RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-03305
                                        Case #4
            INDEX CODE: 108.02, 110.01, 131.05, 135.02

            COUNSEL:  None

            HEARING DESIRED:  No

MANDATORY CASE COMPLETION DATE:  26 Apr 06

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  He be granted at least a  30%  disability  rating  so  he  may  be
eligible  for  medical  retirement.   [Note:   This  portion  of   the
applicant’s request was previously denied by the AFBCMR in an  earlier
appeal on 24 Mar 98, and again through the reconsideration process  on
5 Apr 05 - See Statement of Facts.]

2.  His true date of separation (DOS) and status be established and he
be credited with seven years of total active time  towards  a  Reserve
retirement at age 62.

3.  A determination be made as to his date of rank  (DOR)  to  captain
and whether he should be promoted to the grade of major.  [Note:  This
portion of the applicant’s request was previously denied by the AFBCMR
in an earlier appeal on 9 Nov 00 - See Statement of Facts.]

_________________________________________________________________

APPLICANT CONTENDS THAT:

He has more service time than is reported on his  DD  Form  214s.   He
believes this became confused due to the times he was in  and  out  of
the service for military training.  He met a promotion board while  he
was undergoing chemotherapy but never knew the results.   He  received
letters addressing him as major and some as captain, so he  is  unsure
what grade he is.  Also, he never resigned his commission and asks  if
he is still in the Inactive Reserves (IR)  with  his  indefinite  term
appointment.  He believes he has close to 25 years  of  Reserve  time,
active and inactive, with only one  two-year  break  in  service.   He
thinks his total active time is approximately seven years.  He asks if
he is
eligible for a Reserve retirement at age 62.  He contends it is unfair
that he was not allowed to continue his career yet  was  not  given  a
medical retirement.

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

_________________________________________________________________

STATEMENT OF FACTS:

On 19 Dec 78, the applicant enlisted for a period of six years in  the
US Air Force Reserves (USAFR) as a non-participating member without an
assignment to  a  Reserve  unit  or  to  the  Individual  Mobilization
Augmentee (IMA) program.

He was discharged from the USAFR  on  7 Jun  79  to  reenlist  in  the
Regular Air Force on 8 Jun 79.  After 1 year, 4 months and 28 days  of
active service, he was discharged on 6 Nov 80 to accept USAFR  officer
training on 7 Nov 80.  However, on 18 Dec 81, he disenrolled from  the
Air Force Reserve Officer Training Corps (AFROTC) for being “over  his
head academically  and  financially”  and  returned  to  the  enlisted
Reserve.

On 16 May 82, he enlisted in the Regular  Air  Force,  entered  active
duty on 17 May 82, and  on  16 May  84,  after  two  years  of  active
service, was honorably discharged from active duty  in  the  grade  of
sergeant for expiration of term of service.

In 1988, the applicant acquired a degree in podiatry.

In Jul 90, while a civilian in ND, the applicant underwent surgery and
radiation treatment for a malignant tumor in his left testis.  He  was
then accepted, with a waiver, for commissioning in the Air Force.

On  18 Jul  91,  the  applicant  was  tendered  an   indefinite   term
appointment as a Reserve in the grade of 1st lieutenant (Exhibit G).

In a 21 Aug 91 AFBCMR appeal (BC-1992-01936), the applicant  requested
his DD Form 214 reflect he was released, rather than discharged,  from
the Air Force on  16 May  84.   The  Air  Force  recommended  approval
because the applicant had an unfulfilled military  service  obligation
and was eligible for reenlistment at the time of discharge.

When the applicant entered active  duty  on  9 Sep  91,  his  DOR  for
captain was established as 20 Aug 89, with an effective date (for  pay
purposes only) of 9 Sep 91.  He had a Reserve commission  but  was  on
the active duty list (ADL) for promotion and retirement
benefits equal to his active duty peers.  Based on  his  DOR,  he  was
eligible to meet the Calendar  Year  1993B  (CY93B)  and  CY94A  Major
Medical/Dental Corps Central Selection Boards as a below-the-promotion-
zone (BPZ) eligible, and the CY95A Board as  an  in-the-promotion-zone
(IPZ) eligible.

On 10 Sep 92, the AFBCMR granted his 21 Aug 91 appeal (BC-1992-01936),
and directed his records reflect he was released on 16 May 84,  rather
than discharged, and transferred to the USAFR until 18 Dec 84, when he
was honorably discharged from the USAFR  for  completion  of  military
obligation (See Exhibit B).  A 7 Dec  92  memo  from  HQ  AFMPC/DPMDOO
addressed the  applicant  as  “Major”  and  advised  him  that  AFBCMR
Directive, dated 10 Sep 92, directed his records be amended to reflect
he was honorably released on 16 May 84, rather than  discharged,  from
the Regular Air Force and transferred to the USAFR for  completion  of
his military obligation.  [Note:  This correction was not  implemented
until recently.  See Exhibit I.]

On 6 Dec 93, the applicant was nonselected for promotion to the  grade
of major BPZ by the CY93B board.  According to HQ AFPC/DPPPO  (Exhibit
H), the select rate that year for BPZ was 1% (3 selected out of 279).

The applicant’s cancer recurred in Jan 94 when a mass was found in the
applicant’s chest cavity and he began  chemotherapy.   On  11 Jun  94,
after six years, two months, and one day of active duty, he was placed
on the Temporary Disability  Retired  List  (TDRL)  in  the  grade  of
captain  at  100%  disability  for  matestatic   seminoma,   currently
undergoing chemotherapy, status post existed prior to  service  (EPTS)
(Jun 90), left transinguinal orchiectomy  and  radiation  therapy  for
testicular seminoma.

The applicant’s placement on the TDRL on 11 Jun 94  removed  him  from
the ADL and made him ineligible for promotion consideration for  major
by the CY94A Medical/Dental Corps Central Selection Board (22 Aug  94)
as a BPZ eligible and by the CY95A board as  an  IPZ  eligible  (5 Jun
95).  While on the TDRL, he was not  on  active  status  and  was  not
accruing “good” years toward a future retirement.  Had he not been  on
the TDRL and been selected by the CY94A board, he would have had a DOR
for major of 20 Aug 95.

Following a second  TDRL  reevaluation  in  Nov  96,  the  applicant’s
condition was found to have improved and stabilized  with  only  minor
residuals.  The Informal Physical Evaluation Board  (IPEB)  found  him
fit and recommended removal from the TDRL to reenter the military. The
applicant disagreed. The Formal Physical Evaluation Board (FPEB) found
him unfit and recommended discharge with  severance  pay  at  0%.  The
applicant disagreed with the FPEB findings  and  submitted  a  written
rebuttal to the Secretary of the Air Force Personnel Council  (SAFPC),
who confirmed the findings of the FPEB.

As a result, on 27 Apr 97, the applicant was removed from the TDRL and
discharged  in  the  grade  of  captain,  with  severance  pay  at  0%
disability rating, and with no further connection with the  Air  Force
or the USAFR.

On 24 Mar 98, the AFBCMR considered and denied the applicant's request
(BC-1997-02043) for a medical  retirement  with  a  40-70%  disability
rating.

In a 12 Jun 00 AFBCMR appeal (BC-2000-01693), the applicant  requested
that his DOR for captain be changed and he be promoted to  major.   He
contended he was undergoing  cancer  treatment  and  would  have  been
promoted to major if he had been allowed  to  stay  instead  of  being
discharged.  However, on 9 Nov 00, the Board  denied  the  applicant’s
request.

On 3 Jan 01, the applicant requested reconsideration of his 24 May  98
disability appeal (BC-1997-02043). HQ AFPC/DPPD  provided  evaluations
performed by the Pulmonary, Urology and Oncology  clinics  at  Wilford
Hall Medical Center (WHMC) on 13-14 Jul 01,  and  the  resultant  IPEB
concluded the results of the new medical  evaluations  only  supported
the 2 Apr 97 findings and recommendation of discharge  with  severance
pay with a 0% disability rating.   HQ  AFPC/DPPD  did  not  honor  the
applicant’s request for a psychiatric evaluation because there was  no
evidence to support any  signs  of  depression  on  or  prior  to  his
discharge.  The Board denied the applicant’s request on 30 Oct 01.

The applicant again requested reconsideration of his medical claim (BC-
1997-02043) on  30 Sep  04.   An  evaluation  by  the  AFBCMR  Medical
Consultant was provided, which  the  applicant  rebutted.   The  Board
again denied the applicant’s request on 5 Apr 05.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPD discusses the applicant’s disability process and  advises
the period a military member is on the TDRL is not  considered  active
duty.  Denial is recommended because  the  preponderance  of  evidence
reflects no error or injustice during the disability  process  and  at
the time of separation.

A complete copy of the evaluation, with attachments, is at Exhibit C.

HQ  AFPC/DPPPO  provides   an   informational   advisory   without   a
recommendation, advising the applicant was considered but not selected
by the CY93B major board.  He was ineligible for the CY94A  and  CY95A
selection boards because he was on the TDRL.

A complete copy of the evaluation is at Exhibit D.

HQ ARPC/DPB indicates that, once placed on the TDRL, the applicant was
no longer in an active status but on a Retired List  (Title  10,  USC,
Section 101[d]).  While on a Retired List, he was not eligible for any
promotion consideration and  was  not  accruing  “good”  years  toward
retirement.  All associations with the Air Force and  the  USAFR  were
severed by the discharge action on 27 Apr 97.  The applicant was never
eligible  for  Reserve  promotion  opportunity  and  did  not   accrue
sufficient time to qualify for a Reserve retirement.

A complete copy of the evaluation, with attachments, is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant maintains that his DOR for captain  is  15 Sep  86.   He
points out that the  7 Dec  92  HQ  AFMPC/DPMDOO  letter  he  provided
addressed him as “major.” He believes  it  also  changed  his  DOR  to
captain to 15 Sep 96.  [Note:   The  letter  does  not  say  this;  it
advises his pay date was changed.  A DOR and a pay date  are  not  the
same.]  He contends he did not “meet” the CY93B promotion board as  he
was not notified and was not there because he was  undergoing  medical
treatment at Lackland.  If he did meet that board, he  was  completely
unaware of the fact and was therefore done an injustice.  He  was  not
at his duty station and had no way to get his records in order for the
promotion board.  He wants to know whether he was promoted  to  major.
[Note:  The applicant was considered but not selected for promotion to
major by the CY93B board; his placement  on  the  TDRL  on  11 Jun  04
rendered him ineligible for promotion consideration to  major  by  the
CY94A (22 Aug 94) and the CY95A (5 Jun 95) boards.]

A complete copy of  applicant’s  response,  with  attachments,  is  at
Exhibit G.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

HQ AFPC/DPPPO provides a technical advisory confirming the applicant’s
DOR to captain was established as 20 Aug 89, with  an  effective  date
(for pay purposes) of 9 Sep 91, the date he entered active  duty.   An
officer is normally notified he is eligible for promotion through  his
unit.  Since the applicant was probably TDY at Wilford Hall, his  home
station would have been responsible for ensuring he  was  notified  of
his eligibility and providing him with his Officer Preselection  Brief
(OPB).   His  senior  rater/commander  would  have  provided  him  his
Promotion Recommendation Form (PRF).  HQ AFPC/DPPPOO  does  not  do  a
“nonselect” list for officers nonselected  BPZ,  like  the  applicant.
Therefore, no nonselect letter is required and, for the most part,  it
is doubtful these officers are ever notified  of  their  nonselection.
If they are, it is  verbal.   The  applicant’s  best  opportunity  for
promotion would have been his in-the-promotion-zone (IPZ)  board,  had
he been on active duty.  Officers do not appear  in  person  before  a
selection  board  and,  as  far  as  the  applicant’s  record,  he  is
responsible for ensuring it is “in  order”  at  all  times,  not  just
before a promotion board.

A complete copy of the evaluation is at Exhibit H.

HQ  AFPC/DPPAOR  discusses  HQ  AFMPC/DPMDOO’s  7 Dec  92  memo  which
addressed the applicant as “Major.” After reviewing the  document  and
his master personnel record, they conclude there is nothing to reflect
the applicant was ever promoted to the  grade  of  major.   Therefore,
this is a typographical error. As to the 10 Sep 92  AFBCMR  Directive,
the corrective action has been implemented and a Statement of  Service
(SOS) was prepared with the new information. This information is found
in the contents of the letter the applicant received.   The  pay  date
computation included  all  prior  active  duty  service  and  inactive
Reserve  service.   The  DOR  was  established  with  the   award   of
constructive service credit.

A complete copy of the evaluation is at Exhibit I.

_____________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL EVALUATIONS:

Complete copies of the additional evaluations, and corrected SOS, were
forwarded to the applicant on 24 Aug 05 for review and comment  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 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  the  applicant’s  submission,  we  are  not
persuaded that  any  further  corrective  action  to  his  records  is
warranted.  The applicant’s SOS has been administratively corrected to
reflect he was released, rather than discharged, from the Regular  Air
Force on 16 May 84.   Previous  Panels  have  denied  the  applicant’s
requests for a medical retirement and promotion to the grade of major.
 Further, the offices of primary have fully addressed these issues  in
the instant appeal.  The applicant has provided no persuasive evidence
that compels us to overturn the prior  Boards’  determinations  or  to
disregard the current Air Force evaluations and  recommendations.   As
for his “true” DOS, status, and “good” years for  Reserve  retirement,
neither his submissions nor the evidence of  record  support  altering
his record with respect to these issues.  The applicant  was  released
from active duty on 16 May 84 and transferred to the USAFR because  he
had not completed his military obligation.  He was discharged from the
USAFR on 18 Dec 84.  He was commissioned a Reserve first lieutenant on
3 Aug 94, and reentered active duty on 3 Sep 91.  He was placed on the
TDRL on 11 Jun 94, and was discharged with no further affiliation with
the Air Force or the USAFR on 27 Apr 97.  A  member  is  not  credited
with satisfactory service towards retirement while on the TDRL, or  in
a non-participatory status as an enlisted or officer Reservist, or for
failing to earn the minimum points required for a  “good”  year.   The
applicant has not shown that he should  be  credited  with  additional
years of service towards retirement.   We  therefore  agree  with  the
recommendations of the Air Force and adopt the rationale expressed  as
the basis for our decision that the applicant has  not  sustained  his
burden of having suffered either an error or an injustice.  In view of
the above and absent persuasive evidence to the contrary, we  find  no
compelling basis to recommend granting the relief sought.

_________________________________________________________________

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 12 October 2005, under the provisions of AFI  36-
2603:

                 Ms. Marilyn M. Thomas, Vice Chair
                 Ms. Jean A. Reynolds, Member
                 Ms. Patricia R. Collins, Member

The following documentary evidence relating to AFBCMR Docket Number BC-
2004-03305 was considered:

   Exhibit A.  DD Form 149, dated 18 Oct 04, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPD, dated 10 Jan 05, w/atchs.
   Exhibit D.  Letter, HQ AFPC/DPPPO, dated 25 Feb 05.
   Exhibit E.  Letter, HQ ARPC/DPB, dated 27 Apr 05, w/atchs.
   Exhibit F.  Letter, SAF/MRBR, dated 6 May 05.
   Exhibit G.  Letter, Applicant, dated 10 May 05, w/atchs.
   Exhibit H.  Letter, HQ AFPC/DPPPO, dated 19 Aug 05.
   Exhibit I.  Letter, HQ AFPC/DPPAOR, dated 22 Aug 05.
   Exhibit J.  Letter, AFBCMR, dated 24 Aug 05.



                                   MARILYN M. THOMAS
                                   Vice Chair