RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER: BC-2007-01927
            INDEX CODE:  110.00

            COUNSEL:  NONE
            HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  22 DECEMBER 2008

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her medical retirement for  disability  be  changed  to  a  Temporary  Early
Retirement Act (TERA) retirement for time in service.

_________________________________________________________________

APPLICANT CONTENDS THAT:

She never had the option to request a TERA retirement anytime  prior  to  or
after her permanent disability retirement on 21 Apr 94.

She was never informed of her rights under the TERA program and  was  forced
to take a medical retirement.

Had she known she could have received a TERA retirement based  on  years  of
service, she would have taken that instead of appealing the decision of  the
Physical Evaluation Board (PEB)  regarding  her  retirement  at  30  percent
disability.  TERA would have given her a 45 percent retirement.

Today, the injustice is even greater.  Those who voluntarily took  the  TERA
retirement for time in service can get concurrent receipt.

Once she was placed on the TDRL, she did not have the resources  or  ability
to stay up on current USAF personnel issues and  therefore  could  not  have
found out about TERA.

In support of her  request,  applicant  provided  copies  of  her  Temporary
Disability Retired List (TDRL) order, a DFAS  letter  explaining  retirement
options, an amendment to the TDRL order, AF Form 356, Informal  PEB,  Formal
PEB order, and  AFMPC/DPMADS2  Action  Memorandum,  Removal  from  TDRL  and
permanent retirement.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant served on active duty in the Air Force from 22 Jul  74  to  18
Aug 92.  Her highest grade held on active duty was Major.

Applicant was relieved from active duty and placed on the TDRL effective  18
Aug 92, with 18 years and 26 days of active service for  retirement  with  a
30 percent disability rating.  This special order was amended on 15 Oct  92,
to  correct  her  service  for  basic  pay,  which  did   not   affect   her
compensation.

On 25 Mar 94, the findings and recommended disposition of  the  AF  Physical
Evaluation Board (PEB) was to permanently retire the applicant for  physical
disability.  Effective 21 Apr 94, she was removed from the TDRL and  retired
in the grade of major with a compensable percentage of 50  percent.   On  25
Mar 94, she agreed with the findings and recommendation of the PEB.

Additional relevant facts pertaining to this application  are  contained  in
the evaluation prepared by the appropriate office of the Air Force found  at
Exhibit C.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPRRP recommends denial of the  applicant’s  request.   The  applicant
was not eligible to request retirement under TERA  on   18  Aug  92  because
TERA was not enacted until 23 Oct 92.  The applicant  was  not  eligible  to
apply for TERA while on the TDRL.  Also, because she  was  not  returned  to
duty by the PEB, she was not eligible to apply for  TERA  nor  permitted  to
reach 20 years Total Active  Federal  Military  Service  (TAFMS)  to  retire
under 10 USC 8911.

In the National Defense Authorization Act for Fiscal Year 1992 (FY92  NDAA),
Public Law (PL) 102-484, 23 Oct 92, Congress enacted TERA,  which  permitted
selected military members to retire early  and  accrue  additional  military
retirement credits if they  gained  employment  with  qualifying  public  or
community  service  organizations.   Section  534  of  that  law  gives  the
Secretary of the Air Force (SAF) the authority to  permit  early  retirement
for selected military members with more than 15 but less than  20  years  of
service who agree to register for employment in public or community  service
organizations.  PL 107-314, NDAA for FY03, Section 554, extended TERA  to  1
Sep 02.

The SAF exercised TERA authority beginning 3 May 93 for officers  requesting
a retirement date between 1 Oct 93  and  1  Sep  94.   The  Air  Force  TERA
program was announced in HQ AFMPC/DPMA AIG  8106  message  051600Z  Apr  93,
FY94 Force Reduction Programs.  Had she been returned to duty on 21 Aug  94,
instead of permanently retired, she still could  have  requested  to  retire
under TERA not later than 1 Sep 94 under the FY94 Force  Reduction  Program,
a later TERA program, or retire at 20 years TAFMS, her mandatory  retirement
date.

Applicant was placed on the TDRL on 18 Aug 92, prior  to  the  enactment  of
TERA on 23 Oct 92, so she was not eligible  to  elect  TERA  on  that  date.
Even if TERA had been in effect on 18 Aug 92, her medical condition  at  the
time would  have  precluded  her  from  requesting  retirement  under  TERA.
Further, members on the TDRL cannot apply for  a  non-disability  retirement
for which  they  are  eligible  unless  they  are  returned  to  duty.   The
applicant never returned to active duty but was  later  permanently  retired
on    21 Apr 94 for disability.

There is no financial advantage for the applicant to retire under TERA  with
a 45 percent  retired  pay  multiplier  versus  the  50  percent  disability
multiplier  she  now  receives.   To  approve  the  change  from   permanent
disability retirement to TERA would negatively impact  the  applicant.   For
this reason, it is not in the interest of justice for the Board to  consider
the application more than 13 years after the alleged injustice.   Concurrent
receipt laws apply only to members who have 20 years or more TAFMS  and  the
applicant  has  only  18  years  TAFMS.   The  Board  cannot   approve   the
applicant’s request based on a Congressional member’s  stance  on  veterans’
issues – only existing law can be  applied  to  a  decision.   Although  the
Senator may support concurrent receipt for disability, until  that  position
becomes law, retirees with less than 20 years TAFMS are  not  authorized  to
receive  both  physical  disability   retired   pay   and   DVA   disability
compensation.

The most important reason to deny the applicant’s retirement  under  10  USC
8911, or its TERA provision, is that retirement under this  section  of  law
would subject the applicant to possible recall to active duty under  10  USC
688.  A PEB found the member  to  be  unfit  for  duty  based  on  permanent
physical disability.  As such, she can no longer be considered an Air  Force
mobilization asset.

The DPPRRP evaluation, with attachments, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 17 Aug 07, a copy of the  Air  Force  evaluation  was  forwarded  to  the
applicant for review and comment within 30 days.  To date,  a  response  has
not been received.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was not timely filed; however, it is in the interest  of
justice to excuse the failure to timely file.

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  Air  Force  office  of  primary
responsibility and adopt its rationale as the basis for our conclusion  that
the applicant has not been the victim of an error or injustice.   Therefore,
in the absence of evidence to the contrary, we find no compelling  basis  to
recommend granting the relief sought in this application.

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

_________________________________________________________________

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  Docket  Number     BC-2007-
01927 in Executive Session on 4 October 2007, under the  provisions  of  AFI
36-2603:

      Mr. Laurence M. Groner, Panel Chair
      Ms. Mary C. Puckett, Member
      Ms. Josephine L. Davis, Member

The following documentary evidence  pertaining  to  Docket  Number  BC-2007-
01927 was considered:

    Exhibit A.  DD Form 149, dated 22 May 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRRP, dated 12 Jul 07, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 17 Aug 07.




                                             LAURENCE M. GRONER
                                             Panel Chair