RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

      IN THE MATTER OF:            DOCKET NUMBER:  BC-2007-02812
            INDEX CODE: 110.00
XXXXXXX                           COUNSEL:  NONE
                                   HEARING DESIRED:  YES

________________________________________________________________

APPLICANT REQUESTS THAT:

She receive Reserve retired pay and benefits upon reaching the age of 60.
_________________________________________________________________

APPLICANT CONTENDS THAT:

Her severance pay is being recouped by the Department of  Veterans  Affairs
(DVA); therefore, she should be eligible for the “gray area” retirement she
earned effective 1 March 2002.  She became eligible  for  the  “gray  area”
retirement effective 1 March 2002, which she  is  being  denied.   She  was
hoping to obtain 20 years of active service for a retirement but  after  18
years of service she became disabled and was separated with severance  pay.
Her unit’s interpretation was that severance pay bought out her  retirement
benefits.  She receives DVA disability benefits; however, her severance pay
is being recouped by the DVA.  Since she is  paying  back  the  money,  she
believes she should be eligible for the “gray area” retirement  she  earned
effective 1 March 2002.

In support of her request, the applicant submitted  a  memorandum  from  HQ
ARPC/DPPR and special order number P-067.

Her complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 25 October 1979, the applicant enlisted in the Regular Air Force.

She completed the service requirements for Reserve retired  pay  under  the
provision of Title 10, United States Code (U.S.C.), in 2002 and was  issued
a Notification of Eligibility for Retired Pay at age 60 letter  on  4  June
2002.  According to Title 10, once a person  has  completed  the  years  of
service required for eligibility for retired pay, the person’s  eligibility
for retired pay may not be denied or revoked on  the  basis  of  an  error,
miscalculation, misinformation,  or  administrative  determination  of  the
years of service performed unless it resulted directly from  the  fraud  or
misrepresentation of the person.

A Medical Evaluation Board (MEB) convened  and  referred  her  case  to  an
Informal Physical Evaluation Board (IPEB).  The IPEB found  her  unfit  for
further military service and recommended a combined compensable  rating  of
10%.  Because the applicant had over 20 years of satisfactory  service  she
had the option of electing to be discharged with severance  pay  or  to  be
placed on the Reserve Retired list awaiting pay at  age  60.   She  elected
discharge with severance pay.

On 6 March 2006, she was discharged in the grade of technical sergeant  for
Medical Disqualification with severance pay.

She served a total of 18 years and 3 days on active duty.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ ARPC/DPP recommends denial.  DPP  states  the  applicant  was  medically
disqualified for military service in 2006.  In accordance  with  Title  10,
U.S.C, Sections 1206 and 1209, the applicant  could  either  be  discharged
with entitlements to disability severance  pay,  or  if  eligible,  request
transfer to the Inactive Status List Reserve Section (ISLRS) and apply  for
pay at age 60.  Since the applicant  had  over  20  years  of  satisfactory
service, she was eligible to  transfer  to  ISLRS  and  apply  for  Reserve
retired pay at age 60; however, she elected discharge with  severance  pay.
DPP cannot  comment  on  the  DVA’s  procedures  for  recouping  disability
severance pay from the applicant’s DVA disability  compensation.   DPP  can
only confirm that DVA disability  and  Reserve  retired  pay  are  separate
programs and are governed by separate laws.  The issue of the DVA recouping
the disability severance pay from her DVA disability compensation does  not
change the fact that the applicant chose to accept disability severance pay
in lieu of Reserve retired pay.  The applicant had  the  option  of  taking
disability severance pay or waiting until  age  60  to  apply  for  Reserve
retired pay.  The applicant elected and received disability  severance  pay
under the provision of Title 10, U.S.C., Section 1206.  Since there  is  no
provision of law that allows a member to accept both  disability  severance
pay and Reserve retired pay, she is not eligible to apply for  and  receive
Reserve retired pay under the provision of Title 10, U.S.C., Section 12731.

The complete DPP evaluation, with attachments, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded stating it is her understanding she is being denied
Guard benefits because she chose to accept severance pay after she incurred
a disability while on active service.  She did not choose to separate  from
service but was forced out.  At the time of her  separation,  she  was  not
offered the option of waiting until age 60 to  apply  for  Reserve  retired
pay.  According to the personnel advisors, she would be paid severance  pay
due to disability from active duty.  However she had already earned a Guard
retirement.  After she started receiving DVA disability, the  DVA  notified
her they would be recouping the entire disability severance.   This  brings
her back to the original question, if  she  has  to  repay  the  disability
severance in its entirely to the DVA,  then  why  would  awarding  her  the
retirement she earned be considered double dipping.  Had she been  able  to
finish two more years and receive an active retirement, she would have also
been eligible to receive VA disability.  She has written  her  senator  and
the Secretary of the Air Force on this same issue.  All  she  has  received
was a phone call apologizing for the oversight and asking her to return the
money then she could receive a Reserve  retirement.   She  was  paying  her
mortgage and bills with the money.  As a 45 year old  woman  crippled  with
arthritis after serving years in the Security Forces, she had to go through
a tremendous learning  curve  in  civilian  life.   She  is  certainly  not
eligible to work in a compatible civilian  field.   She  believes  she  was
being forced/bought out of her active contract.  It was  her  understanding
based on counseling she received she should also be  eligible  for  Reserve
retirement.  It was not until months later, someone called  asking  her  to
return the severance she was paying bills with  in  order  to  receive  the
retirement she had earned four  years  earlier.   She  understands  she  is
probably one of the few people these circumstances would apply to.

The applicant's complete response, with attachments, is at Exhibit D.

_________________________________________________________________

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 an error  or  injustice.   The  applicant  is  requesting  her
election for discharge with severance pay  be  changed  to  show  that  she
instead elected placement on the Reserve retired list, eligible to  receive
retired pay upon reaching the age of 60.  It appears that the basis for her
request is driven by the DVA's offset of the  severance  pay  she  received
from her DVA disability compensation payments.  However, we  are  compelled
to  note  that  favorable  consideration  of  her  request,  would  require
recoupment  of  the  severance  pay  as  well,  leaving  her  in  the  same
predicament she now finds herself in.  Notwithstanding the above,  we  find
no error in this case, and after  careful  consideration  of  the  evidence
presented, are not persuaded that the DVA's  recoupment  of  her  severance
pay, as required by law, constitutes an injustice.  Further, we do not find
her uncorroborated assertion of miscounseling  sufficiently  persuasive  to
make a determination that an injustice exists in this case.  Therefore,  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.  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 issues 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 AFBCMR Docket Number  BC-2007-
02812 in Executive Session on 6 February 2008, under the provisions  of  AFI
36-2603:

              Mr. Thomas S. Markiewicz, Chair
              Ms. Mary Jane Mitchell, Member
              Ms. Marcy C. Puckett, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 30 August 2007, w/atchs.
    Exhibit B.  Letter, ARPC/DPP, undated.
    Exhibit C.  Letter, SAF/MRBR, dated 7 December 2007.
    Exhibit D.  Letter, Applicant, dated 15 December 2007.




                                             THOMAS S. MARKIEWICZ
                                        Chair