RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-01934
                       INDEX CODE:  115.02
      XXXXXXXXXXXXXX   COUNSEL:  NONE

      XXXXXXXXX  HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His disability retirement be changed to a service retirement for years of
service or he be returned to active duty with  no  break  in  service  in
order to achieve retirement eligibility.

______________________________________________________________

APPLICANT CONTENDS THAT:

He is entitled to a full military retirement.   He  served  12  years  on
active duty and it was not his choice to retire.  He would have  received
a full retirement had he been allowed to stay on the Temporary Disability
Retirement List (TDRL) beyond  15  years  of  service;  however,  he  was
intentionally retired prior to reaching 15  years  service  so  he  would
purposely lose his full retirement.

In support of his appeal, the applicant includes a personal statement and
copies  of  medical  documentation  from  his  civilian  provider.    The
applicant’s complete submission, with attachments, is at Exhibit A.

____________________________________________________________

STATEMENT OF FACTS:

On 29 April 1988, the applicant enlisted in the Regular Air Force at  the
age of 20 in the grade of airman basic (E-1) for a period of four  years.
He was trained as  a  Surgical  Service  Craftsman.   The  applicant  was
progressively promoted to the grade of staff sergeant (E-5)  effective  1
December 1996.

The  applicant’s  military  medical   record   indicates   he   underwent
percutaneous renal biopsy on 18 January 2000, which revealed he  had  IgA
nephropathy.  On  7  May  2000,  despite  maximum  medical  therapy,  the
applicant progressed  to  end  stage  renal  disease  and  was  place  on
hemodialysis on 10 May 2000.  On 2 June 2000, his case was  referred  for
Air Force Reviewing Authority for review.  On 29 June 2000,  his  records
met a Medical Evaluation Board (MEB).  The MEB’s findings  and  diagnoses
were End Stage Renal Disease  Secondary  to  IgA  Nephropathy,  Nephrotic
Syndrome, Hypertension, and Hyperlipidemia; all incurred  while  entitled
to basic pay.  The MEB referred the case to a Physical  Evaluation  Board
(PEB).  The Informal Physical Evaluation Board (IPEB) findings, dated  12
July 2000,  cited  the  following  diagnosis:   Category  I  -  Unfitting
Conditions which are Compensable and Ratable:  End  stage  renal  disease
secondary to IgA  nephropathy  associated  with  nephrotic  syndrome  and
hypertension (incurred in the line of duty and while entitled to  receive
basic pay with a disability rating of 100%; Category II - Conditions that
can be unfitting but are not currently  compensable  or  ratable:   none;
Category III - Conditions that  are  not  separately  unfitting  and  not
compensable or ratable:  Hyperlipedemia.  The IPEB  found  the  applicant
unfit for further service and  recommended  placement  on  the  Temporary
Disability Retirement List at a compensable rating of 100% in  accordance
with Department of Defense (DoD) and Veterans Administration Schedule for
Rating Disabilities (VASRD) guidelines to see if renal  transplant  would
stabilize renal function.  On 18 July 2000, the applicant agreed with the
IPEB findings and recommendations and waived his right to  a  Formal  PEB
hearing.  On the same day, the Secretary of the Air  Force  directed  the
applicant be placed on the TDRL under the provisions of Title 10,  United
States Code, Section 1202.

On 29 August 2000, the applicant was relieved from active duty and on  30
August 2000, placed on the  TDRL  in  the  retired  pay  grade  of  staff
sergeant per  AFI  36-3212,  with  compensable  percentage  for  physical
disability of 100%.  A message  from  ARPC/DPPDS,  dated  20  July  2000,
concerning the applicant’s retirement stated, “Due to a change in policy,
all members retired for disability with  at  least  15  years  of  active
service are authorized  retirement  certificates  and  ceremonies.”   The
applicant served 12 years, 4 months and 1 day on active duty.

The applicant’s medical documentation indicates he  underwent  a  living-
related-donor  kidney  transplantation  on  26  November  2001.   A  TDRL
reevaluation, dated 25 October 2002, cites the applicant’s condition  had
improved substantially since the transplant; however,  would  not  likely
change over the next several years.  The IPEB found the  applicant  unfit
for continued active service and recommended he  be  permanently  retired
with a disability  rating  of  30%  in  accordance  with  DoD  and  VASRD
guidelines.  On 18 November 2002, the applicant submitted a rebuttal non-
concurring with the recommended findings but waived his right to a formal
hearing.  On 23 January 2003 after considering the applicant’s  rebuttal,
the Secretary of the Air Force directed  that  the  applicant’s  name  be
removed from the TDRL and that  he  be  permanently  retired  because  of
physical disability at a disability rating of 30%.  On 13  February  2003
the applicant’s name was removed from the TDRL and he was retired in  the
grade of major with a compensable percentage of 30%.

Information from the Department of Veterans Affairs (DVA)  indicates  the
applicant is currently receiving disability pay at a combined  degree  of
disability at 70% for the following diagnoses:  Kidney transplant at 60%;
Diabetes Mellitus at 20%; Hypertension at 10%, and Deformity of the Penis
at 0%.

____________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPD recommends denial of the applicant’s request.  DPPD states  the
applicant’s contention that he would have received a full  retirement  if
he stayed on the TDRL past 15 years is without merit.  At one time, Title
10 United States Code (USC), Section 8914, authorized 15-year retirements
for enlisted personnel under the Temporary Early Retirement Authorization
(TERA) Program.  The  program  existed  during  the  period  beginning  1
October 1992 and ended on 1 October 1995 and was not in  existence  prior
to or at the time of the applicant’s placement on the TDRL.  It is DPPD’s
opinion that the applicant’s belief that actions were taken to  deny  him
full retirement benefits appears to  be  presumptive  on  his  part  and,
certainly is far from the manner  in  which  the  Air  Force  treats  its
veterans.

DPPD states the applicant’s request to be returned to active duty  cannot
be honored in that he has already been found medically  disqualified  for
continued military service under  the  Air  Force  Disability  Evaluation
System (DES).  It is DPPD’s opinion that the applicant was treated fairly
throughout the military DES process, that he  was  properly  rated  under
Federal disability guidelines at the time of his disability process,  and
he was afforded the opportunity for further PEBs as required  by  Federal
law and policy.  DPPD states that they found no discrepancies during  the
MEB/PEB process, which would warrant the  applicant’s  return  to  active
duty for the purpose of remaining there until eligible for  a  retirement
for years of service.

The DPPD evaluation is at Exhibit C.

____________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the  applicant  on  9
July 2004 for review and response within 30 days.  As of this date,  this
office has received no response.

____________________________________________________________

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 error or injustice.   We  took  notice  of  the  applicant's
complete submission in judging the merits of the case  and  do  not  find
that it supports a determination that his permanent retirement because of
physical disability in 2003 was improper or contrary to the provisions of
the governing regulations.  We note the  applicant’s  assertion  that  he
would have been entitled to a full military retirement  if  he  had  been
allowed to remain on the TDRL beyond  15  years;  however,  according  to
governing regulations in effect at the time, he would not have  qualified
for retirement for length of service even if he had accumulated 15  years
of active duty.  The evidence indicates that  following  the  applicant’s
receipt of a kidney transplant on 26 November  2001,  his  condition  had
improved substantially; however, an IPEB found him  unfit  for  continued
active  service  and  recommended  he  be  permanently  retired  with   a
disability rating of 30% in accordance with  DoD  and  VASRD  guidelines.
Neither does the  record  reveal  nor  has  the  applicant  provided  any
evidence that would lead us to believe that he was physically fit  within
the meaning of the governing regulation, which  implements  the  law,  to
return him to active service.  In view of the above, we  agree  with  the
opinions  and  recommendation  of  the  Air  Force  office   of   primary
responsibility and adopt their conclusions as our findings in  the  case.
Accordingly, the applicant’s request is not favorably considered.

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  this  application  in
Executive Session on 15 September 2004, under the provisions of  AFI  36-
2603:

            Mr. Laurence M. Groner, Panel Chair
            Ms. Jean A. Reynolds, Member
            Ms. Carolyn B. Willis, Member

The following documentary evidence for AFBCMR Docket Number
BC-2004-01934 was considered:

      Exhibit A.  DD Form 149, dated 13 Apr 04, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFPC/DPPD, dated 29 Jun 04.
      Exhibit D.  Letter, SAF/MRBR, dated 9 Jul 04.




                                  LAURENCE M. GRONER
                                                   Panel Chair