RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-03006

XXXXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

Reinstatement of his military disability retirement.

APPLICANT’S CONTENTIONS

On 30 Aug 12, he was awarded a permanent disability retirement at a compensable percentage of 40 percent by the USAF Physical Evaluation Board (PEB).  On 26 Nov 12, his disability retirement was revoked by AFPC/DPSDC, Physical Disability Division based on a letter submitted by the XXXXX Air National Guard (XXANG).  In this letter, it alleged criminal misconduct and falsification of his line of duty injury.  In Sep 03, the National Guard Bureau (NGB) determined the Commander-Directed Investigation/Line of Duty (CDI/LOD) that was submitted by the XXANG to NGB requesting an administrative hold on his disability retirement was legally insufficient and ordered the XXANG to conduct another investigation, which it has declined to do.  

On 14 Mar 13, he filed an appeal against the revoking of his disability retirement with the XXANG but has received no response.  On 18 Apr 13, he filed a complaint with the Inspector General alleging reprisal, fraud, waste, and abuse of authority.  Dated 14 Nov 14, SAF/IGQ, AF Inspector General (IG) Complaints Resolution Directorate, found no evidence of reprisal but did recommend his LOD determination be re-accomplished.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air National Guard (ANG) senior airman (E-4).

On 8 Sep 10, AF IMT 348, Line of Duty Determination, indicates his commander recommended an In the Line of Duty (ILOD) finding for his back injury.

Dated 30 Aug 12, AF Form 356, Formal Findings and Recommended Disposition of USAF Physical Evaluation Board (PEB), provided by the applicant, indicates he was found unfit due to his medical condition of low back pain due to Degenerative Disc Disease with Radiculopathy with a disability compensation rating of 40 percent and a recommendation of permanent retirement.  Dated 18 Oct 12, Special Order ACD-00175 indicates the applicant was permanently disability retired in the grade of senior airman (E-4) effective 28 Nov 12, with a compensable percentage for physical disability of 40 percent.

Dated 26 Nov 12, Special Order ACD-00533 indicates Special Order ACD-00175 relating to the applicant’s disability retirement was revoked effective 28 Nov 12. 

On 18 Apr 13, the applicant filed an IG complaint against the XXANG for reprisal, racial discrimination, fraud, waste, and abuse of authority for numerous offenses.  In regards to the revoking of his LOD, SAF/IGQ found no evidence of reprisal and recommended that the LOD be re-opened to ensure a complete LOD package is submitted to NGB for final determination.

Issued 2 Nov 13, NGB Form 22, Report of Separation and Record of Service, indicates the applicant was honorably discharged in the grade of senior airman (E-4) after serving eight years of service.  He was discharged with a narrative reason for separation of “Expiration of Enlistment/Less than 120 Military Service Obligation (MSO).”

Dated 11 Jan 14, Special Order P-003761 indicates the applicant was honorably discharged from the MIANG and as a member of the Reserve of the Air Force effective 2 Nov 13.

Dated 14 Nov 14, Letter to the Applicant from SAF/IGQ, provided by the applicant, concluded that in regards to all allegations, the responsible management officials did not reprise against him.  Several issues would be referred back to his command to determine if abuse of authority occurred; the issues include revoking his LOD, pay issues, and reenlistment issues.  Additionally, SAF/IGQ recommended that his LOD determination be re-accomplished. 

For more information, see the excerpt of the applicant’s record at Exhibit B, Report of Investigation at Exhibit F, and the advisories at Exhibits C and D.

AIR FORCE EVALUATION

NGB/A1PS determined they do not have sufficient information to conclude the LOD determination directly impacted the decision to revoke the Permanent Disability Retirement order or that an error or injustice has occurred and defers to the Physical Disability Division for this decision.  The final LOD determination was not made until 14 Nov 14, two years after the FPEB determined the applicant “unfit” on 30 Aug 12.  At the time of the applicant’s FPEB and per AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation, paragraph 3.20., if there was reasonable doubt as to the accuracy of the LOD determination, the PEB would have paused the evaluation process for the LOD Board to review and confirm the LOD determination.  The unit/immediate commander does not have the authority to direct a reinvestigation; only SAF or SAF’s designated representative (LOD Board) has the authority to reverse LOD determinations.  Per AFI 36-2910, Line of Duty (LOD) Determination, Medical Continuation (MEDCON), and Incapacitation (INCAP) Pay, paragraph 4.2.1., only the appointing authority or higher authority may direct a reinvestigation of a final determination.  There is no evidence that an LOD investigation was re-accomplished after 14 Nov 14 (the same day the Formal LOD determination was finalized), per SAF/IGQ’s recommendation.  Per the same memo, SAF/IGQ (with IG DoD/WRI concurrence) states all allegations of reprisal were dismissed.  The governing regulation for LODs at the time of these events, AFI 36-2910, includes guidance on LOD reinvestigations.  To request a reinvestigation, the member must have submitted a written request within 45 days of receipt of a copy of the final determination.  There is no record on file indicating a reinvestigation request was submitted within this timeframe.

The complete advisory opinion is at Exhibit C.

AFPC/DPFDD issued an advisory opinion for informational purposes only because the Physical Evaluation Board (PEB) case file is unavailable.  Since the original decision was based on the LOD findings used to process the applicant’s disability case, it would have been appropriate for AFPC/DPFDD to place the member’s retirement/disability processing on hold pending updated information per AFI 36-3212, dated 2 Feb 06, chapter 8, as a change to the LOD could have resulted in the member being ineligible for duty related Disability Evaluation System (DES) processing.  A note in MilPDS dated 28 Dec 12 states “Mbr placed on Admin Hold – Orders Revoked.”  The Final Disposition area of MilPDS shows that also, on that date, the disability case was placed in “8 – Reboard” status which is normally reserved for cases that are returned without further action and which should be resubmitted at a later date.  However, AFPC/DPFDD is unable to verify what additional information, if any, the office received to warrant this update.  Per the 28 Apr 21 NGB/A1PS advisory, “Due to new evidence of possible misconduct, the LOD determination required a Formal LOD investigation.  On 14 Nov 14, the Approving Authority (NGB/A1PS), per AFI 36-2910 (2010), determined the applicant’s condition, Sciatica, was Not in the Line of Duty – Due to Misconduct.”   Therefore, the PEB case may have simply been returned without action pending completion of the Formal LOD investigation which didn’t conclude until almost 2 years later and would have resulted in the member being ineligible for duty related DES processing and therefore ineligible for the original permanent disability retirement.  Rather, would have been processed under Section 8E—Air Reserve Component (ARC) Non-Duty Related Impairments.

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 1 Jun 21 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 recommendation of the Offices of Primary Responsibility 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 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.

4.  The applicant alleges he has been the victim of reprisal and has not been afforded full protection under the Whistleblower Protection Act (Title 10 U.S.C. Section 1034).  The Board noted the applicant filed an IG complaint to the SAF/IG; however, the SAF/IG concluded his commander did not reprise against him and the decision to recommend an administrative discharge was tied to a CDI on the applicant that substantiated four allegations.  The recommendation to discharge was tied to the improper actions of the applicant, not in reprisal for a protected communication.  Several issues were referred back to his command to determine if abuse of authority occurred; the issues include revoking his LOD, pay issues, and reenlistment issues.  Additionally, SAF/IGQ recommended that his LOD determination be re-accomplished.  Based on the authority granted to this Board pursuant to Title 10 U.S.C. Section 1034, we reviewed the complete evidence of record to reach our own independent determination of whether reprisal occurred.  Based on our review, we did not find any connection between the applicant’s IG complaint and the actions taken by the responsible management officials.  In view of the foregoing, we conclude the applicant has failed to establish the actions taken by his unit were due to reprisal.  Therefore, in the absence of persuasive evidence to the contrary, we do not find that the applicant has been the victim of reprisal, pursuant to Title 10, U.S.C. Section 1034.

5.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

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-2020-03006 in Executive Session on 14 Jun 21 and 2 Jul 21:

, 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 23 Aug 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, NGB/A1PS, dated 28 Apr 21.
Exhibit D:	Advisory opinion, AFPC/DPFDD, dated 25 May 21.
Exhibit E:	Notification of advisory, SAF/MRBC to applicant, dated 1 Jun 21.
Exhibit F: Report of Investigation – WITHDRAWN. 

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.