RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-02596

XXXXXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

He receive a medical discharge. 

APPLICANT’S CONTENTIONS

He was placed on a medical hold because of a back injury and should have been reevaluated after he had surgery.  Instead, he was administratively discharged with 19 years, 2 months, and 11 days of service.  As such, he believes that he should have received a medical discharge.   

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an honorably discharged Air Force Reserve staff sergeant (E-5).  

On 31 Jul 13, DD Form 4/1, Enlistment/Reenlistment Document Armed Forces of The United States, shows that the applicant reenlisted in the Air Force Reserve for a period of two years, thus establishing a Expiration Term of Service (ETS) date of 30 Jul 15.

On 3 Jul 15, AF Form 469, Duty Limiting Condition Report, provided by the applicant, indicates that he was placed on duty and mobility restrictions and given a duty limiting condition code 37, which expired on 15 Jun 17.

On 30 Jul 15, Reserve Order A-247, dated 2 Sept 15, indicates that the applicant was honorably discharged.

According to the applicant’s PCARS report, the applicant had 19 years, 3 months and 10 days of satisfactory service at the time of his 30 Jul 15 discharge.  

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

APPLICABLE AUTHORITY

AFI 36-2131, Administration of Sanctuary in the Air Reserve Components:

Paragraph 5.2. Enlisted Eligibility: Reserve members in an active status who are selected to be involuntarily separated (other than for physical disability or for cause), or whose term of enlistment expires and who are denied reenlistment (other than for physical disability or for cause), and who on the date on which the member is to be discharged or transferred from an active status are entitled to be credited with at least 18, but less than 20 years of service computed under Title 10 USC § 12732, may not be discharged, denied reenlistment, or transferred from an active status without the member’s consent.  

AFI 36-3212, Physical Evaluation for Retention, Retirement and Separation:

Paragraph 1.1. Purpose and Basics of the Disability Evaluation System (DES). To maintain a fit and vital force, the SecAF may remove service members from duty who (1) can no longer perform the duties of their office, grade, rank or rating; (2) represent a decided or obvious medical risk, or (3) impose unreasonable requirements on the military. Service members, who meet one or more of these criteria, are referred to the DES for a fitness for duty assessment. The DES determines if the service member is fit to be returned to duty or unfit for continued military service. When deemed unfit, the Air Force (AF) transitions the member from service and, as appropriate, provides compensation when the member’s military career ends due to a physical disability (refer to DoDI 1332.18, Appendix to Enclosure 3, paragraph 2)

1.12. Medical Hold. Subject to certain limitations, medical hold is a method of retaining a service member beyond an established date of separation, an approved retirement or separation date, or established high-year of tenure for disability processing purposes. 1.12.1. AFPC/DP2NP is the only AF entity authorized to place a RegAF member on medical hold. AFRC/SGO for Reserve members or NGB/SGPS for Guard members is the authority for placing ARC members on medical hold when applicable. (See AFI 41-210, paragraph 4.53.1.6.)

AFI 48-123, Medical Examinations and Standards

10.12. Annual Training (AT) or AD for Training or Inactive Duty for Training (IDT). Commanders ensure members reporting for duty are medically qualified. Members with medical conditions, which render questionable their medical qualifications for continued WWD, are evaluated for fitness for duty.

10.13.3. When a commander, supervisor, or medical personnel determines an ARC member’s medical condition is potentially unfit, he or she is evaluated by the servicing medical squadron and is excused from all military duties pending further medical disposition.

10 U.S. Code 12731b.  Special rule for members with physical disabilities not incurred in line of duty.

(a)In the case of a member of the Selected Reserve of a reserve component who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for purposes of section 12731 of this title, determine to treat the member as having met the service requirements of subsection (a)(2) of that section and provide the member with the notification required by subsection (d) of that section if the member has completed at least 15, and less than 20, years of service computed under section 12732 of this title.

(b)Notification under subsection (a) may not be made if:
	
	(1) the disability was the result of the member’s intentional misconduct, willful neglect, or 	willful failure to comply with standards and qualifications for retention established by the 	Secretary concerned; or

	(2) the disability was incurred during a period of unauthorized absence.

AIR FORCE EVALUATION

AFRC/SGO, recommends partially granting the application.  Based on the documentation provided by the applicant and analysis of the facts, there may have been an error or injustice. Absent a Line of Duty (LOD) determination, or indication a LOD was required; the applicant is not eligible for a medical discharge.  However, review of the presented records indicates that he did not meet retention medical standards in accordance with AFI 48-123, Medical Exams and Standards and the associated Medical Standards Directory.   Therefore, the applicant should have been entered into the non-duty related DES for an evaluation and his AAC converted from 31 to 37.  Without the entirety of the applicant’s medical records, SGO cannot speculate on what the outcome of the DES process would have been; however, with 19 good years towards a Reserve retirement, he may have been eligible for the reduced Reserve retirement prescribe under 10 U.S.C Section 12731B.  

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 25 Feb 20 for comment (Exhibit D), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was not timely filed, but it is in the interest of justice to excuse the delay.

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

3.  After reviewing all Exhibits, the Board concludes the applicant is the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFRC/SGO and finds a preponderance of the evidence substantiates the applicant’s contentions in part.  Specifically, the applicant provided evidence to show that he should not have been discharged without first being referred through the Disability Evaluation System (DES) for a fit for duty determination.  Furthermore, given the applicant’s medical condition and his 19 years, 3 months and 10 days of service, the Board finds it reasonable to assume that he met the requirements outlined in 10 U.S. Code § 12731b,  Special rule for members with physical disabilities not incurred in line of duty, and therefore, should have been approved a Reserve Retirement in accordance with 10 U.S. Code § 12732, Entitlement to retired pay: computation of years of service.  However, the Board notes that while the applicant requested a medical discharge, there is insufficient documentation (i.e. LOD) to substantiate such a request at this time.  Nevertheless, the evidence does support that the applicant did not meet retention medical standards and should have been further evaluated prior to his discharge.  Since an evaluation was not conducted, there is no way do decipher what the outcome would have been, but due to his 19 good years of service, the Board finds sufficient justification to recommend he receive a reserve retirement.  Therefore, the Board recommends correcting the applicant’s records as indicated below.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that on 30 July 2014, he was not discharged, but on that date, he was transferred to the Inactive Status List Reserve Section (ISLRS), eligible for retired pay at age 60 under the provisions of Title 10, United States Code, Section 12731b.  

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-2019-02596 in Executive Session on 05 Mar 20:

, Panel Chair
, Panel Member
, Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 1 May 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFRC/SGO, dated 20 Feb 20.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 25 Feb 20.

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