RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-03623 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ THE APPLICANT REQUESTS THAT: He be given credit for 20 years of active service toward retirement. ________________________________________________________________ THE APPLICANT CONTENDS THAT: He was disability retired on 1 Jun 95 (sic) just 45 days short of a full 20 year retirement. He was provided inaccurate information when he was initially notified of the Physical Evaluation Board’s (PEB) findings. He wanted to delay his concurrence until he had completed 20 years; however, he was advised that he would receive full credit for 20 years of service. He believes because of this injustice he should be credited with the 45 days of service in order to qualify for the Concurrent Retirement Disability Pay (CRDP). The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 7 May 75, the applicant was discharged from the Delayed Enlistment Program (DEP) and as a member of the US Air Force Reserve (USAFR). On 8 May 75, the applicant enlisted in the Regular Air Force and entered Extended Active Duty (EAD), on 1 Jul 75. On 7 Aug 80, the applicant was released from EAD and transferred back to the USAFR. On 1 Oct 80, the applicant reenlisted in the Regular Air Force and served honorably until his discharge on 9 Jun 86, on 10 Jun 86, he was commissioned as a second lieutenant. On 1 Nov 94, the Medical Evaluation Board (MEB) diagnosed the applicant with Metabolic Myopathy and referred his case to the Informal Physical Evaluation Board (IPEB). On 25 Nov 94, The IPEB diagnosed the applicant with Metabolic Myopathy with possible Phosphorylase B Kinase Deficiency and recommended the applicant’s name be placed on the Temporary Disability Retired List (TDRL) with a compensable disability rating of 60 percent. On 13 Dec 94, the applicant concurred with the IPEB findings with a compensable rating at 60 percent and his case was referred to the Secretary of the Air Force Personnel Council (SAFPC) for consideration. On 2 Feb 95, SAFPC concurred with the findings of the IPEB and directed the applicant’s name be placed on the TDRL with a retirement effective date of 16 May 95. At the time of his placement, he was credited with 19 years, 10 months, 15 days of active service toward retirement, with 45 days of earned accrued leave. On 6 Dec 96, the applicant’s name was removed from the TDRL and he was permanently disability retired with a compensable disability rating of 60 percent and his name was placed on the Permanent Disability Retired List (PDRL). On 1 Jul 12, the applicant was rated at 80 percent employable by the Department of Veterans Affairs (DVA) and is in receipt of disability compensation from the DVA. As a result his military retired pay is currently offset by $1478.00. ________________________________________________________________ THE AIR FORCE EVALUATION: AFPC/DPSD recommends denial, stating, in part, that the preponderance of evidence reflects that no error or injustice occurred during the disability process or at time of separation. DPSD notes that the applicant is seeking to have his service dates changed in order to qualify for the CRDP Program. CRDP or "concurrent receipt" as it is sometimes referred to-is a phased-in restoration of the retired pay deducted from military retirees' accounts due to their receipt of DVA compensation. Those retired military members entitled to CRDP automatically began receiving these benefits as of 1 Jan 04. Eligibility for CRDP requires at least 20 years of creditable service (10 USC, § 1414(b) (1)). On 6 Dec 96, the applicant was removed from the TDRL and permanently retired with a disability rating of 60 percent. Time spent on the TDRL does not count towards active duty time. Special Order ACD-0282 was issued 26 Nov 96, reflecting he had 19 years, 10 months, and 15 days of active service. The applicant does not have the required 20 years of active service time to apply for CRDP. All service dates on Special Order ACD-0282 are correct. The complete DPSD evaluation is at Exhibit C. DFAS recommends denial, stating, in part, that the applicant’s record indicates that he completed 19 years, 10 months, 15 days of total active service. No provisions of the law allow members who retire by reason of physical disability with less than 20 years of total active service or 20 years of qualifying service for members of the Air Reserve component to receive CRDP; therefore, the applicant is not entitled to CRDP. In addition, they advised the applicant that he may be entitled to Combat-Related Special Compensation (CRSC) Pay and provided an application to submit to the Air Force for review. The complete DFAS evaluation, with attachments, is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 30 Oct 12 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit E). ________________________________________________________________ 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. Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice warranting corrective action. After careful review of the available records and the evidence submitted in support of the applicant’s appeal, it appears that he has been credited with all active service creditable under the governing instruction and laws at the time of his retirement. Notwithstanding the above, we note that the applicant was retired for disability just 45 days short of completing 20 years of active service. We further note that at the time of his separation, he had 45 days of accrued leave. It is our opinion that if the applicant had thought that not completing 20 years of service could possibly impact any future entitlements, especially when he was so close to the 20-year point, he would have chosen to remain on active duty until he had completed 20 years. In view of the foregoing, and to preclude any injustice to the applicant, we believe that his records should be corrected to reflect that he completed 20 years of active service before being disability retired. Accordingly, we recommend that the records be corrected as indicated below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that he was not relieved from active duty on 15 May 95, but was continued on active duty until 29 Jun 95 and was relieved from active duty and placed on the Temporary Disability Retired List on 30 Jun 95. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-03623 in Executive Session on 11 Jun 13, under the provisions of AFI 36-2603: , Vice Chair , Member , Member All members voted to correct the records, as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 7 Aug 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSD, dated 5 Sep 12. Exhibit D. Letter, DFAS-JBJR/CL, dated 19 Oct 12, w/atchs. Exhibit E. Letter, SAF/MRBR, dated 30 Oct 12.