RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02812
            INDEX CODE:  125.00

            COUNSEL:  NONE

            HEARING DESIRED: YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

She be made eligible  for  Reserve  retired  pay  at  age  60  and  be
partially compensated with a 15-year retirement or buyout.

_________________________________________________________________

APPLICANT CONTENDS THAT:

She served in the combat area for Desert Shield (then known as Curt T.
Walloch), and had wished to remain a part of  the  Air  Force  Reserve
(AFR).  After over 15 years of combined  Reserve  and  active  service
however,  she  was  not  allowed  to  remain  a  member  of  the  AFR.
Consequently, if not allowed to remain in the military she asks she be
compensated for her service or be allowed to perform other  such  duty
enabling her to qualify for a reduced-term compensation.  She contends
she was fit to remain in the service but was medically discharged with
an indefinite extended enlistment and honorably retired.

In support of her  appeal,  the  applicant  has  provided  a  personal
statement and copies of correspondence  between  herself  and  Senator
Feinstein, a list of her  awards  and  decorations,  a  Desert  Shield
order, an Air Force Form 131, Application for Transfer to the  Retired
Reserve, a letter from applicant’s military counsel to HQ AFRES asking
that she be retained, and a discharge order placing her in the retired
Reserve section.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 27  September  1977
and transferred to the Reserves on 16 September  1981  where  she  was
progressively promoted to the grade of master sergeant (MSgt/E-7).  On
5 May 1993, an HQ  AFRES  Physical  Disqualification/Discharge  Review
Board found her medically disqualified for continued military  service
by reason of “transsexual, surgical  alteration  of  genitalia.”   The
Board considered special assignment limitations but  found  that  they
were not appropriate in applicant’s case.  On 18 August 1993, she  was
transferred to the Honorary Retired Reserve.

_________________________________________________________________

AIR FORCE EVALUATION:

ARPC/DPP recommends denial.  DPP notes the requirements for qualifying
for a Reserve retirement at age 60 are that the  member  completes  20
years of  satisfactory  service,  with  the  last  6  or  8  years  of
qualifying service in a  Reserve  component.   Her  record  shows  she
completed 15 years, 10  months,  and  21  days  of  honorable  federal
service as of 18 August 1993.  However, only 14 years, 11 months,  and
19 days of said service was considered satisfactory service creditable
toward retired pay eligibility.   Regarding  early  qualification  for
retired pay for members who were medically disqualified  for  duty,  a
member must have completed at least 15 years, but less than 20  years,
of satisfactory federal service and been  medically  disqualified  for
military service on or after 5 October 1994.  Since she was  medically
disqualified prior to 5 October 1994, she is not eligible for  Reserve
retired pay or any other benefits associated with such  pay  as  there
was no provision of law that  allowed  a  member  to  be  retired  for
physical disqualification with less  then  20  years  of  satisfactory
service prior to that  date.   Additionally,  members  who  are  found
medically disqualified for military duty are not subject to recall.

DPP’s complete evaluation, with attachments, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant cites the advisory’s statement she did not serve 20 years of
creditable  service  in  accordance  with  Title  10  U.S.C.,  Section
12731(a)(2) and counters that Title 10 U.S.C. Section 12731(b)  allows
a retirement at age 60 with  at  least  15  satisfactory  years  under
section 12732.  This requires 50 points to be accrued for each year to
be counted as satisfactory  service.   According  to  her  record  she
earned 29 points toward the 50-point requirement during her last  year
of service.  As the fiscal year runs from 1 October to  30  September,
her Wing Commander barred her  from  performing  military  duty  after
8 January 1993.  She had wished to remain on active duty as  evidenced
by the AF Form 131  she  filled  out  that  reasserted  her  continued
fitness for duty and her desire to serve.  Had  she  not  been  barred
from doing so, she would have been able to accrue  the  additional  21
points necessary to earn a good year towards a retirement prior to her
surgery.  In this case she would have  been  eligible  for  a  Reserve
retirement at age 60 as she would have served over 15 years.

She  states  that  after  she  lost  her  AFR  status  she  lost   her
corresponding full time Air Reserve Technician  (ART)  position  as  a
matter of course.  She contends she should have been allowed  to  keep
her civilian position as AFR regulations allow this  as  long  as  the
mandatory military separation was  beyond  the  individual’s  control.
She has since worked with the  US  Postal  Service,  and  the  Federal
Aviation Administration (FAA) as an aircraft mechanic.

She includes excerpts from pertinent case law and cites a letter  from
an accredited health professional that states she has  demonstrated  a
stable personality and lifestyle and  concluded  the  applicant  could
continue to serve in either or both jobs as a civilian or reservist.

Applicant’s complete response, with attachments, is at Exhibit E.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was not filed within three years after the alleged
error or injustice was discovered, or could have been  discovered,  as
required by Section 1552, Title 10, United States Code (10 USC  1552),
and Air Force Instruction 36-2603.  Although the applicant  asserts  a
date of discovery that would,  if  applicable,  make  the  application
timely the applicant knew the essential facts that gave  rise  to  the
application long before the asserted date of discovery.  Knowledge  of
those facts constituted the date of discovery and the beginning of the
three-year period for filing.  Thus, the application is untimely.

3.  Paragraph b of 10 USC 1552  permits  us,  in  our  discretion,  to
excuse untimely filing in the interest of justice.  We have  carefully
reviewed applicant's submission and the entire record, and we  do  not
find a  sufficient  basis  to  excuse  the  untimely  filing  of  this
application.  The applicant has not shown a plausible reason for delay
in filing, and we are not persuaded that the record raises  issues  of
error  or  injustice  that   require   resolution   on   its   merits.
Accordingly, we conclude that it would  not  be  in  the  interest  of
justice to excuse the untimely filing of the application.

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  issue(s)   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-
2004-02812 in Executive Session on 8 March 2005, under the  provisions
of AFI 36-2603:

      Mr. Richard A. Peterson, Panel Chair
      Ms. Barbara R. Murray, Member
      Mr. Christopher D. Carey, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 3 Sep 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ARPC/DPP, dated 6 Oct 04, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 5 Nov 04.
    Exhibit E.  Letter, APPLICANT, dated 21 Nov 04.



                                   RICHARD A. PETERSON
                                   Panel Chair