RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2017-04992

   	COUNSEL:  
	
	HEARING:  YES

THE APPLICANT REQUESTS:  Her Chapter 61 (medical) retirement be changed to a temporary early retirement authority (TERA) retirement.  

THE APPLICANT CONTENDS:  AFI 36-3212, Physical Evaluation for Retention, Retirement and Separation, paragraph 5.12, allows Airmen with 15-20 years of active service “who meet basic eligibility requirements for TERA to apply and, if approved, be retired under TERA.”  On 17 Jan 14, she volunteered for TERA and, on 7 Feb 14, her commander approved her request after verifying her eligibility with the Air Force Personnel Center (AFPC).  However, she was forced into a Medical Evaluation Board (MEB) and medically retired, even after she was approved to retire under TERA.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:  The applicant is a retired Air Force master sergeant (MSgt). 

On 18 Nov 13, the applicant signed the IDES Counseling Acknowledgement Sheet, acknowledging she was going through the MEB process.  

Under Special Order ACD-03051, dated 5 Aug 14, the applicant was permanently disability retired in the grade of MSgt with a compensable percentage of physical disability of 40 percent, effective 28 Oct 14. 

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

AIR FORCE EVALUATION:

AFPC/DP2STM recommends denying the application.  In accordance with (IAW) PSDM 13-127, dated 17 Dec 13 (amended 13 Jan 14), FY14 Enlisted Temporary Early Retirement Authority (TERA) program – Phase II: TERA authorizes officer and enlisted Airmen, with more than 15 years, but less than 20 years of total active federal military service, to apply for early retirement with a reduced amount of retirement pay.  However, the PDSM also states:  Exclusions: Airmen meeting one or more the conditions below are ineligible to apply: (c) Pending action under the disability evaluation system under AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation.  If Airmen are subsequently returned to duty, they may apply if otherwise eligible.

The applicant never received an approval for retirement under the TERA program.  She applied on 17 Jan 14, but was rendered ineligible because at the time she applied for a 1 Apr 14 retirement date, and the initial retirement date for TERA was 1 Aug 14.  On 5 Feb 15, the applicant completed the pre-application checklist.  On 14 Mar 14, the applicant was notified she was ineligible for TERA due to a pending MEB.  

Furthermore, the applicant argues AFI 36-3212, paragraphs 5.12, 5.13, and 5.14 state (it has since been changed and chapter 5.1-5.14.3 have been deleted): "OPTIONS. Members whose final disposition of their disability case is separation (active duty or TDRL) or TDRL from active duty, and they have 15 to 20 years active service, will be referred to HQ AFPC/DPPR,” and “Members who meet basic eligibility requirements for Temporary Early Retirement Authority (TERA).  ARC members found unfit for nonduty related medical conditions, if otherwise eligible, may apply for early retirement pursuant to 10 U.S.C. 12732."  Based on this guidance members must meet the basic eligibility requirements for TERA.  This makes the applicant ineligible because she did not met the basic eligibility requirements for the program.

The complete advisory is at Exhibit C.

THE APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

In further support of her original contentions, the applicant submitted a rebuttal to the Air Force evaluation in which she takes exception to the OPR’s recommendation to deny.   In her rebuttal, she acknowledges the PDSM states the IDES process excludes Airmen from applying, but believes she is an “exclusion to the exclusion” based upon verbiage in AFI 36-3212.  In addition, she believe DoDI 1332.18 which says to separate members in the manner which is most advantageous to the member takes precedent, and represents the purpose of the TERA program.  (Exhibit E) 

THE BOARD CONCLUDES:

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 the applicant is not the victim of an error or injustice.  The Board concurs with the recommendation of AFPC/DP2STM and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  However, the Board notes the final disposition of the applicant’s disability case was a permanent retirement.  Therefore, the cited exception from AFI 36‐3212 does not apply to the applicant because she was permanently retired, and not separated or placed on the TDRL.  Therefore, the Board recommends against correcting the applicant’s records.

4.  The applicant’s case is adequately documented and it has not been shown a personal appearance with or without counsel will materially add to the Board’s understanding of the issues involved.

THE BOARD RECOMMENDS:  The applicant be informed the evidence did not demonstrate material error or injustice, 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-2017-04992 in Executive Session on 9 May 18:

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

Exhibit A:	Application, DD Form 149, w/atchs, dated 7 Nov 17.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2STM, dated 25 Jan 18.
Exhibit D:	Notification of Advisory, SAF/MRBC to applicant, dated 1 Feb 18.
	Exhibit E:  Letter, Applicant’s rebuttal, dated 25 Mar 18. 

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings of Docket Number BC-2017-04992, as required by AFI 36-2603, paragraph 4.11.9.