RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2008-01126
                       INDEX CODE:  107.00
                       COUNSEL:  AMERICAN LEGION
                       HEARING DESIRED:  NOT INDICATED

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APPLICANT REQUESTS THAT:

1.  His time spent on the Temporary Disability Retired List  be  counted  as
creditable service

2.  His disabilities be classified as permanent.

3.  His Hepatitis C be added to his disability rating.

4.  He receive promotion consideration from  technical  sergeant  (TSgt)  to
master sergeant (MSgt).

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APPLICANT CONTENDS THAT:

He was placed on the Temporary Disability Retired List (TDRL) in  June  1970
and was given Special Orders to go home,  remain  there  and  await  further
orders in connection with all medical assignments.

His disability is permanent due  to  the  paralysis  of  external  popliteal
nerve, leg muscle injury, GRP VII muscle  from  external  condition  of  the
humerus and chest muscle impairment.  He contracted Hepatitis C due  to  the
blood transfusions he received.

In support of his appeal, applicant submitted documents extracted  from  his
military personnel and medical records.

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

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STATEMENT OF FACTS:

On 12 Sep 52,  the  applicant  contracted  his  initial  enlistment  in  the
Regular Air Force.  He was progressively promoted to the grade of  technical
sergeant having assumed the grade effective and with a date  of  rank  of  1
Jun 66.

The applicant underwent a Medical Evaluation Board on 3 Jun 70 for  injuries
he sustained in a June 1969 rocket attack while  serving  in  Vietnam.   His
case was referred to a Physical Evaluation Board (PEB) for  a  determination
of his fitness to continue to serve.  The PEB diagnosed the  applicant  with
bilateral  comminuted  fracture  of  the  tibia.   The  PEB  determined  the
applicant would be placed on the Temporary Disability  Retired  List  (TDRL)
with a disability rating of  40  percent.   On  15  Jun  70,  the  applicant
concurred with the findings of the PEB.

The applicant was released from active duty and placed on the TDRL on 9  Jul
70 in the grade of TSgt.  He served 17 years, 8 months on active  duty.   On
31 Jan 72 and on 30 May 73, he was reevaluated.   The  PEB  recommended  the
applicant be permanently retired with a 40 percent disability rating.  On  3
Jul 73, he was removed from the TDRL  and  permanently  retired  with  a  40
percent disability rating.

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AIR FORCE EVALUATION:

AFPC/DPSD recommends denial of the applicant's request to  amend  or  change
his DD Form 214.  DPSD states the purpose of the DD Form 214 is  to  show  a
service member’s active duty time.  The  time  spent  on  the  TDRL  is  not
active duty time.  When a service member is removed from the TDRL a  new  DD
Form 214 is not  issued.   The  service  member  receives  a  special  order
indicating their final status.  The special order becomes a  permanent  part
of the military personnel file and can be attached to the DD Form 214.

AFPC/DPSD’s complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant states that Title 37 reflects time spent on the TDRL could  be
counted as creditable service.  Title 37  also  states  that  an  individual
absent from  duty  to  awaiting  orders  pending  disability  retirement  is
entitled to pay and allowances.  According to US  vs.  Stevenson,  being  on
the TDRL is a temporary assignment not a permanent  separation  from  active
duty.  The Department of  Defense  (DOD)  directive  reflects  that  members
recommended for placement on the TDRL should be afforded the opportunity  to
elect disability separation or apply for retirement for length of service.

The evaluation did not  address  his  contention  that  his  records  should
reflect his  disabilities  were  permanent,  severe  and  disabling.   While
hospitalized he was eligible to take the test for master sergeant.   He  was
told that he would be retired and there was no need  for  him  to  take  the
test.  He should have been afforded  the  opportunity  to  test  for  master
sergeant and be retired at a higher pay grade (Exhibit E).

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AFBCMR MEDICAL CONSULTANT EVALUATION:

The AFBCMR Medical Consultant recommends  denial.   The  Medical  Consultant
states that a former service  member's  eligibility  for  prosecution  by  a
court-martial while in TDRL status does not  serve  as  validation  for  the
time spent in TDRL as creditable years  for  military  service.   The  clock
stopped on computing his creditable service at the time he was removed  from
active duty and placed on the TDRL.  The  Medical  Consultant  believes  the
term "while" in the extracted paragraph  of  United  States  Code  Title  3,
Chapter  3,  Section  205  submitted  by  the  applicant  was  intended   to
acknowledge that a service member receives pay while on the  TDRL,  but  not
as an indicator of continuation of creditable military  service.   In  order
for the applicant's Hepatitis C to be considered in  the  disability  rating
computation, it must  have  interfered  with  his  ability  to  perform  his
military duties to the extent that it could  have  independently  cut  short
his military career.  His Hepatitis C was included in  the  MEB  proceeding;
however, it was not found to unfitting upon a review by the PEB.

The AFBCMR Medical Consultant’s complete evaluation is at Exhibit F.

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APPLICANT'S REVIEW OF AFBCMR MEDICAL CONSULTANT EVALUATION:

A copy  of  the  additional  Air  Force  evaluation  was  forwarded  to  the
applicant on 19 Sep 08, for review and comment within 30 days.  As  of  this
date, no response has been received by this office.

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AFRBA LEGAL ADVISOR EVALUATION:

The Air Force Review Boards Agency (AFRBA) Legal Advisor recommends  denial.
 The Legal Advisor states the applicant's service was  correctly  calculated
under the  governing  federal  statutes  and  Department  of  Defense  (DOD)
instructions.  There is a difference between service credited  for  pay  and
service credited for retirement.  Although time on the TDRL  may  count  for
pay  under  Title  37,  Title  10  provided  guidance  for  computation   of
disability retirement or separation.  The  applicant's  assertion  that  the
Title 37 provisions he provided make  it  clear  that  he  should  be  given
retirement credit for the time spent on the TDRL is incorrect  as  a  matter
of statutory analysis.  Regarding  his  argument  that  the  DoD  disability
instruction authorizes credit towards retirement, the Legal  Advisor  states
that the quoted provision merely states that a member found medically  unfit
who has the required number of years for  retirement  may  chose  length  of
service retirement instead  of  medical  separation,  or  placement  on,  or
removal from, the TDRL.  The applicant was not eligible for promotion  while
on the TDRL and was not on a promotion list at the time of placement on  the
TDRL and his request for promotion to  a  higher  grade  should  be  denied.
(Exhibit H).

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy  of  the  additional  Air  Force  evaluation  was  forwarded  to  the
applicant on 5 Nov 08, for review and comment within 30 days.   As  of  this
date, no response has been received by this office.

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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 an injustice.  We took notice  of  the  applicant's
complete submission in judging the merits of the case; however, we  are  not
persuaded by the applicant's  uncorroborated  assertions  that  his  service
dates were not properly computed or credited.  Our review  of  the  evidence
of record revealed no errors that occurred in  his  processing  through  the
disability evaluation  system  or  evidence  that  his  Hepatitis  condition
rendered him unable to  perform  duties  commensurate  with  his  grade,  as
required for a determination of unfitness.  Additionally, evidence  has  not
been presented showing that he was eligible for promotion during the  period
in question or that he was improperly denied an opportunity to  compete  for
promotion.  Therefore, we agree with the opinions  and  the  recommendations
of the Air Force  office  of  primary  responsibility,  the  AFBCMR  Medical
Consultant, and the AFRBA Legal Advisor and adopt the rationale provided  as
basis for our conclusion the applicant  failed  to  sustain  his  burden  of
proof of the existence of  an  error  or  injustice.   Accordingly,  in  the
absence of evidence  to  the  contrary,  we  find  no  compelling  basis  to
recommend granting the relief sought in this application.

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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.

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The following members of the Board considered AFBCMR Docket Number  BC-2008-
01126 in Executive Session on 6 Jan 09, under  the  provisions  of  AFI  36-
2603:

                       Mr. Thomas S. Markiewicz, Chair
                       Ms. Audrey Y. Davis, Member
                       Mr. Grover L. Dunn, Member

The following documentary evidence pertaining to AFBCMR  Docket  Number  BC-
2008-01126 was considered:

      Exhibit A. DD Form 149, dated 21 Mar 08, w/atchs.
      Exhibit B. Applicant’s Military Personnel Records.
      Exhibit C. Letter, AFPC/DPSD, dated 28 May 08.
      Exhibit D. Letter, SAF/MRBR, dated 11 Jul 08.
      Exhibit E. Letter, Applicant, dated 30 Jul 08.
      Exhibit F. Letter, AFBCMR Medical Consultant, dated 27 Aug 08.
      Exhibit G. Letter, SAF/MRBR, dated 19 Sep 08.
      Exhibit H. Letter, SAF/MRB Legal Advisor, dated 30 Oct 08.
      Exhibit I. Letter, SAF/MRBC, dated 5 Nov 08.




                             THOMAS S. MARKIEWICZ
                             Chair