RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-02508 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His records be corrected to change his Date of Separation (DOS) from Extended Active Duty (EAD) to match his retirement date of 2 Nov 06. 2. He receive back pay with all entitlements beginning with his current DOS through 2 Nov 06, minus any VA payments received during this time. 3. He receive Concurrent Retirement and Disability Pay (CRDP). 4. He be relieved of the debt he owes for shipping household goods (HHG) in excess of his authorized weight limit. ________________________________________________________________ APPLICANT CONTENDS THAT: On 31 Jul 05, he was inappropriately released from active duty while his medical case was undergoing the Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB) process. He should have remained on active duty until his PEB-directed retirement date of 2 Nov 06. During the intervening period between 1 Aug 05 and 1 Nov 06, he was unjustly denied pay and allowances due to him. He qualifies for CRDP because he has over 20 years of total service, and Title 10, Subtitle A, Part II, Chapter 61 § 1201 does not say anything about whether or not the 20 years needs to be on Active Duty or Reserve status. As for his debt related to his HHG shipment, it is ridiculous and unfair that the government has up to 6-8 years to bill him for the excess weight of his household goods. He is a disabled Veteran rated at 100% due to his un-employability. This additional bill, no matter how small the payment may be, will be too much of a hardship and may even push them into bankruptcy and cause them to lose their house. In support of his request, the applicant provides an expanded statement and copies of his DD Form 214, Certificate of Release or Discharge from Active Duty, retirement orders, AF Form 618, Medical Board Report, e-mails related to his case, and two letters he sent to elected officials concerning his case. The applicant’s complete submission, with attachments, is at Exhibit A. _________________ ______________________________________________ STATEMENT OF FACTS: During the period in question, the applicant served an Active Guard Reserve (AGR) tour as an Air Force Reserve Recruiter. AFI 36-3212, dated 2 Feb 06, Chapter 4, paragraph 4.4. Control of Member During PEB Processing states, “Once in disability channels, the following restrictions apply to ensure the member is available for necessary disability processing actions: 4.4.3. The MPF will not reassign the member, except for emergency reasons, until receiving notification of the final determination;” and, paragraph 4.5. Control of Member After PEB Action states, “The MPF will not retire, discharge, nor release a member from active duty before receiving the final decision in the form of retirement orders or instructions from HQ AFPC/DPPD directing disposition.” According to information contained in the AFRC/SG evaluation, which is based on a review of the applicant’s medical records, The applicant began an AGR active duty tour on 19 May 97; in 2004, he underwent an MEB for a medical condition unrelated to the case before the Board; on Jan 05, he underwent back surgery. On 30 Jul 05, the applicant was released from his AGR tour for “Miscellaneous/General Reasons,” with Honorable character of service. On 8 Sep 05, his servicing reserve medical unit identified his disqualifying condition requiring an MEB and, on 17 May 06, AFRC/SGP directed a second MEB. According to the documentation submitted by the applicant, the AF Form 618, Medical Board Report, dated 3 Aug 06, included the following statement, “Member should have never been released from AD status.” On 2 Nov 06, a PEB determined the applicant to be unfit for continued military service, and directed his medical retirement with 40% disability effective 2 Nov 06 after over 21 years of total reserve service, which included 13 years, 8 months, and 23 days of active duty service. CRDP allows military retirees to receive both military retired pay and disability compensation from the Department of Veterans Affairs (DVA). Recipients of retired pay with a DVA disability rating of 50 percent or greater may be eligible for CRDP if they meet any of the following conditions: - 20 Years of active duty - 20 Years in the reserves and 60 years of age or older - Retired under temporary early retirement authority (TERA) The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate offices of the Air Force and the Defense Finance and Accounting Service (DFAS), which are attached at Exhibits C, D, and E. ________________________________________________________________ AIR FORCE EVALUATION: HQ AFRC/SG acknowledges that the 30 Jul 05 release of the applicant from active duty was prior to completion of his medical case evaluation. No request for Medical Hold was received by AFRC/SGP prior to his reverting to traditional reserve status. It is unclear why member was released from his AGR tour before medical hold was requested or considered IAW AFI 41-210,Patient Administration Function. The complete HQ AFRC/SG evaluation is at Exhibit C. DFAS advises that eligibility for CRDP requires a member who is retired under Chapter 61 to have at least 20 years of active duty service as computed under 10 U.S.C 1405 or 10 U.S.C. 12732. The complete DFAS evaluation is at Exhibit D. PPA HQ/ECAF recommends denial of the applicant’s request for relief from his indebtedness for shipping excess household goods, indicating there is no evidence of error or injustice. The net weight of his shipment was 19,740 pounds, while his authorized weight allowance was only 12,500 pounds. Although the government made arrangements for the shipment of the applicant’s household goods (HHG), the applicant was responsible for insuring the weight of the HHG did not exceed his authorized allowance. The Joint Federal Travel Regulation (JFTR) provides that the Government may pay the total transportation cost and other charges applicable to any excess weight that exceeds a member’s HHG weight allowance and collect reimbursement from the member. The complete PPA HQ/ECAF evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 9 Dec 11 for review and comment within 30 days. As of this date, no response has been received by this office. (Exhibit F). ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice with respect to the applicant’s request pertaining to his household goods (HHG) expenses. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of PPA HQ/ECAF and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. As for his request related to CRDP, insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We note the applicant is not eligible for CRDP as he does not meet the service requirements. In this respect, we note that eligibility for CRDP is predicated on attaining 20 years of active service, or 20 years of reserve service and be at least 60 years old. While it appears as though the applicant has more than 20 years of reserve service, he has not yet attained age 60 and is therefore not eligible for CRDP, regardless of his combined compensable disability rating issued by the DVA. Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice with respect to his request for extension of his AGR tour until his disability retirement. The applicant contends he was inappropriately released from active duty on 31 Jul 05 while his medical case was undergoing the Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB) process. After a thorough review of the evidence or record and the applicant’s complete submission, we believe a preponderance of the evidence supports corrective action. In this respect, we note that MEB/PEB procedures require members undergoing evaluation to remain on active duty. We also give weight to the note on the AF Form 618 Medical Board Report, dated 3 Aug 06, that states “Member should have never been released from AD status.” Therefore, we conclude that he should have remained on active duty until the date of his disability retirement on 2 Nov 06 and recommend his records be corrected to the extent indicated below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show he was not released from Active Guard/Reserve (AGR) duty on 30 Jul 05, but continued to serve until he was relieved from AGR status on 1 November 2006 and retired for physical disability, effective 2 November 2006. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-02508 in Executive Session on 1 March 12, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the records as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 30 Jun 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFRC/SG, dated 19 Aug 11. Exhibit D. Letter, DFAS, dated 11 Jul 11. Exhibit E. Letter, PPA HQ/ECAF, dated 14 Nov 11. Exhibit F. Letter, SAF/MRBR, dated 9 Dec 11. Panel Chair