RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-01029

xxxxxxxxxxxxx	COUNSEL: NONE

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

Her honorable discharge be changed to a medical retirement.

APPLICANT’S CONTENTIONS

The severity of her disabilities were not considered by the evaluation board before she was separated from the Air Force Reserve (AFR).  The Department of Veterans Affairs (DVA) evaluated her medical conditions at a 70 percent disability rating.  Upon receiving notification of her pending discharge, she was seen by a medical provider and placed on a medical profile pending a Medical Evaluation Board (MEB).  At no time were the disqualifying conditions reviewed for a possible connection to her fitness failure.  It was determined that a line of duty (LOD) determination was required before the MEB process could resume.  The LOD paperwork was completed, signed, and turned in for processing with supervision.  Without her knowledge, she was administratively discharged one month later without completing the MEB process.  To this day, she has been unable to use the 240 hours of military leave that is on her leave and earnings statement (LES).

The applicant’s complete submission is at Exhibit a.

STATEMENT OF FACTS

The applicant is a former AFR technical sergeant (E-6). 

On 7 Mar 17, the discharge authority directed the applicant be discharged for substandard (unsatisfactory) performance, failure to meet minimum fitness standards.  The applicant waived her rights to an administrative discharge board on the condition she receive an honorable service characterization.  Probation and rehabilitation was considered, but not offered.

Dated 13 Mar 17, Reserve Order XXXX indicates the applicant was honorably discharged from the AFR, effective 7 Mar 17.

On 26 Apr 22, an email from AFRC indicates the applicant’s military leave is not payable upon separation from her Title 5 civilian position.  The applicant earned this military leave per 5 USC 6323 (a) which provides 15 days per fiscal year for active duty, active duty training, and inactive duty training.  An employee can carry over a maximum of 15 days into the next fiscal year.  A full-time employee working a 40-hour workweek will accrue 120 hours (15 days x 8 hours) of military leave in a fiscal year, or the equivalent of three 40-hour workweeks.  The applicant did not provide any justification to explain the perceived injustice other than saying she could not out-process her unit.  The applicant  was pending an administrative discharge as well as an initial review in lieu of (IRILO) for medical concerns which likely drove a duty status code (DSC) update in her records such as a DSC 14 (no pay, no points) for medical or DSC 28 (pending separation or investigation) per AFI 36-3208, Administrative Separation of Airmen.  In either case, military participation would not be allowed by these DSCs, so the use of the military leave from her civilian position would not be possible (explaining the leave balance).

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

APPLICABLE AUTHORITY/GUIDANCE

The military’s Disability Evaluation System (DES), established to maintain a fit and vital fighting force, can by law, under Title 10, USC, only offer compensation for those service incurred diseases or injuries which specifically rendered a member unfit for continued active service and were the cause for career termination; and then only for the degree of impairment present at the “snapshot” in time of separation and not based on post-service progression of disease or injury.  To the contrary, the Department of Veterans Affairs (DVA), operating under a different set of laws, Title 38, USC, is empowered to offer compensation for any medical condition with an established nexus with military service, without regard to its impact upon a member’s fitness to serve, the narrative reason for release from service, or the length of time transpired since the date of discharge. 

AIR FORCE EVALUATION

AFRC/A1KK recommends denying the applicant’s request for a medical retirement finding no evidence of an error or injustice.  In review of the applicant’s written statement accompanying the application, she identifies that the commander had initiated the involuntary administrative discharge actions for failure to meet fitness standards prior to the AF Form 469, Duty Limiting Condition Report, placing worldwide duty (WWD) limitations on the applicant in Feb 16.  Since the profile made her ineligible for WWD, AFI 36-3208, paragraph 6.31 states, when the required medical examination (paragraph 6.3) shows that the airman is not qualified for worldwide duty, comply with Table 6.13 and Table 6.14. These cases should be closely monitored to insure a discharge under this instruction is not executed before the AFI 36-2902, Retirement and Separation for Physical Disability, (formerly AFR 35-4) case has been completed.  Although cross-referenced in AFI 36- 3208, AFI 36-2902 does not exist for reference any longer.  It was replaced by AFI 36-3212, Physical Evaluation for Retention, Retirement and Separation.  AFI 36-3212, paragraph 1.7.1.3 directly applies to this situation where the applicant has a pending administrative separation with pending medical concerns that might qualify for review via the DES.  AFI 36-2902, paragraph 1.7.1.3.1 states airmen who meet established medical criteria for referral into the DES and who are also pending an involuntary administrative separation will be referred into the DES if: (1) there is a clear and evident connection between an airman’s medical diagnosis and the airman’s conduct; (2) the airman has a medical diagnosis of Post-Traumatic Stress Disorder or Traumatic Brain Injury (and the airman is not pending administrative separation in lieu of court martial action); or (3) referral is warranted as a matter of equity or good conscience.  If none of the above are present, the airman will continue with the involuntary administrative action.  In this case, the applicant was involuntarily administratively discharged under honorable conditions for failure to meet fitness standards.  This was not a matter of conduct, it was not a discharge in lieu of court martial, and the applicant’s command did not deem it appropriate to refer her case to the DES out of good conscience.  Thus, there is no violation of policy with allowing the discharge to process, even with the WWD limitations being identified on an AF Form 469, in accordance with AFI 36-2902.

Concerning the applicant’s contention that the AFR did not fully evaluate identified disabilities, there was no documentation to support or identify any specific concerns.  However, it is believed that this is likely based off of the DVA offering a 70 percent service-connected disability rating.  It is important for the member to understand that Air Force and DVA disability ratings differ.  AFI 36-2902, paragraph 1.11 states the DVA is authorized to rate any service-connected condition while the Air Force is only authorized to rate or apply ratings to the conditions which make a service member unfit for continued military service and cause the premature termination of the member’s military career.

Lastly, the applicant claimed loss of 240 hours of military leave on their LES due to not being able to out-process.  There was no supporting documentation provided to show how this was earned or to clarify what kind of leave this truly was, so we made attempts to research this through HQ AFRC/FM and DFAS. We were not able to verify any outstanding, payable leave was due to the applicant.

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 8 Apr 22 for comment (Exhibit D), and the applicant replied on 19 Apr 22.  In her response, the applicant submitted her DVA disability rating and her civilian pay statement.  Another request was sent to AFRC to provide a response regarding the applicant’s leave.  This email was sent to the applicant on 26 Apr 22, but she has not responded (Exhibit F).

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 AFRC/A1KK and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Specifically, the Board found the applicant’s contentions did not warrant a medical retirement.  Under the Air Force system (Title 10, USC), compensation is only offered for those service incurred diseases or injuries which specifically rendered a member unfit for continued active service and were the cause for career termination; and then only for the degree of impairment present at the “snapshot” in time of separation and not based on post-service progression of disease or injury.  To the contrary, the DVA (Title 38, USC), is empowered to offer compensation for any medical condition with an established nexus with military service, without regard to its impact upon a member’s fitness to serve, the narrative reason for release from service, or the length of time transpired since the date of discharge.  Furthermore, the Board found no evidence to warrant relief in regards to her military leave as this type of leave is not payable.  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 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-2021-01029 in Executive Session on 15 Sep 21 and 28 Jun 22:

, 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 28 Oct 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFRC/A1KK, dated 24 Mar 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 8 Apr 22.
Exhibit E:	Applicant’s Response, w/atchs, dated 19 Apr 22.
Exhibit F:  Email from AFRC IRT Military Leave, 26 Apr 22.

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.