RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-02433
                 INDEX CODE:  128

                 COUNSEL:  DONALD E. WALSH

                 HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

He receive  pro-rated  Additional  Special  Pay  (ASP)  and  Incentive
Special Pay (ISP), effective 9 September 1997  through  his  mandatory
separation date of 31 December 1997.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Under regulation, medical doctors facing mandatory retirement  because
of age receive a pro-rated ASP and ISP.  There is no  rational  reason
that medical doctors facing mandatory separation because of age should
be denied the same benefit.

Applicant’s counsel states that to  deny  the  applicant  a  pro-rated
payment of ASP and ISP is a violation of equal protection of  the  law
and is contrary to equity and good conscience  and  not  in  the  best
interest of the United States.

In support of his request, applicant submits a Memorandum  in  Support
of Application from his counsel.

Applicant’s submission is attached at Exhibit A.

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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  office  of  the  Air   Force   Office   of   Primary
Responsibility (OPR).  Accordingly, there is no need to  recite  these
facts in this Record of Proceedings.

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AIR FORCE EVALUATION:

The  Superintendent,  Special  Pay  Branch,  Medical  Service  Officer
Management Division, HQ AFPC/DPAMF1, states that the applicant entered
the Air Force in 1986 at the  age  of  56  years.   He  submitted  age
waivers  which  were  continually  approved  through  September  1997.
Applicant’s final age waiver request for extension to 31 May 1998  was
disapproved by HQ AFPC/DPAM.  The basis  for  disapproval  was  United
States Code (U.S.C.) Title 10, Section 14703b, dated 1  October  1996,
which states that an officer may not  be  retained  in  active  status
later than the date on which the officer becomes 67 years of age.   He
requested Additional Special Pay  (ASP)  on  28  April  1997  with  an
effective date of 9 September 1997.   Subsequent  to  the  applicant’s
appeal he was provided  a  negative  reply  citing  U.S.C.  Title  37,
Section 302b which states that members requesting ASP  must  have  the
retainability to remain on active duty for a period of not  less  than
one year from the agreement.  Applicant  did  not  have  the  required
retainability to meet the eligibility requirements to accept ASP.   He
was also ineligible for Incentive Special Pay  (ISP).   There  are  no
provisions for pro-rating ASP/ISP for active duty Air Force physicians
facing mandatory separation.

A copy of the Air Force evaluation is attached at Exhibit C.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to applicant and  his
counsel on 12 October 1998 for review and  response  within  30  days.
Counsel submitted a response and states that  although  applicant  was
given a separation date of 30 September  1997,  he  was  extended  for
medical reasons until 31 December 1997 and that during  this  time  he
performed the same duties he had been performing  when  he  previously
received both ASP and ISP  payments.   Applicant  received  a  letter,
dated 10 February 1997, which indicated that his request for extension
of age waiver was being returned without action, citing the provisions
of the new law.  However, applicant was told  by  several  individuals
that he would ultimately be able to remain on  active  duty.   Counsel
also lists a chronology of events pertaining to the applicant.

Counsel’s letter, with attachments, is attached at Exhibit E.

In response to counsel’s statement that  the  applicant  was  extended
beyond 30 September 1997 for medical  reasons,  the  AFBCMR  requested
additional evaluations to address medical issues.

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ADDITIONAL AIR FORCE EVALUATIONS:

The Chief, Physical  Standards,  Medical  Service  Officer  Management
Division, HQ AFMPC/DPAMM, states that a review of the medical  records
as well as the AFPC  database  reveals  that  two  medical  evaluation
boards (MEB) were conducted on the applicant.  One  was  completed  in
1995 and another in November 1997.  There is  no  record  found  of  a
medical hold having been entered into the system by this office.   The
medical summary for the 1997 MEB was initiated by the U. S. Air  Force
Academy  physicians  in  September  1997.   Applicant’s  package   was
evaluated by the Physical Evaluation Board and he was returned to duty
in November 1997.  It is assumed that had the applicant been  eligible
for medical retirement, that decision would  have  been  made  by  the
Physical Evaluation Board (PEB).

A copy of the Air Force evaluation is attached at Exhibit F.

The Chief, Special Actions/BCMR Advisories, USAF  Physical  Disability
Division, HQ AFPC/DPPD, states that medical records  reviewed  reflect
that  the  applicant   was   presented   to   the   MEB   for   severe
gastroesophageal reflux  disease  and  hiatal  hernia.   The  MEB  was
referred to  the  Informal  Physical  Evaluation  Board  (IPEB)  on  7
November 1997, and based on the preponderance of evidence provided  at
that time, the Board recommended that the  applicant  be  returned  to
duty  in  that  his  medical  condition  did  not  meet  the  criteria
established  in  Chapter  61,  Title  10,  U.S.C.,  for  a  disability
discharge or retirement.  Applicant was not unfit  and  could  not  be
involuntarily retired or separated for disability reasons.

A copy of the Air Force evaluation is attached at Exhibit G.

_________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATIONS:

Copies of the Air Force evaluations were forwarded  to  the  applicant
and counsel on 10 May 1999 and for review and response within 30 days.
 Counsel submitted a response, with attachments, which is attached  at
Exhibit I.

_________________________________________________________________

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,  we  are  not
persuaded that he should  receive  pro-rated  Additional  Special  Pay
(ASP) and Incentive Special Pay  (ISP),  effective  9  September  1997
through his mandatory  separation  date  of  31  December  1997.   His
contentions are duly noted; however, we do not find these  assertions,
in  and  by  themselves,  sufficiently  persuasive  to  override   the
rationale provided by the Air Force.  We note counsel’s assertion that
although the applicant was given a separation  date  of  30  September
1997, he was extended for medical reasons until 31 December  1997  and
that during this time  he  performed  the  same  duties  he  had  been
performing when he previously received both ASP and ISP payments.  The
applicant was presented to an MEB for severe  gastroesophageal  reflux
disease and hiatal hernia prior  to  his  mandatory  separation  date.
However, the reason for the extension of his separation  date  was  to
determine if he was eligible to be involuntarily retired or  separated
for disability  reasons.   Based  on  the  preponderance  of  evidence
provided at that time, the  MEB  recommended  that  the  applicant  be
returned to duty in that  his  medical  condition  did  not  meet  the
criteria for a disability discharge  or  retirement.   Applicant  also
states that he was informed  by  several  individuals  that  he  would
ultimately be able to remain on active duty.  However,  in  accordance
with the law, he was not allowed to be retained in active status later
than  67  years  of  age.   Applicant  did  not  have   the   required
retainability to meet the eligibility requirements to accept  ASP  and
he was also ineligible for Incentive Special Pay (ISP).  We  therefore
agree with  the  recommendations  of  the  Air  Force  and  adopt  the
rationale expressed as the basis for our decision that  the  applicant
has failed to sustain his burden that he has suffered either an  error
or an injustice.  Therefore, we find no compelling basis to  recommend
granting the relief sought.

_______________________________________________________________________
_____________________

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  6  July  1999  and  29  July  1999,  under  the
provisions of AFI 36-2603.

                  Mr. Richard A. Peterson, Panel Chair
                  Mr. Gary Appleton, Member
                  Ms. Patricia D. Vestal, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 26 Aug 98, w/atch.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPAMF1, dated 25 Sep 98.
   Exhibit D.  Letter, AFBCMR, dated 12 Oct 98.
   Exhibit E.  Counsel’s Letter, dated 5 Nov 98.
   Exhibit F.  Letter, HQ AFMPC/DPAMM, dated 18 Mar 99.
   Exhibit G.  Letter, HQ AFPC/DPPD, dated 22 Apr 99.
   Exhibit H.  Letter, AFBCMR, dated 10 May 99.
   Exhibit I.  Counsel’s Letter, dated 5 July 1999, w/atchs.





                                   RICHARD A. PETERSON
                                   Panel Chair