RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2007-02679 INDEX CODE: 110.12 XXXXXXXXXXXXXX COUNSEL: XXXXXXXXXXXXX HEARING DESIRED: YES ________________________________________________________________ _ APPLICANT REQUESTS THAT: His discharge with severance pay rating of 10% be changed to a permanent disability retirement with a 60% disability rating. ________________________________________________________________ _ APPLICANT CONTENDS THAT: Within one year of transfer to the Retired Reserve, he found it necessary to retire from his civilian job. In support of his request, the applicant provides a personal letter, letters from his civilian physician, character references, military separation documents, and Physical Evaluation Board documents. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: According to his available military personnel records, the applicant, while serving in the Michigan Air National Guard (MIANG), sustained injuries in an automobile accident while on his way to ANG inactive duty training (IDT) on 5 May 2001. The injuries were determined to be in the line of duty and were subsequently evaluated by a Medical Evaluation Board (MEB), Informal Physical Evaluation Board (IPEB), and Formal Physical Evaluation Board (FPEB). The FPEB findings, dated 10 April 2003, indicated the applicant was diagnosed with the unfitting condition of chronic low back pain, mechanical, incurred while in the line of duty and entitled to receive basic pay; and, was determined to be compensable and ratable. The FPEB also diagnosed the applicant with cervical spine pain secondary to degenerative disk disease; however, while the condition was found to be unfitting, it was determined to not be compensable or ratable. The FPEB recommended the applicant be discharged with severance pay with a maximum compensable rating of 10%. On 10 April 2003, the applicant indicated that he did not agree with the findings and recommendation of the FPEB and submitted a rebuttal in his own behalf requesting a permanent retirement with a 40% disability rating for his low back pain. On 17 June 2003, after consideration of the applicant’s rebuttal, the Secretary of the Air Force (SECAF) directed the applicant be discharged and receive severance pay with a disability rating of 10% under the provisions of Title 10 United States Code (USC), Section 1203. On 12 July 2002, the applicant elected to be transferred to the Retired Reserve effective 1 August 2003 versus receiving a discharge with severance pay. On 30 July 2003, the applicant was honorably discharged from the MIANG and transferred to the Retired Reserve in the highest grade held (master sergeant) effective 31 July 2003. He served 25 years and 21 days of satisfactory federal service and will eligible to collect Reserve retirement pay when he reaches the age of 60 on XX XXXXXXXXX XXXX. ________________________________________________________________ _ AIR FORCE EVALUATION: AFPC/DPSD recommends denial of the applicant’s request. DPSD states the preponderance of evidence reflects that no error or injustice occurred during the disability process or at the time of the applicant’s separation. The applicant had over 20 years of satisfactory service and elected transfer to the Inactive Status List Reserve Section (ISLRS) for the purpose of applying for a Reserve retirement under Title 10, USC, Section 12731, in lieu of being discharged with severance pay. The DPSD evaluation, with attachments, is at Exhibit C. ________________________________________________________________ _ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant’s counsel on 30 November 2007 for review and response within 30 days (Exhibit D). As of this date, this office has received no response. ________________________________________________________________ _ 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 an error or injustice. We took notice of the applicant's complete submission in judging the merits of the case and do not find that it supports a determination that the applicant was improperly separated from active duty in 2003. An FPEB found the applicant unfit for continued military service and recommended he be discharged with severance pay with a ten percent disability rating for his back condition. We note that the applicant disagreed with the FPEB recommendation and submitted a rebuttal in his own behalf; however, after considering the applicant’s rebuttal, the SECAF agreed with the FPEB findings and directed he be discharged with severance pay and a disability rating of 10%. The applicant voluntarily elected to be transferred to the Retired Reserve effective 1 August 2003 versus receiving a discharge with severance pay. In view of the above and absent persuasive evidence that the applicant was denied rights to which entitled, appropriate regulations were not followed, or appropriate standards were not applied, we agree with the opinions and recommendations of the Air Force office of primary responsibility and adopt its conclusions as our findings in this case. Accordingly, the applicant’s request is not favorably considered. 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 our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ _ 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. ________________________________________________________________ _ The following members of the Board considered this application in Executive Session on 7 February 2008, under the provisions of AFI 36-2603: The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2007-02679: Exhibit A. DD Form 149, dated 27 Jun 07, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSD, dated 11 Oct 07, w/atchs. Exhibit D. Letter, SAF/MRBR, dated 30 Nov 07.