RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2008-03855 INDEX CODE: 108.07 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ _ APPLICANT REQUESTS THAT: His record be corrected to show he completed 20 years of active duty and his disability retirement changed to a longevity retirement so he can qualify for benefits under the Combat Related Special Compensation (CRSC) Act or for Concurrent Retirement and Disability Payment (CRDP). ________________________________________________________________ _ APPLICANT CONTENDS THAT: He was forced out three weeks prior to his 20-year retirement. He served his country with honor and earned a 20-year career. In support of his request, the applicant provides a personal statement and, copies of his DD Form 214, Certificate of Release or Discharge from Active Duty, and a newspaper clipping of a Marine Corps amputee returning to combat duty. The applicant's complete submission, with attachments, is at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: The applicant is a former member of the Regular Air Force who served as a Law Enforcement Craftsman and received a permanent disability retirement effective 6 August 1994. On 20 January 1994, an Informal Physical Evaluation Board (IPEB) reviewed the applicant’s medical condition of pseudoarthrosis of spinal fusion at L4-5 level with loosening of pedicle screws and severe low back pain. In the opinion of the IPEB, the deterioration of his condition overcame the presumption of fitness as defined by Air Force Regulation 35-4, paragraph 3-33, and they recommended permanent retirement with a disability rating of 40 percent. On 9 February 1994, the applicant non- concurred and requested a Formal Physical Evaluation Board (FPEB). On 17 March 1994, after review of the findings with counsel, the applicant elected to waive his earlier election to demand a formal hearing and accepted the recommended findings of the IPEB. His military personnel records reflect he completed 19 years, 11 months, and 8 days of active duty service. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSD recommends denial. DPSD states the preponderance of evidence reflects that no error or injustice occurred during the disability process or at the time of separation. The applicant elected to waive his right to have a formal hearing of his case. Had he elected a formal hearing, he had one more appeal option to have his case reviewed by the Secretary of the Air Force Personnel Council (SAFPC). Had he elected both of these options, he might have extended out the finalization date of his case and made the 20 years of active service. He did not elect either of these options. The complete DPSD evaluation is at Exhibit C. AFPC/DPPD states that in accordance with 2008 revisions, military members retired with less than 20 years of service, who are receiving retirement pay, are now eligible to apply for CRSC. DPPD states they have not received a claim from the applicant; therefore, they have mailed him a Department of Defense Form 2860, Claim for Combat-Related Special Compensation. Upon receipt of his signed claim and supporting documents, they will process his request accordingly. DPPD indicates the CRSC program was established to provide compensation to certain retirees with combat-related disabilities that qualify under the criteria set forth in Public Law 107-314, Subtitle D, Section 636. If the veteran fails to satisfy the preliminary CRSC criteria, no further consideration by their service department is required and the application will be denied accordingly. If the veteran satisfies the preliminary CRSC criteria, the application is reviewed for combat-related determination. In order to determine a disability is combat- related, there must be objective documentary evidence to show the disability is the direct result of a combat event or events, or performance of duty simulating war, or caused by hazardous service or an instrumentality of war. In addition, there are other conditions that are considered presumptive of Agent Orange, Radiation, Mustard Gas, or Prisoner of War interment, by the Department of Veterans Affairs (DVA), which also qualify for CRSC. The complete DPPD evaluation, with attachments, is at Exhibit D. ________________________________________________________________ _ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The main reason he applied to the Board is because of the miscarriage of justice in the handling of his retirement. He had every intention of contesting the IPEB recommendation as he was set to retire effective 28 August 1994; however, his fellow senior non-commissioned officers, including his First Sergeant, told him to let it go, so he waived his right to a FPEB. It was indicated to him that he would be placed on casual status for the final weeks of his career. Even though his Veterans Service Officer suggested he could qualify for CRSC, his research into the qualifications suggests that he is not. Although back injuries in response to Operational Readiness Inspections and other inspections (he stood on the tarmac for many hours) could be a contributing factor, he would disagree and not categorize himself as having sustained a true combat-related injury like his fellow veterans who served in a war zone. However, he does feel he is entitled to CRDP. The applicant’s complete rebuttal is at Exhibit D. ________________________________________________________________ _ 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 note the applicant is asking for his records to be changed to show he completed 20 years of active duty so he can qualify for benefits under the CRSC Act or for CRDP. While the requirements for CRSC was revised in 2008 to include military members who retired with less than 20-years of service and receiving retirement pay, the applicant does not qualify for CRSC because his injuries were not combat-related. This is supported by the applicant’s own admission that his disability is not combat-related. In regard to his request for CRDP, we note that he does not meet the requirements for CRDP because he did not complete 20 years of active military service. The evidence of record indicates he received a disability retirement at 19 years, 11 months, and 8 days of active duty after being processed through the Disability Evaluation System (DES). The applicant asserts he was told by his first sergeant that he would be continued in a casual status for the final weeks of his career; however, he has not provided evidence to support this contention. Therefore, we agree with the opinions and recommendations of the Air Force offices 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. In the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. ________________________________________________________________ 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 Docket Number BC- 2008-03855 in Executive Session on 2 March 2010, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2008-03855 was considered: Exhibit A. DD Form 149, dated 15 Oct 08, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSD, dated 26 Jan 09. Exhibit D. Letter, AFPC/DPPD, dated 26 May 09, w/atchs. Exhibit E. Letter, AFPC/DPSOR, dated 10 Jul 09, w/atchs. Exhibit F. Letter, SAF/MRBR, dated 14 Aug 09. Exhibit G. Letter, Applicant’s Rebuttal, dated 7 Sep 09. Panel Chair