RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-02355
            INDEX CODE: 131.00

            COUNSEL:  None

            HEARING DESIRED: Yes


_________________________________________________________________

APPLICANT REQUESTS THAT:

He be provided supplemental promotion consideration  for  cycles  96E7
and 98E7.

_________________________________________________________________

APPLICANT CONTENDS THAT:

In 1995, he was diagnosed with skin cancer and in April 1996,  he  was
placed on the temporary  disability  retirement  list  (TDRL),  having
completed just over 16 years in the Air Force.  As is required by law,
he was reevaluated in November 1997 and was found  fit  to  return  to
active duty.  He was returned to active duty in the grade of technical
sergeant (TSgt), the grade he held when placed on the TDRL.   However,
he would have been eligible to test for promotion to  master  sergeant
(MSgt) had he not been placed on the TDRL.  Now that he  has  returned
to active duty, he is not being considered  for  promotion  until  the
cycle in 1999.  According to 10  U.S.C.  1211(f)  “Action  under  this
section [1211] shall be taken on a  fair  and  equitable  basis,  with
regard being given to the probable opportunities for  advancement  and
promotion that the member might reasonably have had if  his  name  had
not been placed on the temporary  disability  retired  list.”   Simply
stated, if he were never on the TDRL, he would  have  probably  scored
well enough on the 96E7 test to be promoted in that cycle.   He  feels
the Air Force is not treating him fairly and equitably, and  they  are
giving no regard to any promotion opportunities he would have had.  He
tested in 1995 for MSgt, but he had a  score  below  the  cutoff.   In
1996, prior to being placed on the TDRL,  he  should  have  tested  in
January-March for MSgt.  He did not test for reasons he  is  not  sure
of.  Therefore, he missed out on the opportunity to be  promoted  that
year through no fault of his own.  He was retired for the entire  year
of 1997 and returned to active duty  on  6  March  1998.   The  normal
testing time is between January and March, so he missed  this  testing
period.  He asked for
supplemental promotion consideration and was told he  wasn’t  eligible
for promotion.  Part of the problem is how the  Air  Force  determines
eligibility.  They use the calendar year  for  making  determinations.
The cut-off is 31 December, and since he returned in March, he  missed
the cut-off.  To further illustrate this, consider the following.   He
tested for MSgt in his 15th year in the service (1995)  and  will  not
test again until his 17th year in the service (1998).  He  has  missed
an opportunity for promotion in his 16th year of  service  through  no
fault of his own.  He feels that  since  all  actions  concerning  him
going  on  the  TDRL,  and  subsequent  return  to  active  duty  were
involuntary on his part, he should not be  penalized  because  of  the
timing of these actions.  He feels the Air Force  should  waive  their
eligibility requirements for him concerning promotion in the 1996  and
1998 promotion cycles.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving in the Regular  Air  Force  in  the
grade of TSgt.

In September 1995, a Medical Evaluation Board (MEB) was  initiated  at
the National Naval Medical Center, Bethesda, MD.  The results  of  the
examination revealed  a  primary  diagnosis  of  metastatic  malignant
melanoma, T3N2M0, Stage  III  along  with  a  secondary  diagnosis  of
pulmonary embolism.  The MEB was forwarded to  a  Physical  Evaluation
Board (PEB).

On 4 December 1995, the Informal PEB (IPEB) found the member unfit for
continued military service for “Malignant  Melanoma,  status  post  15
August 1995  primary  excisions  and  11  September  1995  wide  local
excisions, Stage III, metastatic.”  A second diagnosis  of  “Pulmonary
embolism, resolved, on coumadin” was also identified; however, it  was
rated at a “0” percent disability.  The Board recommended that  he  be
placed on the Temporary Disability Retired  List  (TDRL)  with  a  100
percent combined compensable rating.

On 2 January 1996, applicant nonconcurred with the IPEB’s findings and
recommendation and requested appearance before the Formal PEB  (FPEB).


On 23 January 1996, upon receiving further explanation of  the  IPEB’s
findings by an appointed military counsel, applicant requested that he
be permitted to waive his earlier election for the purpose of agreeing
with the IPEB’s original findings and waive the formal board.

On 25 January 1996, the Office of the Secretary of the Air Force (SAF)
made the determination that the applicant was  unfit  to  perform  the
duties of the grade due to physical disability and would be placed  on
the TDRL with a disability rating of 100 percent.

On 25 January 1996, the applicant became ineligible to  test  for  the
96E7 cycle.  Since promotion testing for the 96E7 cycle was  conducted
during January  -  March  1996,  it  appears  the  applicant  was  not
scheduled for testing prior to 25 January  1996,  when  he  was  found
unfit by the SAF.

On 1 April 1996 the applicant was removed from active duty and  placed
on the TDRL.

On 17 November 1997, the IPEB found the applicant’s medical  condition
had improved and stabilized, found  him  fit  for  continued  military
service, and recommended that he be removed from the TDRL.

On 10 December 1997, applicant nonconcurred with the  IPEB’s  findings
and recommendation and requested an appearance before the  Formal  PEB
(FPEB).  The applicant was scheduled to meet the FPEB.

On 11 February 1998, upon receiving further explanation of the  IPEB’s
findings by an appointed military  counsel,  applicant  requested  the
formal hearing be waived for the purpose of agreeing with  the  IPEB’s
findings.

On 13 February 1998, members within the Office of the Secretary of the
Air Force removed him from the TDRL.  They had found the applicant fit
for continued military service and had the options  for  reappointment
or reenlistment under the provisions of 10 USC 1211.

On 6 March 1998, applicant reenlisted in the Air Force for a period of
3 years in the grade of technical sergeant.

The applicant tested for the 99E7  (testing  months  January  -  March
1999) cycle and was selected for promotion to MSgt with a line  number
of 300, effective 1 August 1999.  His score was 366.32 and the cut-off
was 339.13.

APR/EPR profile since 1987 reflects the following:

      PERIOD ENDING    EVALUATION OF POTENTIAL

                 87               9
                 88               9
                 89               5
                 90               5
                 91               5
                 92               5
                 93               4
                 94               5
                 95               5

_________________________________________________________________

AIR FORCE EVALUATION:

The Chief, Inquiries/AFBCMR Section, Enlisted Promotion & Mil  Testing
Branch, AFPC/DPPPWB, reviewed this application  and  states  that  the
minimum eligibility requirements for promotion per AFI 36-2502,  Table
2.1, Rule F, is the airman must  be  recommended  in  writing  by  the
promotion authority, serving on active duty in an enlisted  status  as
of the Promotion Eligibility Cutoff Date  (PECD),  serving  continuous
active duty until the effective date of promotion, and  is  not  in  a
condition listed under table 1.1 on or after the PECD.  The individual
must be in PES code X (eligible) on the effective date  of  promotion.
The member did not meet the minimum requirements for  the  98E7  cycle
because he was in a TDRL status after the 31 December  1997  PECD  and
did not return to active duty until 6 March 1998, which  rendered  him
ineligible for the 98E7 cycle.  This member has a high year tenure  of
the year 2002; therefore, he has three more  promotion  opportunities.
In summary, the applicant was ineligible to test for  the  96E7  cycle
because he was found unfit for further military service by the SAF  on
25 January 1996.  He was ineligible for the last cycle, 98E7,  because
he was not on active duty on 31  December  1997,  the  PECD  for  this
cycle.  Therefore, they recommend denial of applicant's request.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluation and  states  he  feels
the answer the Air Force gave  is  not  acceptable.   They  have  only
explained the rules as they have them set up.  He feels the rules they
are following are too harsh and do not agree with the  intent  of  the
law.  It is true that  he  will  have  three  more  opportunities  for
promotion, but that doesn’t make  up  for  the  opportunities  he  has
missed.  The law says he should be treated fairly and equitably.   How
is it fair to him for the Air Force to say it doesn’t matter about the
past because there are opportunities in the future for  him  to  catch
up.  The  Air  Force  contends  that  he  would  receive  preferential
treatment  if  they  allowed  him  to  have  the  opportunity  he   is
requesting.  Does it not matter that his peers have  had  preferential
treatment over him?  He now works for people he once  supervised.   He
wouldn’t mind this situation if it happened because each of  them  had
the same opportunity and they were promoted ahead of  him.   He  would
have no one to blame except for himself.  But this is  not  the  case.
The Air Force determined that he  was  unfit  for  duty,  against  his
objections and his doctor’s opinions, and forced him
to accept a temporary retirement.  At that time, he was told by an Air
Force appointed lawyer only of the possible outcomes at the end of the
temporary retirement period.  He was aware of the fact that  returning
to active duty was a possibility, but was not told  that  he  was  not
eligible for promotion, what would happen after he returned,  or  that
he would not be eligible for promotion upon his return.  The Air Force
appointed an Air Force lawyer to advise him to accept the findings  of
the medical board, forced him to retire, forced him to return,  forced
him to accept missed opportunities, and basically say  “it’s  OK,  you
can get promoted later.”  Does this sound  fair?   He  asked  the  Air
Force for an exception to policy and their  answer  was  basically  an
explanation of the rules.  He doesn’t feel this is an adequate  answer
because he asked for an exception to the rules, and their  answer  was
the rules.  The best case scenario the Air Force wants him  to  follow
is this:  he will test for promotion between January and  March  1999.
The promotion cycle starts in August 1999 and if he had a  score  that
was good enough to be  promoted,  based  on  his  time  in  grade,  he
estimates he would be promoted by October or November 1999.  The  last
time he tested was in 1995.  He should have tested in 1996 and had  he
made it during that cycle, he would have been promoted around  January
1997 (estimate).  The Air Force compiles data about the tests such  as
average age, average time in grade, average time in  service,  average
scores, and other data.  Based on this data, he fits the  average  for
everything (except scores) for the 1996 cycle.  He doesn’t  know  what
the 1999 cycle averages will be, but he will be over the average  time
for service and grade.  He had no control over this.  If  he  had  the
opportunity to be promoted in 1996, based on the Air Force numbers and
his previous test scores, there would have been a fairly  good  chance
he would have been promoted in the 1996 cycle.  He  believes  the  Air
Force thinks it is fair for an individual  to  place  their  life  and
career on hold for two years and then not  even  make  an  attempt  to
correct an injustice.  The Air Force set the rules which are  supposed
to follow the intent of the law.  He feels that the rules now in place
need to be changed for people placed  on  the  TDRL  and  subsequently
returned to active duty.  Since his return to active duty, he has  had
to deal with an administrative nightmare.  The Air Force has plenty of
rules and very few deal with a person returning from the  TDRL.   They
have tried to apply the rules that closest apply  even  if  it  wasn’t
exact.  The Air Force needs to have a set of rules that deal with  all
aspects of the TDRL.  Their current rules only deal with going  on  or
coming off the TDRL, not what  happens  after.   The  Air  Force  then
applies the rules as though nothing happened as if he was never on the
TDRL.  After going through the ordeal he went through to come back  to
active duty and then having  the  Air  Force  tell  him  he  can’t  be
considered for promotion until 1999, he has to seriously question what
the Air Force considers “fair and equitable.”  He is not asking for  a
promotion, only the chance to be considered  for  promotion,  that  he
feels is rightly his.

Applicant's complete response, with attachment, is attached at Exhibit
D.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The Chief Medical Consultant, AFBCMR, reviewed  this  application  and
states that it was eminently appropriate to place the  member  on  the
TDRL as accomplished  by  the  December  1995  PEB.   The  applicant’s
disease was classified as Stage III as required by depth of the lesion
and the presence of metastatic  disease  in  the  lymph  system.   The
applicant initially non-concurred with the recommendation of TDRL, but
later withdrew his appeal to have his case heard by  the  Formal  PEB.
The  uncertainty  of  prognosis  with  Stage  III  melanoma  makes  it
imperative to watch a member for a period of time after  diagnosis  to
see  what   will   happen   in   the   post-treatment   months.    The
appropriateness of this decision is not dependent on the  member’s  or
his medical providers’ wishes, but rather on the known probability  of
up to 50% of these individuals not surviving the first 5 years.   That
the applicant was given a single 18-month cycle on the TDRL attests to
the lack of evidence of recurrence of  disease  in  that  interval  of
time, an encouraging finding,  but  one  still  tempered  with  future
uncertainty.  The BCMR Medical Consultant is of the  opinion  that  no
error  occurred  in  the   applicant’s   disability   evaluation   and
processing.

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

The Chief, USAF Physical Disability Division, Directorate of Pers Prog
Management, AFPC/DPPD, reviewed the application and states  that  they
have thoroughly reviewed the Medical  Advisor’s  advisory  and  concur
with his comments and recommendations.   Additionally,  upon  complete
and thorough review of the record, they find the  member’s  processing
through the military disability evaluation system  was  in  accordance
with disability laws and policy in effect at that time.

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

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The applicant reviewed the Air  Force  evaluations  and  states  there
might be some confusion in what he is asking the  AFBCMR  to  consider
concerning his case.  He is not questioning whether it  was  right  or
wrong to place him on the TDRL, or subsequently return him  to  active
duty.  He only  points  out  that  these  actions  were  done  to  him
involuntarily.  He is questioning what the Air  Force  considers  fair
with regard to promotion for a member in his position.  There  appears
to be no Air Force Instructions for members after returning  from  the
TDRL.  There are instructions  for  placing  a  member  on  the  TDRL,
instructions for procedures while the  member  is  on  the  TDRL,  and
instructions to bring a member back to active duty.  From  that  point
there is nothing to safeguard the interests  of  the  member  in  this
exact situation.  What is being applied is whatever AFI is closest and
everyone is interpreting these to suit their needs.  According  to  10
USC  1211,  all  actions  should  be  fair  and  equitable,  with  all
consideration for the probable outcome for promotion  and  advancement
the member would have had, had the member not been placed on the TDRL.
 With this in mind, had he not been placed on the TDRL, what promotion
opportunities would he have had and what would have been the  probable
outcome of these opportunities?  What does the Air Force  consider  to
be fair?  One answer he received from AFPC was “based on his high year
of tenure, he would have three more opportunities for promotion.”   He
tested in 1995 for E-7 and with the three opportunities  (1999,  2000,
and 2001) that AFPC says he will get, he will have  a  total  of  four
opportunities for promotion.  Now consider what  would  have  happened
had he not been placed on the TDRL.  He would  have  tested  in  1995,
1996, 1997, 1998 and 1999 for a total of five opportunities.   As  you
can see he feels he  should  have  at  least  five  opportunities  for
promotion, but given only four.  AFPC  is  basically  saying  that  it
doesn’t matter  what  happened  in  the  past,  there  are  plenty  of
opportunities in the future.  If one of his peers gets promoted  ahead
of him because of better test scores or performance reports,  then  he
only has himself to blame.  But he had no control over  his  situation
and  still  his  peers  had  their  promotion  opportunities  and  got
promoted.

Applicant's complete response is attached at Exhibit H.

_________________________________________________________________

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  reviewing  the
evidence of record and  applicant’s  complete  submission,  the  Board
notes that the applicant was was placed on  the  temporary  disability
retirement list (TDRL) on 25 January 1996, because he was found  unfit
to perform the duties of the grade due to physical disability.  On  25
January 1996, he became ineligible to test for the 96E7 cycle.  On  17
November 1997, the IPEB found the applicant’s  medical  condition  had
improved and stabilized, found him fit for continued military service,
and recommended he be removed from the TDRL.   On  13  February  1998,
members within the Office of the Secretary of the Air Force found  the
applicant fit for continued military service and removed him
from the TDRL and applicant reenlisted in the  Air  Force  on  6 March
1998.  The Board is of the opinion  that  the  applicant  was  not  on
active duty on 31 December 1997,  the  promotion  eligibility  cut-off
date and, therefore, was not eligible for testing for the 98E7  cycle.
Applicant contends that the Air Force is not treating him  fairly  and
equitably in accordance with 10 U.S.C. 1211(f); however, based on  the
evidence available, it appears that he was returned to active duty  in
accordance with this law.  In this respect, he was allowed to reenlist
in the grade he previously held.  Once he was returned to active duty,
he tested and was selected  for  promotion  to  the  grade  of  master
sergeant to be effective on 1 August 1999.  Therefore, in the  absence
of evidence to the contrary, 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.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 8 June 1999, under the provisions of AFI 36-2603:

      Mr. Oscar A. Goldfarb, Panel Chair
      Mr. Lawrence R. Leehy, Member
      Mr. David E. Hoard, Member
      Ms. Gloria J. Williams, Examiner (without vote)

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 7 Aug 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPPWB, dated 28 Aug 98.
   Exhibit D.  Applicant’s Response, dated 25 Sep 98, w/atch.
   Exhibit E.  Letter, BCMR Medical Consultant, dated 20 Jan 99.
   Exhibit F.  Letter, AFPC/DPPD, dated 2 Mar 99.
   Exhibit G.  Letters, AFBCMR, dated 14 Sep 98 and 22 Mar 99.
   Exhibit H.  Applicant's E-Mail Response, dated 7 Apr 99.






                                   OSCAR A. GOLDFARB
                                   Panel Chair