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AF | BCMR | CY2005 | BC-2004-03328
Original file (BC-2004-03328.doc) Auto-classification: Denied

                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-03328
            INDEX NUMBER:  145.00
xxxxxxxxxxxxxxxx COUNSEL: NONE

xxxxxxxxxxxxxxxxxxx    HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her records be  corrected  to  reflect  she  was  separated  on  4 May 1997,
instead of 4 August 1995.

_________________________________________________________________

APPLICANT CONTENDS THAT:

She agreed and signed documents removing her from the  Temporary  Disability
Retired List (TDRL) and permanently retiring her on 10 April 1997,  with  an
effective date of 4 May 1997.  She was informed that she would  receive  the
same benefits as all 20-year Air Force veterans.  Since 4 May 1997, was  not
used on her DD Form 214, she has lost out on concurrent receipt or  military
retired pay.

In support of her request, the applicant submits  a  personal  statement,  a
copy of DD Form 214, Certificate of Release or Discharge from  Active  Duty,
Removal from the Temporary Disability  Retired  List  (TDRL)  and  Permanent
Retirement letter, and Department of the Air Force Special  Order  No.  ACD-
0913.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 22  July  1976,  and  was
progressively promoted to the grade of technical sergeant.

She was placed on the TDRL on 4 August 1995, due to  a  physical  disability
(chronic low back pain with degenerative disc and joint  disease  and  small
L5-S1 herniated nucleus pulposus) after 19 years and 13 days of active  duty
service.  On 4 May 1997, she was  removed  from  the  TDRL  and  permanently
retired in the grade of technical  sergeant  with  a  disability  rating  of
50 percent.

_________________________________________________________________

AIR FORCE EVALUATIONS:

AFPC/DPPD recommends denial.  DPPD states that a review of  the  applicant’s
military personnel and medical records reveals she  was  issued  a  DD  Form
214, dated 4 August 1995, when she was placed  on  TDRL  under  AFI-36-3203.
Her DD Form 214 properly annotated her  status  as  retired.   Additionally,
Special Order Number ACD-1621, dated 26 June  1995,  was  issued  indicating
member was temporarily retired with a physical disability with a 40  percent
rating.  Item number 28, Type of Separation (Retired), on the  DD  Form  214
is correct in that it reflects her status at the time of  placement  on  the
TDRL.  On 24 March 1997, the Physical  Evaluation  Board  (PEB)  recommended
that member be retired with a 50 percent permanent  disability  rating,  she
concurred with the recommended findings.  She was subsequently retired  with
a disability rating of 50 percent and  Retirement  Order,  Number  ACD-0913,
dated 14 April 1997, was issued.

The DD Form 214 only reflects service information for the period the  member
is on active duty.  The period a military member  is  on  the  TDRL  is  not
considered  active  duty  and  cannot  be  counted  as  active  service  for
retirement purposes.  Copies of Special  Order  Number  ACD-0913,  dated  14
April 1997, are attached along with the Memorandum  from  Secretary  of  the
Air Force Personnel Council (SAFPC) indicating her  removal  from  the  TDRL
and permanent retirement under the  provisions  of  10  United  States  Code
(USC) 1201.

Public  Law  107-314  and  its  current  amendment  are  explicit   in   its
eligibility criteria concerning Combat Related Special  Compensation  (CRSC)
and Concurrent  Receipt  Disability  Payments  (CRDP).   Until  the  law  is
changed or amended, the United  States  Air  Force  and  DoD  are  bound  to
enforce the current eligibility restrictions.  Following our assessment,  we
concluded the veteran does not meet  the  basic  CRSC  or  CRDP  eligibility
under the law of having 20 years of active military service  as  defined  by
Title 10, Sections 12732 or 12733.

Having reviewed all her medical and  personnel  records,  DPPD  states  they
found no basis to correct her DD  Form  214  to  reflect  a  change  on  her
separation of service.  The data reflected  on  the  DD  Form  214  dated  4
August 1995 is accurate.  The veteran’s request to amend or  change  her  DD
Form 214 would be  in  violation  of  Air  Force  Instructions  and  is  not
authorized.

The preponderance of evidence reflects that no error or  injustice  occurred
during the disability  process.   Proper  documentation  was  noted  on  the
applicant’s DD Form 214  in  accordance  with  the  provisions  of  military
disability laws and policy.

The DPPD evaluation, with attachments, is at Exhibit C.

_________________________________________________________________


APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

A copy of the Air Force evaluation was forwarded to the applicant on 19  Nov
04, 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.  The Board noted that in  accordance  with
Section 641 of Public Law 108-136, eligible recipients of CRDP must have  a
service related DVA disability rating of  50 percent  or  higher  and  have
served a minimum of 20 years active military service  to  be  eligible  for
CRDP.  Furthermore, the period a military member is  on  the  TDRL  is  not
considered active  duty  and  cannot  be  counted  as  active  service  for
retirement purposes or reflected on the DD Form 214 as active duty service.
 Therefore, we agree with the opinion and recommendation of the  Air  Force
office of primary responsibility and adopt its rationale as the  basis  for
our conclusion that the applicant has not been the victim of  an  error  or
injustice.  Therefore, in the absence of evidence to the contrary, we  find
no compelling basis  to  recommend  granting  the  relief  sought  in  this
application.

_________________________________________________________________

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 13 January 2005, under the provisions of AFI 36-2603:

            Mr. Richard A. Peterson, Panel Chair
            Ms. Jan Mulligan, Member
            Mr. Garry G. Sauner, Member

The following documentary evidence was considered for AFBCMR  Docket  Number
BC-2004-03328:

      Exhibit A.  DD Form 149, dated 17 Oct 04, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFPC/DPPD, dated 9 Nov 04, w/atchs.
      Exhibit D.  Letter, SAF/MRBR , dated 19 Nov 04.




               RICHARD A. PETERSON
               Panel Chair



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