RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-00733 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His DD Form 214, Certificate of Release or Discharge from Active Duty, be corrected to reflect that: a. He was permanently retired with a 30 percent compensable disability rating, rather than transferred to the temporary disability retired list (TDRL) with a 50 percent compensable disability rating. b. He was retired in the grade of lieutenant colonel (O- 5), instead of major (O-4). 2. He be provided documentation pertaining to his selection for promotion to the grade of lieutenant colonel (administratively resolved). ________________________________________________________________ APPLICANT CONTENDS THAT: His DD Form 214 reflects he was transferred to the TDRL with a 50 percent disability rating; however, it should reflect his subsequent removal from the TDRL and permanent retirement with a 30 percent disability rating. Also, he should have been retired in the grade of lieutenant colonel as he was selected for promotion to the requested grade prior to this transfer to the TDRL. In support of his request, the applicant provides copies of his AFMPC Forms 134, Retirement Order. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant served in the Air Force in the grade of major (O- 4), effective and with a date of rank of 13 Aug 72. On 21 Jun 77, he was transferred to the TDRL with a 50 percent compensable disability rating. On 31 Dec 78, he was permanently retired for physical disability, with a 30 percent compensable disability rating. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force which are attached at Exhibits C and D. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSOO makes no recommendation, but defers to the Disability Operations Section in determining the applicant’s retired grade. The applicant met and was selected for promotion to lieutenant colonel by the calendar year 1976 (CY76) Temporary Lieutenant Colonel Promotion Board. The list was confirmed by the Senate on 26 Jan 77. A review of the sequence roster from the board reveals that his promotion was withheld on 23 Feb 77. There is no documentation to indicate he was recommended for promotion or the withhold action was terminated prior to his separation. Had the action been terminated, he would have been promoted on 1 Mar 77. He was transferred to the TDRL on 1 Jun 77. A complete copy of the AFPC/DPSOO evaluation is at Exhibit C. AFPC/DPSD defers to the Board to determine if there was an error or injustice with respect to the applicant’s retired grade. There is no documentation in his records indicating the withhold action was terminated prior to his separation. As such, his DD Form 214 correctly reflects “Major (P)” as the rank the applicant held on active duty at the time of his separation. However, Title 10, United States Code (USC), Section 1372 states, “…any member whose name is placed on the temporary disability retired list under section 1202 or 1205, is entitled to the grade equivalent to the highest of the following:…(4) The temporary grade to which he would have been promoted had it not been for the physical disability for which he was retired.” As for his request related to correcting his DD Form 214 to indicate he was ultimately permanently retired with a 30 percent disability rating, there is no evidence of an error or injustice. The applicant was released from active service and placed on the TDRL on 21 Jun 77 for acute schizophrenic episode, with a definite impairment of social and industrial adaptability, with a disability rating of 50 percent. He had his first mandatory TDRL re-evaluation on 19 Jul 78 and the Informal Physical Evaluation Board (IPEB) recommended his removal from the TDRL and permanent retirement with a disability rating of 30 percent. He was removed from the TDRL and permanently retired on 31 Dec 78 and was credited with 18 years, 10 months, and 8 days of total active service. He received a DD Form 214 when he was placed on the TDRL. When a member is removed from the TDRL, a new DD Form 214 is not issued. Instead, a new order is published indicating the final status and becomes a permanent part of the military personnel record which can be attached to the DD Form 214 to reflect the final disposition of permanent retirement. A complete copy of the AFPC/DPSD evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 14 Jan 11 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit E). ________________________________________________________________ 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 an error or injustice. In regards to the applicant’s request to correct his DD Form 214 to reflect his permanent disability retirement with a combined disability rating of 30 percent, we note that a DD Form 214 documents only periods of active duty service. In addition, periods on the TDRL are not considered active service. As such, issuance of a DD Form 214 when an individual is removed from the TDRL and permanently retired is not authorized. Instead, the new retirement order is published indicating the final status and becomes a permanent part of the military personnel record which can be attached to the DD Form 214 to reflect the final disposition of permanent retirement. In regards to his request that his record be corrected to reflect he was retired in the grade of lieutenant colonel, we are not convinced by the evidence presented that he was the victim of a error or injustice. While the evidence of record indicates he was selected for promotion to the temporary grade of lieutenant colonel prior to being transferred to the Temporary Disability Retired List (TDRL), and 10 USC 1372 provides that any member placed on the TDRL is entitled to the temporary grade to which he would have been promoted had it not been for the physical disability for which he was retired, the applicant has provided no evidence which would lead us to believe the underlying basis for the action to withhold his promotion was somehow insufficient, was withdrawn, or that his commanders abused their discretionary authority. We note there is no documentation in the record describing the circumstances surrounding the withhold action; however, based on the presumption of regularity in the conduct of governmental affairs, we must assume the withhold action was proper and carried out in compliance with the directive under which it was effected. Therefore, 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 the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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-2010-00733 in Executive Session on 14 Jul 11, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2010-00733 was considered: Exhibit A. DD Form 149, dated 18 Feb 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSOO, dated 9 Dec 10. Exhibit D. Letter, AFPC/DPSD, dated 17 Dec 10. Exhibit E. Letter, SAF/MRBR, dated 14 Jan 11.