent retired pay multiplier versus the 50 percent disability multiplier she now receives.  To approve the change from permanent disability retirement to TERA would negatively impact the applicant.  For this reason, it is not in the interest of justice for the Board to consider the application more than 13 years after the alleged injustice.  Concurrent receipt laws apply only to members who have 20 years or more TAFMS and the applicant has only 18 years TAFMS.  The Board cannot approve the applicant’s request based on a Congressional member’s stance on veterans’ issues – only existing law can be applied to a decision.  Although the Senator may support concurrent receipt for disability, until that position becomes law, retirees with less than 20 years TAFMS are not authorized to receive both physical disability retired pay and DVA disability compensation.

The most important reason to deny the applicant’s retirement under 10 USC 8911, or its TERA provision, is that retirement under this section of law would subject the applicant to possible recall to active duty under 10 USC 688.  A PEB found the member to be unfit for duty based on permanent physical disability.  As such, she can no longer be considered an Air Force mobilization asset.

The DPPRRP evaluation, with attachments, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 17 Aug 07, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days.  To date, a response has not been received.

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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.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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 issue 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 Docket Number    BC-2007-01927 in Executive Session on 4 October 2007, under the provisions of AFI 36-2603:

The following documentary evidence pertaining to Docket Number BC-2007-01927 was considered:

    Exhibit A.  DD Form 149, dated 22 May 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRRP, dated 12 Jul 07, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 17 Aug 07.