RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2021-03888

XXXXXXXXXXXX	COUNSEL:  NONE

	HEARING REQUESTED:  YES	

APPLICANT’S REQUEST

Her medical discharge be changed to a retirement under the Temporary Early Retirement Authority (TERA).

APPLICANT’S CONTENTIONS

She was medically separated in April 2012.  In October 2021, she was informed about TERA and learned it was in play several months before she was considered for medical separation.  She inquired about retirement prior to her medical evaluation board, but was told she had to serve 20 years.  She served honorably for 18 years and suffered an injury through no fault of her own.  She was never informed of her rights under the TERA program and was forced out under medical separation.  She believes this is an injustice to her and her family. 

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force major (O-4).

On 11 April 2011, according to AF Form 356, Findings and Recommended Disposition USAF Physical Evaluation Board, the Formal Physical Evaluation Board (FPEB) found the applicant unfit for continued military service due to physical disability and recommended discharge with a combined compensable disability rating of 20 percent.  The applicant appealed the findings and requested permanent retirement with a compensable rating of 40 percent. 

On 30 January 2012, the Secretary of the Air Force Personnel Council concurred with the FPEB findings and directed the applicant be discharged with severance pay with a combined compensable disability rating of 20 percent.

On 27 April 2012, the applicant was furnished an honorable discharge and credited with 18 years and 16 days of active service.

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

AIR FORCE EVALUATION

AFPC/DP2SSR recommends denying the application.  In the Fiscal Year 1992 National Defense Authorization Act, Congress enacted TERA which permitted selected military members to retire with 15 or more, but less than 20 years of service.  On 12 April 2012, the Office of the Under Secretary of Defense released a memorandum to the Services, titled Temporary Early Retirement Authority Procedural Guidance.  The guidance stated that the “purpose of the early retirement is to provide the Department of Defense a temporary additional management tool to draw down the military departments through 2018.  The temporary early retirement authority is not an entitlement.”
The guidance prescribed eligibility criteria for early retirement, such as grade and years of service, and was used to retire members who, absent the availability of TERA, were expected to qualify for a 20-year retirement.  In accordance with guidance, members considered for early retirement must not be under evaluation for disability retirement or separation.  Finally, TERA was not offered to active duty officers until 29 July 2013.  

The applicant underwent a review by a medical evaluation board and was medically separated on 27 April 2012.  The TERA program was not available to the applicant at the time of her separation and she did not meet the legislative and policy requirements to be retired under the TERA program.  

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 10 January 2022 for comment (Exhibit D), 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 AFPC/DP2SSR 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-2021-03888 in Executive Session on 18 August 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, w/atchs, dated 17 October 2021.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DP2SSR, dated 29 December 2021.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 10 January 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.