RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-00607
            INDEX CODE:  128.00
            COUNSEL:  NONE
            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE: 1 Sep 07

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APPLICANT REQUESTS THAT:

1.  He be paid full severance pay as documented on his DD Form 214.

2.  In the alternative, his records be changed  to  reflect  he  received  a
disability retirement.

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APPLICANT CONTENDS THAT:

Prior to his separation he was briefed  that  his  severance  pay  would  be
calculated based on his (total years of  service)  times  (base  pay  X  2).
That amount was also reflected on his DD Form 214.  However, he  received  a
smaller amount of severance  pay.   Applicant  contends  he  made  the  life
altering decision not to pursue medical retirement or fight the findings  of
the  Medical  Evaluation  Board  (MEB)  based  on  the  information  he  was
provided.

In support of his request, applicant provided a personal statement,  a  copy
of his  DD  Form  214,  his  discharge  orders,  and  severance  calculation
worksheets.  His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air Force  on  18
Jun 90.  He was progressively promoted to the grade of  technical  sergeant,
having assumed that grade effective and with a date of rank of 1 Apr 03.  An
MEB referred the applicant to an Informal Physical Evaluation  Board  (IPEB)
with a diagnosis of chronic low back pain.  On 27 Apr  05,  the  IPEB  found
him unfit for continued service and  recommended  discharge  with  severance
pay with a compensable rating of 10%.  Applicant  did  not  agree  with  the
IPEB and was scheduled to appear before a Formal PEB (FPEB) on  23  Jun  05.
On 23 May 05, he waived his request to appear before the FPEB  and  accepted
the findings and recommendation of the IPEB.  He was discharged  on  22  Jul
05.  He served 15 years, 1 month, and 5 days on active duty.
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AIR FORCE EVALUATION:

AFPC/DPPD recommends denial.  DPPD states  applicant's  estimated  severance
pay was computed by finance and military personnel  flight  personnel  based
on his 15 years of service.  However, 10 USC Section 1212 only authorizes  a
maximum of 12 years of service in computing disability severance pay.   Both
finance  and  airman  separation  regulations  state  that   members   being
separated for disability will receive severance pay  for  no  more  that  12
years of service.

The DPPD evaluation is at Exhibit C.

The BCMR Medical Consultant is of the opinion that no change in the  records
is warranted.  He states, evidence in the  record  indicates  the  applicant
was given the maximum disability separation pay allowed by law, although  he
presents a worksheet and a copy of  the  DD  214  that  indicated  that  his
estimated separation  pay  was  significantly  higher  than  the  amount  he
actually  received.   These  documents  were  apparently  miscalculated   to
reflect a 15-year calculation as the basis for  applicant’s  severance  pay.
In review of his service medical records, the range of motion in the  lumbar
spine best correlates to a 10 percent disability rating, using the  Veterans
Administration Schedule for Rating Disabilities (VASRD).  Since  there  were
no significant periods of incapacitation, the use of the VASRD to  calculate
level of disability based on incapacitating episodes is unlikely  to  result
in a more favorable rating.  The BCMR Medical Consultant opines that  had  a
Formal Physical Evaluation Board been held, the results and  recommendations
would be the  same  as  the  previous  Informal  Physical  Evaluation  Board
recommendation (Discharge with Severance Pay with a  10  percent  disability
rating).  He further notes that the Department of  Veteran’s  Affairs  (DVA)
similarly rated the applicant’s back condition on 13 July  2005  with  a  10
percent disability rating.  The preponderance  of  evidence  of  the  record
shows  the  applicant’s  condition  was  rated  appropriately.   Action  and
disposition in this case are  proper  and  equitable  reflecting  compliance
with Air Force directives that implement the law.

The BCMR Medical Consultant’s evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He finds it difficult to  believe  that  his  information  could  have  been
misunderstood given  the  preponderance  of  evidence  that  was  presented.
According to his attorney, his DD Form 214 is a  bona  fide  legal  document
and could be used in any legal proceedings should he choose that  course  of
action.  He  now  understands,  that  based  on  current  law,  the  maximum
disability separation pay allowed is limited to 12 years; however, this  was
never communicated to him during the entire process.  He was made  aware  of
these facts two to three weeks after he was  separated  and  was  only  made
aware  due  to  the  fact  the  DFAS  computer  system  rejected  the   49th
Comptroller Squadron’s (CPTS) initial attempt to pay him  for  15  years  of
service.

He has  done  everything  within  his  power  to  give  the  Air  Force  the
opportunity to resolve this matter in a fair and proper  manner.   While  on
active duty, the Air Force instilled in  him  its  core  values:   Integrity
First, Service Before Self, and Excellence in All We  Do  and  he  does  not
understand why the Air Force is unwilling  to  honor  the  commitments  that
were made to him by its represented personnel.

The memorandum provided by the BCMR Medical Consultant, twice refers to  the
date  of  13  July  2005  that  the  DVA  established  a   service-connected
disability rating of 10%.  However, this information is  incorrect,  and  he
provides a copy of the DVA’s rating decision establishing a  20%  disability
rating for lumbar strain moderately active with a  history  of  lumbar  disc
hernia ion dated 23 July 2005.

It is not his desire to change the records to  reflect  the  entitlement  to
separation pay for a member with over 15 years of service as  he  is  in  no
position to rewrite the law.  However, it is his expectation  that  the  Air
Force  would  honor  the  contractual  documents  provided  to  him  by  its
represented personnel and documented on his DD 214.

Applicant’s complete response, with attachment, is at Exhibit G.

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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.   We  took  notice  of  the  applicant's
complete submission in judging the merits of the case.   However,  we  agree
with the opinion and recommendation  of  the  BCMR  Medical  Consultant  and
adopt the rationale expressed  as  the  basis  for  our  decision  that  the
applicant has failed to sustain his burden that he has  suffered  either  an
error or an injustice.  No evidence has been provided to reflect he was  not
treated fairly and properly  by  the  Air  Force  and  all  procedures  were
followed.  In view of the above and absent  evidence  to  the  contrary,  we
find no basis to recommend granting the relief sought in this application.

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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.

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The following members of the Board considered this application in  Executive
Session on 15 February 2007, under the provisions of AFI 36-2603:

                 Mr. James W. Russell III, Panel Chair
                 Ms. Dee R. Reardon, Member
                 Mr. Jeffery R. Shelton, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 21 Feb 06, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFPC/DPPD, dated 10 Mar 06.
      Exhibit D. Letter, AFBCMR, dated 22 Jan 07.
      Exhibit E. Letter, SAF/MRBR, 17 Mar 06.
      Exhibit F. Letter, AFBCMR, dated 25 Jan 07.
      Exhibit G. Applicant’s Response, dated 31 Jan 07.




                             JAMES W. RUSSELL III
                             Panel Chair