RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2014-05151 COUNSEL:	NONE
HEARING DESIRED:	NO

APPLICANT REQUESTS THAT:
He	should	have	been	retired	[presumably	medically]	and	not separated with disability.

APPLICANT CONTENDS THAT:
He was discharged (separated) for physical disability but he contends he should have been medically retired. When he got a new (dependent) ID card in 2014, he asked why he didn’t get a retired ID card. He was told the dependent card was the correct card, without explanation. In 1979, he was never told the difference between being separated and retired.

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

STATEMENT OF FACTS:
On 6 Oct 75, the applicant entered the Regular Air Force.
On 3 Apr 79, a Medical Evaluation Board (MEB) convened and found a medical diagnosis of “regional enteritis” existed prior to service (EPTS). The MEB referred the applicant’s case to the Physical Evaluation Board (PEB).

On 10 Apr 79, an Informal PEB (IPEB) convened and found a medical diagnosis of “regional enteritis; EPTS with service aggravation” and recommended discharge with severance pay, with a compensable percentage of 20. The applicant non-concurred with the IPEB recommendation and demanded a formal hearing.

On 27 Apr 79, the Formal PEB (FPEB) convened and found a medical diagnosis of “regional enteritis; EPTS with service aggravation” and recommended discharge with severance pay, with a compensable percentage of 20. The applicant non-concurred with the FPEB recommendation and submitted an appeal to the Secretary of the Air Force Personnel Council.

On 11 Jun 79, the Secretary of the Air Force directed the applicant be discharged and receive severance pay with a disability rating of twenty (20) percent.

On 1 July 79, the applicant was discharged by reason of physical disability with entitlement to severance pay, and was credited with 4 years, 1 month, and 16 days of total active service.

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.

AIR FORCE EVALUATION:
AFPC/DPFD recommends denial indicating there is no evidence of an error or an injustice. The applicant states he was “never told the difference between separate or retirement.” After a review of the documents provided, in his appeal to SAFPC the applicant states, “I further realize that there is a large gap between 20%, which I am now rated at, and the next percentage rate. Perhaps you feel that my case is not serious enough to rate a 60% disability rating. If so I can only hope that you would see fit to raise my rating to 30%, so that I could be placed on the TDRL [Temporary Disability Retired List]. This would enable me, in time, hopefully to continue my Air Force career.” It would appear from this statement the applicant did at least understand the difference between discharge and placement on the TDRL. The IPEB rated the applicant’s medical condition as Existed Prior to Service (EPTS) with service aggravation, and that rating was upheld throughout the appeal process. The degree of disability at the time his case was processed was 30%. However, the board applied a 10% deduction for the EPTS factor, leaving the final rating at 20%, which equaled to discharge instead of retirement. The governing directive at that time, AFM 35-4, dated 4 Oct 74, states “in cases involving aggravation by active service, the compensable rating will reflect only the degree of disability over and above and degree existing at the time of entrance into active service, whether the particular condition was noted at the time of entrance into active service or as determined upon the evidence of record to have existed at that time. Therefore, it is necessary in all cases of this character to deduct the degree of the disability existing at the time of entrance into active service, if ascertainable in terms of the VA Schedule, from the present degree of disability. The resulting difference will be recorded on AF Form 356.”

It is recommend to deny the applicant’s request. The applicant has not filed a timely petition, as evidenced by the 35-year delay in requesting a medical retirement. Additionally, there is no evidence an injustice or error occurred during the processing of the applicant’s request for discharge.

A complete copy of the AFPC/DPFD evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the applicant on 13 Mar 15 for review and comment within 30 days (Exhibit D). As of this date, no response has been received by this office.

FINDINGS AND CONCLUSIONS OF THE BOARD:
After careful consideration of applicant’s request and the available evidence of record, we find the application untimely. Applicant did not file within three years after the alleged error or injustice was discovered as required by Title 10, United States Code, Section 1552 and Air Force Instruction 36-2603. Applicant has not shown a plausible reason for the delay in filing, and we are not persuaded that the record raises issues of error or injustice which require resolution on the merits. Thus, we cannot conclude it would be in the interest of justice to excuse the applicant’s failure to file in a timely manner.

THE BOARD DETERMINES THAT:
The application was not timely filed and it would not be in the interest of justice to waive the untimeliness. It is the decision of the Board, therefore, to reject the application as untimely.

The following members of the Board considered AFBCMR Docket Number BC-2014-05151 in Executive Session on 26 Aug 15 under the provisions of AFI 36-2603:

, Panel Chair
, Member
, Member
The following documentary evidence pertaining AFBCMR Docket Number BC-2014-05151 was considered:

Exhibit A.	DD Form 149, dated 19 Dec 14, w/atchs. Exhibit B.	Applicant's Master Personnel Records. Exhibit C.	Memorandum, AFPC/DPFD, dated 5 Feb 15. Exhibit D.	Letter, SAF/MRBR, dated 13 Mar 15.
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