RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2008-00572
INDEX CODE: 108.00
COUNSEL: NONE
HEARING DESIRED: NO
________________________________________________________________
_
APPLICANT REQUESTS THAT:
His records be corrected to reflect that he was medically
retired rather than discharged.
________________________________________________________________
_
APPLICANT CONTENDS THAT:
The Veterans Administration raised his disability percentage
from 30% to 50%. At the time he separated, there was no medical
retirement available for a guard member. He was told it would
be useless for him to pursue a medical disqualification and that
it would be easier for him to resign. The Air National Guard
(ANG) now has a retirement for medically disqualified members
who have at least 15 years of satisfactory service. As he has
over 17 years of service, he feels his records should be changed
to reflect a medical retirement.
In support of his appeal, the applicant has provided a copy of
the Department of Veterans Affairs (DVA) Rating Decision.
Applicants complete submission is attached.
________________________________________________________________
_
STATEMENT OF FACTS:
The applicant is a former member of the West Virginia Air
National Guard (WVANG), the Air Force, and the Marine Corps.
________________________________________________________________
_
AIR FORCE EVALUATION:
This application was sent to the NGB on 5 February 2008 for an
advisory opinion on the merits of the case. They have thus far
failed to provide one.
________________________________________________________________
_
THE BOARD CONCLUDES THAT:
1. The applicant has not 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 note that the applicant has not provided
any evidence to support his request for relief such as personnel
records that show his length of service or discharge
documentation that might support his claim. Additionally, the
applicant has not provided evidence showing he was treated for
an injury or disability of any type while he was a service
member nor has he shown that he was being considered by the ANG
for Disability Evaluation System (DES) processing prior to his
discharge. While the DVA has granted him a percentage of
disability, we note that the DVA is governed by Title 38, United
States Code (USC) and those active service members being
considered for disabling conditions are considered under Title
10, USC. The two systems are separate and unique. As he has
been correctly considered under Title 38 by the DVA and has not
shown by a preponderance of the evidence that he either was or
should have been considered for DES processing under Title 10
while he was an active service member, we find no basis to
recommend granting the relief requested.
________________________________________________________________
_
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 BC-2008-00572 in
Executive Session on 15 April 2009, under the provisions of AFI
36-2603:
XXXXXXXXXXXXXXX, Chair
XXXXXXXXXXXXXXX, Member
XXXXXXXXXXXXXXX, Member
The following documentary evidence with regard to AFBCMR Docket
Number BC-2008-00572 was considered:
Exhibit. DD Form 149, dated 5 February 2008, w/atch.
XXXXXXXXXXXXX
Chair
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