RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-00823

XXXXXXXXXXXXX	COUNSEL: NONE	

	HEARING: NO	

APPLICANT REQUESTS THAT:

His retirement from the Air National Guard (ANG) be changed to a medical retirement.

APPLICANT CONTENDS THAT:

He was forced to retire due to a medical condition that prevented him from deploying.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant is a former ANG lieutenant colonel. 

On 18 Nov 05, the applicant had a medical evaluation for possible sleep apnea at the Fairbanks Memorial Hospital, in Fairbanks, AK.

On 12 Dec 05, a sleep study evaluation was performed on the applicant at Fairbanks Memorial Hospital in Fairbanks, AK, with the applicant diagnosed with moderate sleep apnea. 

The applicant’s AF Form 422, Physical Profile Serial Report, dated  10 Mar 06, reflects profile code 4-T for sleep apnea, indicating the applicant is not qualified for worldwide duty, and  requiring a Medical Evaluation Boards (MEB).

The applicant’s AF Form 618, Medical Board Report, dated 26 Jun 06, reflects the MEB convened at Eielson AFB, AK to evaluate the applicant’s diagnosed moderate sleep apnea condition, and the board referred the case to the Informal Physical Evaluation Board (IPEB).

The applicant’s AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, dated 15 Aug 06, reflects the IPEB convened at Randolph AFB, TX, and found the applicant fit for duty.

On 21 Aug 06, NGB/A1POF notified NGB/SGPS that the applicant was returned to duty and ANG/DPFO was requesting a review of possible duty restrictions. 

In a memorandum from NGB/SGPA to the 168th Medical Group at Eielson AFB AK, dated 30 Aug 06, NGB/SGPA requested the applicant be placed on assignment limitation code (ALC) C, due to the applicant not being medically qualified for worldwide duty and deployment. 

On 13 Oct 06, the applicant requested a 60-day waiver for his retirement application for not being qualified for worldwide duty and deployments.

Per Special Order No. AIR AB-8, dated 18 Oct 06, the applicant was honorably discharged from the Alaska ANG, in the grade of lieutenant colonel, effective 30 Nov 06.

Per Special Order No. AA-0137, dated 7 Nov 06, the applicant was relieved from his reserve assignment on 30 Nov 06, and retired on 1 Dec 06, per Air Force Instruction 36-3203, Service Retirements, and Title 10, USC, Section 8911.   

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

AIR FORCE EVALUATION:

NGB/SG recommends denying the application.  After a thorough review of all the exhibits, there exists no evidence the applicant had a physical impairment that meets medical retirement eligibility criteria, nor does there exist any documentation to show his medical condition worsened.  10 U.S. Code, Chapter 61 provides eligibility criteria for retirement or separation for physical disabilities based on duty status length and type. To be eligible for consideration of medical disability retirement, individuals must have a condition that is or may be of a permanent nature and found un-fit by the Disability Evaluation System board. The documents provided did not support the applicant’s claim that he was physically impaired or had a disqualifying condition at the time of retirement that was not cleared by the fit for duty ALC-C waiver.

The complete advisory is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 13 Sep 18 for comment (Exhibit D), but has received no response.

THE BOARD CONCLUDES THAT:

1.  The application was not timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of NGB/SG and finds that a preponderance of the evidence does not substantiate the applicant’s contentions. The Board also notes the applicant did not file the application within three years after the alleged error or injustice was discovered, or should have been discovered, as required by Title 10, United States Code, Section 1552, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  While the applicant asserts a date of discovery less than three years before the Board’s receipt of the application, the Board does not find the assertion reasonable.  The Board finds the application untimely and concludes it would not be in the interest of justice to excuse the delay.  Therefore, the Board recommends against correcting the applicant’s records.

THE BOARD RECOMMENDS THAT:

The applicant be informed the application was not timely filed; it would not be in the interest of justice to excuse the delay; and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

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-2017-00823 in Executive Session on 24 Oct 18:

Chair 
Piva, Panel Member
Panel Member

All members voted not to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atch, dated 12 Jan 18.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, NGB/SG, w/atchs, dated 24 Aug 18.
Exhibit D:	Notification of Advisory, SAF/MRBC to applicant, dated 13 Sep 18.

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