RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-03096

XXXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His record be corrected to reflect he was medically retired.

APPLICANT’S CONTENTIONS

He has been temporarily retired for more than 45 years and his records should be changed to reflect he is permanently retired.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an honorably discharged Air Force airman first class (E-3).

According to the applicant’s Medical Board Report, dated 12 Jan 73, he was referred to a Medical Evaluation Board (MEB) for having fibrosarcoma, right neck, low grade, surgically excised, Jul 72, with no evidence of recurrence at present.

Per the applicant’s AF Form 356, Proceedings and Finding of USAF Physical Evaluation Board, dated 1 Feb 73, he was found unfit for having fibrosarcoma.

On 16 Feb 73, the Secretary of the Air Force approved the recommendation of the Physical Review Council and placed the applicant on the Temporary Disability Retired List (TDRL), effective 6 Mar 73.

On 5 Sep 74, the applicant was notified of the recommendation and findings of the Physical Evaluation Board (PEB), which found him fit for duty.  On 9 Sep 74, the applicant non-concurred with the PEB findings and requested a formal hearing before the Formal Physical Evaluation Board (FPEB).

Per the applicant’s AF Form 356, dated 30 Oct 74, he was retained on the TDRL. 

Per the applicant’s AF Forms 356, dated 4 Nov 76 and 1 Feb 77, the PEB found the applicant fit for duty and removed him from the TDRL, effective 27 Mar 77.

On 28 Mar 77, per Special Order Number AC-5574, dated 9 Mar 77, the applicant was removed from the TDRL and transferred to the Air Force Reserve in the grade of sergeant (E-4).

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

APPLICABLE AUTHORITY

AFI 36-3202, Certificate of Release or Discharge from Active Duty, Table 2, Rule 18, When a member is removed from the TDRL, a new DD-214 is not issued since the time spent on TDRL is not active duty time.  Rather, the new order indicates the final status.  This order becomes a permanent part of the service member’s military personnel file, and can be attached to the DD 214 reflecting that the final disposition was removal from TDRL.

AIR FORCE EVALUATION

AFPC/DPFDC recommends denying the application.  Based on the documentation provided by the applicant and analysis of the facts, there is no evidence of an error or injustice occurring during the processing of his medical case.  The applicant was originally found unfit by the IPEB for fibrosarcoma, which was treated with radical surgery, and limited motion with weakness of his right shoulder and was placed on the TDRL in Feb [sic] 73 with a disability rating of 100%.  

After a series of IPEB and FPEB reviews and after being found to be cancer free, the applicant was eventually found fit for duty and removed from the TDRL.  On 1 Feb 77, during the applicant’s FPEB hearing, he contended his right shoulder injury should be considered unfitting for continued service.  Both the FPEB and the Secretary of the Air Force Personnel Council considered his contention, but decided he was fit for military service and removed him from the TDRL.  As a result of these findings, the applicant had the opportunity to return to active duty and reenlist; however, it appears he chose not to do so.  Based on the nature of his DD Form 149 contention, it appears he believes that he is still on TDRL or some other “temporary” status.  This is not the case. 

The applicant was placed into the Air Force Reserve in an inactive status to fulfill his remaining military service commitment upon his removal from the TDRL.  The applicant’s case was thoroughly reviewed by all three levels of the DES, and the appropriate disposition was rendered. In addition, there is no new information in his records that would result in a different determination if his case were to be reviewed today. 

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 30 Jan 20 for comment (Exhibit D), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was not timely filed.

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

After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DPFDC and finds 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 of the alleged error or injustice, as required by Section 1552 of Title 10, United States Code, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  While the applicant asserts a date of discovery within the three-year limit, the Board does not find the assertion supported by a preponderance of the evidence.  The Board does not find it in the interest of justice to waive the three-year filing requirement.  Therefore, the Board finds the application untimely and recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the application was not timely filed; it would not be in the interest of justice to excuse the delay; 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-2019-03096 in Executive Session on 14 Oct 20:

, Panel Chair 
, Panel Member
, Panel Member

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

Exhibit A:	Application, DD Form 149, w/atchs, dated 5 Jun 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFDC, dated 27 Jan 20.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 30 Jan 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.