RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02289

	XXXXXXX	COUNSEL:  NONE

	XXXXXXX	HEARING DESIRED: NO

MANDATORY CASE COMPLETION DATE:  30 JAN 06

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APPLICANT REQUESTS THAT:

His reenlistment eligibility (RE) code be changed from “2Q” to “1” which would allow him to reenlistment in the Reserve.

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APPLICANT CONTENDS THAT:

After 15 years of active duty, he was medically retired from the Air Force and placed on the Temporary Disability Retirement List (TDRL) in July 1997.  In October 1998, he was notified by AFPC/DPPDS that an Informal Physicians Evaluation Board (IPEB) had convened and determined his medical condition had improved, but he was unfit for active duty.  He was to be removed from the TDRL and medically separated with severance pay.

The findings of the IPEB were based upon a medical examination done by Dr. __, Orthopedic Surgeon, on 30 September 1998.  His findings did not support the IPEB recommendations.  He recommended that he remain on the TDRL and felt there was no “operative intervention”.  Even with this evidence, the IPEB felt his condition had improved and sought to separate him.  He requested and was granted a review in front of a Formal Physicians Evaluation Board (FPEB) in San Antonio Texas on       5 January 1999.

In summary, the FPEB agreed with the findings of the IPEB. The FPEB further went on to state that his medical condition did not warrant the 30% disability rating the Air Force had originally assigned to his injury, thus not warranting his placement on the TDRL in July 1997.  Ironically, had he not been placed on the TDRL, he would already have been eligible for a regular Air Force retirement as early as May 2002.  The FPEB also acknowledged that he was fit to return to active duty if he chose to do so.  He had already been working for the Boeing Company in Aurora Colorado since December 1997, and could not see a return to active duty at that time.  As he recalled, at the time of the medical board ruling, he did not think to ask, and was not offered an opportunity to serve in the Guard or Reserve.  The FPEB medically separated him with severance pay and he returned to civilian status. 
 
In July 2003, he was approached by SMSgt __ about serving in the Air Force Reserve.  His AFSC in the Air Force was 1N5, Electronic Intelligence.  She informed him that her Individual Mobilization Augmentee (IMA) unit had open master sergeant billets, and his skills would benefit her unit.  With the help of MSgt P__, the local Air Force Reserve recruiter, he completed the ASVAB and passed the reenlistment physical.  His records and application were forwarded to the ARPC Surgeon General on the former Lowry AFB campus for a medical waiver.  The ARPC Surgeon General ruled that a medical waiver could not be granted because of his separation code on his DD Form 214, and he would need the Secretary of the Air Force waiver.  

So far, no organization within the Air Force Reserve structure can grant him an enlistment waiver due to the SAF FPEB action. All organizations involved have said that he needs a SAF waiver.  He wrote his Congressman, the Honorable Tom Tancredo of Colorado, and enlisted his assistance in filing a Congressional Inquiry. He received a reply back from the Deputy Chief, Congressional Inquiry on 24 March 2004.  He concluded that he needed to submit a request to the AFBCMR for a correction to his DD Form 214.

The dilemma he face is that there are several factors that are incongruent with his separation from the Air Force and his entry into the Air Force Reserve. Had he not been placed on the TDRL in 1997, he would have already retired from the Air Force and had full retired pay.  Since being placed on, and then removed from the TDRL, the documented inconsistencies within the Air Force and Air Force Reserve are working against him to continue to serve his country. The inconsistencies are:

	1. The FPEB stated that the Air Force applied a faulty rating initially placing him on the TDRL in 1997.  Subsequently, he would have served faithfully for another five years, thus becoming eligible for retirement.  This error on the side of the Air Force denied him the ability to finish his career.  

	2. The FPEB accepted the findings of the IPEB, even though the examining physician believed that he should remain on the TDRL.

	3. While in agreement with the IPEB, the FPEB ruled that had he been inclined, they would have allowed him to return to active duty.  With this statement documented on the AF Form 54, he believes a correction to his reentry code (RE) should have been done at that time.  Since it wasn’t, the statement does provide documentation from the SAF FPEB board that they believed he could continue to serve.  

	4. While completing and passing all the requirements from entrance into the Air Force Reserve, the ARPC SG stated that a medical waiver could not be granted and he needed a Secretary of the Air Force waiver to enter into the Reserve.  His decision was based upon his separation code on his DD Form 214. The successful completion of his physical coupled with the SAF FPEB statement in item 3 above, also provides additional support for an RE code change.  

The documented evidence presented at the FPEB in 1999 coupled with July 2003 enlistment physical hopefully will allow the Board to rule in favor of his RE code upgrade.  The Air Force Reserve Unit assigned to Buckley in Aurora Colorado was very eager to see him enlisted.  He would have served faithfully for another five years, thus becoming eligible for retirement.  

In support of his appeal, the applicant provided a copy of DD Form 214, a personal letter, a letter from his Congressman, a medical waiver review package, a copy of the PEB recommendation, and a copy of Special Order #ACD-00470, removal from TDRL. 

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

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 28 May 1982 for a period of four years.  He was progressively promoted to the grade of master sergeant (E-7), with an effective and date of rank of 1 May 1996.  

A Medical Evaluation Board (MEB) was convened on 16 April 1997 which found the applicant medically unfit for continued military service for his chronic left knee instability with pain, effusion and degenerative arthritis. The applicant was placed on the TDRL on 19 July 1997.  

On 30 September 1998, the applicant was scheduled for a TDRL periodic examination and was referred to an Informal Physical Evaluation Board (IPEB).  The IPEB recommended he be discharged with entitlement to severance pay of 20 percent physical disability rating.  Member appealed before the Formal Physical Evaluation (FPEB).  The applicant's appeal was forwarded to SAF Personnel Council (SAFPC) for review.  SAFPC directed he be discharged with severance pay and 20 percent disability rating.  

On 23 February 1999, SAFPC directed the applicant be removed from the TDRL and be discharged with severance pay with a 20 percent disability rating effective 14 March 1999, with an RE code of 2Q (Personnel medically retired or discharged), with an honorable discharge, in the grade of MSgt Sergeant. He had 17 years, 3 months, and 22 days of military service for basic pay

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AIR FORCE EVALUATION:

AFPC/DPPD recommended denial and stated the prepondence of evidence reflects that no injustice occurred during his processing to separate under disability with severance pay and his RE code “2Q” on his DD Form 214 is correct in that it reflects he was approved for a medical separation from the Air Force service under the provisions of military disability laws and policy.  The applicant’s goal of enlisting in the AF Reserve can be accomplished through other, more appropriate avenues.  
The veteran was approached by an Air Force Reserve Recruiter to enlist in the Individual Mobilization Augmentee (IMA) program since he had a critical Air Force Skills Career (AFSC).  He did pass his reenlistment physical and the package was submitted for the Air Reserve Personnel Center (ARPC) Surgeon General’s review for a waiver. He was denied a medical waiver due to his separation code.  He in-turn appealed through his Congressman to the Secretary of the Air Force (SAF).

Disability severance pay is a one-time lump sum payment to members whose military service is ended prematurely due to a physical disability or mental disability incurred in the line of duty.  The reenlistment code identifies if a member will be allowed to reenter the military or requires a waiver to enter another branch of service.  Unless erroneously given at the time of separation, this code cannot be upgraded. 

Having reviewed all his medical and personnel records, we found no basis to correct his military record to reflect a change in his reenlistment code. We also determined the applicant was treated fairly throughout the disability process and was not erroneously briefed concerning his rights at the time of his separation.  We wholeheartedly agree with the IPEB and SAF/PC decisions and determined no injustice or error occurred in the process leading to his separation and issuance of 2Q reenlistment code.  

Guidance from the Air Force Personnel Center (AFPC) Recruiter’s Office recommends that his recruiter request through the ARPC Surgeon’s office to the SAF Reserves Command for an “exception to policy” ruling.  However, member must understand that if approved, he would have to repay the severance pay he received according to guidelines set forth in Title 10 USC, Chapter 61.

AFPC/DPPD complete evaluation is at Exhibit C.

AFPC/DPPAE recommended denial and stated that there was nothing to support of course of action requested by the applicant.  

AFPC/DPPAE complete evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluations and stated that none of the correspondence he has received to date addressed key portions of his request for enlistment into the Air Force Reserve.  In the AFPC/DPPD recommendation section, they stated that there are “other, more appropriate avenues through which the applicant’s goal of enlisting in the AF Reserve can be accomplished.”  If the RE code change is not possible, he would be ever so grateful if this Board could provide him that avenue.  The Air Force Reserve Unit assigned to Buckley AFB in Aurora Colorado is very eager to see him enlisted.  

Applicant’s complete response is at Exhibit F.

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  In this regard, the Board notes that the applicant has previously been advised that guidance from the Air Force Personnel Center (AFPC) Recruiter’s Office recommends that his recruiter request through the ARPC Surgeon’s office to the SAF Reserves Command for an “exception to policy” ruling to resolve his issue.  In view of the above, the Board finds no compelling basis to recommend granting the relief sought in this application. 

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered AFBCMR Docket Number BC-2004-02289 in Executive Session on 26 April 2005, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 16 Jul 04, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPD, dated 13 Sep 04.
    Exhibit D.  Letter, AFPC/DPPAE, dated 1 Oct 04.
    Exhibit E.  Letter, SAF/MRBR, dated 8 Oct 04.
	Exhibit F.  Applicant’s Response, dated 1 Nov 04.