RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-03561

   	COUNSEL: NONE 
	 
 	HEARING: NO 

THE APPLICANT REQUESTS:

His separation be changed to a medical retirement. 

THE APPLICANT CONTENDS:

He was in the process of being medically discharged when his enlistment ended, but instead of being medically retired he was separated.  The AF Medical Board had already made a determination of medical disqualification.  He should have been medically retired based on his length of service due to being in sanctuary.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant served in the Air Force Reserve in the grade of master sergeant during the period of time under review.  

On 9 Jan 01, Air Force Reserve Command notified him separation action had been initiated to discharge him from the Reserve due to physical disqualification.   He was notified of his right to counsel.  The applicant acknowledged the result of the Informal Physical Evaluation Board (IPEB) findings and elected not to have the case referred to the Formal Physical Evaluation Board (FPEB). 

On 29 Jan 01, the applicant was furnished an honorable discharge certificate, 

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C, D, and F.

AIR FORCE EVALUATIONS:

AFRC/SGO recommends denial of the application.  The applicant is requesting a medical retirement, which in accordance with AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation, requires an ARC member to have incurred or aggravated the unfitting condition in the performance of military service.   He incurred a low back injury at his civilian job in late Feb/early Mar 99.  There was no indication this condition was incurred or aggravated in the performance of military service and therefore was not subject to a line of duty (LOD) determination.   The applicant was not eligible for medical retirement or disability consideration and was entered into the Disability Evaluation System (DES) for a “fitness only” determination.   On 4 Dec 00, the Informal Physical Evaluation Board (IPEB) found the applicant “unfit” for further duty, and the applicant subsequently declined review by the Formal Physical Evaluation Board (FPEB).  There is no evidence of an error or injustice.     

The complete advisory is at Exhibit C.  

AFPC/DPFDD recommends denial of the application.  In accordance with AFI 36-3212, Physical Evaluation for Retention, Retirement and Separation, AFRC/SGP submitted a non-duty fitness case to the IPEB on 02 Nov 00 for a consideration of fitness for continued military service.  The IPEB found the applicant unfit for his non-duty related chronic low back pain, status post microdiscectomy and bilateral L5-S1 hemilaminectomy.  The applicant concurred 18 Dec 00.  DPFDD found no indication an error or injustice occurred during the processing of this non-duty fitness case.

The complete advisory is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

The Board sent copies of the Air Force evaluations to the applicant on 12 Jul 18 for comment (Exhibit E), but has received no response.

ADDITIONAL AIR FORCE EVALUATION:

ARPC/DPTT recommends denial of the application.  In accordance with Title 10, United States Code (U.S.C.), Section 12731, a service member must complete 20 years of satisfactory service to be eligible for Reserve retirement pay and benefits.  Upon the applicant’s discharge on 31 Mar 01, he had completed 19 years, 2 months, 5 days of satisfactory service.  To be credited with a satisfactory year for retirement, members must earn 50 points (this includes 15 membership points).  Although the member was found unfit to perform duties by the IPEB, the applicant did not qualify under Title 10 U.S.C. 12731 (b) because the 1995 National Defense Authorization Act (NDAA) required members to serve the last six years in the Air Force Reserve satisfactorily to qualify for retirement.  At the time of his discharge, the applicant only had completed five years of satisfactory service.  The six satisfactory service year requirement established in the 1995 NDAA was later eliminated in the 2005 NDAA, which was after the applicant’s discharge and would not be applicable in this case. 

The complete advisory is at Exhibit F.

APPLICANT’S REVIEW OF THE ADDITOINAL AIR FORCE EVALUATION:

The Board sent a copy of the additional Air Force evaluation to the applicant on 26 Sep 18 for comment (Exhibit G), but has received no response.

THE BOARD CONCLUDES:

1.  The application was not timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendations of the Air Force offices of primary responsibility and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board also notes the applicant did not file the application within three years after the alleged error or injustice was discovered, or should have been discovered, as required by Title 10, United States Code, Section 1552, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  Moreover, the applicant has offered no plausible reason for the delay in filing the application.  The Board finds the application untimely and concludes it would not be in the interest of justice to excuse the delay.  Therefore, the Board recommends against correcting the applicant’s records.

THE BOARD RECOMMENDS:

The applicant be informed the application was not timely filed; it would not be in the interest of justice to excuse the delay; and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2016-03561 in Executive Session on 31 Oct 18:

Panel Chair
Member
Member

All members voted not to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 5 Aug 16.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFRC/SGO, dated 4 Jun 18.
Exhibit D:	Advisory opinion, AFPC/DPFDD, dated 28 Jun 18.
Exhibit E:	Notification of Advisory, SAF/MRBC to applicant, dated 12 Jul 18.
Exhibit F:  Advisory opinion, ARPC/DPTT, dated 30 Aug 18.
Exhibit G:  Notification of Advisory, SAF/MRBC to applicant, dated 26 Sep 18.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9.