RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-00307
            INDEX NUMBER:  136.00

      XXXXXXXX   COUNSEL:  JAMES A. CURRIER

      XXXXXXX    HEARING DESIRED: NO


MANDATORY CASE COMPLETION DATE:  29 JUL 2006


___________________________________________________________________

APPLICANT REQUESTS THAT:

He be  eligible  for  benefits  under  the  Combat-Related  Special
Compensation (CRSC) program.

___________________________________________________________________

APPLICANT CONTENDS THAT:

Based on outdated CRSC criteria, DFAS disallowed concurrent-receipt
payments to a Title 10, USC, Chapter 61 retiree  who  was  approved
for CRSC payments.

In support of his appeal, applicant submitted a personal statement;
a copy of a letter from HQ AFPC/DPPD/CRSC, dated  20  Jul  04;  his
letter forwarded to the  Defense  Finance  and  Accounting  Service
(DFAS), dated  5  Oct  04;  Retirement  Order,  RO  EK-1651,  dated
6 Feb 90; and other supporting documents to his claim.

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

___________________________________________________________________

STATEMENT OF FACTS:

On 5 Nov 89, applicant was transferred to the USAF Reserve  Retired
List.  He was credited with 22 years, 2  months,  and  24  days  of
satisfactory Federal service, based on Reserve Order EK-1651, dated
6 Feb 90.

Subsequent to his transfer to the USAF  Reserve  Retired  List,  on
1 and 30 Nov 89, the applicant appealed to the Air Force Board  for
Correction of Military  Records  (AFBCMR)  requesting  that  he  be
reinstated to active duty in accordance with 32  USC  502(f),  with
the award of all back pay  and  allowances;  he  be  reinstated  to
active Reserve status as a Reserve of the Air Force; his separation
status be corrected; and his records be corrected to  show  he  was
promoted to the grade of lieutenant colonel, with a date of rank of
29 September  1988;  all  derogatory  or  unfavorable   information
(subsequent to 14 July 1988)  be  deleted  from  his  records;  his
Officer Effectiveness Report (OER) closing 19 July 1988  be  voided
in its entirety; (by amendment) his records be  corrected  to  show
that he was retired by reason  of  physical  disability,  with  the
award of an appropriate percentage of disability; his  OER  closing
19 July 1989 be removed from his records; and he  be  afforded  any
other relief deemed appropriate.

On 25 April and 20 Jun 91, the Board considered  his  requests  and
recommended that his OER closing 19 Jul 88 be  voided  and  removed
from his records; the Field Grade Officer Performance Report  (OPR)
closing 19 Jul 89 be voided  and  removed  from  his  records;  all
documents and references pertaining to his involuntary release from
his tour of active duty under 32 USC 502(f), and the removal of his
name from the listing of officers who were selected  for  promotion
by the FY88 USAFR Lieutenant Colonel Selection Board be voided  and
removed from his records; upon Senate confirmation he  be  promoted
to the Reserve grade of lieutenant colonel  effective  29 September
1988; and that his records reflect that he was  not  released  from
active duty on 15 Nov 88, but  was  continued  in  an  active  duty
status until 4 Dec 89, at which time he was honorably released from
active duty by reason of completion of  his  Active  Guard  Reserve
(AGR) military duty tour, and was honorably discharged from the Air
National Guard and transferred to the Air Force  Reserve.   He  was
advised that his request for  reinstatement  to  the  Air  National
Guard was outside of the Board’s purview.   The  Board  denied  his
request for disability retirement.

On 25 Jan 94, the Board favorably  considered  applicant’s  request
that he be retired by  reason  of  physical  disability,  effective
4 Dec 89.  He was awarded a compensable disability  rating  of  30%
based on the diagnosis of “Major Depression, industrial  impairment
– definite.”  The Board denied his  request  for  reinstatement  on
active duty beyond his date of separation with entitlement to  back
pay and allowances.  The Board was without authority to act on  his
requests for attorney’s fees and other damages not  listed  in  the
statute.

On 1 Feb 96, the Board  favorably  considered  applicant’s  request
that his compensable disability rating be increased from 30 percent
to 50 percent, effective 4 Dec 89.

He was credited with 11 years, 7 months, and 8 days of active  duty
service.

___________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPD recommends denial  of  applicant’s  request  stating,  in
part,  that  applicant  does  not  meet   the   basic   eligibility
requirement of 20 years of active duty or retirement at age 60  for
Reservists.

The Combat-Related Special Compensation (CRSC) program, established
by Public  Law  (PL)  107-314,  provides  compensation  to  certain
retirees with combat-related disabilities.  A retired member of the
Uniformed Services must meet each of the four following  conditions
to meet the preliminary CRSC criteria:

      a.  Has 20 or more years of active service in  the  Uniformed
Services for the purpose of computing the amount of retired pay, or
is entitled to retired pay under section 12731 of Title 10,  United
States Code, unless such retirement is under section 12731b of that
same title.

      b.  Is in retired status.

      c.  Is entitled to retired  pay,  notwithstanding  that  such
retired pay may be reduced due to receipt of Department of Veterans
Affairs (DVA) disability compensation.

      d.  Has qualifying disability ratings (percentages)  [retiree
must be entitled to compensation for service-connected disabilities
under 10 USC 38 by the DVA].

Qualifying Combat-Related Disability:   Member  has  combat-related
disabilities (which includes any Purple  Heart  disabilities)  that
are compensated by the DVA.

The complete evaluation is at Exhibit C.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant indicates that after the  CRSC  program  was  amended  by
Public Law 108-136, a  Disabled  American  Veterans  (DAV)  service
officer, who had presented his case to the DVA, advised him that he
was now qualified based on the amendment.  He found information  on
the HQ AFPC, DFAS, and other military web sites which  showed  that
he indeed met the CRSC II 2004 criteria.

Applicant’s complete response is at Exhibit E.

___________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

HQ USAF/JAA reviewed this application and recommended denial.  They
gave the following analysis of the case:

      To be eligible for CRSC, a retiree  must  have  completed  at
least 20 years of service creditable for computing retired pay  and
have a qualifying combat-related disability.  As of 1 Jan  04,  the
criteria was expanded to include  those  entitled  to  retired  pay
under Section 12731, Title 10  and  any  combat-related  disability
rated at least 10% disabling.  This is the change  referred  to  as
“CRSC II.”  Despite the change, the first  criterion  prevents  the
applicant from receiving CRSC.

To prove  he  qualifies  for  CRSC,  applicant  points  to  various
documents, including the RO EK-1651,  dated  6  Feb  90,  and  AFPC
approval of CRSC, dated 20 Jul 04.  Unfortunately, those  documents
are incomplete or inaccurate as to the  ultimate  circumstances  of
the applicant’s retirement  or  the  facts  of  his  service  time.
Furthermore, applicant fails to account for the differences between
types of retirement and service time when he concludes that  he  is
entitled to CRSC because he is a Chapter 61 retiree with  20  years
of service and a retired reservist over the age of 60.   Adding  to
the confusion, DFAS and AFPC gave varying and wrong information  to
the applicant on his eligibility for CRSC.  Despite the applicant’s
understandable bewilderment about his  eligibility  for  CRSC,  the
decision by DFAS to deny him CRSC was correct.  Applicant does  not
meet the statutory criterion of 20 years  of  credible  service  or
entitlement under 12731 and there  is  no  injustice  or  error  to
correct.

The complete evaluation, with attachments, is at Exhibit F.

___________________________________________________________________

ADDITIONAL APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant  states  the  HQ  USAF  Judge  Advocate   General   (JAA)
evaluation was replete with misinformation and flawed  conclusions.
He says it (JAA evaluation) never addressed the  central  issue  of
why DFAS and ARPC inappropriately evaluated his  application  under
the older CRSC I criteria instead of the current CRSC II  criteria,
established under Public Law 108-136.

He reiterated his original contentions  and  added  a  request  for
benefits under the Concurrent Receipt of Disability pay (CRDP).

Applicant’s complete response is at Exhibit H.

___________________________________________________________________

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.  After a  thorough
review of the evidence of record and applicant's submission, we are
not persuaded that  his  assertions,  in  and  by  themselves,  are
sufficiently persuasive to override the rationale provided  by  the
Air Force.   The  Air  Force  offices  of  primary  responsibility,
including the Air Force Legal Services Agency, have  addressed  the
issues presented by the applicant and  we  are  in  agreement  with
their opinions and  recommendations.   Therefore,  we  adopt  their
rationale as the basis for our conclusion that  the  applicant  has
not been the victim of an error  or  injustice.   In  view  of  the
foregoing, and in the absence of evidence to the contrary, we  find
no compelling basis to recommend granting the relief sought in this
appeal.

___________________________________________________________________

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-2005-00307 in Executive Session on 13 October  2005,  under  the
provisions of AFI 36-2603:

      Mr. Thomas S. Markiewicz, Chair
      Mr. Christopher D. Carey, Member
      Mr. James W. Russell III, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 17 Jan 05, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ AFPC/DPPDC, dated 28 Jan 05.
    Exhibit D.  Letter, SAF/MRBR, dated 4 Feb 05.
    Exhibit E.  Letter, Applicant, dated 15 Feb 05, w/atchs.
    Exhibit F.  Letter, HQ USAF/JAA, dated 18 Apr 05.
    Exhibit G.  Letter, AFBCMR, dated 29 Apr 05, w/atchs.
    Exhibit H.  Letter, Applicant, dated 9 May 05, w/atchs.




                                   THOMAS S. MARKIEWICZ
                                   Chair