RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-00804
            INDEX CODE:  111.05
      XXXXXXX    COUNSEL:  NONE
            HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE: 16 SEPTEMBER 2008

________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to show he retired in the grade of major.

________________________________________________________________

APPLICANT CONTENDS THAT:

He was selected for promotion to major but was forced to retire for  medical
reasons prior to the public release of the board results.  Since he  was  in
fact selected by the board for promotion and did not voluntarily retire,  he
believes his retired grade should be corrected.

In support of his request, applicant provided a memorandum from  his  former
commander, a congratulatory letter and a website printout.

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

_________________________________________________________________

STATEMENT OF FACTS:

In October 2003, applicant was diagnosed with lymphoma of the tonsils  which
required a tonsillectomy and various cancer treatments including radiation.

On 11 August 2006, he met a Medical Evaluation Board (MEB) and his case  was
referred to an Informal Physical Evaluation Board (IPEB).

On 17 August 2006, the IPEB found him to have  an  80%  physical  disability
and recommended permanent retirement.

On  21  August  2006,  the  applicant  disagreed  with  the   findings   and
recommendation, and requested a Formal PEB (FPEB) hearing.

On 1 September 2006, the FPEB concurred with the  finding  of  80%  physical
disability and recommended permanent retirement.

The applicant disagreed with the recommendation of the  FPEB  and  requested
his case be submitted to SecAF for a final decision.

On 11 September 2006, the CY06B Major Central Selection Board convened.

The Deputy Director for SecAF Personnel Council issued  a  memorandum  dated
14 September 2006, directing the applicant be permanently retired  effective
2 November 2006, with a disability rating of 80%.

On 22 September 2006, the CY06B promotion board  adjourned.   The  applicant
was selected for promotion by the Board.

On 27 October the SecAF approved the  selection  list,  and  on  27 November
2006, the list was approved by  the  Principal  Deputy  Under  Secretary  of
Defense.

On 19 December 2006, the promotion list was publicly released.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPPO, recommends approval.  DPPPO states the statute only  requires
that the officer would have been promoted had it not been for  the  physical
disability for which he retired.  At the time the applicant was retired  for
physical disability, he was recommended for promotion by a  selection  board
which was approved by the SecAF on 27 October 2006.   Although  the  results
were not approved for release, DPPPO believes as of  the  board  adjournment
date,  22  September  2006,  the  applicant  was  a  select/recommended  for
promotion.  Therefore, had he not been retired, he would have been  promoted
to major.  At no time, based on  his  impending  separation,  was  his  name
removed from the list.  There is nothing in Section 1372 that dictates  that
an officer must be on an approved promotion list in order to be  retired  in
the higher grade when the retirement is based on physical  disability.   The
statue only requires that the officer would have been promoted  had  it  not
been for the physical disability for which  he  retired.  At  the  time  the
applicant was retired  for  physical  disability,  he  was  recommended  for
promotion by a selection board  which  was  approved  by  the  SecAF  on  27
October 2006.   Therefore, pursuant to Section 1372,  the  applicant  should
be retired as a major.

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

AFPC/DPPD recommends denial.  DPPD states  Title  10,  section  1372  states
"Unless entitled to a higher retired grade under  some  other  provision  of
law, any member of an armed force who is  retired  for  physical  disability
under section 1201 or 1204 of this title, or whose name  is  placed  on  the
temporary disability retired list under section 1202 or 1205 of this  title,
is entitled to the  grade  equivalent  to  the  highest  of  the  following:
...(3)  The permanent regular or reserve grade to which he would  have  been
promoted had it not been for  the  physical  disability  from  which  he  is
retired and which was found to exist as a result of a physical  examination,
 (4)  The temporary grade to which he would have been promoted  had  it  not
been for the physical disability for which he  is  retired,  if  eligibility
for that promotion was required to be based on cumulative years  of  service
or years of service in grade and the disability was discovered as  a  result
of physical examination."  In 2002, a legal opinion was  rendered  regarding
an officer who had a line number and the SecAF determination  for  unfitness
for duty was signed prior  to  the  promotion  effective  date.   The  legal
opinion stated that because  the  member  already  had  a  line  number,  no
propriety action was needed to delay the member's promotion until  the  time
of retirement.  At the time of  the  legal  opinion,  AFI  36-2501,  Officer
Promotions and Selective Continuation, Para A2.5.4  provided  that  officers
are not eligible for consideration by a selection  board  or  for  promotion
(emphasis added) if they have been determined by the SecAF to  be  unfit  to
perform the duties of the office or grade because  of  physical  disability.
The member had a line number and clearly would have  been  promoted  had  it
not been for the physical disability for which  he  was  retired.   In  this
case, the applicant had been a select/recommendation  for  promotion  as  of
adjournment of the board on 22 September 2006.  He had  been  determined  to
be unfit prior to the adjournment of the board.  DPPD believes that  in  the
applicants case, neither 10 USC 1372 (3) nor  (4)  apply.   Therefore,  DPPD
recommends denial because the preponderance of  evidence  reflects  that  no
error or injustice occurred during the disability process.

The complete DPPD evaluation is at Exhibit D.

HQ AFPC/JA recommends approval.  JA states the statute  only  requires  that
the officer would have been promoted  had  it  not  been  for  the  physical
disability for which he retired.  At the time the applicant was retired  for
physical disability, he was recommended for promotion by a  selection  board
which was approved by the SecAF on 27 October 2006.  Therefore, pursuant  to
Section 1372, the applicant should be retired as a major.

The complete HQ AFPC/DPPPO evaluation, with attachment, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the  applicant  on  27
July 2007 for review and comment within 30  days.  As  of  this  date,  this
office has received no response (Exhibit E).

_________________________________________________________________


THE BOARD CONCLUDES 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  error  or  injustice  warranting  corrective  action.   We
carefully considered the evaluations, the applicant's  submission,  and  the
evidence of record.   The  Officer  Promotion,  Appointment,  and  Selective
Continuation Branch and the Office of the Judge Advocate  provided  opinions
to the Board which in essence provide their interpretation  of  statutes  to
state that since the applicant would have been promoted had it not been  for
his disability separation, he is entitled to be retired in the  next  higher
grade.  On the other hand, the USAF Physical Disability  Division  does  not
believe the statutes are applicable in this  case  opining  that  since  his
disability separation was approved prior to the adjourning of the  selection
board,  he   was   no   longer   eligible   for   promotion   consideration.
Notwithstanding the varying opinions offered by  competent  authorities,  we
believe sufficient evidence has been provided to show  an  injustice  exists
warranting favorable consideration of his request.  In this regard,  whether
or not the applicant's records should have remained eligible  for  promotion
consideration aside, his records were indeed considered  by  the  board,  he
was selected for promotion, and his name remained on the  list  when  signed
by the approval authority.  If in fact an error  existed  in  the  promotion
consideration process, the error was through no fault of the  applicant  and
we believe it is an injustice for him to suffer  the  consequences  thereof.
Therefore, we believe that under the  circumstances  of  this  case,  it  is
appropriate to resolve this matter in the applicant's  favor.   Accordingly,
we recommend his records be corrected to the extent 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 RECOMENDS:

The pertinent military records of the Department of the Air Force
relating to APPLICANT be corrected to show effective 2 November 2006, he
was permanently disability retired in the retired pay grade of major.

_________________________________________________________________

The following members of the Board considered  Docket  Number  BC-2007-00804
in Executive Session on 12 September 2007, under the provisions of  AFI  36-
2603:

                 Mr. Michael J. Novel, Panel Chair
                 Mr. Richard K. Hartley, Member
                 Mr. Reginald P. Howard, Member

All members voted to correct the records,  as  recommended.   The  following
documentary  evidence  pertaining  to  Docket   Number   BC-2007-00804   was
considered:

    Exhibit A.  DD Form 149, dated 15 February 2007, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  AFPC/DPPPO Letter, dated 30 April 2007.
    Exhibit D.  AFPC/DPPD Letter, dated 11 June 2007.
    Exhibit E.  AFPC/JA Letter, dated 23 July 2007.
    Exhibit F.  Letter, SAF/MRBR, dated 27 July 2007.




            MICHAEL J. NOVEL
            Panel Chair
                         DEPARTMENT OF THE AIR FORCE
                                WASHINGTON DC



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Office of the Assistant Secretary

AFBCMR BC-2007-00804




MEMORANDUM FOR 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 effective 2 November
2006, he was permanently disability retired in the retired pay grade of
major.




                                                       JOE G. LINEBERGER
                                                             Director
                                                 Air Force Review Boards
Agency