RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00542

XXXXXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

He be placed back on the temporary disability retired list (TDRL) or be permanently, medically retired.

APPLICANT’S CONTENTIONS

On 6 Nov 20, he received an email from MyPers stating that he was being removed from the TDRL; this was the first notification he received.  From the time he was notified of his discharge to being placed on terminal leave, it was only five days, so he did not receive any education on how to proceed.  Due to his service-connected neurological disorder, he is required to take medication for the rest of his life and there is no cure.  Because of this, he should be permanently retired.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

On 14 Sep 17, the applicant signed a TDRL statement of understanding acknowledging that he must keep HQ AFPC/DPFDC advised of his address and phone number, in order to be notified when it is time for his TDRL medical examination appointment (not later than 15 months from date of separation.) 

On 24 Nov 17, he was discharged in the grade of staff sergeant (E-5) after serving 5 years, 4 months, and 15 days of active duty.  His narrative reason for separation is “Disability Temporary (Enhanced).” 

On 25 Nov 17, he was placed on the TDRL in the grade of E-5 with a compensable percentage for physical disability of 40 percent. 

On 25 Jan 19, DFAS notified him that his retired pay would be suspended effective 14 Feb 19. 

On 18 Nov 19, AFPC/DPFDC/TDRL notified the applicant that his time on the TDRL was due to expire on 24 Nov 20.  He was provided a final opportunity to report and complete the examination required by law.  The letter informed the applicant that it was to his advantage to respond and complete a medical evaluation in order for the Informal Physical Evaluation Board (IPEB) to review his current medical condition prior to rendering a final disposition.  However, if he did not respond or desire to have a medical evaluation, officials within the Office of the Secretary of the Air Force (SECAF) would take action to finalize his case and would result in discharge without any of the benefits under Chapter 61, Title 10, U.S.C., i.e. loss of his military identification (ID) card and his eligible family member's ID cards and associated retiree benefits.

On 2 Nov 20, AFPC/DPFDC/TDRL notified the applicant that the SECAF directed that his name be removed from the TDRL, and that he would be discharged without benefits due to a failure to report for periodic physical examination.

On 24 Nov 20, per Special Order XXXXX, dated 5 Nov 20, the applicant was removed from the TDRL and discharged without benefits in the grade of staff sergeant (E-5) for having failed to report for his scheduled physical examination as required by law.

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

APPLICABLE AUTHORITY

Per AFI 36-3212, Physical Evaluation for Retention, Retirement and Separation, dated 15 Jul 19:

8.4. Service Member’s Responsibility.  Members placed on the TDRL provide their current contact information, to include current mailing address, e-mail address and contact phone number(s) to AFPC/DPFDC.

8.15. Failure to Report for Periodic Examinations. In accordance with 10 U.S.C., § 1210, TDRL members who fail to report for periodic examinations, after having been properly notified and without sufficient justification for missing the appointment, are notified (by AFPC/DPFDC) their retired pay will be suspended. 

8.15.1. If unable to contact the member after a second attempt, member’s entitlement to retired pay may be suspended. 

8.15.2. AFPC/DPFDC will stop a TDRL member's eligibility to receive AF retired pay if AFPC/DPFDC cannot locate the member or the member is scheduled to report for periodic examination and refuses or fails to report after having been given proper notice.  The Physical Evaluation Board Liaison Officer (PEBLO) must advise AFPC/DPFDC immediately when a member fails to report for a scheduled periodic examination.

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.  The applicant was found unfit by the IPEB on 31 Aug 17 for Psychomotor Epilepsy Seizure and was placed on the TDRL with a disability rating of 40 percent effective 25 Nov 17.  Part of the applicant’s requirement was to complete a TDRL Statement of Understanding.  On 29 Nov 18, the first attempt was made to request updated contact information from the applicant, which resulted in a negative reply.  On 13 Dec 18, a last chance letter was mailed using the address information located on the TDRL Statement of Understanding and the Defense Enrollment Eligibility Reporting System (DEERS), which resulted in another negative reply.  On 25 Jan 19, notification was sent by both methods, email and mailing address, that his retired pay would be suspended because he failed to comply with the TDRL requirements, which resulted in no response.  On 18 Nov 19, a final attempt, a 12 month letter was mailed out affording him a final opportunity to report and complete the required examination that is required by law with a suspense no later than 18 Dec 19, which resulted in a negative reply.  On 25 Nov 17, the applicant was placed on the TDRL and fell under a three year panel that only allows the applicant to be on TDRL until 24 Nov 20.  Every attempt was made to reach out to the applicant throughout the three years, but the applicant failed to respond to any contact that was attempted. 

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 April 2021 for comment (Exhibit D), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was 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/DPFDC and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Every attempt was made to reach out to the applicant throughout the three years, but the applicant failed to respond to any contact that was attempted, nor did the applicant attempt to contact AFPC/DPFDC 15 months after his date of separation as he acknowledged the requirement on his signed TDRL statement of understanding. Therefore, the Board recommends against correcting the applicant’s records.

4.  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 evidence did not demonstrate material error or injustice, 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-2021-00542 in Executive Session on 28 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 10 Nov 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFDC, dated 14 Apr 21.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 20 Apr 21.

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.