RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

      IN THE MATTER OF:            DOCKET NUMBER:  BC-2008-01376
            INDEX CODE: 110.00
XXXXXXX                           COUNSEL:  NONE
                                   HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

He receive reduced Reserve retirement in lieu of discharge  with  severance
pay.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He does not agree with service connected disabilities  and  discharge  with
severance pay laws.  He has over 16 years of service and believes  the  law
needs to be changed.  It is unfair to serve over 16 years and not receive a
reduced Reserve retirement.  He is being forced to take severance  pay  and
this will cause him a financial  burden.   He  has  to  pay  taxes  on  the
severance pay and his 100% Department of Veterans Affairs (DVA)  disability
compensation will be taken away until the severance pay is paid.   He  will
never have a chance to build a retirement and can no longer work  or  serve
his  country  due  to  his  unfitting  conditions.   He  was  not  properly
instructed on the options of severance pay or retirement.   Someone  stated
he was eligible to receive retirement benefits as a  Traditional  Reservist
because of his disability and having over 16 years of service.  He realizes
the DVA and the MEB have  different  rules  for  rating  disabilities,  and
wonders how he can be rated 100% unemployable with the DVA and only 20%  by
the MEB.  Forcing a person to loose a civilian job and military career with
no chance to build a new one should be reviewed.

In support of his request, the applicant submits a personal statement.

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

_________________________________________________________________

STATEMENT OF FACTS:

Data extracted  from  the  Military  Personnel  Data  Systems  reflect  the
applicant enlisted in the Air National Guard on 7 January 1980.

On 16 December 2006, while deployed to Manas AB, Kyrgstan  he  was  treated
for neck and right shoulder injuries.   An  Informal  Line  of  Duty  (LOD)
determination was initiated.
On 25 October 2006, the approval authority determined his medical condition
existed prior to service (EPTS) and was service aggravated.

On 15 January 2008, the Physical Evaluation Board found the applicant unfit
for military service and recommended discharge with severance  pay  with  a
20% compensable rating.

On 31 January 2008, the  Secretary  of  the  Air  Force  Personnel  Council
directed the applicant be separated with severance pay.

On 28 February 2008, he was discharged in the grade of staff sergeant  with
20% severance pay.

He served a total of 5 years, 8 months and 11  days  of  creditable  active
Federal service.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFRC/A1B recommends approval.  A1B  states  Title  10,  U.S.C.,  Section
12731b authorizes retirement with pay at age 60 for members of the Selected
Reserve who no longer meet the qualifications solely because the member  is
unfit because of physical disability not  incurred  in  the  line  of  duty
(ILOD) and the member has completed at least 15 and less than 20  years  of
satisfactory service.  Although the applicant has 16 years of  satisfactory
service, he was not afforded the opportunity to receive retirement with pay
at age 60 under Title 10 because his medical  condition  was  found  to  be
ILOD.   Therefore,  he  received  a  disability  discharge  with  severance
effective 28 February 2008.

The complete A1B evaluation, with attachments, is at Exhibit C.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the  applicant  on  27
June 2008 for review and comment within 30 days.  As of  this  date,  this
office has received no response (Exhibit D).

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

HQ ARPC/JA recommends denial.  JA discusses the  applicable  provisions  of
Title 10 and states the applicant has the requisite years  of  service  and
the medically disqualifying condition does not involve misconduct or  AWOL.
A clear reading of the statute indicates there is  no  distinction  between
ILOD and those EPTS or otherwise not ILOD.  Thus, at this point he seems to
have an entitlement to benefits under the statute.  However, the  title  to
the statute is, “Special rule for members with  physical  disabilities  not
incurred in the  line  of  duty”.   As  asserted  in  the  8  January  2003
memorandum by the Associate Deputy General Counsel, Office of  the  General
Counsel, Department of Defense, “a title may limit the scope  of  an  act,”
which is exactly the effect of “not incurred in the  line  of  duty”.   The
General Counsel memorandum continues with the direction that “DOD policy is
entitled to  deference,  especially  since  DOD  proposed  and  implemented
Section 12731b with the intention of limiting its application  to  selected
reservist disabled while not ILOD  due  to  pre-existing  conditions.”   As
pointed out in the memorandum, the relevance of the statute’s title may  be
up for discussion.  However, the authority of  the  DOD  General  Counsel’s
memorandum is not.  Absent a clear misstatement or  inaccurate  application
of the law,  it  should  be  followed.   Therefore,  JA  concurs  that  the
applicant, having ILOD medical conditions making  him  unfit  for  military
service, is not entitled to benefits under Title 10 U.S.C. 12371b.

The complete JA evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The applicant responded  stating  prior  to  being  released  from  military
orders in November 2006 he had a medical evaluation for a LOD  injury  while
recovering from surgery.  He aggravated a previous neck and shoulder  injury
while deployed.  He returned to his job  in  a  woodworking  mill.   He  was
removed from his job due to pain and limited mobility  and  was  advised  to
avoid performing heavy  repetitive  work.   Afterwards,  he  was  placed  on
incapacitation pay and found unfit for duty.   Documentation  received  from
the informal board stated  he  was  unfit  for  duty  and  would  receive  a
disability discharge.  He concurred with the  findings  but  was  misled  in
believing he could get a retirement in lieu of a disability  discharge  with
severance pay.  He received a 20% rating, however it is incorrect.  The  MEB
stated there was no history of  neck  aggravations  while  deployed  in  the
combat zone.  He has neck and shoulder documentation making  their  findings
incorrect.  He takes numerous  medications  including  Prozac  due  to  post
traumatic stress disorder (PTSD)  and  major  chronic  pain  and  depressive
disorder.  Due to his service connected injuries  he  can  no  longer  work.
He developed high blood pressure and takes medications as a  result  of  his
deployment.  In September 2006, while on active duty, he had surgery on  his
wrist/ulnar nerve and was diagnosed  with  cervical  syrnix  of  the  spinal
cord.  His service connected injuries still exist.  He  requests  retirement
instead of disability severance pay because it will conflict  with  his  DVA
100% unemployed disability rating.  Since  submitting  his  request  he  has
found discrepancies in his records.  He received an  e-mail  in  March  2008
stating he was being discharged 28 February 2008; however he never  received
a phone call.  Finally the applicant asks if  the  military  is  responsible
for injuries or aggravation of a pre-existing condition or a new  injury  if
it occurs while on active duty orders as a reservist?

The complete response is attached at Exhibit G.

_________________________________________________________________

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.   Despite the fact the Chief,  Military
Personnel Division has recommended approval of this request,  evidence  has
not been presented which would lead us  to  believe  that  the  applicant’s
disability processing and the final disposition of his case were  in  error
or contrary to the governing Air Force  regulations,  which  implement  the
law.  Therefore, we agree with the opinion and recommendation of the  Staff
Judge Advocate and adopt its rationale as the basis for our conclusion that
his separation with severance pay was appropriate and he is not entitled to
retirement benefits under the provisions of 10  U.S.C  12731b.   Therefore,
absent a clear misstatement of the law, we  find  no  compelling  basis  to
recommend  granting  the  relief  sought  in  this  application.   We  feel
compelled  to  note  that  the  Disability  Evaluation  System  (DES)   was
established to maintain a fit and vital fighting force,  and  can  by  law,
only offer compensation for those service  incurred  diseases  or  injuries
which specifically rendered a member unfit for  continued  active  service,
were the cause for termination of their  career,  and  then  only  for  the
degree of impairment present at the time of  separation.   Conversely,  the
DVA operates under a separate set of laws and specifically  addresses  long
term medical care, social support and educational assistance.  The  DVA  is
chartered to offer compensation and care to all eligible veterans  for  any
service-connected disease or  injury  without  regard  to  whether  it  was
unfitting for continued military service.  Thus the two systems represent a
continuum of medical care and  disability  compensation  that  starts  with
entry on to active duty and extends for the  life  of  the  veteran,  which
explains disparity between the ratings assigned by the Service and the DVA.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of an 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-2008-
01376 in Executive Session on 29 January 2009, under the provisions  of  AFI
36-2603:

                 Mr. Wayne R. Gracie, Panel Chair
                 Mr. Alan A. Blomgren, Member
                 Mr. Mark J. Novitski, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 5 April 2008, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C   Letter, AFRC/A1B, dated 18 June 2008, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 27 June 2008.
    Exhibit E.  Letter, AFRC/JA, dated 15 September 2008.
    Exhibit F.  Letter, SAF/MRBR, dated 23 September 2008.
    Exhibit G.  Letter, Applicant, dated 5 October 2008.




            WAYNE R. GRACIE
            Panel Chair