RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: BC-2006-01847
            INDEX CODE:  136.00
      XXXXXXX    COUNSEL:  NONE

            HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  19 Dec 07

________________________________________________________________

APPLICANT REQUESTS THAT:

He be given either an active duty or Reserve retirement  based  on  medical
disability or cumulative years  of  service,  or  change  his  reenlistment
eligibility (RE) code so he can enlist in the USAF Reserve (USAFR).

________________________________________________________________

APPLICANT CONTENDS THAT:

The Air Force failed to provide him with  a  timely  and  informed  Medical
Evaluation Board (MEB) determination until he had no other recourse than to
separate because his term of enlistment had expired.  The MEB determination
resulted in a Catch 22 situation wherein he could not complete his  20-year
active duty career and was ineligible to affiliate with the USAFR,  the  US
Navy Reserve (USNR), or the Air National Guard (ANG) and complete one  more
"good" year for 20 satisfactory years needed for a Reserve retirement.   He
has served in the Air Force and the Navy for over 10 years on  active  duty
and 9 years in the Reserves.

In support of his request, applicant provided a personal statement and more
than  13  attachments  pertaining  to  his  military  career  and   medical
circumstances.  The applicant’s complete submission, with  attachments,  is
at Exhibit A.

________________________________________________________________

STATEMENT OF FACTS:

According to a January 2004  Statement  of  Service  (SOS),  the  applicant
enlisted in the USNR on 4 Dec 80, was honorably discharged on 11 Jun 81  to
enlist in the USN on 12 Jun 81.  He transferred to the USNR  on  7 May  87,
and was honorably discharged at the convenience of the government on 11 Jun
87.  He enlisted in the USNR on 27 Jul 93 and was honorably  discharged  on
23 Jan 02.

A 2 May 02 SOS for Naval Reserve Retirement reflects that as of 23 Jan  02,
the applicant had 14 years and 11 months of  satisfactory  service  towards
retirement.

The applicant enlisted in the Regular Air Force on 24 Jan 02 for  a  period
of four years as  a  Contracting  craftsman.   This  gave  him  a  date  of
separation (DOS) of 23 Jan 06.

A 14 Oct 05 Narrative Summary reported the applicant was seen  for  chronic
fatigue in Mar 05.  A sleep study in Apr 05 diagnosed him with  obstructive
sleep apnea requiring a Continuous Positive Airway Pressure (CPAP)  device.
Even with the device, the applicant still only had three hours of sleep per
night and felt very fatigued.  The  applicant  indicated  a  desire  for  a
medical retirement; however, the  summary  concluded  the  applicant  could
continue in his current job with a Code C limitation.  On 26 Oct 05, an MEB
convened, rendered a diagnosis of sleep apnea, and referred the applicant’s
case to an Informal Physical  Evaluation  Board  (IPEB).  While  undergoing
disability evaluation, the applicant was placed on a temporary  4T  profile
disqualifying him from worldwide duty. A 15 Dec 05,  addendum  to  the  MEB
noted improvement with a CPAP adjustment.  In a statement dated 27 Dec  05,
the  applicant’s  commander  recommended  medical   retirement   based   on
noticeably worsening fatigue and the diagnosis of sleep apnea.

On 28 Dec 05, an IPEB convened and found the applicant’s medical  condition
did not prevent him from reasonably performing the duties  of  his  office,
grade, rank, or rating,  determined  he  was  fit  and  recommended  he  be
returned to duty.  However, on 4 Jan 06,  the  applicant  was  advised  his
medical  condition  was  considered  restricting  and  would   require   an
Assignment Limitation Code C.  He would not be mobility  qualified  pending
further review and not be assigned outside of CONUS except  Alaska,  Hawaii
or Puerto Rico.  If he was on medical hold, it was removed effective  4 Jan
06, but waivers could be requested.

On 23 Jan 06, after completing his four-year active  duty  enlistment,  the
applicant was honorably discharged in the grade of technical sergeant.   He
served a total of 10 years, 2 months and 29 days of active service.  His DD
Form 214 reflected 9 years and 5  days  of  prior  inactive  service.   The
applicant was issued an RE code of 1J, meaning "Eligible to  reenlist,  but
elects separation."

________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPD recommends denial.  DPPD advises that, by law,  a  member  may
appeal a recommended disposition if he/she is  found  unfit  and  is  being
involuntarily separated or retired for disability.  This is  not  true  for
members found fit.  However, if the hospital commander believed  there  was
additional compelling  medical  documentation  calling  into  question  the
appropriateness of the return-to-duty decision, he/she could have requested
a "special review" of the  IPEB  recommendation.   No  error  or  injustice
occurred during the disability process.

The complete HQ AFPC/DPPD evaluation is at Exhibit C.

HQ AFPC/DPPRS recommends denial because the applicant was found fit  by  an
IPEB.  Instead of returning to duty, the  applicant  voluntarily  chose  to
separate on his expiration of term of service on 23 Jan 06.  The separation
was consistent with the procedural  and  substantive  requirements  of  the
discharge regulation and the narrative reason for separation is correct.

The complete HQ AFPC/DPPRS evaluation is at Exhibit D.

HQ AFPC/DPPAE also recommends denial because the applicant was eligible  to
reenlist at the time of his discharge but elected to separate.   There  was
nothing that would have prevented him from remaining on active  duty.   The
RE code is correct.

The complete HQ AFPC/DPPAE evaluation is at Exhibit E.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Complete copies  of  the  Air  Force  evaluations  were  forwarded  to  the
applicant on 19 Aug 06 for review and comment within 30 days  (Exhibit  F).
By letter dated 21 Aug 06, the applicant requested his case be  temporarily
closed until he was ready  to  proceed  (Exhibit  G).   As  a  result,  the
applicant’s case was temporarily administratively closed.  On 2 Feb 07, the
applicant requested his case be reopened and after reading the  preliminary
findings of the Air Force; he believes the crux of his  injustice  has  not
been considered.  Specifically, he believes the Air Force failed to process
his MEB determination in a timely manner. The MEB belabored him nearly  six
months, placing him in a position where he had to go on terminal  leave  in
order to ensure he had adequate  monetary  and  health  insurance  for  his
disabled spouse.  He believes his decision to separate was borne out of the
lack of communication he received on his  MEB  status,  which  negated  his
ability to reenlist or extend his  enlistment,  conceivably  rendering  him
discharged without an income or medical insurance.  He tried to reenlist in
the Air Force Reserves when the return to duty determination was  received.
An Air Force Reserve recruiter contacted Air Force Reserve Personnel Center
and discovered he was not eligible to enlist because he had sleep apnea.

A complete copy of applicant’s response with attachments is at Exhibit F.

________________________________________________________________

THE BOARD RECOMMENDS THAT:

1.  The applicant has exhausted all remedies provided by  existing  law  or
regulations.


2.  The application was timely filed.

3.  Sufficient relevant evidence has  been  presented  to  demonstrate  the
existence of an injustice warranting relief.  While serving on active  duty
the applicant was referred to an MEB for a determination of his fitness  to
continue serving  in  the  Air  Force.   While  awaiting  MEB  results  the
expiration of his term of service was approaching and it appears because of
family matters, he elected to separate from the Air Force.   Thirteen  days
prior to his date of separation he was  informed  the  MEB  determined  his
condition was not unfitting for continued service and he was being returned
to duty.  Because of his previous commitments, he elected to continue  with
his planned separation with apparent plans to continue his  career  in  the
Air Force Reserves.  However, when the applicant attempted to enlist in the
Air Force Reserves, he was informed that even though the MEB found him  fit
for continued service on active duty, he was not qualified to serve in  the
Air Force Reserves.  While we find no evidence of an error on the  part  of
the Air Force or Air Force Reserves, we do  believe  the  inconsistency  in
guidance determining suitability for service between the active and Reserve
forces has resulted in an injustice to the  applicant  in  this  particular
case.  Taking the above into consideration as well as the number  of  years
he has honorably served, it is our opinion his records should be  corrected
as indicated below.

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 issues involved.  Therefore,  the  request  for  a
hearing is not favorably considered.

________________________________________________________________

THE BOARD RECOMMENDS THAT:

Pertinent military records of the Department of the Air Force  relating  to
APPLICANT, be corrected to show that:

      a.  On 24 January 2006, competent authority  approved  his  enlistment
in the Air Force Reserves, as an exception to policy.

      b.  The 181 active duty points accrued while serving  in  the  Regular
Air  Force  resulted  in  a  satisfactory  year  of  Federal   service   for
retention/retirement year ending 24 July 2006.

      c.  He was credited with a partial year credit for the period 27  July
2006 through 23 February 2007.

      d.  On 23  February  2007,  he  was  discharged  from  the  Air  Force
Reserves and his name was placed on the Retired Reserve List,  awaiting  pay
at age 60.

________________________________________________________________

The following members of the Board considered Docket  Number  BC-2006-01847
in Executive Session on 8 Mar 07, under the provisions of AFI 36-2603:

                       Mr. Thomas S. Markiewicz, Chair
                       Ms. Teri G. Spoutz, Member
                       Ms. Renee M. Collier, Member

All members voted to correct the records, as  recommended.   The  following
documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 11 Jun 06, w/atchs.
    Exhibit B.  Applicant’s Master Personnel Records
      Exhibit C.  Letter, AFPC/DPPD, dated 26 Jul 06.
      Exhibit D.  Letter, AFPC/DPPRS, dated 1 Aug 06.
      Exhibit E.  Letter, AFPC/DPPAE, dated 11 Aug 06.
      Exhibit F.  Letter, Applicant, dated 2 Feb 07, w/atchs.




                                   THOMAS S. MARKIEWICZ
                                   Chair



                         DEPARTMENT OF THE AIR FORCE
                                WASHINGTON DC



[pic]

Office Of The Assistant Secretary

BC-2006-01847




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air Force
Board for Correction of Military Records and under the authority of Section
1552, Title 10, United States Code (70A Stat 116), it is directed that:

      The pertinent military records of the Department of the Air Force
relating to XXXXXXX, XXXXXXX be corrected to show that:

             a.  On  24  January  2006,  competent  authority  approved  his
enlistment in the Air Force Reserves, as an exception to policy.

            b.  The 181 active duty points  accrued  while  serving  in  the
Regular Air Force resulted in a satisfactory year  of  Federal  service  for
retention/retirement year ending 24 July 2006.

            c.  He was credited with a partial year credit  for  the  period
27 July 2006 through 23 February 2007.

            d.  On 23 February 2007, he was discharged from  the  Air  Force
Reserves and his name was placed on the Retired Reserve List,  awaiting  pay
at age 60.






  JOE G. LINEBERGER

  Director

  Air Force Review Boards Agency
AFBCMR
1535 Command Dr, EE Wing, 3rd Flr
Andrews AFB MD 20762-7002

XXXXXXX
XXXXXXX
XXXXXXX
XXXXXXX

      Reference your application, AFBCMR Docket Number BC-2006-01847,
submitted under the provisions of AFI 36-2603 (Section 1552, 10 USC).

      The Board determined that the military records should be corrected as
set forth in the attached copy of a Memorandum for the Chief of Staff
United States Air Force.  The office responsible for making the correction
will inform you when your records have been changed.

      After correction, the records will be reviewed to determine if you
are entitled to any monetary benefits as a result of the correction of
records.  This determination is made by the Defense Finance and Accounting
Service (DFAS-DE), Denver, Colorado, and involves the assembly and careful
checking of finance records.  It may also be necessary for the DFAS-DE to
communicate directly with you to obtain additional information to ensure
the proper settlement of your claim.  Because of the number and complexity
of claims workload, you should expect some delay.  We assure you, however,
that every effort will be made to conclude this matter at the earliest
practical date.





                       GREGORY E.  JOHNSON
                       Chief Examiner
                       Air Force Board for Correction
                       of Military Records


Attachment:
1.  Record of Proceedings
2.  Copy of Directive

cc:
DFAS-DE