RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00877

XXXXXXXXXXXXXx	COUNSEL: NONE	 

	HEARING REQUESTED: NO	

APPLICANT’S REQUEST

He be medically retired.  

APPLICANT’S CONTENTIONS

He should have been medically retired.  His last enlistment was for six years and he should have retired on 10 Jun 09.  He had a total of 18 years and 24 years for pay purposes.

At the time of his six year enlistment in the Air National Guard (ANG) he had a 40 percent service connected disability rating from the Veterans Affairs (VA).  The VA rating was in his record and known at the time of his enlistment.  He went on field exercises, passed physical training requirements and performed his duty as a personnel specialist.  At no time was the execution of his duties in question.

During the 4 Apr 04 drill weekend, he went to the command personnel office and used a handicap parking spot.  He was reported for having used the handicap parking spot and was ordered to report to medical immediately.  He reported to medical and was put on a medical profile because of the VA rating.  He was ignorant to the ramifications.  He was denied the ability to drill and lost his right to serve on unit training assembly (UTA) weekends.  He was ordered not to report to any UTAs and received a NGB 22, National Guard Bureau Report of Separation and Record of Service, in the mail in Dec 05.  No one reached out to him and he accepted what he was told.  This was discriminatory and unjust.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air National Guard (ANG) senior airman (E-4).

The DD Form 2808, Report of Medical Examination, dated 2 Nov 11, lists no medical conditions and states the applicant was qualified for service.  

On 10 Jun 03, the applicant enlisted in the ANG for a period of six years.  

He provides AF Forms 422, Physical Profile Serial Report, dated 4 Apr 04, which shows his condition of spondylolisthesis L5-S1 and restriction of no bending, stooping, lifting over 10 pounds, prolonged sitting or standing and physical training at own pace.  There is no indication the applicant incurred an in the line of duty (ILOD) injury while in service.  

On 2 Nov 05, he was honorably discharged from the ANG with authority and reason “AFI 36-3209 3.14, Physical Disqualification, SPD L26.”  He was credited with 18 years, 1 month and 7 days of Reserve component service, 3 years, 10 months and 16 days of prior active duty service and 24 years, 4 months and 16 days of total service for pay.  

Per Reserve Order XXXXX dated 16 Jun 09, the applicant was honorably discharged from the Air Force Reserve Non-obligation Non-participating Ready Personnel Section (NNRPS).  

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

APPLICABLE AUTHORITY/GUIDANCE

AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members, Paragraph 3.14, Physical Disqualification.  Discharge a member who is unfit to perform the duties of the member’s office, grade, or rank because of disease or injury.  The convening or discharge authority is authorized to finalize cases processed under this section.  Paragraph 3.14.6, the discharge authority finds the member’s physical disqualifying condition makes them unfit for duty.  

AIR FORCE EVALUATION

NGB/A1PP recommends denial.  The documentation provided is not sufficient to support his claim.  There is no proof he entered the disability evaluation system (DES), which would have given a determination he was found unfit to be given a medically retired determination.  In accordance with AFI 36-3212, Physical Evaluation for Retention, Retirement and Separation, paragraph 3.17, upon review and evaluation of a disability case, the physical evaluation board recommends return to duty or permanent disability retirement.  Based on facts the most appropriate action for applicant was separation under physical disqualification in accordance with AFI 36-3209.  

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 7 Jul 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 NGB/A1PP and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The applicant contends he was discharged improperly and should have been medically retired; however, he failed to provide any evidence to show he incurred an injury or illness while on active duty and was referred for DES processing by a medical evaluation board.  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-2021-00877 in Executive Session on 15 and 21 Sep 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 27 May 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, NGB/A1PP, w/atchs, dated 2 Jul 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 7 Jul 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.