RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00727

XXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: NO 	

APPLICANT’S REQUEST

His record be corrected to show that he retired with 20 years of active service instead of 19 years and 8 months. 

APPLICANT’S CONTENTIONS

He was medically retired with 19 years and 8 months.  He wants the record changed to reflect that he retired with 20 years of active service in order to draw an Air Force pension.   

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

On 28 May 14, the applicant was relieved from active duty.  Effective 29 May 14, he was permanently disability retired in the grade of technical sergeant (E-6) and was credited with 19 years, 8 months and 7 days of active duty.   

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

AIR FORCE EVALUATION

The AFBCMR Medical Advisor recommends denying the application.  The applicant received a permanent medical retirement with a 70 percent disability rating approximately 4 months prior to his scheduled 20 year retirement.  He is now asking the Board to “change retirement date [sic]” in order to “draw an Air Force pension.”  In doing so, his goal appears to be to obtain concurrent or combined disability and retired pay.  In order to justify a recommendation for correction of a military record, it is necessary for the applicant to show, to the satisfaction of the Board, by the evidence provided or otherwise apparent in the available file, that the alleged entry or omission in the record was in error or an injustice.  The responsibility for providing sufficient evidence to support an appeal rests with the applicant.  In this case, the totality of the record demonstrated that he was appropriately discharged in accordance with AFI 36-3212, Physical Evaluation for Retention, Retirement and Separation, for reason of a medical condition (i.e., bipolar disorder) that interfered with the performance of his duties and was unfitting for continued military service, overcoming the presumption of fitness, as per the Department of Defense Instruction (DoDI) 1332.38, E3.P3.5 in effect at the time.  The applicant’s unfitness for continued military duty was not in question at the time of his retirement, and he in fact concurred with the Informal Physical Evaluation Board’s (IPEB) decision. The issue now raised by him before the Board is essentially a reconsideration of the IPEB’s determination that his medical condition overcame the presumption of fitness.  Insufficient evidence was presented to show that the decision reached by the IPEB to overcome the Presumption of Fitness was in error or an injustice, or otherwise warranting correction. 

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 24 Oct 21 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 the AFBCMR Medical Advisor 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.

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-2021-00727 in Executive Session on 15 Dec 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, dated 26 Jan 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFBCMR Medical Advisor, dated 22 Jul 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 24 Oct 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.