RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER: BC-2006-03899
            INDEX CODE:  110.02

            COUNSEL:  NONE
            HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  18 JUNE 2008

_________________________________________________________________

APPLICANT REQUESTS THAT:

His medical retirement for  permanent  physical  disability  be  changed  to
reflect he retired with twenty years of active duty.

________________________________________________________________

APPLICANT CONTENDS THAT:

The Medical Evaluation Board (MEB) recommended he be returned to duty.

AFMPC/SGPR did not concur with the findings and recommendations of the  MEB;
however, they stated they had no objection to the consideration  of  Limited
Assignment Status (LAS).  The endorsement back to SGPR stated he  was  given
nine days to decide whether or not to sign an AF Form 1186.  This is not  an
accurate statement. He was given information pertaining to an early  release
from the Air Force, his options were something like a temporary release  and
the other was related to getting some type  of  severance  pay.   There  was
never any mention of LAS.  He was never informed that he could request LAS.

The 25 Apr 72 letter, Consideration of Limited Assignment Status, signed  by
his commander, misrepresented the facts, and influenced the MEB’s decision.

He believes the Commander’s letter was an act of retaliation  for  a  letter
he submitted to a  member  of  the  Congressional  Black  Caucus,  regarding
illegal activities he observed while in the Air Force.

In support of  his  request,  applicant  provided  his  personal  statement,
documents pertaining to his MEB, performance reports and personnel  actions,
and correspondence relating to his congressional inquiry.

The applicant's complete submission, with attachments, is at Exhibit A.

_________________________________________________________________


STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 31  Aug  56,  in  AFSC
64151, Supply Specialist.

Applicant was placed on  a  medical  profile,  with  the  recommendation  of
limited duty for his right knee effective 9 Nov 71, due  to  post  operative
surgery of 7 Oct 71.  On 12 Jan 72, he was retained on the  medical  profile
with the addition of back pain after having a spinal fusion.

On 28 Mar 72, a  Medical  Evaluation  Board  convened  and  found  applicant
incurred disability [chronic low back pain] while  entitled  to  basic  pay,
and recommended retention in service and “Return to Duty.”

On  6  Apr  72,  AFMPC/SGPR,  did  not  concur   with   the   findings   and
recommendations of the MEB  and  indicated  the  member  was  not  medically
acceptable for unrestricted worldwide duty.  SGPR had no  objection  to  the
consideration of Limited Assignment Status.

On 25 Apr 72, the Physical Evaluation Board (PEB) Liaison Officer  indicated
the member was given nine days to decide whether or not he intended to  sign
an AF Form 1186, and he refused to do so.

By letter dated 25 Apr 72,  applicant’s  commander  indicated  that  he  was
advised  of  the  member’s  refusal  to  sign  AF   Form   1186   requesting
consideration  for  Limited  Assignment  Status,  and  that  in  the   event
AFMPC/SGPR might consider such  status  without  the  member’s  concurrence,
certain factors relating to member’s duty performance should be considered.

On 12 May 72, the USAF PEB reviewed the record of  proceedings  of  the  MEB
and found the member  unfit  for  unrestricted  world-wide  service  due  to
physical  disability  and  that  the  disability  was   permanent   with   a
compensable percentage of 50 percent, and recommended permanent  retirement.
 On 31 Mar 72, the applicant concurred with the recommended findings.

On 1 Jun 72, the Secretary of the Air Force approved the  recommendation  of
the Physical Review Council that the member be retired effective 2 Sep 72.

On 1 Sep 72, applicant was released  from  active  service  and  permanently
disability retired for chronic low back  and  right  knee  pain  with  a  50
percent permanent disability  rating.   He  completed  sixteen  years,  zero
months, and one day of active service.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPD recommends denial of the applicant’s request to have  his  service
records corrected to show that he served twenty  years  of  active  service.
The preponderance of evidence reflects that no error or  injustice  occurred
during the disability  process  and  at  the  time  of  separation.   Proper
documentation was noted on his DD Form 214 of the number of years served  on
active duty in accordance with the provisions of  Title  10,  United  States
Code (USC) 1201.

DPPD further stated at no time during the discharge process did  the  member
request an extension to his  date  of  separation  or  sign  AF  Form  1186,
Request for Limited Assignment Status.  On 12 May 72, the Informal  Physical
Evaluation Board recommended  permanent  disability  retirement  with  a  50
percent rating.  On 2 Jun 72, DAFSO AC-20939 was issued retiring the  member
with a permanent disability effective 2 Sep 72.

The complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant responded on three occasions.  In each response he reiterates  his
contentions that his MEB and subsequent discharge from the Air Force  was  a
cover up.

    a.  Why was there even an MEB in the first place?  Why did  SGPR  reject
the recommendation of the MEB, to return him to duty?  Did  the  commander’s
letter influence their decision to medically retire him?   Why  was  another
AF Form 422, Physical Profile Serial Report issued?

    b.  He was never informed that he could request consideration  for  LAS.
The commander’s statements in his 25 Apr 72  letter  are  only  assumptions,
with no supporting evidence or documentation.
He never refused to sign any documents related  to  the  medical  evaluation
process.

    c.  The AF Form 422, dated 9 Nov 71 stated there would be no  assignment
limitations, effective until 8 Feb 72.  On 12 Jan 72, another  AF  Form  422
was issued; this action changed his status to limited  duty,  not  qualified
for worldwide duty, which resulted in changing his duty status.  On  28  Mar
72, the MEB findings  recommended  the  “Defects  will  not  interfere  with
worldwide service,” and retention in service was recommended.

    d.  His performance report signed on 29 Dec 72 did not  reflect  any  of
the negative comments that his commander stated in his letter dated  25  Apr
72.

    e.  He questions the validity of the AF Form  422s.   He  believes  they
were created to start the Medical Board process and that the  MEB  was  used
to justify his release from the Air Force.

    f.  He was  presented  with  two  options  which  were  related  to  his
separation from active duty.

    g.  He was never advised of  the  contents  of  the  SGPR  letter  which
indicated that a request for LAS would be considered.  He never  refused  to
sign any documents presented to him and was  never  advised  as  to  a  time
limit he had to make a decision on the two options that were presented.

Applicant’s letters of 18 Feb, 26 Feb, and 15 Mar, with attachments, are  at
Exhibit E-G.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The application was not filed  within  three  years  after  the  alleged
error or injustice  was  discovered,  or  could  have  been  discovered,  as
required by Section 1552, Title 10, United States Code (10  USC  1552),  and
Air Force Instruction 36-2603.  The essential facts which gave rise  to  the
application were known to the applicant long before  this  application  and,
in fact, were contained in an application rejected on the merits by a  prior
Board.  Thus, the application is untimely.

2.  Paragraph b of 10 USC 1552 permits us,  in  our  discretion,  to  excuse
untimely filing in the interest of  justice.   We  have  carefully  reviewed
applicant’s submission  and  the  entire  record,  and  we  do  not  find  a
sufficient basis to excuse the untimely filing  of  this  application.   The
applicant asserts that he  intentionally  delayed  this  application  in  an
effort to protect the promising  military  careers  of  his  own  sons,  who
served several decades in the Air Force.  This  is  a  totally  unacceptable
basis for the Board to exercise its discretion under 10 USC 1552  (b).   The
applicant has not shown a plausible reason for delay in filing, and  we  are
not persuaded that the record raises  issues  of  error  or  injustice  that
require resolution on its merits.  Accordingly, we conclude  that  it  would
not be in the interest of justice to  excuse  the  untimely  filing  of  the
application.

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

_________________________________________________________________

DECISION OF THE BOARD:

The application was not timely filed and it would not be in the interest  of
justice to waive the  untimeliness.   It  is  the  decision  of  the  Board,
therefore, to reject the application as untimely.

_________________________________________________________________

The following members of the  Board  considered  Docket  Number     BC-2006-
03899 in Executive Session on 4 April 2007, under the provisions of AFI  36-
2603:

      Mr. Thomas S. Markiewicz, Chair
      Ms. Renee M. Collier, Member
      Ms. Judith B. Oliva, Member

The following documentary evidence  pertaining  to  Docket  Number  BC-2006-
03899 was considered:

    Exhibit A.  DD Form 149, dated 7 Nov 06, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPD, dated 23 Jan 07.
    Exhibit D.  Letter, SAF/MRBR, dated 2 Feb 07.
    Exhibit E.  Letter, Applicant, dated 18 Feb 07.
      Exhibit F.  Letter, Applicant, dated 26 Feb 07, w/atchs.
    Exhibit G.  Letter, Applicant, dated 15 Mar 07.




                                             THOMAS S. MARKIEWICZ
                                             Chair