RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-01564

XXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: NO	 

APPLICANT’S REQUEST

1.  Special Order No. XXXXXX be corrected to show he was medically retired in the grade of master sergeant (E-7).

2.  His DD Form 214, Certificate of Release or Discharge from Active Duty, be corrected as follows:

a. Block 28, Narrative Reason for Separation, be changed from “Disability, Temporary” to “Disability, Permanent.”

b. Block 4a, Grade, Rate, or Rank, be changed from TSgt to MSgt.
 
APPLICANT’S CONTENTIONS

He should have been medically retired as a master sergeant as reflected in the memoranda from two commanding officers.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a medically retired Air Force technical sergeant (E-6).

On 26 May 08, according to Special Order XXXXX, dated 11 Mar 09, the applicant was relieved from active duty and placed on the Temporary Duty Retired List (TDRL) effective 27 May 09, in the grade of E-6.

On 26 May 09, DD Form 214, Certificate of Release or Discharge from Active Duty, reflects the applicant was honorably discharged in the grade of E-6 after serving 22 years and 5 days of active duty.  He was discharged, with a narrative reason for separation “Disability, Temporary.”

On 25 May 10, according to Special Order XXXXX, dated 5 May 10, the applicant was removed from the TDRL and retired in the grade of E-6 per AFI 36-3212, Physical Evaluation for Retention, Retirement and Separation.

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

APPLICABLE AUTHORITY/GUIDANCE

Title 10 United States Code, Section 1372 (10 U.S.C. § 1372): Grade on retirement for physical disability: members of armed forces, a member is entitled to be retired in the grade to which he or she would have been promoted had it not been for the physical disability for which he or she is retired.

AFI 36-3212, Physical Evaluation for Retention, Retirement and Separation, paragraph 5.12, Grade on Retirement, states: Unless entitled to a higher retired grade under some other provision of law, service members permanently retired for disability or placed on the TDRL retire in the highest of the following grades (10 U.S.C. § 1372):  (1)  Grade in which Serving. The grade in which the service member is serving on the date placed on the TDRL or on the date permanently retired for disability; (2) Service members who are retired on or after 23 Sep 96 may be retired in the regular or reserve grade to which they had been selected and would have been promoted, had it not been for the physical disability for which they were retired. (10 U.S.C. § 1372 was amended effective 23 Sep 96).

According to paragraph 5.13, Grade on Discharge, the discharge grade will be the higher of the following: (1) Grade in which Serving. The grade the service member is serving at time of discharge; (2) Higher Grade Determined by SecAF [Secretary of the Air Force].  A grade in which the service member served satisfactorily on active duty, as determined by the SecAF, pursuant to 10 U.S.C. § 1212; or (3) Grade to which Promoted. The Fiscal Year 2002 National Defense Authorization Act amended 10 U.S.C. § 1212 to authorize separation with severance pay in the grade which a service member would have been promoted, had it not been for the physical disability.

AFI 36-3202, Certificate of Release or Discharge from Active Duty (DD Form 214/5 Series). The DD Form 214 is a document used to separate an airman from the Regular Air Force or Air Reserve Component airmen from active duty.  It provides an accurate and complete summation of active duty service at the time of transfer, release, discharge, or change of component or status while on active duty. 

DD Form 214, Certificate of Release or Discharge from Active Duty, Personnel Services Delivery (PSD) Guide, Section E, Table 5 (How to Prepare the DD Form 214).  The active duty grade held at the close out date of the DD Form 214 will be placed in item 4a (Grade or Rank).

AIR FORCE EVALUATION

AFPC/DP2SSR recommends denying the applicant’s request to change his narrative reason for separation finding no error with the DD Form 214 preparation.  In accordance with AFI 36-3202 and DD Form 214 PSD Guide, once an individual is removed from the TDRL and placed on the Permanent Disability Retired List (PDRL), a second DD Form 214 is not prepared. The applicant was placed on TDRL on 26 May 09, which is when the DD Form 214 was prepared.  The applicant was removed from the TDRL on 5 May 10 and placed on the PDRL which negates the creation of a second DD Form 214.  The applicant must use documentation provided to him by the Disability Board in conjunction with the DD Form 214 he was originally provided back in 2009.

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 30 Sep 21 for comment (Exhibit D), but has received no response.

ADDITIONAL AIR FORCE EVALUATION

AFPC/DP2SPP recommends denying the applicant’s request to show he was medically retired in the grade of E-7.  On 4 Aug 06, the applicant tested for the first time for master sergeant.  He was not selected for promotion to master sergeant for cycles 2006E7 and 2007E7.  Commanders’ Evaluation Letters dated 4 Mar 08 and 16 Sep 08, state, “I recommend that he be retired at the rank of master sergeant.  He has been medically unable to test for master sergeant for the last 2 cycles.”  This is false, AFPC/DP2SPP records indicate the applicant tested for Cycle 2006E7 on 4 Aug 06 and Cycle 2007E7 on 2 Mar 07.  The applicant was ineligible for testing in cycles 2008E7 and 2009E7, due to a projected retirement.

The complete advisory opinion is at Exhibit E.

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 16 Nov 21 for comment (Exhibit F), 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 recommendations of AFPC/DP2SSR and AFPC/DP2SPP and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  In this respect, the Board notes the applicant was never selected for promotion to master sergeant and was properly retired in the grade in which he served when he was placed on the TDRL.  Furthermore, the applicant believes he should have been issued a new DD Form 214 to reflect his current discharge status.  However, as noted above, a DD Form 214 is only issued when a service member is separated from active duty.  The applicant was not on active duty during his time on the TDRL; therefore, a DD Form 214 is not authorized.  The applicant can present the DD Form 214 issued following his entry into TDRL with the special order removing him from TDRL, which will correctly depict his service.  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.

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-2021-01564 in Executive Session on 2 Dec 21 and 17 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, w/atchs, dated 21 Dec 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DP2SSR, dated 25 May 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 30 Sep 21.
Exhibit E:	Advisory Opinion, AFPC/DP2SPP, dated 27 Oct 21.
Exhibit F:	Notification of Advisory, SAF/MRBC to Applicant, dated 16 Nov 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.