RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-03438 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ THE APPLICANT REQUESTS THAT: His discharge with disability severance pay be changed to a Reserve retirement. ________________________________________________________________ THE APPLICANT CONTENDS THAT: He was not properly advised of his choices of either getting a Reserve retirement or being discharged with severance pay. He received no counseling, legal or otherwise, as to which choice to make and no one on the base knew what the discharge with severance pay represented. His condition of Post-Traumatic Stress Disorder (PTSD) had him confused, mildly suicidal and unable to make rational decisions. He chose the most expedient short term remedy and took the $143,000.00, which was the wrong choice; however, it was not explained to him that it would cost him his retirement. No rational individual would have made that choice. Since he has waived his disability separation with severance pay and accepted 100 percent disability with the Department of Veterans Affairs (DVA), the DVA is now recouping the $143,000.00. In support of his appeal, the applicant provides personal statements and an email communique from AFPC/DPPDS, dated 16 May 01. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: Based on the available records, on 28 Sep 99, the applicant’s Line of Duty Determination (LOD) was finalized as “In the Line of Duty.” On 5 Jun 01, the applicant was discharged with entitlement to disability severance pay, with a compensable disability rating of 20 percent. He was credited with 29 years, 2 months, and 29 days of service for pay. The applicant’s Date of Birth (DOB) is 28 Sep 44. ________________________________________________________________ THE AIR FORCE EVALUATION: ARPC/DPTT recommends denial, stating, in part, that the applicant claims he was not aware of the repercussions associated with accepting discharge with severance pay versus receiving retired pay at age 60. The ARPC Retirement Branch has no way of knowing what guidance he received but receipt of discharge with severance pay prohibits entitlement to military retired pay. The applicant accumulated 6,417 total retirement points and completed 29 years, 2 months, and 21 days of satisfactory Federal service to be eligible for Reserve retirement pay under the provision of Title 10, United States Code (U.S.C.), Section 12731. He was given the option to be transferred to the Retired Reserve awaiting retirement pay at age 60 or be discharged with disability severance pay. The applicant was discharged from the United States Air Force Reserve, effective 5 Jun 01, under the provision of Title 10, U.S.C., Section 1203 with entitlement to discharge with severance pay computed in accordance with Title 10, U.S.C., Section 1212. The complete DPTT evaluation, with attachments, is at Exhibit C. AFPC/DPFD recommends denial, stating, in part, that the applicant has failed to provide adequate evidence to support his contention that an error or injustice occurred during the disability process or time of separation. Based on information obtained from the Military Personnel Data System (MilPDS), on 11 Apr 01, the Informal Physical Evaluation Board (IPEB) reviewed the case and determined that his condition was unfitting for continued military service and recommended discharge with disability severance pay with a compensable rating of 20 percent for PTSD under the Veterans Affairs Schedule for Rating Disabilities (VASRD) code 9411. On 24 Apr 01, the applicant concurred with the IPEB's recommendation. He did not use his two appeal rights to have his case reviewed by the Formal Physical Evaluation Board (FPEB) or the Secretary of the Air Force Personnel Council (SAFPC). A discharge message was sent out 16 May 01 which established his Date of Separation (DOS) as 5 Jun 01. The complete DPFD evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: He was not aware that he could fight the injustice he has lived with for so long. He has worked very hard over the past year to prepare his case for the Board’s review. Congress created the Physical Disability Board of Review (PDBR) specifically to remedy the injustice of not providing a military retirement for those members who were forced out due to having combat related PTSD. He missed the cut off to request his case be reviewed by a matter of months based on his DOS, but, nonetheless, it does not mitigate the impact of not having the right to be a retired officer after serving almost 30 years honorably. ARPC and the Disability Evaluation System (DES) office that reviewed his case cannot show proof that he was ever provided counseling that he cou1d choose to wait until he was 60 to take his retirement and not have to take the severance check instead. He was a pilot assigned to an Air National Guard (ANG) base. His wing commander told him he had no choice but to take the money or get nothing. He lost his civil service and his military career. Why would he not wait until he was age 60 if he only had to wait for five years? Why would he trade in a few years of retirement pay in one severance check instead of receiving a steady monthly check for the rest of his life once he turned 60? He had over 6,000 points and 28 years and would have never thrown away his retirement. He has flashbacks so severe that they manifested as psychosis, depression, PTSD, and alcoholism which nearly cost him his employment. He was almost fired because he could not manage his emotions around other people; however, he is doing well. Although seriously struggling, he was able to keep it together pretty well at work; however, his home life was a mess. In an electronic mail (email), dated 21 Nov 13, the applicant notes that his records accurately reflects he received severance pay/military separation instead of receiving a medical retirement. At the time of his "mustering-out," he was suffering from extreme PTSD and was incapable of understanding his options. He was not offered any explanations nor counseling as to the significance of his situation. He was strong-armed into signing the paperwork even though he was incapable of any logical thought. As a West Point graduate with 29 years, 2 months, and 29 days of the service in the military; accruing 6,402 points towards a military retirement, a tremendous injustice has been perpetrated against him and he would like it corrected. Furthermore, he would like to not be required to pay back the severance pay, which is currently being deducted from his DVA disability pay. In further support of his appeal, the applicant provides personal statements; copies of medical reports from his civilian medical providers and various other supporting documents. The applicant’s complete response, with attachments, is at Exhibit F. ________________________________________________________________ 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. Sufficient relevant evidence has been presented to demonstrate the existence of an injustice warranting corrective action. Although we find no evidence of an error on the part of the Air Force, after careful consideration of the applicant’s submission, we believe that based on the applicant’s mental state at the time of separation he may have made what appears to be a not so well thought out decision. Although the applicant has not submitted substantial evidence showing that he was miscounseled, we find it unreasonable that he would forego a retirement with almost 30 years of service for disability with 20 percent severance pay. Therefore, in the interest of justice we recommend his discharge with severance pay be changed to a Reserve retirement. The applicant notes that recoupment action has been initiated by the DVA and essentially requests that it be remitted; however, according to the law, the applicant is subject to recoupment for the entire disability severance pay. As such, we find no basis to act on this portion of his request. Accordingly, we recommend the applicant's records be corrected to the extent indicated below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that: a. On 5 Jun 2001, he was not discharged with disability severance pay but was relieved of his current assignment and on 6 June 2001, he was transferred to the Air Force Reserve Retired List awaiting pay at age 60, under the provisions of Title 10, United State Code (USC), Section 12731. b. His election of Reserve Component Survivor Benefit Plan option will be corrected in accordance with his expressed preferences and/or as otherwise provided for by law or the Code of Federal Regulations. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2013-03438 in Executive Session on 15 May 2014, under the provisions of AFI 36-2603: , Panel Chair , Member , Member Although chaired the panel, due to her unavailability, has signed as Acting Panel Chair. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 15 Jul 13, w/atchs. Exhibit B. Applicant's Available Master Personnel Records. Exhibit C. Letter, ARPC/DPTT, dated 27 Nov 13, w/atchs. Exhibit D. Letter, AFPC/DPFD, 6 Dec 13. Exhibit E. Letter, SAF/MRBR, dated 10 Jan 14. Exhibit F. Letter, Applicant, 7 Feb 14, w/atchs. 1 2