RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-04230

XXXXXXXXXXXXX	COUNSEL: NONE
	
	HEARING: YES

APPLICANT REQUESTS THAT:

His Separation Program Designator (SPD) code K22, and Reenlistment Eligibility (RE) code 4H, on his DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, be changed; and his discharge be upgraded to a medical discharge. 

APPLICANT CONTENDS THAT:

The SPD and RE codes are unjust and preventing him from receiving all of the benefits, he feels he is entitled to receive from the Veterans Administration.  He incurred a service-connected injury while on active duty and was not medically cleared prior to his 1987 discharge.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant reenlisted in the Regular Air Force 31 Jan 80.

On 30 Jan 87, the applicant received an Article 15 (failure to go to appointed place of duty): reduced to the grade of sergeant (suspended until 30 Jun 87), and restricted to the limits of San Miguel Naval Communications Station, Philippines, for 30 days.  

On 20 May 87, the applicant received medical clearance for separation, and was honorably discharged (early separation program-strength reduction), having served 7 years, 3 months, and 20 days of active service this period.    

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 EVALUATION:

AFPC/DP2STM-SEP recommends denying the application regarding the aspects of the narrative reason for separation and SPD code.  The application was not filed within three years of the discovery of the alleged error or injustice, or with due diligence, should have been discovered.  Notwithstanding timeliness, based on the presumption of regularity and the limited documentation on file in the master personnel records, the discharge to include the SPD code, narrative reason for separation and character of service was appropriately administered and within the discretion of the discharge authority.  The applicant did not provide any evidence of an error or injustice in the discharge processing.  The complete advisory is at Exhibit C.

AFPC/DP2SSM recommends denying the application regarding the aspects of changing the RE code.  The application was not filed within three years of the discovery of the alleged error or injustice, or with due diligence, should have been discovered.  The applicant does not provide any proof of and error or injustice in reference to his RE code.  According to applicant’s limited records, he received an Article 15 on 30 Jan 87 with a suspended punishment that expired on 30 Jun 87.  At the time of discharge 20 May 87, the RE code 4H (Received, or undergoing punishment, [suspended or unsuspended], pursuant to Article 15, Uniform Code of Military Justice) is correct.  The applicant’s SPD code K22 (Early Separation Program-Strength Reduction) had no effect on the RE code.  The complete advisory is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent copies of the Air Force evaluations to the applicant on 4 Oct 17 for comment (Exhibit E), but has received no response.

ADDITIONAL AIR FORCE EVALUATION:

AFBCMR Medical Advisor recommends denying the application in regards to upgrading the applicant’s separation to a medical discharge.  The military Disability Evaluation System (DES), established to maintain a fit and vital fighting force, can by law, under Title 10, United States Code (U.S.C.), only offers compensation for those service incurred diseases or injuries which specifically rendered a member unfit for continued active service and were the cause for career termination; and then only for the degree of impairment present at the time of separation and not based on future occurrences.  The applicant clearly had a chronic lumbar pain problem, for which a Physical Evaluation Board was once contemplated.  However, the fact that he was assigned a permanent “L2” profile, health care providers determined that the spine condition did not prevent him from reasonably performing the duties of his office, grade, rank, and rating.  Although restricted in performance of running activities, he was cleared to perform the walk test for aerobics.   The complete advisory is at Exhibit F.

APPLICANT’S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION:

The Board sent a copy of the additional Air Force evaluation to the applicant on 12 Jul 18 for comment (Exhibit G), and the applicant’s response was received on 11 Sep 18.  In his response the applicant contended the unjust SPD and RE codes on his DD Form 214 are a stigma on his record, preventing him from receiving all of the DVA benefits he is entitled to receive.  He argues that the disability to his neck and spine sustained while on active duty should have resulted in a medical discharge.  He recaps events associated with his attempt to correct his DD Form 214, eluding to the AFPC/DP2STM-SEP Advisory, dated 18 May 17, recommending DENIAL, and wondering why he is still being requested to respond to other advisories.  The applicant’s complete response is at Exhibit H.

THE BOARD CONCLUDES THAT:

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 that the applicant is not the victim of an error and injustice.  The Board concurs with the rationale and recommendation of AFPC/DP2STM-SEP, AFPC/DP@SSM, and the AFBCMR Medical Advisory, and finds that 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).  While the applicant asserts a date of discovery less than three years before the Board’s receipt of the application, the Board does not find the assertion reasonable.  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.

4.  The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to the Board’s understanding of the issues involved.

THE BOARD RECOMMENDS THAT:

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.

The application was adjudicated without a personal appearance.

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-2016-04230 in Executive Session on 9 Oct 18

, Panel Chair 
, Panel Member
, Panel Member

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

Exhibit A:	Application, DD Form 149, w/atchs, dated 18 Oct 16.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2STM-SEP, dated 18 May 17.
Exhibit D:	Advisory opinion, AFPC/DP2SSM. Received 4 Oct 17.
Exhibit E:	Notification of Advisory, SAF/MRBC to applicant, dated 4 Oct 17.
Exhibit F:	Advisory opinion, AFBCMR Medical Advisor, dated 26 Jun 18.
Exhibit G:	Notification of Advisory, SAF/MRBC to applicant, dated 12 Jul 18. 
Exhibit H:	Applicant’s response, received 11 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, pertaining to . Docket Number BC-2016-04230.