RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: 01-00690

            COUNSEL:  KEVIN M. FORBUSH

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to show that he  retired  for  length  of  service,
rather than separated under the Special Separation  Benefit  (SSB)  program,
with all benefits and entitlements associated with retirement.

_________________________________________________________________

THE APPLICANT CONTENDS THAT:

At the time of his separation, he was not fully  or  properly  counseled  on
all of the options available to him (i.e., retirement, early retirement,  or
medical retirement), and the effect his  medical  conditions  and  only  six
months of retainability would have on his eligibility for programs  such  as
entering the Reserve and on the Enlisted SSB Agreement he  signed.   Had  he
been  properly  briefed  and  his  commander   not   wrongfully   threatened
disciplinary action and misrepresented information regarding  his  continued
eligibility to serve in  the  Reserve,  he  would  not  have  separated  but
instead remained on active duty until he was eligible to retire  for  length
of service.

The applicant states that he was never informed that he had  a  Reenlistment
Eligibility (RE) Code of 4K which appears to be in direct conflict with  the
SSB contract because he was medically  disqualified  for  continued  service
and awaiting a Medical Evaluation Board (MEB) and Physical Evaluation  Board
(PEB).  He was also never informed  that  his  Medical  Record  -  Narrative
Summary, dated 8 August 1994, would be used to determine future  entry  into
the Reserve.  After his separation, he contacted  a  reserve  recruiter  and
was advised that although his DD Form 214 indicated  he  was  issued  an  RE
Code of 3S, his records contained an RE Code of 4K.  Based on  the  RE  Code
of  4K,  his  less  than  six  months  of  retainability,  and  his  medical
conditions, he was ineligible to enlist in the Reserve.  His SSB  processing
was completed within 72 hours while he was an inpatient at  Tripler  Medical
Center for treatment of alcoholism and depression.   Furthermore,  he  never
received a separation physical, despite the fact that one  was  required  in
accordance with the governing  regulation,  and  only  the  AFMPC/SGM  could
waive the physical requirement  upon  presentation  of  substantial  medical
information to warrant changing separation/retirement processing.

In support of his appeal, the applicant submits extracts from  his  military
records.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on  2  June  1975.   He  was
progressively promoted to the grade of master sergeant.

On 15 June 1994, the applicant took an overdose  of  alcohol,  acetaminophen
and codeine-like compound sold over-the-counter in Australia  and  hooked  a
garden hose to his automobile exhaust and into the back window of  his  car.
He left a suicide note that was discovered before he lost consciousness.

As a result of his 15 June 1994 suicide attempt, the applicant was  admitted
to Tripler Medical Center Psychiatry Center on 18 June 1994.  The  principal
diagnosis  of  his  condition  was   alcohol   dependence,   with   nicotine
dependence,  pathologic  gambling,   alcoholic   pancreatitis   (resolving),
alcoholic liver disease (resolving), and  aortic  valve  insufficiency.   He
successfully completed  an  intensive  inpatient  alcoholism  rehabilitation
program, was declared fit for duty, and  was  discharged  from  the  medical
facility on 5 August 1994.

On 8 August 1994, the applicant signed an Enlisted SSB Agreement whereby  he
agreed to separate from active duty and accept an enlistment or transfer  to
a component of the Ready Reserve for a period  of  three  years  beyond  any
existing reserve obligation.  He acknowledged that his  date  of  separation
(DOS) from active duty  would  be  6  October  1994  and  he  would  receive
$73,936.80 in special separation pay.

In a letter, dated 8 August 1994, the applicant was advised that  a  medical
examination was required prior to his  separation.   By  first  indorsement,
the applicant indicated that he did not desire  a  medical  examination  and
that his decision would have to be approved by AFMPC/SGM.

The applicant was placed on Permissive Temporary Duty  (PTDY)  and  terminal
leave consecutively during the period  10  August  1994  through  5  October
1994.




On 6  October  1994,  the  applicant  was  released  from  active  duty  and
transferred to the Reserve under  the  SSB  program.   He  received  special
separation pay in the amount of $73,936.08, and was issued RE Code  3S.   He
completed 19 years and 4 months of active service.

In an application  to  the  AFBCMR,  dated  27  April  1995,  the  applicant
requested that his RE Code of 4K be changed to 3S, as indicated  on  his  DD
Form 214.  In  a  letter,  dated  23  May  1995,  AFMPC/DPMAPE  advised  the
applicant that his RE Code was accurately reflected as 3S  (separated  under
the SSB with a lump sum payment), and they were unable to determine  why  he
was informed that his RE Code was 4K.

The applicant was relieved from assignment  and  honorably  discharged  from
the Reserve on 6 October 1997.

In a  letter,  dated  19  June  2000,  a  Reserve  Recruiter  indicated  the
applicant  had  the  following  disqualifications,   which   prevented   his
enlistment processing into the Reserve:

      a.    Retainability - only 6 months of retainability before  20  years
for retirement.

      b.    Suicide attempt - mental health prognosis.

      c.    Holosystolic heart murmur - aortic valve insufficiency.

      d.    Alcohol dependence - narrative summary (final diagnosis).

      e.    Nicotine dependence - narrative summary (final diagnosis).

      f.    Pathologic gambling - narrative summary (final diagnosis).

Applicant’s performance profile, since 1990, follows:

       PERIOD ENDING              EVALUATION OF PERFORMANCE

          1 Apr 90                           5
         14 Jul 91                           5
         14 Jul 92                           5
          8 Mar 93                           5
         31 Oct 93                           5

_________________________________________________________________






AIR FORCE EVALUATIONS:

The BCMR Medical  Consultant  recommends  the  application  be  denied,  and
states, in part, that it is inconceivable that this very intelligent,  well-
recognized and decorated senior  Noncommissioned  Officer  (NCO)  would  not
know the advantages and disadvantages of taking an early  out  vice  staying
on active duty a few more months to fulfill a 20-year career for  length  of
service retirement.  It is  equally  inconceivable  that  personnel  in  the
separation process did not point out the  same  advantages/disadvantages  to
him since he was so close to retirement.  On the  surface  it  would  appear
that the lure of the SSB in the face  of  his  financial  problems  was  the
driving force behind his decision to  separate  when  he  did,  rather  than
staying to his 20-year point, but this is  conjecture,  only.   His  concern
that the RE Code of 4K prevented his return to reserve status  was  resolved
in 1995 but he failed to continue pursuit  of  reserve  status  and  thereby
abrogated his right to return at the  later  date  without  having  to  meet
stricter  enlistment  vice  retention  medical   standards.    The   medical
conditions that were listed in the narrative summary of  hospitalization  in
August 1994 were not,  in  and  of  themselves,  necessarily  unfitting  for
continued  medical  service,  and,  indeed,  had  not  been  shown  to  have
interfered in any way with his duty performance that  had  remained  stellar
through his last performance report, dated 31 October  1993.   The  evidence
of record fails to  show  that  any  error  or  injustice  occurred  in  his
separation processing that would support his current request for  retirement
consideration.

The BCMR Medical Consultant’s evaluation is at Exhibit C.

AFPC/DPPD recommends the application be denied and  states,  in  part,  that
the applicant has not provided any material or documentation to show why  he
should be awarded  a  length  of  service  or  disability  retirement  under
current Air Force directives.  The applicant was never referred through  the
Air Force Disability Evaluation System.  Although  he  was  not  provided  a
separation physical at the  time  of  his  release  from  active  duty,  the
hospital medical summary completed just prior  to  his  approved  separation
found him fit for duty.

The AFPC/DPPD evaluation is at Exhibit D.

AFPC/DPPRR recommends the application be denied and states,  in  part,  that
in the fall of 1992, Congress  enacted  legislation  and  the  Secretary  of
Defense approved the use of provisions to retire  members  from  the  active
military with as few  as  15  years  of  creditable  active  service.   This
temporary  legislation  was  a  force-shaping  drawdown  tool  and  not   an
entitlement, i.e., all members meeting minimum eligibility criteria may  not
necessarily apply.   The  legislation  clearly  permitted  each  service  to
target segments of its eligible population where it would most like to  have
losses occur.  In  addition,  under  the  FY94  Voluntary  Early  Retirement
Program enlisted members  below  the  grade  of  chief  master  sergeant  at
Continental  United  States  (CONUS)  bases  or  units  that  were  publicly
announced to close in FY94 were eligible to apply.  Since the applicant  was
stationed at Hickam AFB,  HI,  he  was  not  eligible  to  apply  for  early
retirement.  However,  he  was  eligible  to  apply  under  the  eligibility
criteria for the SSB program.  When enlisted members applied for  separation
under the SSB, they had to have the commander’s recommendation.   They  rely
on commanders to question the decision of a member when they  have  over  19
years of service.  They deduce that the applicant was  fully  aware  of  his
decision to separate.

The AFPC/DPPRR evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

Complete  copies  of  the  Air  Force  evaluations  were  forwarded  to  the
applicant on 17 August 2001 for review and response within 30 days.

Per the applicant’s 12 September 2001 request, on  21  September  2001,  his
application was administratively closed until such time as he was  ready  to
proceed.

In an application to  the  AFBCMR,  dated  6  October  2002,  the  applicant
designated counsel and  indicated  that  he  desired  for  his  case  to  be
reopened.   The  applicant  states  that  his  commander  compelled  him  to
separate under the threat of disciplinary action under the Uniform  Code  of
Military Justice (UCMJ) and administrative discharge action.  His  commander
either deliberately or recklessly provided misinformation to him  about  his
ability to continue his career in the Reserve.  Had his commander  not  done
so, he would have  remained  on  active  duty  until  he  was  eligible  for
retirement for length of service.

In further support of the appeal, the applicant submits statements from  his
former commanders in Australia who  state  that  when  they  approached  the
6005th AIRPS commander and told him of the applicant’s desire to  remain  in
the Air Force, they were told that he could not remain on active  duty,  and
if he chose to do so,  he  would  have  administrative  action  which  would
affect his retirement.

The applicant’s complete responses, with attachments, are at Exhibits I  and
J.

_________________________________________________________________






THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing 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 error or injustice.  After a thorough review  of  the  evidence
of record and applicant’s submission, we  are  not  persuaded  that  he  was
incapable of making a reasoned decision at the time  he  chose  to  separate
under the SSB program, or that he was not aware of the consequences  of  his
decision.  The statement from the applicant’s former immediate commander  is
noted; however, this statement, in and of itself, does not convince us  that
he has been the victim of an error or injustice.  It appears that  based  on
the applicant’s financial situation at the time, he chose to take  the  lump
sum payment under the SSB program, and now seeks  to  change  his  decision.
The offices of primary responsibility have adequately addressed  applicant’s
contentions and we  agree  with  their  opinions  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.
Hence, we find no compelling basis to recommend granting the relief sought.

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 issues 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 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  Docket  Number  01-00690  in
Executive Session on 13 February 2003 under the provisions of AFI 36-2603:

                       Mr. Philip Sheuerman, Panel Chair
                       Mr. David A. Mulgrew, Member
                       Ms. Cheryl Jacobson, Member


The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 5 mar 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, BCMR Medical Consultant, dated 27 Jun 01.
    Exhibit D.  Letter, AFPC/DPPD, dated 19 Jul 01.
    Exhibit E.  Letter, AFPC/DPPRR, dated 13 Aug 01, w/atch.
    Exhibit F.  Letter, SAF/MRBR, dated 17 Aug 01.
    Exhibit G.  Letter, Applicant, dated 12 Sep 01.
    Exhibit H.  Letter, AFBCMR, dated 21 Sep 01.
    Exhibit I.  DD Form 149, dated 6 Oct 02, w/atchs.




                                   PHILIP SHEUERMAN
                                   Panel Chair