RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-01948
            INDEX NUMBER:  145.00
      xxxxxxxxxxxxxxxxxxxxx  COUNSEL:  NOT INDICATED

            HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  26 DEC 2007

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to  reflect  he  was  transferred  to  the  Retired
Reserve effective 7 January 1987, because of  service  connected  disability
due to exposure to Agent Orange, rather  than  transferred  to  the  Retired
Reserve (Honorary).  He was erroneously discharged under the  provisions  of
AFR 35-41, Volume I and should have been discharged under the provisions  of
AFR 35-41, Volume III.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He did not understand at the time of  his  retirement  that  he  was  not  a
normal retiree with all the  benefits.   Based  on  his  exposure  to  Agent
Orange while serving in Vietnam he was granted service connected  disability
for diabetes and believes he should have been  transferred  to  the  Retired
Reserves pending age 60 and receive retirement  benefits.   He  believes  he
should have been discharged under AFR 35-41, Volume III, but was  discharged
under Volume I.

In support of his request, the applicant submits excerpts from his  Military
Personnel Records and a copy of his Department of  Veterans  Affairs  Rating
Decision.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered the Regular Air Force on 17 November 1967 as a  second
lieutenant.  He was  released  from  active  duty  and  transferred  to  the
Reserves  on  1  February  1979.   On  October  1986,   he   was   medically
disqualified for continued military service and world wide  duty  by  reason
of insulin dependent diabetes mellitus and was  recommended  for  discharge.
He was notified of a proposed termination of his appointment on 10  December
1986 and elected to
be transferred to the Retired Reserve Section.  On 7 January  1987,  he  was
assigned to the Retired Reserve and on 20 January 1987,  he  was  reassigned
to the Retired Reserve Section and placed on the USAF Reserve Retired List.

The applicant was rated  70  percent  service-connected  disability  by  the
Department of Veterans Affairs on 8 September 2003.

_________________________________________________________________

AIR FORCE EVALUATIONS:

ARPC/DPP recommends denial and states in part the  applicant  was  correctly
transferred to the Honorary Retired Reserve and is not eligible to  transfer
to the  Retired  Reserve  with  eligibility  for  Reserve  retired  pay  and
benefits.   There  were  no  provisions  of  law  that   allowed   medically
disqualified Reserve component members to retire with less than 20 years  of
satisfactory  service  until  the  Fiscal   Year   1995   National   Defense
Authorization Act NDAA) was signed into law on 5 October 1994.   The  FY1995
NDAA amended Title 10 U.S.C., Section 12731, to include early  qualification
for retired pay for members who were medically  disqualified  for  duty.  To
establish eligibility for Reserve  retirement  pay  at  age  60  under  this
provision of law, a member must be medically disqualified and  involuntarily
separated from the Selected Reserve on or after 5 October 1994.   Since  the
applicant did  not  complete  15  years  of  satisfactory  service  and  was
transferred to the Honorary Retired Reserve prior to 5 October 1994,  he  is
not eligible for Reserve Retired pay or any other  benefits  associate  with
retired  pay,  under  this  provision  of  law.   The  applicant   was   not
erroneously discharged under the provision  of  AFR  35-41,  Volume  I,  but
instead was transferred to the Active Standby Reserve under  this  provision
effective 15 November 1986.  On 10 December 1986, the applicant was  sent  a
letter giving him three options.  He  did  not  choose  options  “A”,  which
would have discharged him under the provision of AFR 35-41, Volume III,  but
instead chose option “B”, and was subsequently transferred to  the  Honorary
Retired Reserve  effective  7  January  1987.   His  Reserve  Order  clearly
informed his he was not eligible for Reserve retired pay at age 60.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

He states he purposely did not terminate his commission and  elected  option
B, because on its face it offered transfer to the Retired Reserve.

The applicant’s complete submission, 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 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 applicant’s submission, we are  not  persuaded  the  applicant
should be placed on the Retired Reserve List.   In  this  respect  we  note,
there were no provisions of law that allowed medically disqualified  Reserve
component members to retire with less than 20 years of satisfactory  service
until the Fiscal Year 1995 National Defense  Authorization  Act  (NDAA)  was
signed into law on 5 October 1994.  The Board also notes, he  was  correctly
transferred to the Honorary Retired Reserve and is not eligible to  transfer
to the  Retired  Reserve  with  eligibility  for  Reserve  retired  pay  and
benefits.  Based on the  preponderance  of  the  evidence,  we  believe  the
applicant has failed to sustain his burden that he has  suffered  either  an
error  or  an  injustice.   Therefore,  we  agree  with  the   opinion   and
recommendation of  the  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.  In the  absence  of  evidence  to  the
contrary, we find no compelling  basis  to  recommend  granting  the  relief
sought in this 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 this application  in Executive
Session on 16 November 2006, under the provisions of AFI 36-2603:

            Mr. Thomas S. Markiewicz, Chair
            Mr. James A. Wolffe, Member
            Mr. James L. Sommer, Member

The following documentary evidence was considered for AFBCMR  Docket  Number
BC-2006-01948:

      Exhibit    A.  DD Form 149, dated 17 Jun 06, w/atchs.
      Exhibit    B.  Applicant's Master Personnel Records.
      Exhibit    C.  Letter, ARPC/DPP, dated 14 Jul 06.
      Exhibit    D.  Letter, SAF/MRBR , dated 21 Jul 06.
      Exhibit    F.  Letter, Applicant, dated 28 Jul 06.




               THOMAS S. MARKIEWICZ
               Chair