RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-03497
            INDEX CODE:

            COUNSEL:  NONE

            HEARING DESIRED: NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His retirement grade be changed from Senior Master Sergeant  (SMSgt/E-
8) to Chief Master Sergeant (CMSgt/E-9) pursuant to 10 U.S.C.  Section
1372 and Air Force Instruction (AFI) 36-3212, paragraph 5.15.4.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was recommended for promotion to the rank of CMSgt and  would  have
been promoted but for a medical injury incurred while on  active  duty
overseas in support of Operation Enduring Freedom.  He was put on a 4T
Profile and entered the Air Force Disability Evaluation System  (DES),
which ultimately led to his disability discharge.  Air Force Personnel
Center (AFPC)  deferred  to  the  Air  National  Guard  (ANG)  on  his
promotion issue and retirement grade.   ANG/DPFOC  initially  did  not
adjudicate his retirement grade, yet when queried,  DPFOC  denied  his
claim.

In support of his appeal, the applicant  has  provided  copies  of  an
excerpt from AFI 36-3212, an National  Guard  Bureau  (NGB)  Form  22,
Report of Separation and Record of Service, a DD Form 214, Certificate
of Release or Discharge from Active Duty, a  Reserve  order  assigning
him to the Retired Reserve, select documents from his application  for
transfer to the Retired Reserve, pertinent e-mail trails, a letter  of
support from  his  commander,  his  promotion  recommendation,  select
copies from his DES file, and select pertinent copies of  his  medical
record.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant joined the Minnesota ANG (MN ANG) on 21 February  1987.   On
17 October 2001, he was ordered to active duty where he  served  until
29 July 2003.  In January 2002, while  on  active  duty  in  Southwest
Asia, he injured his back.  He was subsequently placed in a 3T profile
and then a 4T profile because of his inability to perform his  duties.
A Medical Evaluation Board (MEB) was initiated on  14  April  2003  to
determine his fitness for further military service.  The  Board  found
him unfit for continued military service and directed he be discharged
with severance pay and a 10% disability rating.  Since he had over  20
years of satisfactory service he was given the choice of the severance
package and disability rating or apply for  the  Retired  Reserve  and
collect Reserve retirement at age 60.  On 27 June 2003,  he  chose  to
transfer to the Inactive Status List Reserve Section and placement  on
the USAF Retired List.  He will be eligible for Reserve retired pay on
9 January 2021.  He was transferred to the Retired Reserve effective 1
August 2003, as an SMSgt, after 23 years, 10 months, and  17  days  of
combined active and Reserve component service.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPD recommends denial.  DPPD states the rules for determining  a
member’s  grade  on  retirement  at   the   time   of   a   disability
retirement/separation include the following:

      a. Grade on Disability Retirement: Unless entitled to  a  higher
grade under some other provision of law, members  permanently  retired
for disability or placed on the Temporary Disabled Retired List (TDRL)
retire in the highest grade promoted  to.   Service  members  who  are
processed through the disability system on or after 23 September  1996
may be retired in their Regular or Reserve grade  to  which  they  had
been selected and would have been promoted, had it not  been  for  the
physical disability for which they were retired.

      b. Grade on Disability Separation: The discharge grade  will  be
the rank of the member held at the time of discharge, unless a  higher
grade has been determined by the Secretary of  the  Air  Force  (SAF).
Service members who have been projected to a higher grade and who  are
discharged under the disability system are released from  active  duty
in their current grade; however, their  disability  severance  pay  is
calculated in their newly promoted rank.

Since the preponderance of the evidence  does  not  support  that  the
applicant was medically retired under the provisions of  AFI  36-3212,
the Grade on Disability Separation rule, item b above, applies.   DPPD
notes the rules clearly state that in order to be promoted to a higher
retired grade  in  the  disability  system,  the  promotion  would  be
effective on the date the individual was permanently retired or placed
on the TDRL.  This did not occur in the applicant’s case as, with only
a 10% rating, he was not eligible for either.

DPPD’s complete evaluation is at Exhibit C.

_________________________________________________________________



APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states  he  did  not  volunteer  to  be  released  from  his
assignment.  Either of the two resultant options he was offered  would
both have resulted in separation.  He would have preferred to stay  in
the military.

An MEB found that he was 10% disabled as a result of a herniated  disk
experienced while on active duty in a war zone.  He states the 10% was
assigned for pain associated  with  a  herniated  disk.   He  contends
regulations state 40%  to  60%  of  all  active  duty  airmen  have  a
herniated disk but only a small percentage of the  affected  personnel
suffer from associated pain, as he does.   The  same  regulations,  he
states, considers a 10% rating a mild case.

He states the total time lost from his duties  as  a  result  of  this
injury was less than a week over a two-year time frame.  And the  lost
time was mostly because of doctor appointments.  He states  that  even
when placed on a 4T profile he still performed his duties  as  a  wire
superintendent.

He contends he would have been promoted if his  career  had  not  been
terminated as a result of his injuries.  He  contends  he  was  denied
promotion twice as a result of being on profile.  The first  promotion
opportunity was missed, as his medical squadron did not know he  could
be promoted while on  3T  profile  and  had  mistakenly  informed  his
personnel squadron he was not eligible.  He was  subsequently  put  in
for promotion again, effective 1 November 2002.  On  30  October  2002
however, he was placed on a 4T profile that did  make  him  ineligible
for promotion.  He was then told that  a  promotion  to  Chief  Master
Sergeant would be waiting for him when he got off profile.

His unit, Group and Wing commander’s, along with the Adjutant  General
(AG) have all indorsed a letter recommending he be promoted to  CMSgt.
Their request was sent to the MEB and to HQ ANG and  no  response  has
been received.  He asks that the Secretary of the Air Force award  him
the promotion that he would have earned if not for  being  injured  in
the line of duty during a time of war.  He indicates he  would  return
to duty if asked.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  Although there appears to be no error, per se, in this case, there
are factors present within the realm of equity that reach to the
injustice aspect of our recommending authority.  In this respect, we
note that:

      a.  Applicant was selected and submitted for  promotion  to  the
Reserve grade of CMSgt by his previous commander  on  23 October  2002
while under a Title 10 Partial Mobilization.  During the mobilization,
he injured his back in the line of duty while deployed  to  Al  Udeid,
Qatar.  Upon his return, he was assigned a 3T medical profile,  during
which his commander submitted him for promotion to  CMSgt.   Prior  to
completion of the promotion process, an  air  surgeon  determined  his
condition had deteriorated and placed him on a 4T profile, making  him
no longer eligible for promotion.

      b.  A Medical Evaluation Board (MEB) was initiated  on  14 April
2003.  The final outcome resulted in the Office of  the  Secretary  of
the Air Force finding the applicant  physically  unfit  for  continued
military service and directing discharge with severance pay with a 10%
disability rating under the provisions  of  Title  10,  United  States
Code, Section 1203.  Disability discharge date was established  as  23
July 2003.  Because the applicant had over 20  years  of  satisfactory
service, he was given the choice of  either  applying  for  a  Reserve
retirement under Title 10, USC, Section  1231  or  electing  discharge
with entitlement to disability severance pay under the  provisions  of
Title 10, USC, Section 1203.  On 27 June 2003, he elected to  transfer
to the Inactive Status List Reserve Section (ISLRS), with  the  option
to receive retired pay upon becoming 60 years of age.


      c.  AFI 36-3212 (Physical Evaluation for Retention,  Retirement,
and Separation) states, among other things, that service  members  who
are processed through the disability system on or after  23  September
1996 may be retired in their Regular or Reserve grade  to  which  they
had been selected and would have been promoted had it not been for the
physical disability for which they were retired.  (Emphasis Added).


      d.  This AFI goes on to state that service members who have been
projected  to  a  higher  grade  and  who  are  discharged  under  the
disability system are released  from  active  duty  in  their  current
grade; however, their disability severance pay is calculated in  their
newly promoted rank.  (Emphasis Added.).


      e.  The Office of Primary Responsibility (OPR) recommends denial
of applicant’s request for retirement in the grade of CMSgt because he
did not meet eligibility requirements for a disability  retirement  at
the time of  his  approved  disability  discharge.   It  is  conceded,
however, that had he elected to receive disability severance  [pay  in
lieu of a Reserve retirement],  his  severance  pay  would  have  been
calculated at the CMSgt (E-9)  rate.   (Emphasis  Added).   The  rules
clearly state that in order to be promoted to a higher  retired  grade
in the disability system, the promotion is effective on the  date  the
individual is permanently retired or placed on the TDRL.  This did not
occur in the applicant’s case.  Since his medical condition  was  only
rated as 10% disabling, he was only authorized a disability discharge.


4.  The applicant’s assertion that he was recommended for promotion to
the rank of CMSgt and would have  been  promoted  but  for  a  medical
injury incurred while on active duty overseas in support of  OPERATION
ENDURING FREEDOM is substantiated by the evidence of record.  However,
since he injured his back and was given a physical profile of 4T prior
to the promotion being consummated, he was ineligible for promotion as
long as he remained in that status.  Unfortunately for the  applicant,
the Secretary of the Air Force Personnel Council found him  unfit  and
directed discharge with entitlement to disability severance pay.  [The
applicant asserts that he was denied promotion  twice.   Once  because
medical personnel misinformed  his  Military  Personnel  Flight  (MPF)
representative that he was ineligible for promotion to the next higher
grade because of his physical profile of 3T when, in actuality, only a
profile of 4T or higher would have made him  ineligible.   The  record
does not substantiate this assertion.]   Because  of  the  applicant’s
unique circumstances, however, the fact that he was  not  promoted  to
the grade of CMSgt in strict compliance with the governing AFI is  not
dispositive of the merits of his case.  Specifically, the applicant is
a Reservist who was fully qualified  for  promotion,  assigned  to  an
authorized CMSgt position and had the concurrence  of  the  commander,
the wing commander and the Minnesota  Adjutant  General  (AG).   Since
unanimous recommendations, to  file  valid  promotion  authorizations,
from State officials are rarely, if ever,  rejected  by  the  National
Guard Bureau, the applicant’s recommendation was tantamount  to  being
selected for promotion to the higher grade.  In view of the  foregoing
and because it appears that the only  reason  the  applicant  was  not
eligible for promotion was the fact that  he  could  not  qualify  for
disability retirement (disability rating of 30% as opposed to 10%), we
believe that equity and  justice  demands  that  he  be  promoted  and
retired in the grade of CMSgt as an exception to policy.

______________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT be corrected to show that:

       a. He was promoted  to  the  grade  of  Chief  Master  Sergeant
          effective and with a date of rank of 1 July 2003.

       b. On 1 August 2003, he was transferred to the Retired  Reserve
          in the grade of Chief Master Sergeant.

______________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 2 March 2004, under the  provisions  of  AFI  36-
2603:

      Mr. Roscoe Hinton, Jr., Panel Chair
      Ms. Martha Maust, Member
      Ms. Carolyn B. Willis, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 22 Sep 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPD, dated 7 Jan 04.
    Exhibit D.  Letter, SAF/MRBR, dated 16 Jan 04.
    Exhibit E.  Applicant’s Response, dated 10 Feb 04.




                                   ROSCOE HINTON, JR.
                                   Panel Chair



                         DEPARTMENT OF THE AIR FORCE
                                WASHINGTON DC




[pic]
Office Of The Assistant Secretary





BC-2003-03497




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:

a. He was promoted to grade of Chief Master Sergeant effective and
 with a date of rank of 1 July 2003.

            b.    On 1 August 2003, he was transferred to the Retired
Reserve in the grade of Chief Master Sergeant.







     JOE G. LINEBERGER

     Director

     Air Force Review Boards Agency