RECORD OF PROCEEDINGS

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2008-04380

INDEX CODE: 125.00

XXXXXXX	COUNSEL: NONE

HEARING DESIRED: YES

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APPLICANT REQUESTS THAT:

1. He be continued on active duty with the New York Air National Guard (NYANG) from 1 Jul 06 through 27 Oct 08.

2. His diagnosis of right ankle fracture with non-union, Veterans Administration Schedule for Rating Disabilities (VASRD) diagnostic code of 5270, be changed to diagnostic code 5271 and his disability rating be increased from 20 percent to either 30 or 40 percent.

3. The separation date on his DD Form 214, Certificate of Release or Discharge from Active Duty, be changed to reflect 30 Jun 2006, rather than 15 Jun 2006 – Administratively corrected.

4. His DD Form 214, be corrected to show the award of the Air Force Achievement Medal (AFAM) and to reflect his participation in Operations Northern Watch from 18 Feb 02 to 17 Apr 02 and Enduring Freedom from 16 Jul 02 to 2 Sep 02 – Administratively corrected.

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APPLICANT CONTENDS THAT:

After his Active Guard/Reserve (AGR) position was transferred to another organization on base, he applied for a Material Handler Supervisor position three times and a Logistics Management Specialist position once but was not selected for either position for discriminatory reasons or out of retaliation.

He was removed from his AGR tour after being injured in the line of duty (LOD). In accordance with Air Force Instruction (AFI)

36-3212, he should have remained on active duty until his injury was either resolved or he completed the Disability Evaluation System (DES) process. He only found out he should have been continued on orders after reading the findings of an Inspector General complaint he had filed.

He believes his LOD injury is more closely represented by VASRD diagnostic code 5271, rather than the diagnostic code he was awarded by the PEB of 5270. As such, his disability rating of 20 percent should be increased.

His DD Form 214 contains several errors. His final separation date from his active duty tour is 30 Jun 06, rather than 15 Jun 06. Additionally, he was awarded an AFAM that is not indicated on the DD Form 214. And, finally, he served during two campaigns, Operations Northern Watch and Enduring Freedom, which are also not indicated on his DD Form 214.

In support of his appeal, the applicant provides several attachments.

Applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 22 May 1981 and was progressively promoted to the grade or staff sergeant (SSgt/E-5) with a date of rank (DOR) of 1 Mar 87. He left the Air Force and joined the ANG on 21 Jul 88. While a member of the ANG, he was progressively promoted to the grade of master sergeant (MSgt/E-7) with a DOR of 21 Oct 99.

On 16 Apr 03, his Active Guard Reserve (AGR) tour with the NYANG was renewed from 1 May 03 to 15 Jul 06.

In Jan 06, he was notified that his AGR tour was being curtailed by 15 days because the position he occupied was being moved to another organization on base and his new tour end date changed from 15 Jul 06 to 30 Jun 06.

On 12 Mar 06, while he was still an AGR and on active duty with the NYANG, the applicant broke his ankle while moving furniture at home. An approved LOD was completed on 29 Mar 06 for the applicant’s fractured ankle. He underwent surgery on 24 Mar 06 and was on convalescent leave until the end of his curtailed AGR tour on 30 Jun 06.

The applicant remained a member of the NYANG in a Traditional status but was not able to participate fully. On 23 Jan 08, despite the corrective surgery and, after long courses of physical therapy, the Unit Flight Surgeon (FS) noted that he continued to experience significant limitations in his range of motion complicated by continued pain and swelling of his ankle. The FS recommended that he be evaluated by a Medical Evaluation Board (MEB).

On 25 Apr 08, an MEB diagnosed his injury as right ankle fracture and non-union. On 4 May 08, the MEB referred him to an Informal Physical Evaluation Board (IPEB). On 27 Jun 08, the IPEB found him fit and recommended that he be returned to duty. The IPEB noted their decision was based on comments in his commander’s impact statement wherein it was noted the applicant could perform all the duties required by his Air Force Specialty Code (AFSC) both in the continental United States (CONUS) and Outside the CONUS (OCONUS).

The applicant disagreed with the IPEBs findings and requested a hearing before a Formal PEB (FPEB). His request was granted on 8 Aug 08. On 17 Sep 08, the FPEB found that his condition rendered him unfit to reasonably perform the duties of his office, grade, rank, and rating. The FPEB found his degree of impairment was best rated at 20 percent under VASRD code 5271 and recommended that he be discharged with severance pay at a compensable disability rating of 20%. The applicant agreed with the FPEBs findings.

On 25 Sep 08, officials within the office of the Secretary of the Air Force (SAF) determined the applicant was physically unfit for continued military service and directed his honorable discharge with severance pay under the provisions of Title 10, USC, 1203. His discharge date was determined to be 27 Oct 08. He exercised his option to request transfer to the Inactive Status List Reserve Section (ISLRS) in lieu of being discharged with severance pay since he had over 20 years of satisfactory service under Title 10, USC, 12732. He will be eligible for Reserve retired pay at age 60.

On 24 Oct 08, he filed a complaint with the NY Inspectors General (IG) office, contending that his commander had conspired to deny him the opportunity for advancement and employment and noting that his AGR position had been taken away from him; the impact statement provided by his commander to the MEB had been written to deny him a medical discharge; and that he should not have been taken off of convalescent leave until he was officially allowed to return to work.

The IG responded on 17 Nov 08, noting the separation date listed on his DD Form 214 was incorrect and referred him to the Air Reserve Personnel Center (ARPC) to help facilitate its correction. The IG further noted that while his command had the authority to make position assignment adjustments with regard to his AGR position, it appeared the applicant was, in fact, removed from active duty orders earlier than allowed by regulation due to his medical condition. The IG referred him to the AFBCMR for a decision as to his involuntary early removal from active duty orders while physically incapacitated.

On 23 Feb 09, ARPC/DPSD issued a DD Form 215, Correction to DD Form 214, administratively correcting his records by replacing his AFAM with an AFAM, with First Oak Leaf Cluster. DPSDD also included statements indicating he served in Operations Enduring Freedom and Northern Watch.

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AIR FORCE EVALUATION:

AFPC/DPSDD recommends denial of the applicant’s request that his VASRD diagnostic code be changed to reflect 5271 as opposed to 5270 and that his disability rating be increased from 20 percent to either 30 or 40 percent. The diagnostic code he requests, 5271, indicates anklylosis of the ankle which signifies the ankle is “frozen” in position. The FPEB noted a medical narrative dated 10 April 08 that indicated an active range of motion which is better represented by diagnostic code 5270. DPSDD notes the applicant concurred with the FPEB’s original recommendation that he receive a 20 percent disability rating and a VASRD code of 5270.

The complete AFPC/DPSDD evaluation is at Exhibit C.

ARPC/DPSD recommends denial of his request to change his AGR tour ending date to 30 Jun 06, rather than 15 Jun 06, since they cannot change his AGR tour end date without an order specifically stating his tour end date was 30 Jun 06.

The complete AFPC/DPSD evaluation, with attachments, is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded with a personal statement that states his agreement with the Air Force’s explanation of his VASRD assignment.

Applicant’s complete response is at Exhibit F.

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THE BOARD CONCLUDES THAT:

1. The applicant has exhausted all remedies provided by existing law or regulations.

2. The application was timely filed.

3. Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. His contention that his AGR tour end date should be 30 Jun 06, rather than 15 Jun 06, is supported by the evidence of record and therefore should be corrected. In accordance with Air National Guard Instruction (ANGI) 36-101 – The AGR Program) wherein is noted “AGR members…who are not offered a follow-on tour will not be involuntarily released from AGR status while medically incapacitated…,” he should not have been released from active duty until such time as the medical disposition of his ankle had been determined as either resolved or considered by an MEB. Therefore, we recommend the records be corrected as indicated below.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that he was not released from active duty on 15 June 2006, but on that date he continued to serve on active duty with the 106th Logistics Readiness Squadron until his 27 October 2008 transfer to the Inactive Status List Reserve Section.

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The following members of the Board considered AFBCMR Docket Number BC-2008-04380 in Executive Session on 6 May 2010, under the provisions of AFI 36-2603:

Panel Chair

Member

Member

All members voted to correct the records, as recommended. The following documentary evidence was considered in AFBCMR Docket Number BC-2008-04380:

Exhibit A. DD Form 149, dated 2 Dec 08, w/atchs.

Exhibit B. Applicant's Master Personnel Records.

Exhibit C. Letter, AFPC/DPSDD, dated 6 Feb 09.

Exhibit D. Letter, ARPC/DPSD, dated 23 Feb 09, w/atchs.

Exhibit E. Letter, SAF/MRBR, dated 25 Mar 10.

Exhibit F. Letter, Applicant, dated 23 Apr 10.

Panel Chair

DEPARTMENT OF THE AIR FORCE
WASHINGTON DC

Office Of The Assistant Secretary

AFBCMR BC-2008-04380

MEMORANDUM FOR THE CHIEF OF STAFF

Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

The pertinent military records of the Department of the Air Force relating to XXXXXXX, XXXXXXX be corrected to show that he was not released from active duty on 15 June 2006, but on that date he continued to serve on active duty with the 106th Logistics Readiness Squadron until his 27 October 2008 transfer to the Inactive Status List Reserve Section.

Director

Air Force Review Boards Agency