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AF | BCMR | CY2007 | BC-2006-02702
Original file (BC-2006-02702.doc) Auto-classification: Denied

                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-02702
            INDEX CODE:  145.00

            COUNSEL:  NONE

            HEARING DESIRED: NOT INDICATED

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be allowed to retire from the Air Force Reserve (AFR)  rather  than
be discharged.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He attended a Informal Physical Evaluation Board (IPEB) where  he  was
shown a special rule for members with physical disabilities in 12731b,
10 United States Code (U.S.C.), Chapter 1223.  He returned to his duty
station at Little Rock AFB and spoke  with  personnel  from  his  Wing
telling them about 12731b.  Someone at his Wing led him to believe  he
could retire from the Air Force Reserve (AFRS).  He accepted the terms
of the IPEB and found himself discharged with severance pay.   He  was
told 12731b pertained only to those reservists  who  had  served  more
than  15 but  less  than  20  years  and  had  experienced  an  injury
considered not in the line of duty were eligible for  retirement.   It
makes no sense to him.  He has been told not to work by his doctor and
feels he accepted the discharge with severance pay as the only  choice
he had.  He would pay the severance back if he could retire.

In support of his  appeal,  the  applicant  has  provided  a  personal
statement and copies  of  medical  documentation,  both  military  and
civilian, as well as a copy of 12731b.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the AFR on 7 October 1991.  He was progressively
promoted to the grade of technical sergeant with a date of rank  of  1
May 2001.  He was mobilized and on 21 March  2004  while  deployed  to
Kuwait, he injured his back performing his duties.  On his  way  home,
he stopped at Pope AFB where an MRI showed a bulging disk in his back.
 He returned to Little Rock AFB where subsequent examination found his
injury to be in the line of duty.  He was  demobilized  on  17 January
2005.  He met an Informal PEB (IPEB) on 24  January  2006.   The  IPEB
recommended he be discharged with severance pay with a  0%  disability
rating.  He did not agree with the IPEB’s  recommendation  and,  on  1
February 2006, he requested to appear before the FPEB.   On  13  April
2006, he requested to waive his earlier request for a  formal  hearing
and concurred with the findings of the IPEB.  He was separated  on  24
May 2006 after 15 years, 9 months, and 25 days of service.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPD  recommended  denying  his  application  as  he  was  not
eligible for disability retirement under 12731b  because  he  did  not
meet its criteria.  12731b requires the unfitting injury to be not  in
the line of duty; his injury occurred when he was on  orders  and  was
considered in the line of duty.

DPPD’s complete evaluation, with attachments, is at Exhibit C.

HQ AFRC/A1B recommends approving his request.  A1B  believes  members,
such as the applicant, should be eligible for  early  retirement  with
pay at age 60 under Title 10, U.S.C. 12731b.

A1B’s complete evaluation, with attachments, is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant believes he earned retirement benefits by serving  for  over
15 years and being injured while  deployed.   After  injuring  himself
while performing duty in Kuwait and months of subsequent  unsuccessful
treatment he underwent an MEB where he was referred to an  IPEB.   The
IPEB found his injury occurred while in the LOD and thereby  made  him
ineligible for retirement.  He was told he could retire upon returning
to his unit.  Had he known he  would  be  disability  discharged  with
severance pay, he would have appealed the IPEB’s decision.  He  states
that due to his filing with the Veterans Administration (VA)  he  will
eventually end up paying the VA all of his severance pay.

_________________________________________________________________

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 AFPC/DPPD and
adopt its rationale as the basis for our conclusion that the applicant
has not been the victim of an error or injustice.  Title  10,  Chapter
12731b is clear in its requirement that any injury to Reserve  members
would have to be considered not in the line of duty in order for  this
section of law to be invoked.  Therefore, in the absence  of  evidence
to the contrary, we find no compelling basis to recommend granting the
relief sought in this application.

_________________________________________________________________

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-
2006-02702 in Executive Session on 10 April 2007, under the provisions
of AFI 36-2603:

      Ms. Charlene M. Bradley, Panel Chair
      Ms. Josephine L. Davis, Member
      Ms. Patricia R. Collins, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 31 Aug 06, w/atchs.
    Exhibit B.  Letter, AFPC/DPPD, dated 11 Dec 06, w/atchs.
    Exhibit C.  Letter, SAF/MRBR, dated 23 Feb 07.
    Exhibit D.  Letter, AFRC/DPPD, dated 22 Feb 07, w/atchs.
    Exhibit E.  Letter, Applicant, Undated, w/atchs.




                                   CHARLENE M. BRADLEY
                                   Panel Chair

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