SECOND ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2007-00364-3
INDEX CODE: 137.00
COUNSEL:
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
1. His DD Form 214, Certificate of Release or Discharge from Active Duty, be corrected to reflect 20 years of active duty service rather than 19 years and 5 months.
2. His narrative reason for separation be corrected to reflect, Disability, Permanent rather than Disability, Temporary.
3. His separation code of SFK, which denotes mandatory retirement required by law due to a temporary physical disability be changed to SFJ, which denotes mandatory retirement resulting from a permanent physical disability.
4. He be given any other appropriate relief.
_________________________________________________________________
STATEMENT OF FACTS:
On 28 Jun 07 and 25 Mar 09, the Board considered and denied similar appeals. For an accounting of the facts and circumstances surrounding the applicants request, and the rationale of the earlier decisions of the Board, see the Record of Proceedings, with attachments, at Exhibits F and H.
By letter, dated 2 Aug 09, the applicants counsel states two issues in the applicants case have yet to be addressed:
1. Federal Court case law requires that where, as in the applicants case, there was a misrepresentation of a material fact by an agent of the government, upon which the applicant relied to his detriment, relief should be granted; and
2. The consequences of the failure of the Air Force Physical Evaluation Board Liaison Officer (PEBLO) to properly advise the applicant of the availability of continuation on active duty in his case.
The counsel cites other court decisions similar to the applicants case and states that under Title 10, United States Code, Section 637(b)(3), an applicant is eligible for continuation on active duty when he has 15 years but less than 20 years of total service because continuation may not exceed 5 years. The applicant had served 19 years, 5 months, and 27 days at the time of his placement on the Temporary Disability Retired List and this made him eligible for continuation on active duty because he served more than 15 years but less than 20 years of total service.
The counsels complete submission is at Exhibit I.
_________________________________________________________________
THE BOARD CONCLUDES THAT:
After reviewing this application and the evidence provided in support of the appeal, we again remain unpersuaded that a change in the previous Board decision is warranted. We find the request does not meet the criteria for reconsideration. As the applicant and counsel have been previously advised, reconsideration is provided only where newly discovered relevant evidence is presented. The reiteration of facts we have previously addressed, uncorroborated personal observations, or additional arguments on the evidence of record are not adequate grounds for reopening a case. Further, while counsel argues the applicant was eligible for continuation on active duty under Title 10, U.S.C., Section 637b, we note this statute only applies to officers and that the applicant served as an enlisted member. Therefore, in view of the above and in the absence of new and relevant evidence, we find no basis to reconsider our decision in this case.
_________________________________________________________________
THE BOARD DETERMINES THAT:
The applicant be notified that the additional evidence presented did not meet the criteria for reconsideration by the Board; 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 the applicants request for reconsideration of AFBCMR Docket Number 2007-00364 in Executive Session on 1 September 2010, under the provisions of AFI 36-2603:
Panel Chair
Member
, Member
The following documentary evidence was considered for AFBCMR Docket Number BC-2007-00364:
Exhibit H. Addendum to Record of Proceedings, dated 4 May 09,
w/atchs.
Exhibit I. Letter, Counsel, dated 2 Aug 09.
Panel Chair
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