RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

      IN THE MATTER OF:            DOCKET NUMBER:  BC-2007-03171
            INDEX CODE: 110.00
XXXXXXX                           COUNSEL:  NONE
                                   HEARING DESIRED:  NO

________________________________________________________________

APPLICANT REQUESTS THAT:

1.  He be retained on orders from 25 December 2006 to 13  April  2007,  the
Physical Evaluation Board (PEB) completion date.

2.  He be awarded full active duty pay for the period 25 December  2006  to
13 April 2007.

3.  His records be corrected to show he was retired by reason of a physical
disability, rather than a voluntary length of service retirement.

_________________________________________________________________

APPLICANT CONTENDS THAT:

On 30 September 2006, he was diagnosed with prostate cancer.  He received a
line of duty determination (LOD), was placed on medical  hold,  and  had  a
radical prostatectomy on 16 November  2006  at  Walter  Reed  Army  Medical
Center.  His primary care manager, filed for  a  Medical  Evaluation  Board
(MEB) while he was recuperating  in  the  Washington,  DC  area.   The  MEB
process was ongoing when he returned  to  his  home  station  in  Gulfport,
Mississippi prior to his discharge from active duty and retirement from the
Mississippi Air National Guard.  His case was found to have merit  and  was
forwarded to Randolph Air Force Base, Texas (RAFB).  On 13 April  2007,  he
was advised the PEB at RAFB had recommended  permanent  retirement  with  a
disability rating of 40% in accordance with Veteran Administration Schedule
for Rating Disabilities guidelines.  Although the PEB ruled he was eligible
for 40% disability, no acknowledgment or  compensation  has  been  included
within the pay system.  Frustrated with the lack of results from  his  home
unit he met with the personnel superintendent for assistance with  starting
his retirement pay and correcting his DD Form 214.  He  waited  until  June
2007 to work these issues because he  was  under  the  impression  the  PEB
findings had been sent to the Retirement and Separation  Division  and  his
case was being worked.  During this meeting, the  personnel  superintendent
indicated he should have been kept on active duty pending the  findings  of
the PEB; which would have given him the opportunity to  address  retirement
issues and disability pay, as well as correct mistakes on his DD Form  214.
The personnel superintendent questioned the timing  of  his  discharge  and
retirement since he  had  not  received  the  findings  of  the  PEB.   The
personnel superintendent contacted his home unit (personnel  section)  with
his concerns.  The home unit  told  the  personnel  superintendent  he  was
adamant about retiring at age 60.  The personnel superintendent thought  he
may not want to pursue retention due to the distractions  of  his  prostate
cancer surgery and complications in his recovery period.  Contrary  to  the
information given to the personnel superintendent  by  his  home  unit,  he
asked his home unit before and after surgery about his options to remain on
active duty pending the results of his surgery and the findings of the PEB.
 In those discussions with his home unit he referenced a  letter  from  the
Air Force stating "any points accrued on or after the 60th  birthday  would
not be credited toward retired pay."  The implication of the  letter  makes
it clear that, under some circumstances, personnel have been kept on active
duty after their 60th  birthday.   His  home  unit  failed  to  inform  him
retention was possible  while  the  PEB  was  ongoing  and  stated  he  was
ineligible for retention due to his age.  He  accepted  the  discharge  and
retirement in December 2006, mistakenly believing  that  he  had  no  other
options.  It is now obvious he could have and should have been retained  on
active duty until the review of the  PEB  was  complete  and  the  findings
incorporated into his retirement compensation.

In support of his request, the applicant submits a personal letter,  copies
of his DD Form 214, Special Orders, awards and decorations  correspondence,
AF  Form  356,  Findings  and  Recommended  Disposition  of  USAF  Physical
Evaluation Board, his Reserve Order and a HQ ARPC/DPS Memorandum.

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

_________________________________________________________________

STATEMENT OF FACTS:

On 25 May 1965,  the  applicant  enlisted  in  the  Regular  Navy  and  was
discharged on 4 July 1968.  On 5 July 1968 he enlisted in the Navy  Reserve
and was honorably discharged 29 Jan 1974.

On 20 August 1978 he enlisted in the Air National Guard.

On 26 September 2006, he received a letter  from  HQ  AFPC/DPS  stating  he
would turn 60 on  27  December  2006  and  regulations  did  not  authorize
continued participation after age 60.

On 30 September 2006, he was diagnosed with prostate cancer and underwent a
radical prostatectomy at Walter  Reed  Army  Medical  Center.   A  MEB  was
initiated and his case was referred to the PEB for a determination  of  his
fitness to serve.

On 27 December 2006, he was retired in the grade of senior master sergeant.

On 9 April  2007,  the  PEB  recommended  medical  retirement  with  a  40%
disability rating.  Because his retirement was executed  in  December  2006
for length of service, all previous actions to medically  retire  him  were
discontinued.
He served a total of 33 years, 4 months and 6 days of satisfactory service.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPD recommends denial.  DPPD states a review  of  the  applicant's
military personnel records reveals he underwent a medical board at  Andrews
Air Force Base on 20 February 2007, two months after  being  retired.   The
Informal PEB (IPEB)  reviewed  his  case  9  April  2007,  and  recommended
permanent retirement with a 40% disability  rating  for  the  diagnosis  of
urinary incontinence.  The IPEB also noted his prostate  cancer  and  sleep
apnea were  unfitting,  but  were  not  yet  compensable  or  ratable.   He
concurred with the findings on 13 April 2007.  When  DPPD  requested  point
verification from his military personnel flight, they were informed he  had
retired.  Therefore, he was ineligible to have his  case  continue  through
the disability evaluation system (DES) and the process was  stopped.   DPPD
indicates he was retired from the Mississippi Air National  Guard  and  was
not eligible to undergo a medical board.

The complete DPPD evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded  to  the  applicant  on  4
January 2008 for review and comment within 30 days.  As of this date,  this
office has received no response (Exhibit D).

_________________________________________________________________

BCMR MEDICAL CONSULTANT EVALUATION:

The BCMR Medical consultant recommends approval.   The  Medical  Consultant
states enlisted  members  who  undergo  an  MEB  within  12 months  of  the
mandatory retention control point or the expiration  of  obligated  service
are presumed fit for duty, unless overcome by compelling medical  evidence,
usually a grave illness/injury or acute  worsening  of  a  chronic  medical
condition, that would preclude further military service, were  it  not  for
the members mandatory separation or retirement date.   In  the  case  under
review, he was approaching the final four months of  his  military  service
when, on 30 September 2006, he was diagnosed  with  prostate  cancer.   The
Medical Consultant is of the opinion that his clinical  diagnosis  and  the
sequelae of his treatment met the qualifications outlined under  Department
of Defense instruction 1332.38,  Presumption  of  Fitness,  for  a  medical
condition that indeed overcame the presumption of  his  fitness  to  serve.
Therefore, he should have been placed on medical hold until the  completion
of the review of his case by  the  Military  Disability  Evaluation  System
(MDES), which would have included the time needed to accomplish the MEB and
the subsequent fitness determination by a PEB.  Indeed, upon receipt of his
case, the IPEB found him unfit and recommended permanent retirement with  a
40% disability rating on or about 9 April 2007; a day after  which  he  had
already been retired  without  the  initial  knowledge  of  his  disability
evaluators.  It is likely that since his definitive care took  place  at  a
location (Walter Reed Army Medical Center)  remote  from  a  servicing  Air
Force installation (Andrews Air Force Base), inappropriate lapses  in  time
or  delays  in  the  transmittal  of  critical  time-sensitive  information
occurred between the two organizations, which contributed to his  premature
release from military service.  Although the  decision  by  the  Air  Force
Disability Division to halt  all  disability  related  actions  was  deemed
appropriate,  the  circumstances  surrounding  his  retirement  warrants  a
different stance.  Specifically, had his MEB/PEB processing been  completed
in a timely manner, and had appropriate communication taking place  between
his treating healthcare providers and his  parent  organization,  he  would
have likely been retained on medical hold until  resolution  of  his  case.
The Medical Consultant is of the opinion that he should have been given the
opportunity to accept a medical retirement with a 40% disability rating, in
lieu  of  a  length  of  the  service  retirement,  along  with   favorable
consideration for receiving basic payments for the  intervening  period  of
time he would have been extended on active duty status while  awaiting  the
final disposition of this case.

The complete BCMR Medical Consultant opinion is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF BCMR MEDICAL CONSULTANT EVALUATION:

A copy of the evaluation was forwarded to the applicant on 7 March 2008 for
review and comment within 30 days.   As  of  this  date,  this  office  has
received no response (Exhibit F).

_________________________________________________________________

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 warrating  corrective  action.   In  this
regard, after our review of the evidence before us and noting in  particular
the evaluation prepared by the BCMR  Medical  Consultant,  it  appears  that
during the time period in question, the applicant should have been  retained
on active duty orders through the duration of his DES processing.   However,
due to missed communications  caused  through  no  fault  of  his  own,  the
applicant was inappropriately separated, denied an opportunity  to  complete
his DES processing and denied the opportunity to choose  between  disability
retirement or length of service retirement.   Accordingly,  we  concur  with
the recommendation of the BCMR Medical Consultant and recommend his  records
be corrected to the extent indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS:

The pertinent military records of the Department of the Air Force relating
to APPLICANT be corrected to show that:

            a.  He was not discharged  from  the  Mississippi  Air  National
Guard on 25 December 2006, but continued to serve on active  duty  with  the
201st MSS, Andrews AFB, MD.

            b.  On 9 April 2007 he was found unfit to perform the duties  of
his office, rank,  grade,  or  rating  by  reason  of  physical  disability,
incurred while he was entitled to receive basic pay; that the  diagnosis  in
his case was urinary  incontinence  VASRD  7527,  rated  at  40%;  that  the
compensable  percentage  was  40%;  that  the  degree  of   impairment   was
permanent; that the disability was not  due  to  intentional  misconduct  or
willful neglect; that the disability was not incurred  during  a  period  of
unauthorized absence; and that the disability was not received in  the  line
of  duty  as  a  direct  result  of  armed  conflict   or   caused   by   an
instrumentality of war.

            c.  On 13 April 2007, he was  honorably  discharged  and  on  14
April 2007, he was retired  by  reason  of  physical  disability  under  the
provisions of AFI 36-3212.

_________________________________________________________________

The following members of the Board  considered  BC-2007-03171  in  Executive
Session on 6 May 2008, under the provisions of AFI 36-2603:

                 Ms. Kathleen F. Graham, Panel Chair
            Mr. Vance E. Lineberger, Member
            Mr. Don H. Kendrick, Member

All members voted to correct the records, as recommended.   The  following
documentary evidence pertaining to AFBCMR Docket Number BC-2007-03171  was
considered:

  Exhibit A.  DD Form 149, dated 25 September 2007, w/atchs.
  Exhibit B.  Applicant's Master Personnel Records.
  Exhibit C   Letter, AFPC/DPPD, dated 31 October 2007, w/atchs.
  Exhibit D.  Letter, SAF/MRBR, dated 14 September 2007.
  Exhibit E   Letter, BCMR Medical Consultant, dated 31 October 2007.
  Exhibit F.  Letter, SAF/MRBR, dated 7 March 2008.




            KATHLEEN F. GRAHAM
            Panel Chair






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Office Of The Assistant Secretary


AFBCMR BC-2007-03171




MEMORANDUM FOR THE 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 that:

            a.  He was not discharged  from  the  Mississippi  Air  National
Guard on 25 December 2006, but continued to serve on active  duty  with  the
201st MSS, Andrews AFB, MD.

            b.  On 9 April 2007 he was found unfit to perform the duties  of
his office, rank,  grade,  or  rating  by  reason  of  physical  disability,
incurred while he was entitled to receive basic pay; that the  diagnosis  in
his case was urinary  incontinence  VASRD  7527,  rated  at  40%;  that  the
compensable  percentage  was  40%;  that  the  degree  of   impairment   was
permanent; that the disability was not  due  to  intentional  misconduct  or
willful neglect; that the disability was not incurred  during  a  period  of
unauthorized absence; and that the disability was not received in  the  line
of  duty  as  a  direct  result  of  armed  conflict   or   caused   by   an
instrumentality of war.

            c.  On 13 April 2007, he was  honorably  discharged  and  on  14
April 2007, he was retired  by  reason  of  physical  disability  under  the
provisions of AFI 36-3212.





  JOE G. LINEBERGER

  Director

  Air Force Review Boards Agency