RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-04529

XXXXXXXXXXXXXXXXX	COUNSEL: NONE	 

  	HEARING REQUESTED: NO

APPLICANT’S REQUEST

He be granted a medical or 20-year service retirement from the Air National Guard (ANG).  

APPLICANT’S CONTENTIONS

He could not continue in the ANG due to his spine and surgeries in 2002 and 2006 where he had an artificial disc at L-5-S-1 inserted.  He could not complete annual training or drill weekend periods and lost time at his civilian job.  Due to a misunderstanding and ignorance on his part, he did not know he was eligible for a service-connected classification.  He was told by the Veterans Affairs (VA) his spine and back issues were tied to his injury incurred in 1987 while on active duty.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former ANG captain (O-3).

He performed a period of active duty in the Regular Air Force from 10 Jun 85 to 27 Mar 89.  He was released from active duty with a narrative reason for separation of “Early separation program, strength reduction.”

The applicant provides a VA rating decision dated 17 Dec 18 showing he received a 30 percent rating for service-connected disability for radiculopathy and degenerative arthritis.  

His NGB 22, Report of Separation and Record of Service, shows he entered the ANG on 20 Feb 93 and was honorably discharged on 1 Oct 00, with an authority and reason for separation of “AFI 36-3209, para 34B resignation – miscellaneous reasons.”  He was credited with 14 years, 9 months and 18 days of total service for retired pay.  

He provides a medical note, which shows he had surgery on 21 Feb 06 for severe degenerative disc disease and had multiple previous surgeries for herniated lumbar disc.  

In a letter dated 1 Nov 06, ARPC/DPPRS informed the applicant his discharge action was postponed until 1 Jan 07 in order to provide him time to obtain an assignment.  If written confirmation from the program manager or unit was not received by 1 Jan 07, the discharge action would resume.  

Per ARPC/DPP memorandum dated 5 Apr 07, the applicant was removed from the Inactive Status List Reserve Section (SLRS).  He would no longer be afforded the opportunity to request an administrative discharge board.  

Per Reserve Order CH-001205 dated 12 Apr 07, he was honorably discharged from all appointments in the Air Force effective 9 Apr 07.  

He provides a letter from his provider dated 27 Nov 17, which states he has treated the applicant since Apr 13 for low back pain and joint complaints.  The applicant had approximately 40 visits over the course of four and a half years.  

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

APPLICABLE AUTHORITY

Per 10 U.S.C. § 12731B, Special rule for members with physical disabilities not incurred in the line of duty.  In the case of a member of the Selected Reserve of a Reserve component who no longer meets the qualifications for membership solely because the member is unfit because of physical disability, the Secretary concerned may determine to treat the member as having met the service requirement for retirement if they completed at least 15, and less than 20 years of service.  

AIR FORCE EVALUATION

NGB/SGPS recommends denial.  The applicant claims to have had two back injuries while serving on active duty and worsening spine and back problems in 1991.  However, the documentation provided does not validate the injuries and condition.  The applicant also denied recurrent back pain on both SF Forms 93, Report of Medical History, dated 29 Feb 84 and 8 Jun 91.  The complete advisory opinion is at Exhibit C.

ARPC/DPTT recommends denial.  The applicant did not complete 20 years of satisfactory service and therefore did not obtain eligibility for Reserve retired pay under 10 U.S.C. § 12731.  He is also not eligible for Reserve retired pay under 10 U.S.C. § 12731B because he did not complete 15 years satisfactory service.  To be eligible for Reserve retired pay, a member must complete 15 years satisfactory service and be found physically unfit for duty.  The complete advisory opinion, with attachments, is at Exhibit D.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant on 18 Jun 20 for comment (Exhibit E), 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 not the victim of an error or injustice.  The Board concurs with the rationale and recommendations of NGB/SGPS and ARPC/DPTT and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  While the applicant contends he should be granted a medical or years of service retirement based on his VA service-connected disability rating, the Board finds his contention without merit.   In this respect, the VA under 38 U.S.C. is empowered to offer compensation for any medical condition with a nexus with military service without regard to its impact upon a member’s fitness to serve, retainability or length of time since date of discharge.  The applicant has provided no evidence to substantiate his medical condition was unfitting or was the cause of his career termination.  The Board also notes the applicant did not file the application within three years of discovering 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-2019-04529 in Executive Session on 15 Jul 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 4 Sep 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, NGB/SGPS, dated 20 Apr 20.
Exhibit D: Advisory opinion, ARPC/DPTT, w/atchs, 3 Jun 20
Exhibit E:	Notification of advisory, SAF/MRBC to applicant, dated 18 Jun 20.
Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings pertaining to Docket Number BC-2019-04529, as required by AFI 36-2603, paragraph 4.11.9.