RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-04025

XXXXXXXXXXXXXXXXXXX	COUNSEL: NONE	 

   	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His DD Form 214, Certificate of Release or Discharge, be amended as follows:

His grade show as major (O-4), instead of captain (O-3).  

His Meritorious Service Medal (MSM) dated 29 Jun 09 be added.  (WILL NOT BE CONSIDERED BY THE BOARD AT THIS TIME).  

APPLICANT’S CONTENTIONS

He was selected for promotion to the grade of major by the CY08C Major Promotion Board.  The promotion list was approved on 23 Feb 09 and he was discharged in Jun 09.  He appealed his discharge and was granted a medical retirement in 2010.  He recently learned per 10 U.S.C. § 1372 his grade should reflect as major as he would have been promoted had it not been for the physical disability for which he was retired.  

He was awarded the MSM upon his separation.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force captain (O-3).  

On 31 Mar 09, the informal physical evaluation board (IPEB) recommended the applicant be discharged with severance pay (DWSP) for his unfitting condition of Crohn’s Disease with a 10 percent disability rating.  

On 29 Jun 09, the applicant was DWSP in the grade of captain.

On 18 Aug 10, the Physical Disability Board of Review (PDBR) directed the applicant’s DWSP with a 10 percent disability rating be changed to a permanent disability retirement with a disability rating of 30 percent.

The applicant was re-issued a DD Form 214 to show he was retired in the grade of captain for permanent disability.  

Special Order ACD 02895 dated 16 Sep 10 shows the applicant was relieved from active duty effective 29 Jun 09 and retired effective 30 Jun 09 for permanent disability in the grade of captain with a compensable percentage for physical disability of 30 percent.  

The applicant’s records include a MSM citation/certificate, Special Order G001, dated 9 Apr 09, with given under my hand date of 29 Jun 09.  However, the MSM is not reflected on his DD Form 214.  

On 10 Mar 20, the applicant was notified his request for award of the MSM was forwarded to AFPC for review and/or corrective action and the request would not be presented to the Board.  For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at opinions Exhibits C, D and E.

AIR FORCE EVALUATION

AFPC/DP2SP does not make a recommendation and deferred to the Disability Retirement Section.  He was selected for promotion to the grade of major by the CY08C Major Central Selection Board (CSB).  Had he remained on active duty, he would have been promoted to the grade of major on 1 Sep 09.  He was medically discharged in the grade of captain on 29 Jun 09.  The complete advisory opinion is at Exhibit C.

AFPC/DPFDD states correction to the DD Form 214 is outside their purview; however, a correction to his retirement order would be appropriate so he can be afforded the customary benefits associated with being retired at the higher grade.  The highest grade held on active duty would still reflect as captain.  The retirement order should have indicated he was permanently disability retired in the grade of major per AFI 36-3212, Physical Evaluation for Retention, Retirement and Separation, and 10 U.S.C. § 1372, which entitles a member to be retired in the grade to which he would have been promoted had it not been for the physical disability for which retired.  The complete advisory opinion is at Exhibit D.

AFPC/DP2STM-214 recommends denial for correction of his DD Form 214, which was correctly prepared.  The grade on the DD Form 214 is correct as of the date of separation.  AFPC/DPFDD recommends correction of his orders to reflect the grade of major; however, this does not change the grade held while on active duty.  He never wore the grade of major and is not entitled to have the grade indicated on his DD Form 214.  The complete advisory is at Exhibit E.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant on 10 Mar 20 for comment (Exhibit F), 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.

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 AFPC/DPFDD and finds a preponderance of the evidence substantiates the applicant’s contentions in part.  Specifically, the applicant was selected for promotion to the grade of major by the CY08C Major Central Selection Board and would have been promoted to the grade of major had it not been for the physical disability, which is sufficient to justify amending his retirement order to show he was permanently disability retired in the grade of major.  However, as pointed out by AFPC/DP2STM-214, the applicant’s grade on his DD Form 214 is correct as reflected since he was discharged from active duty in the grade of captain.  With respect to the applicant’s request his DD Form 214 be amended to include award of the MSM, per the SAF/MRBC letter dated 10 Mar 20, this portion of the request was forwarded to AFPC for review and administrative correction.  In view of the above, 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 his Special Order, Number ACD-02895 dated 16 Sep 10 be amended to show his permanent disability retired grade as major, instead of captain, with highest grade held on active duty of captain.  

However, regarding the remainder of the applicant’s request, the Board recommends informing the applicant 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-2019-04025 in Executive Session on 15 Apr 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 2 Aug 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2SP, dated 13 Feb 20.
Exhibit D: Advisory opinion, AFPC/DPFDD, dated 4 Mar 20. 
Exhibit E:  Advisory opinion, AFPC/DP2STM-214, 28 Feb 20.  
Exhibit F:	Notification of advisory, SAF/MRBC to applicant, dated 10 Mar 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.