RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  96-03241
            INDEX NUMBER:  110.01

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

His date of separation from the Kansas Air National Guard and  Reserve
of the Air Force be changed from 23 September 1994 to 5 October 1994.
_________________________________________________________________

APPLICANT CONTENDS THAT:

Had his discharge date been 12 days later, he would have been eligible
for a full medical retirement.  The law  changed  12  days  after  his
discharge making the minimum service time for a medical retirement  15
years instead of 20 years (Exhibit A).
_________________________________________________________________

STATEMENT OF FACTS:

The relevant facts pertaining to this application, extracted from  the
applicant’s military records, are contained in the letter prepared  by
the appropriate offices of the Air Force.  Accordingly,  there  is  no
need to recite these facts in this Record of Proceedings.
_________________________________________________________________

AIR FORCE EVALUATIONS:

The Chief,  Utilization,  ANG/MPPU,  stated  that  the  applicant  was
discharged from the Kansas Air National Guard  (ANG)  on  23  Sep  94,
which was 12 days before Public  Law  103-337  became  law.   The  law
provides early retirement for  medically  disqualified  personnel  who
have more than 15 but less than 20 years of service.   MPPU  indicated
that  Public  Law  103-337  does  not  address   personnel   medically
discharged before 5 Oct  94.   MPPU  recommended  the  application  be
denied (Exhibit C).

The AFBCMR Medical Consultant stated that the medical handling of this
case was proper and met the applicable laws then in effect for  proper
processing.  Evidence of record indicates that applicant was remiss in
not reporting significant medical events to his Guard unit,  not  only
in 1994, but probably as early as 1990 when he was seen in a  civilian
Emergency Room with his reported  first  seizure.   The  BCMR  Medical
Consultant is of  the  opinion  that  no  change  in  the  records  is
warranted as to the medical aspects presented (Exhibit D).

The Administrative  Law  Branch,  NGB-JA,  stated  that  there  is  no
evidence of record which enables the applicant to meet the  burden  of
proving a material error  or  an  injustice.   The  evidence  in  fact
demonstrates the unit acted quite timely and in accord with directions
from ANG/SGPS.  There is no evidence of record which demonstrates  the
unit did or did not have prior knowledge  of  the  benefits  applicant
would have been entitled to had his discharge been  delayed  12  days.
The applicant had the opportunity to appeal his case and he apparently
chose not to.  In all likelihood an appeal  would  have  extended  his
service long enough to make  him  eligible.   JA  indicated  that  the
applicant was first seen at a civilian facility for seizures as  early
as 1990.  When the  unit  got  word  of  the  seizures  in  1994,  the
applicant refused to cooperate  with  efforts  of  unit  personnel  to
obtain the civilian medical records.  As indicated, had the  applicant
disclosed his condition when it was his duty to do  so  in  1990,  the
issue of his  entitlement  would  never  have  arisen.  reviewed  this
application and recommended denial.  A complete copy of the evaluation
is at Exhibit E.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Copies of the Air Force evaluations were forwarded to applicant on  10
March 1997 and 5 May 1998 for review and response.  As of  this  date,
no response has been received by this office (Exhibit F).
_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.    The application was timely filed.

3.    Insufficient relevant evidence has been presented to demonstrate
the existence of probable error or injustice.  After a thorough review
of the evidence of record and applicant’s submission, the majority  of
the Board is unpersuaded that his separation date from the Kansas  Air
National Guard and Reserve of the Air Force should  be  changed.   The
applicant’s contentions are duly noted; however,  the  Board  majority
did not find these assertions sufficiently persuasive to override  the
rationale provided by the  respective  Air  Force  offices.   In  this
respect, it was noted that the applicant had the opportunity to appeal
the unfavorable Report on the Medical Evaluation (ROME),  which  could
have resulted in extending his separation  date  beyond  the  12  days
needed to qualify  him  for  retirement  benefits  under  the  Reserve
Transition Assistance Program (RTAP).  However, the evidence of record
does not reflect that the applicant elected to appeal the  ROME  prior
to his separation.  The Board  majority  is  not  persuaded  that  the
applicant  was  unfairly  treated  and  finds  no  evidence  that  his
discharge was erroneous or contrary to the  governing  regulation  and
accepted medical principles in effect at the time of  his  separation.
The  Board  majority  therefore   agrees   with   the   opinions   and
recommendations of the appropriate Air Force offices  and  adopts  the
rationale expressed as the basis for their decision that the applicant
has failed to sustain his burden that he has suffered either an  error
or injustice. Therefore, absent sufficient evidence to  the  contrary,
the Board majority finds no compelling basis to recommend granting the
relief sought in this application.
_________________________________________________________________

RECOMMENDATION OF THE BOARD:

A majority of the panel finds  insufficient  evidence  of  error  or
injustice and recommends the application be denied.
_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session  on  12  June  1997  and  2  June  1999,  under  the
provisions of AFI 36-2603:

                  Ms. Martha Maust, Panel Chair
                  Mr. Vaughn E. Schlunz, Member
              Mr. Henry Romo Jr., Member

By a majority vote, Messrs. Schlunz and Romo voted to deny applicant's
request.  Ms.  Maust  voted  to  grant  the  applicant's  request  and
submitted a minority report.  The following documentary  evidence  was
considered:

   Exhibit A.  DD Form 149, dated 29 Dec 96, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, ANG/MPPU, dated 7 Feb 97.
   Exhibit D.  Letter, AFBCMR Medical Consultant, dated
                   21 Jul 97.
   Exhibit E.  Letter, NGB-JA, dated 24 Mar 98.
   Exhibit F.  Letters, SAF/MIBR, dated 10 Mar 97, and
               AFBCMR, dated 5 May 98.
   Exhibit G.  Minority Report, dated 3 Jun 99.



                                   MARTHA MAUST
                                   Panel Chair



MEMORANDUM   FOR   THE   EXECUTIVE   DIRECTOR,   AIR    FORCE    BOARD
  FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of

      I have carefully considered all the circumstances of this case,
and agree with the minority member that the application should be
granted.

      Although there appears to be no error in the discharge process,
I believe the applicant may have been the victim of an injustice.
Considering the applicant served honorably in the Air National Guard
and Reserve of the Air Force and completed 18 years of satisfactory
Federal service, I believe he should be allowed to retire under the
provisions of Title 10, USC, Section 12713a.  The National Defense
Authorization Act, which took effect 5 October 1994, provides that
Reservists who are physically disqualified and have at least 15 years,
but less than 20 years of service, are allowed to be placed on the
Retired Reserve List, with entitlement to retired pay at age 60.
Although applicant had over 15 years of service with the Air Force
Reserve, he was discharged a mere 12 days before the amendment to the
law took effect.  Had he been allowed to remain in the active Reserves
until at least 5 October 1994, a likely event had an extension of the
separation date been requested, he would have qualified for retirement
under the provisions of the new law.

      In view of the above, it is my decision that the applicant’s
records be corrected to permit his retirement under the provisions of
the FY 1995 National Defense Authorization Act pertaining to early
Reserve retirement eligibility for medically disqualified members.




                                                            JOE     G.
LINEBERGER
                                                         Director
                                                           Air   Force
Review Boards Agency





AFBCMR 98-01826




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 APPLICANT be corrected to  show  that  he  was  not
discharged from the Kansas Air National Guard (KSANG) and the Reserve
of the Air Force on 23 September  1994,  but  was  continued  in  his
assignment until 5 October 1994, when  he  was  honorably  discharged
from the KSANG and transferred to the Air Force  Reserve  because  of
physical disqualification and,  effective  6  October  1994,  he  was
transferred to the Retired Reserve Section under  the  provisions  of
the Reserve Transition Assistance Program (RTAP) because  of  medical
disqualification to await pay at age 60.




            JOE G. LINEBERGER
                                        Director
                                         Air  Force   Review   Boards
Agency