RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-03071
            INDEX CODE:  129.04
            COUNSEL:  NONE

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be changed to reflect that he was retired effective  31  Aug  86
and he receive all back pay and allowances.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Title 10 USC states that any member with between 18 and 20 years of  service
be retained until qualified for longevity retirement.  He  honorably  served
over 18 years and was then denied reenlistment.  He received  no  counseling
regarding his rights.

In support of his request,  applicant  provided  a  personal  statement  and
documentation associated with his discharge.  His complete submission,  with
attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air Force  on  23
Aug 66.  He was progressively promoted to  the  grade  of  master  sergeant,
having assumed that grade effective and with a date of rank  of  1  Jun  81.
Applicant was  honorably  discharged  at  the  completion  of  his  extended
enlistment on 26 Oct 84.  He served 18  years,  1  month,  and  28  days  on
active duty.  He  was  assigned  reenlistment  eligibility  code  4J,  which
denotes "Entered into Phase I of the Air  Force  Weight  Management  Program
(WMP).  This code applies, unless superseded  by  a  higher  priority  code,
whether the member is making  satisfactory  or  unsatisfactory  progress  in
Phase I of the WMP.

The following is a resume of the applicant's last  five  Airman  Performance
Report (APR) profile:

      Period Ending          Promotion Recommendation
      30 Jul 84                   8
      01 Aug 83                   9
      01 Aug 82                   9
      01 Aug 81                   9
      25 Sep 80                   8

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AIR FORCE EVALUATION:

AFPC/DPPRSP states the discharge was  consistent  with  the  procedural  and
substantive requirements of the discharge  regulation  and  was  within  the
discretion of the discharge authority.  The DPPRSP evaluation is at  Exhibit
C.

AFPC/DPPAE recommends denial.  DPPAE states there is  no  reason  to  change
his  RE  code  making  him  eligible  to  reenlist  and   he   provided   no
documentation showing his RE code was in error.  As he was  on  the  WMP  at
the time of his separation, his RE code is valid and should not be  changed.
 The DPPAE evaluation is at Exhibit D.

AFPC/DPPRRP recommends denial.  DPPRRP states 10 USC section 1176 states  "a
regular enlisted member...whose  term  of  enlistment  expires  and  who  is
denied reenlistment, and  who  on  the  date  which  the  member  is  to  be
discharged is within two years of qualifying for retirement  under...section
8914 of this title...shall be retained on active duty until  the  member  is
qualified  for  retirement...unless  the  member  is   sooner   retired   or
discharged under any other provision of law."  This provision was  added  on
23 Oct 92, many years after the applicant was  discharged  and  was  not  in
effect when he  was  denied  reenlistment.   The  DPPRRP  evaluation  is  at
Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant  states  the  Air  Force  evaluation   states   he   involuntarily
separated.  This action was forced upon him.   He  was  denied  reenlistment
against his will.  He did not desire to separate and was  not  afforded  the
opportunity to serve the remaining 22  months  to  qualify  for  retirement.
The fact that the law was passed in 1992 and he was discharged in 1984  does
not make his discharge unfair or unjust.  He could have retired  if  he  had
reenlisted for 8 years in 1978 instead of 6 years.

The control roster was due to a  weight  problem.   He  was  diagnosed  with
bulging discs and spinal stenosis.  He had been active in several sports  to
assist in controlling his weight.  He was suddenly prohibited from  physical
activity by medical profiles and was told if he injured himself during  such
activity it would lead to court-martial.  He was instead ordered  to  go  to
the sauna each day.  The side effects of the medications prescribed  by  his
military physicians included weight  gain,  drowsiness,  fatigue,  depressed
mood,  and  abnormal  thinking.   These  symptoms  were  presented  by   his
commander in his request  for  a  medical  review.   He  was  considered  by
Physical Evaluation Board and was  advised  by  his  counsel  that  the  PEB
decision "would not be in his best interest" and he was  returned  to  duty.
His commander was not satisfied  with  the  PEB  decision  and  requested  a
medical review for the purpose  of  cross-training  or  medical  retirement.
His actions clearly demonstrate he would take  whatever  step  necessary  to
remove him.  He was determined to be fit for duty under the "presumption  of
fitness" rule because he was within one year of retirement or separation.

In  support  of  his  request,  applicant  provided  a  personal  statement,
documents extracted from  his  medical  records,  and  a  statement  of  his
personal experience.  His  complete  submission,  with  attachments,  is  at
Exhibit G.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical  Consultant  recommends  denial.   The  Medical  Consultant
states despite difficulties with back pain  and  physical  limitations,  the
applicant was not medically excused from compliance with the WMP.   Exercise
is not an absolute  requisite  for  weight  loss,  but  augments  and  helps
maintain weight loss as well as overall physical  and  psychological  health
benefits.  Thus, the diets prescribed to the applicant  were  sufficient  to
induce weight loss over the period  of  time  his  weight  was  a  focus  of
attention  by  his  commander.   Although  his  final   performance   report
indicates he was making satisfactory progress at the time,  weights  in  the
medical record reflect no significant progress after  that  time  and  would
not likely have influenced  a  favorable  appeal  of  his  nonselection  for
reenlistment.   There  is  no  documentation  to  show   he   appealed   his
commander's recommendation for nonselection of reenlistment.

The PEB twice returned him to duty despite the physical limitations.   These
decisions appear to  have  been  based  on  his  ability  to  satisfactorily
perform administrative and supervisory duties commensurate with  his  grade.
Medical authorities at the time were not persuaded  his  back  pain  was  an
insurmountable obstacle to maintaining weight within  Air  Force  standards.
Testimony during the Formal PEB indicates the board  considered  application
of the presumption of fitness provision but the degree to  which  the  board
applied the provision is not clear  from  documentation.   Speculating  that
the FPEB would have instead found  him  unfit  for  continued  duty,  it  is
unlikely that his condition would  have  rated  high  enough  to  warrant  a
disability retirement.   It  is  likely  the  FPEB  would  have  recommended
separation with severance pay at 10 percent and no  more  than  20  percent.
This  impression  is  supported  by  the  Department  of  Veterans   Affairs
disability rating of zero percent for  several  years  after  his  discharge
from the Air Force.  The Medical Consultant evaluation is at Exhibit H.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant states that he dealt with his weight problems  in  an  appropriate
manner as evidenced by the lack of disciplinary action and  his  outstanding
performance reports.  The only disciplinary action was his placement on  the
control roster in 1984, which  led  to  his  denial  of  reenlistment.   His
regular physician that saw him in pain and physical distress, stated  "I  do
not believe his is fit for worldwide duty" on his narrative  summary.   This
also reinforces the statement by his commander.  This was not the  case  for
the 1984 FPEB, at which time he was stabilized  with  medications,  but  not
pain free.  The Medical Consultant quotes  the  presumption  of  fitness  as
stating "active duty members who develop medical problems...".  He  did  not
develop this condition in the final 12 months.  It developed in  July  1981.
Although the presumption of fitness was not included in  the  final  written
decision of the FPEB, his counsel felt strongly enough to use  that  as  his
basis for his appeal.  He also asked the members to give him the benefit  of
the doubt because he had concern as to the application  of  this  directive.
The subject was approached immediately prior to the break for the  board  to
reach a decision.  Regarding his  decision  not  to  appeal  his  denial  of
reenlistment,  applicant  states  he  was  not  counseled  or  afforded  the
opportunity to appeal.

In retrospect, it appears to the applicant that the FPEB was confident  that
an appeal would be unsuccessful and  he  would  be  discharged  due  to  the
control roster action, and this would be in the best  interest  of  the  Air
Force.  The board did not  give  favorable  consideration  to  any  evidence
presented on his behalf including 18 years of outstanding  service,  medical
records diagnosing bulging discs with radiating  pain,  and  the  statements
from the referring physician, his wife, and commander.

His complete response, with attachments, is at Exhibit 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.  Applicant contends  that  because  he  had
served for over 18 years at the time of his discharge, he should  have  been
allowed to remain on active duty until he reached 20 years of  service.   We
note that the statute providing for individuals in the "sanctuary"  was  not
established as law until after the applicant  was  discharged  and  was  not
applied retroactively.  Therefore, it is our opinion that since the law  was
not in effect at the time of his discharge, the applicant has not  been  the
victim of an error or injustice.  We took  under  consideration  whether  or
not the applicant should have qualified for  a  medical  retirement  at  the
time.  However, after a thorough review of the evidence  of  record,  we  do
not believe the decision to return him to  duty  was  inappropriate  at  the
time nor are we persuaded that the decision was made without taking all  the
appropriate factors  into  consideration.   Therefore,  in  the  absence  of
evidence that persuasively refutes the opinions and recommendations  of  the
Air Force offices of primary responsibility, we are compelled to agree  with
their recommendations and adopt their rationale as basis for our  conclusion
that he has not been the victim of an error or injustice.

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 AFBCMR Docket Number  BC-2003-
03071 in Executive Session on 17 Feb 04, under the  provisions  of  AFI  36-
2603:

      Ms. Marilyn J. Thomas, Vice Chair
      Ms. Martha J. Evans, Member
      Mr. Charles E. Bennett, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 9 Sep 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRSP, dated 7 Oct 03.
    Exhibit D.  Letter, AFPC/DPPRRP, dated 31 Dec 03, w/atchs.
    Exhibit E.  Letter, AFPC/DPPAE, dated 16 Dec 03.
    Exhibit F.  Letter, SAF/MRBR, dated 9 Jan 04.
    Exhibit G.  Letter, Applicant, dated 3 Feb 04, w/atchs.
    Exhibit H.  Letter, BCMR Medical Consultant, dated 13 Apr 04.
    Exhibit I.  Letter, SAF/MRBC, dated 19 Apr 04.
    Exhibit J.  Letter, Applicant, dated 26 Apr 04, w/atchs.




                                   MARILYN J. THOMAS
                                   Vice Chair