RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2021-02720

XXXXXXXXXXXXXX	COUNSEL:  NONE
	
	HEARING REQUESTED:  YES

APPLICANT’S REQUEST

Her retirement date be corrected to reflect a 20-year retirement with entitlements and benefits.

APPLICANT’S CONTENTIONS

She was medically retired in 2007 with major depressive disorder with psychotic features and agoraphobia.  She is doing much better with therapy, electric shock therapy, and family support.  In 2007, she retired with 15 years, 10 months, and 14 days.  On 20 July 2010, the Air Force changed her retirement date to 9 August 2010, extending her retirement time to 18 years, 10 months, and 24 days; 356 (sic) days shy of 20 years.  She is requesting credit for the 356 (sic) days towards granting a full 20-year retirement with benefits.  When she entered the Air Force in 1991, she know she wanted all it had to offer.  By 2002, she excelled and made the rank of master sergeant, and was on track to achieve chief master sergeant.  She would have been everything the Air Force wanted and her troops deserved.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force master sergeant (E-7).

On 30 July 2007, according to Special Order XXXXX, dated 20 June 2007, the applicant was relieved from active duty, organization, and station of assignment.  Effective 31 July 2007, she was placed on the Temporary Disability Retired List (TDRL), with a compensable percentage for physical disability of 30 percent.

On 30 July 2007, the applicant was furnished an honorable discharge, with Narrative Reason for Separation of “Disability, Temporary,” and credited with 15 years, 10 months, 14 days active service.

On 9 August 2010, the applicant was removed from the TDRL and permanently retired in the grade of master sergeant with a compensable percentage for physical disability of 50 percent, and credited with 15 years, 10 months, 14 days active service for retirement.

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

AIR FORCE EVALUATION

AFPC/DP2SSR recommends denying the application.  The applicant did not meet the legal criteria to retire for length of service.

On 31 July 2007, she was placed on the TDRL and on 9 August 2010 she was removed from the TDRL and permanently retired with 15 years, 10 months and 14 days active service.  To qualify for a length of service retirement, public law in Title 10, United States Code, Section 09314 (then 08914), requires an enlisted airman to complete at least 20 years of active service.

In the Fiscal Year 1992 (FY92) National Defense Authorization Act (NDAA), Public Law (PL) 102-484, 23 October 2002, Congress enacted the Temporary Early Retirement Authority (TERA) which permitted selected military members to retire with 10 or more, but less than 20, years of service.  The purpose was to allow service secretaries to offer early retirement during periods of force management (drawdown), and it is not an entitlement to service members.  FY03 NDAA extended TERA to 1 September 2002, at which time the authority expired.  TERA authority was not reinstated until enactment of the FY12 NDAA, and the current authority was extended to 31 December 2025 in the FY17 NDAA.

The applicant did not complete 20 years of active service; therefore, she does not meet the legal requirements to be retired for length of service.  Further, the TERA authority was not in place at the time of her placement on the TDRL, or when she was permanently retired for disability.  Finally, service members who were undergoing a Medical Evaluation Board or who were found unfit for continued service have historically not been eligible for retirement under TERA.  Had TERA been in effect at the time of the applicant’s disability retirement, it is unlikely she would have been eligible.

The complete advisory opinion is at Exhibit C.

AFPC/DPFDC recommends denying the application.  Based upon the documentation provided and analysis of facts, there is no evidence of an error or injustice during the processing of her medical case.  

The applicant was found unfit by the Informal Physical Evaluation Board and was placed on the TDRL with a disability rating of 30 percent, on 31 July 2007.  Effective 9 August 2010, she was removed from the TDRL, permanently disability retired with a disability rating of 50 percent, and eligible to receive retirement benefits.  According to 5 USC § 8332, 17c(1a), when a service member is awarded retired pay based on any period of military service, credit for military service is not awarded.  When the applicant was placed on the TDRL, her active service for retirement was 15 years, 10 months, 14 days.  She would not accumulate any additional credit as time on the TDRL is not active duty time.

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant on 16 March 2022 for comment (Exhibit E), but has received no response.

AIR FORCE AMENDED EVALUATION

AFPC/DPFDC provided an amended advisory correcting the statutory reference from 5 USC § 8332, 17c (1a) to 10 USC § 1208.  The recommendation to deny the application did not change.

The complete amended advisory opinion is at Exhibit F. 

APPLICANT’S REVIEW OF AIR FORCE AMENDED EVALUATION

The Board sent a copy of the amended advisory opinion to the applicant on 22 March 2022 for comment (Exhibit G), 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 rationales and recommendations of AFPC/DP2SSR and AFPC/DPFDC 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).  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.

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-2021-02720 in Executive Session on 25 May 2022:

, Panel Chair 
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, dated 6 August 2021.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DP2SSR, dated 17 February 2022.
Exhibit D:	Advisory Opinion, AFPC/DPFDC, dated 24 February 2022.
Exhibit E:	Notification of Advisory, SAF/MRBC to Applicant, dated 16 March 2022.
Exhibit F:	Amended Advisory Opinion, AFPC/DPFDC, dated 22 March 2022.
Exhibit G:	Notification of Advisory, SAF/MRBC to Applicant, dated 22 March 2022.

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.