RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2020-01132

XXXXXXXXXXXXX	COUNSEL:  NONE

 	HEARING REQUESTED:  NO

APPLICANT’S REQUEST

He be credited with 20 years of active service to qualify for concurrent retirement and disability pay (CRDP).

APPLICANT’S CONTENTIONS

He was retired in June 1973 rather than the August date he requested.  This action was done by the personnel office because his Air Force Specialty Code was 90 percent surplus due to site closings. 

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a permanently disability retired Air Force technical sergeant (E-6).

On 29 May 1973, the Formal Physical Evaluation Board (FPEB) found the applicant unfit for continued service due to post laminectomy, L-4-S1, with fusion 1970, associated with spondylolisthesis and musculo-skeletal pain of interscapular area with radiculopathy down the right leg.  The FPEB recommended permanent retirement with a 40 percent compensable disability rating.  On that same date, the applicant concurred with the FPEB findings and recommendations.

On 5 June 1973, the Secretary of the Air Force Personnel Council (SAFPC) approved the recommendation.

On 25 June 1973, the applicant was relieved from active duty and permanently retired effective          26 June 1973 with a compensable percentage for physical disability of 40 percent.  He was credited with 19 years, 10 months, and 22 days of active duty service.

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

APPLICABLE AUTHORITY

AFM 35-4, Physical Evaluation for Retention, Retirement and Separation, dated 28 January 1969.  A member is unfit due to physical disability when he is unable to perform the duties of his office, rank, grade or rating in such a manner as to reasonably fulfill the purpose of his employment on active duty.  The determination of unfitness due to physical disability is not based on a member’s inability to meet the physical standards for initial entry into the service; or his pending voluntary or involuntary retirement, discharge or release; or that he does not meet the needs of the service for his special skills.

DoD 7000.14-R, Financial Management Regulation, Volume 7B, Chapter 64 Concurrent Retirement and Disability Pay (CRDP).  Effective 1 January 2004, eligible military retirees are entitled to concurrent receipt of both retired pay and Department of Veterans Affairs (DVA) disability compensation.  The CRDP provided for a 10-year phase-out of the offset to retired pay due to receipt of DVA disability compensation.  The CRDP provides a restoration of monthly retired pay calculated on the circumstances of each entitled individual.  In order to qualify for CRDP, a member must be eligible for retired pay and receive a DVA disability rating of 50 percent or higher.  Members retired for physical disability must be entitled to retired pay under any provision of law other than solely for disability (regular 20 year or Temporary Early Retirement Authority retirement), and have a DVA disability rating of 50 percent or higher.  

AIR FORCE EVALUATION

AFPC/DPFDD recommends denying the application, indicating there is no evidence of an error or injustice. The applicant claims that on 12 June 1973, he was informed by “personnel” that he was going to be retired early due to a surplus in his career field and his insufficient retainability for retraining or transfer.  However, records indicate that on 29 May 1973, the FPEB found the applicant unfit due to physical disability and recommended he be permanently retired with a 40 percent disability rating.  The applicant concurred with the FPEB’s decision and on 5 June 1973, the SAFPC Physical Review Council approved his disability retirement, effective 26 June 1973.  He was retired with 19 years, 10 months, and 22 days of active service.    

In addition, AFM 35-4, Chapter 6, provides for the retention of certain physically unfit members with between 15 but less than 20 years of active service who may continue to serve effectively with appropriate assignment limitations via the Limited Assignment Status (LAS) program. A member who is not physically world-wide qualified has no legal or vested right to retention in LAS and disapproval of such a request has no bearing on the final disposition of cases processed in accordance with this manual.  With consent of the member, the Secretary of the Air Force retains the authority to defer the disposition of a physically unfit member who can still serve with appropriate assignment limitations.  Guidance further states, “Members who are unfit because of physical disability will not be retained on active duty solely to increase benefits, nor will they be retained unless their employment is of value to the Air Force.”  The manual contains application procedures for members desiring LAS consideration following the FPEB; however, we could not locate an LAS application for the applicant.  

The Defense Finance and Accounting Service and DVA manage the CRDP program.  To qualify for CRDP, a disability retiree must be entitled to retired pay under any provision of law other than solely for disability, and have a DVA rating 50 percent or greater.  The applicant was permanently disability retired with less than 20 years of total active service and a 40 percent compensable disability rating.  Therefore, he does not meet the basic eligibility criteria for CRDP, and there is no evidence he applied for or was approved to remain on active duty to complete 20 years of active service to qualify for receipt of CRDP.

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 20 November 2020 for comment (Exhibit D), and the applicant replied on 16 December 2020.  In his response, the applicant reiterated that he submitted a formal request to retire 31 August 1973.  He contended that he was informed his early retirement was for the Air Force’s benefit as it occurred during the Vietnam drawdown and the closing of stateside radar stations.  He believes his request for a 38-day extension is reasonable after serving 20 years and 10 months of his life.  

The applicant’s complete response is at Exhibit E.

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 recommendation of AFPC/DPFDD and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The applicant contends he retired early due to a personnel-manning surplus.  However, evidence indicates he was permanently retired due to physical disability with less than 20 years of active service and a 40 percent compensable disability rating, rendering him ineligible for CRDP.  In addition, there is no evidence the applicant was approved for Limited Assignment Status to remain on active duty to complete 20 years of active service to qualify for CRDP.  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).  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-2020-01132 in Executive Session on 28 July 2021:

, 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 16 January 2020.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFDD, dated 10 November 2020.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 20 November 2020.
Exhibit E:	Applicant’s response, dated 16 December 2020.

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.