ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2015-04610-2

XXXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

The Board reconsider her request to waive 3 months and 11 days in order to qualify for a 20-year career thereby qualifying for reinstatement of her retired pay.  

RESUME OF THE CASE

On 2 Oct 97, according to documents submitted by the applicant, she received Permanent Change of Station (PCS) orders to Saudi Arabia, report no later than date of 10 Feb 98.  

On 31 Oct 97, according to documents submitted by the applicant, her PCS order was amended to reflect Korea vice Saudi Arabia.   

On 9 Apr 98, in a memorandum to the Physical Evaluation Board (PEB), the applicant’s commander wrote a statement of impact declaring, “World wide qualification is an expectation and requirement for all individuals assigned to this command, and [her] inability to meet this expectation is and has been a limiting factor for this unit’s readiness status and its ability to meet its wartime mission.”   

On 23 Apr 98, according to the narrative summary from the Medical Evaluation Board (MEB), the applicant presented on 12 Jun 97 with a complaint of intermittent low back pain since 1991.  She was subsequently referred to the Informal Physical Evaluation Board (IPEB) for degenerative disc disease.   

On 9 Jun 98, the IPEB found the applicant unfit for degenerative disc disease and recommended permanent disability retirement with a 40% disability rating.  

On 7 Nov 98, the applicant, a retired Air Force master sergeant, received a 40% permanent disability retirement and was credited with 19 years, 8 months, and 12 days of active service.  

On 9 Feb 17, the Board considered and denied her request for additional service credit in order to achieve a 20 years of service active duty retirement, finding that the applicant had provided insufficient evidence of an error or injustice to justify relief.  

For an accounting of the applicant’s original request and the rationale of the earlier decision, see the AFBCMR Letter and Record of Proceedings at Exhibit F.

On 9 Apr 20, the applicant requested reconsideration for service credit for a 20 year retirement.  She again contends she was 35 days shy of 20 years.  However, in this request, she now contends her command violated Air Force policy and forced her out against her commander’s wishes and for her involvement in a sexual harassment case.  Her command tried to manipulate the system to force her on assignment while she was on a [medical] profile.  Furthermore, she was an Air Force Office of Special Investigations Special Agent and her personnel office was in XXXXXXX while she was located at XXXXXXXXXX.  At no time did anyone explain her leaving the Air Force three months and 11 days prior to her 20-year career would void her 20-year retirement.  

She also believes her command wanted her moved out of the area and punish her for her involvement in a XXXXXXX sexual harassment case.  She feels she was a sexual harassment victim as the colonel’s romantic actions were unwelcomed. 

The applicant’s complete submission is at Exhibit G.

APPLICABLE AUTHORITY

Title 10, United States Code, section 1414 outlines eligibility for concurrent payment of retired pay and veterans’ disability compensation.  The phase in of full concurrent receipt began on 1 Jan 04 following the passage of Public Law 108-136, 24 Nov 03.  See Exhibit K.   

AIR FORCE EVALUATION

AFPC/DPFDD recommends denying the application since there is no evidence that an error or injustice occurred at the time of Disability Evaluation System (DES) processing.   On 9 Jun 98, the Informal Physical Evaluation Board (IPEB) found the member unfit for Low Back Pain/Degenerative Disc Disease and recommended permanent disability retirement with a 40% disability rating.  On 29 Jun 98, the member concurred with the IPEB findings.  

In the applicant’s submission, she believes her command influenced this retirement date.  However, AFPC/DPFDD established the date of separation based on the following criteria in the governing Air Force Instruction (AFI).  The applicant’s command had no input in the separation date calculation other than the commander authorizing permissive temporary duty (PTDY) and terminal leave.  It should be noted her commander authorized 20 days PTDY and 80 days terminal leave which is why there was a 120-day delay between when her retirement was directed and the actual retirement date.  If the commander did not authorize this leave her separation date would have been much earlier as she would have only received 20 days to out-process the base. 

Furthermore, in accordance with the governing AFI, the Secretary of the Air Force may defer the final disposition of certain members, with 15 to 19 years of service, found physically unfit via the DES to apply for Limited Assignment Status (LAS).  The LAS program’s objective is to conserve manpower by keeping needed experience and skills.  It is not the intent of the program to retain a service member solely to increase benefits or allow the service member to complete a period of service such as reaching length of service retirement eligibility.  Members not physically fit for AD without restriction do not have a legal or vested right to LAS retention and the AF does not guarantee retention.  Furthermore, AFPC/DPFDD has no record that the applicant applied for or was approved/disapproved for LAS retention. 

The complete advisory opinion, with attachments, is at Exhibit H.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 12 May 20 for comment (Exhibit I), and the applicant replied on 2 Jun 20.  In her response, the applicant contends several other military members to include other special agents, had the same or similar degenerative disc condition and were not forced out of the military.  No one ever explained the difference between a medical retirement and a regular retirement or how to apply for LAS.  Her commander stated she should be allowed to stay in place and retire as she remained capable of doing her investigative job.  Furthermore, the AFPC/DPFDD memorandum does not mention anything at all regarding the sexual harassment issue.  Her MAJCOM pushed for her reassignment because of her involvement in the sexual harassment incident.  She was the victim in this situation.  It was obvious by numerous individuals what was happening to her at the time was unjust, unfair, and unusual. The only reasonable answer to why this was happening was all based on the fact she endured sexual harassment from a colonel on the base that was in line for general.     

The applicant’s complete response is at Exhibit J.

FINDINGS AND CONCLUSION

After reviewing all Exhibits, the Board remains unconvinced the evidence presented demonstrates an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DPFDD and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  We find the evidence provided and the evidence in the record failed to substantiate any undo command influence to force the applicant out of service before achieving 20 years.  In reviewing all the Exhibits, we find the applicant complained of lower back pain from 1991 that continued to worsen over time leading to the appropriate disability processing.  Furthermore, the Board notes the applicant separated and retired five years before the statutory change to 10 U.S.C. 1414 implementing the phase-in of concurrent receipt of retired pay and Department of Veterans Affairs disability compensation.  With that in mind, we find her claim that she was never advised by the Air Force at the time of her retirement of a future benefit has no merit.  Therefore, the Board recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

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-2015-04610-2 in Executive Session on 19 Aug 20:

Mr. Panel Chair
Mr. Panel Member
Ms. Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit F:	Record of Proceedings, w/ Exhibits A-E, signed 3 Mar 17.
Exhibit G:	Application, DD Form 149, w/atchs, dated 9 Apr 20.
Exhibit H:	Advisory opinion, AFPC/DPFDD, w/atchs, dated 11 May 20. 
Exhibit I:	Notification of advisory, SAF/MRBC to applicant, dated 12 May 20.
Exhibit J:	Applicant’s response, dated 2 Jun 20.
Exhibit K:	Applicable Authority.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.