AIR FORCE BOARD FOR CORRECTION OF MILITARY RECO 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

fiWG 2 6 1998 

DOCKET NUMBER:  96-02964 
COUNSEL : 
HEARING DESIRED:  Yes 

APPLICANT REQUESTS THAT: 

She be granted disability retired pay  for the period  she was on 
the  Temporary  Disability  Retired  List  (TDRL),  11 March  1975 
through  19 January  1978,  and  the  discharge  with  severance pay 
(DWSP) she never received. 

APPLICANT CONTENDS THAT: 

She  was  medically  discharged  in  1975  and  never  received  any 
severance pay.  She is still suffering from depression. 
In support of her request, the applicant submitted copies of her 
DD Form 214 and rating decision from the Veterans Administration 
(VA. 1 
The  applicant  submitted  her  application  through  her 
congressman and the Legislative Liaison Branch  (LLI). 

Applicant's  complete submission is attached at Exhibit A. 

STATEMENT OF FACTS: 
The applicant enlisted in the Regular Air Force on 1 July 1971. 
The available records reflect onset of symptoms of depression in 
1974.  She  was  put  on  medication,  Elavil  150  mg  daily,  then 
Tofranil PM,  150 mg  daily.  She met  a Medical  Evaluation Board 
(MEB) on  28 January  1975 which  recommended  she  met  a  Physical 
Evaluation Board  (PEB).  On 11 February 1975, the PEB recommended 
placement  on  the  TDRL  with  a  compensable  rating  of  50%  for 
depressive  reaction, severe impairment of  social  and  industrial 
adaptability. 
The  applicant  agreed  with  the  findings  on 
19 February 1975. 

The  findings  were  approved  by  the  Secretary  of  the  Air  Force 
Personnel Council.  As a result, effective 12 March 1975, she was 
placed  on  the  TDRL,  in  the  grade  of  sergeant  (E-4), under 
provisions of AFR 35-4.  She served a total of 3 years, 8 months, 
and 11 days of active duty. 

AFBCMR 96-02964 

Applicant  received  her  first  evaluation  while  on  the  TDRL  on 
26 July 1976 and it was recommended that she remain on the TDRL 
with a 30% compensable rating.  This recommendation was approved 
on 27 August 1976. 

She was  reexamined  on  6 December  1977  and  her  records met  the 
Informal PEB.  On 27 December 1997, Informal PEB recommended that 
she  be  removed  from  the  TDRL  and  she  be  discharged  with  a 
compensable rating of 10% with entitlement to DWSP on the basis 
that the severity of her condition had decreased.  The applicant 
concurred  on  9 January  1978  and  on  18  January  1978,  officials 
within the office of the Secretary of the Air  Force directed her 
removal from the TDRL, effective 19 January 1978. 

Effective 19 January 1978, applicant was DWSP. 

The  latest  rating  from  Department  of  Veterans  Affairs  (DVA) 
indicates  applicant  has  a  10%  compensable  rating  for  major 
depression with a history of depressive reaction. 

AIR FORCE EVALUATION: 

The  Physical  Disability  Division,  AFPC/DPPD,  reviewed  the 
application  and  stated  that  it  appears  the  applicant  is 
requesting  an  increase  in  her  compensable  percentage  for  the 
disability for which she was discharged and payment for her DWSP 
separation, which she claims she never received.  She receive a 
50%  rating  when  she  initially  entered  the  TDRL.  The  medical 
entries  show  she  steadily  improved  and  the  final  TDRL 
reevaluation  found her  to  be  only  10%  disabled.  By  law,  this 
made  her  ineligible  for  either  continuance  on  the  TDRL  or 
She  was  appropriately  recommended  for 
permanent  retirement. 
discharge  with  severance  pay. 
She  concurred  with  this 
determination.  Based on the above, DPPD recommends denial of the 
applicant's  request.  She has  submitted nothing  that  shows  she 
was  inappropriately  rated  by  the  service  at  the  time  of  her 
discharge. 
A complete copy of the evaluation is attached at Exhibit C. 

The  Retired  Pay  Operations  Branch,  DFAS-CL,  also  reviewed  the 
application and addressed the issue of severance pay.  They noted 
the applicant is requesting payment of retired pay and disability 
severance  pay  which  was  due  her  for  the  period  11 March  1975 
through her  DWSP  on 19 January  1978.  The  records available on 
microfiche  for  1976,  1977  and  1978  show  that  she  was  paid 
disability  retired  pay  less  her  entitlement  from  the  Veterans 
Administration.  However,  the  record  does  not  indicate  if  the 
severance  pay  was  actually  issued. 
In  accordance  with  the 
provisions  of  Title  31, US  Code,  Section 3702,  a  claim against 
the government must be  submitted within 6 years of the date that 
the claim initially accrued.  As  there  is no  record of  a claim 

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AFBCMR 96-02964 

for the severance payment within 6 years of the accrual for such 
a claim, the payment of the severance pay  is barred  for payment 
at this time.  As the Barring Statute for payment of the retired 
pay  and disability severance pay has  expired, no correction can 
be  made  for  that  purpose.  DPAF-CL  recommended  denial  of  the 
applicant‘s request. 
A complete copy of the evaluation is attached at Exhibit D. 

APPLICANT’S REVIEW OF AIR FORCE EVALUATION: 

The applicant reviewed the evaluations and responded that she is 
requesting a personal hearing before the Board.  She pointed out 
that  the  Air  Force  evaluation  is  specific  in  indicating  that 
there  is  no  proof  that  severance pay  was  ever  paid.  She  has 
requested  copies  of  that  documentation  and  that  she  concurred 
with  the  findings of  the  board  that  directed  her  removal  from 
TDRL.  She  has  also  requested  copies  of  the  Retirement  Order 
showing  she  was  discharged  with  severance pay.  She  does  not 
remember concurring with or receiving any severance pay.  The DVA 
continues  to  penalize  her  by  reducing  her  VA  compensation  as 
evidence that severance pay was paid.  She does not feel that she 
should be charged with severance pay at this time by the VA.  She 
states that if she was discharged with severance pay, that she be 
paid that severance pay especially since it cannot be determined 
that severance was ever paid.  The medications and treatment she 
received were supposed to be monitored very closely.  There have 
been no  follow-up appointments, no  instructions, and no  advice. 
She came off the medications on her own.  Now that she has found 
where  to  go  and  how  to  get  the proper  treatment, she  is being 
penalized by a severance pay that she never received. 

The applicant’s complete response it attached at Exhibit F. 

ADDITIONAL AIR FORCE EVALUATION: 

~ 

~~ 

The Chief, General Law Division, AF/JAG, reviewed the application 
and pointed  out  that  the Barring Act,  31 U.S.C.  3702, provides 
that  “claims  involving uniformed  service members’ pay.. .must be 
received  by  the  official  responsible ... for  settling  the 
claim ... within  6 years  after  the  claim  accrues.... / I  
“A  claim 
first  accrues  when  all  the  events  have  occurred which  fix  the 
alleged liability of the United States and entitle the claimant 
to  institute  an  action.”  The  statute  of  limitations must  be 
strictly  construed,  as  claims  are  increasingly  difficult  to 
resolve justly the older they become.  The instant case does not 
involve  a  “continuing  claim,”  thus  the  accrual  date  for 
applicant’s allegation of  error  would  have  been  no  later  than 
18 January 1978, when she was discharged with  an entitlement to 
severance  pay  due  to  a  decease  in  her  disability  rating. 

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AFl3CMR 96-02964 

Therefore, she should have filed with the Board within six years 
after that date rather than on 24 September 1996, well beyond the 
expiration  of  the  limitations  period. 
The  file  contains  no 
evidence  that  she  attempted  to  obtain  redress  prior  to 
24 September  1996.  The  fact  that  there  is  no  record  of  her 
having received severance pay illustrates the fundamental reason 
claims must be filed within the statue of limitations; over time 
records  are  lost  or  are  destroyed  in  the  normal  course  of 
business.  Therefore, it is the opinion of AFJAG  that the Board 
has  no  authority  to  correct  the  record  to  reflect  a  timely 
filing, insofar as there is no factual basis for doing so.  As to 
whether  DFAS would  honor  the  claim  if  the Board  were  to  elect 
that  course  of  action,  JAG  can  only  say  that  they  agree with 
DFAS's  evaluation that this claim is barred under 31 U.S.C. 3702. 

A complete copy of the evaluation is attached at Exhibit G. 

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 

The  applicant  reviewed  the  additional  evaluation  and  responded 
that the premise for denial of her request is the Barring Act  6- 
year statute of limitations.  Nowhere through all the background 
information and discussion does it  refer to  equitable treatment 
for a  former service member to  right a wrong.  Nowhere does  it 
address the nature  of her  disability other  than stating it  had 
improved which resulted with her  removal from TDRL and granting 
severance pay.  Nowhere does it mention that continued treatment 
was received for the depression/psychosis that the service member 
endured  during  this  time.  There  is  definitely  no  statute  of 
limitation  on  long  term  illness  such  as  one  that  she  suffered 
from that has now totally and permanently disabled her.  She asks 
that the Board refer to her statement, dated 15 July 1997, which 
explained  her  reasons  for  filing  for  redress  and  her  not 
understanding the nature of being  removed from TDRL, explaining 
the request for providing proof  that  severance pay was  actually 
paid which cannot be done or is not being done, and, the actual 
orders to be mailed to her showing this severance pay being made 
which has not been done.  She feels that she has been deceived by 
the U.  S.  Government as  they have not been able  to provide the 
proof  that  severance pay  was  ever  paid.  However,  the  DVA  is 
indicating  that  it  has  been  paid  and  they  are  holding  that 
severance pay against her compensation payments.  It also appears 
the Government is using a 6-year statute of limitations as their 
only  basis  to  deny  her  claim.  She  believes  it  a  reasonable 
request  that  the  Air  Force  provide  the  justification  and 
paperwork  showing that  severance pay  was paid.  She  also  asked 
that the Board not to use as their only weapon the barring of the 
6-year statute denying her claim. 

A complete copy of her response is attached at Exhibit I. 

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m C M R  96-02964 

THE BOARD CONCLUDES THAT: 

The applicant has exhausted all remedies provided by existing 

1. 
law or regulations. 

2.  The application was not timely  filed; however, it  is in the 
interest of justice to excuse the failure to timely file. 

3.  Insufficient  relevant  evidence  has  been  presented  to 
demonstrate the existence of probable error or injustice.  After 
thoroughly  reviewing  the  evidence  of  record,  we  are  persuaded 
that applicant was paid retirement pay while she was on the TDRL. 
In this  respect, we note  that DFAS indicates  that  according to 
their  microfiche  records,  applicant  was  properly  paid  her 
disability retired pay less an entitlement from the DVA while she 
was on the TDRL.  With  respect to the disability  severance pay 
issue, although DFAS indicates that there is no record that the 
severance pay was paid, the Chief, General Law Division indicates 
that  the  applicant  did  not  attempt  to  pursue  this  issue until 
1996.  And as DFAS-CL points out, in accordance with law, a claim 
against the government must be  submitted within six years of the 
date that the claim actually accrued.  In this case, that would 
have  been  19  January  1978, the  date  applicant was  discharged. 
Therefore, even if we were to consider recommending some form of 
relief,  it  appears  that  it  would  not  be  paid  by  DFAS. 
In 
addition, we  note  that  the  DVA  has  indicated  that  applicant's 
severance pay balance was removed and a check was  issued to her 
for the amount that had been recouped.  Therefore, it now appears 
that  she  has  received  all  the  pay  to  which  she  was  entitled 
despite  her  assertions  to  the  contrary. 
In  view  of  the 
foregoing, we  find no compelling basis to recommend granting the 
relief sought in this application. 
4.  The applicant's case is adequately documented and it has not 
been  shown  that  a  personal  appearance  with  or  without  counsel 
will  materially  add  to  our  understanding  of  the  issue(s) 
involved. Therefore, the request  for a hearing is not  favorably 
considered. 

THE BOARD DETERMINES THAT: 

The  applicant  be  notified  that  the  evidence  presented  did  not 
demonstrate  the  existence  of  probable  material  error  or 
injustice;  that  the  application was  denied  without  a  personal 
appearance;  and  that  the  application will  only  be  reconsidered 
upon  the  submission  of  newly  discovered  relevant  evidence  not 
considered with this application. 

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AFBCMR 96-02964 

The following members of the Board considered this application in 
Executive  Session on  18 September 1997 and 23 July  1998, under 
the provisions of AFI 36-2603: 

Ms. Charlene M. Bradley, Panel Chair 
Mr. Robert Zook,  Member 
Mr. Jackson A. Hauslein, Member 

The following documentary evidence was considered: 

Exhibit A. 
Exhibit B. 
Exhibit C. 
Exhibit D. 
Exhibit E. 
Exhibit F. 
Exhibit G. 
Exhibit H. 
Exhibit I. 
Exhibit J. 
Exhibit K. 

DD Form 149, dated 24 Sep 96, w/atchs. 
Applicant's Master Personnel Records. 
Letter, AFPC/DPPD, dated 25 Feb 97. 
Letter, DFAS-CL/FRAB, dated 28 May 97. 
Letter, AFBCMR, dated 23 Jun 97. 
Applicant's response, dated 15 Jul 97. 
Letter, AF/JAG, dated 17 Oct 97. 
Letter, AFBCMR, dated 30 Oct 97. 
Applicant's response, dated 12 Nov 97. 
Letter, AFBCMR, dated 23 Feb 98. 
Letter, DVA, dated 6 May 98. 

&&k.+ CHARLENE M. BRADLEY 

Panel Chair 

U 

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