RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2008-04239
            INDEX CODE:  136.01
            COUNSEL:  NONE
            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her discharge be changed to “Retirement.”

_________________________________________________________________

APPLICANT CONTENDS THAT:

She was unfairly prevented from remaining with the Air National Guard  (ANG)
until she was eligible for retirement.  Her request is not one  of  monetary
compensation, but to achieve what has been her goal throughout her  military
career.  She earned the honor and right to retire; however, was deprived  of
it.  On 15 Nov 04, after 19 years of service, she was  medically  discharged
with ten percent disability.  Her discharge  occurred  after  two  years  of
trying to remain in the military while being faced  with  closed  doors,  no
vital unit support and a series of  obstacles,  events  and  decisions  that
undermined her efforts.  During much of that time, she  trusted  and  relied
on the system and the chain of command to  act  in  her  best  interest  and
assist her efforts to the highest degree; however, it was a mistake.

On 4 Dec 02, she  severely  twisted  her  left  knee  while  performing  her
duties.  Over the next year, she was treated by two  different  doctors  who
had differing opinions.  The  first  doctor  prescribed  a  knee  brace  and
placed her on light duty.  Over the next  few  months,  her  knee  began  to
progress for the better; however,  her  doctor  deployed  to  Iraq  for  six
months.  Her new doctor instructed her not to  wear  the  brace  because  he
wanted her to walk on the knee.

When  the  first  doctor  returned  from  his  deployment,  he   immediately
instructed her to put the brace back on.  An MRI  indicated  no  improvement
and  she  was  referred  to  a  sports  medicine  specialist  who  performed
exploratory  surgery  and  determined   reconstructive   surgery   was   not
warranted.  Throughout her treatment, she was  never  removed  from  “world-
wide qualified” status because her injury did not affect her duties.

A year passed and her medical records  were  due  to  go  before  a  Medical
Evaluation Board (MEB) with disposition on 24 Mar 04.  She needed to have  a
questionnaire completed by her  supervisor  during  the  time  in  question;
however, he had recently retired.  Her current  supervisor  (she  was  in  a
different position) wrote a  letter  but  felt  it  was  not  his  place  to
complete the questionnaire.  She asked her former  supervisor’s  replacement
to complete the questionnaire but was informed  that  his  supervisor  would
complete it.  His supervisor had always had a strong  dislike  for  her  and
had  never  supervised  her;  yet,  he  completed  the  questionnaire.    He
misrepresented the extent of her injury and made  several  false  statements
which made her appear unfit for duty.  The discrepancies were noted  by  the
MEB.  She had letters from other supervisors and co-workers to include  with
her package and her request for continued active duty service  was  approved
by the MEB.  However, when the MEB sent their findings  and  recommendations
to the Informal Physical Evaluation Board (IPEB), it was denied and she  was
discharged with ten percent disability and severance pay.

She nonconcurred with the IPEB findings and requested her case  be  reviewed
by the Formal Physical Evaluation Board (FPEB).  She needed her  commander’s
support to continue in military service; however,  she  was  denied  without
reason.   Even  though  her  doctor  had  always  marked  her  as  worldwide
qualified, it was apparent her career field in aircraft maintenance was  the
reason for  her  recommended  medical  discharge.   She  attempted  to  find
another career field that would not aggravate her injury.   The  Maintenance
Operations  Control  (MOC)  supervisor  requested  she  be  assigned  there;
however, her commander informed him nothing could be done until the  medical
board process had been completed.

On 21 Jul 04, the FPEB concurred with the IPEB decision.  She forwarded  her
appeal to the Secretary  of  the  Air  Force  (SECAF);  however,  the  SECAF
concurred with the IPEB and FPEB findings.  On 10 Nov 04, she  was  informed
that she was no longer assigned to the MOC  and  was  escorted  out  of  the
building.  Her discharge was effective on 15 Nov 04.

She has no idea why she  was  refused  help.   She  mistakenly  trusted  her
squadron chain-of-command, which was the  driving  force  behind  her  being
discharged.  As a result, she was deprived  of  the  opportunity  to  retire
from military service.  She cannot give up her life’s goal  and  would  like
to finish her military career and retire.

In  support  of  the  application,  the  applicant  submits  copies  of  her
separation documents, her service history, and a letter.

The applicant's complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant’s medical records are not available; therefore, the  following
information  was  extracted  from  the  documentation   submitted   by   the
applicant.

On 15 Nov 04, the applicant was released from active  duty  for  termination
of her Air Guard Reserve (AGR) military duty tour in the grade of  technical
sergeant.  Block 23 of her NGB Form 22, Report of Separation and  Record  of
Service, Authority and Reason, indicates  she  was  physically  disqualified
for continued service.

She had 19 years and 14 days of total service for pay.

The remaining relevant facts pertaining to this application, extracted  from
the applicant’s military records, are contained in the letters  prepared  by
the appropriate office of the Air Force at Exhibits B.

_________________________________________________________________

AIR FORCE EVALUATION:

FSS/DPM has no recommendation.  DPM  states  the  applicant  was  offered  a
discharge with severance pay of 10 percent under  the  provisions  of  Title
10, USC, section 1203.  She could have been offered  retirement  at  age  60
based on her time in service.  Any member who receives an MEB is briefed  by
the Physical Evaluation Board Liaison  Officer,  the  AFPC’s  medical  board
counsel and the Disability Evaluation system technician.

The applicant’s discharge paperwork was completed, accepted  and  signed  by
her.  If her status is changed to retirement, she could incur a debt due  to
recoupment of disability and severance pay.

The complete DPM evaluation is at Exhibit B.

NGB/A1PS concurs with the comments provided by FSS/DPM.

The complete A1PS evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reiterates much of her earlier contentions  and  asks  if  she
qualifies for a Guard retirement since she has  19  years  and  14  days  of
total service for pay as an Active  Guard  Reserve  (AGR).   She  was  never
given the option to retire because the SECAF determined  she  was  medically
unfit to remain in the USAF.

She includes the medical board findings.

The applicant’s complete submission, with attachments is at Exhibit E.

_________________________________________________________________

BCMR MEDICAL CONSULTANT EVALUATION:

The BCMR Medical Consultant recommends revoking the  applicant’s  separation
action and transferring her to the Retired Reserve with  recoupment  of  the
severance pay disbursement.

While the applicant achieved  at  least  18 satisfactory  years  of  service
towards retirement (19 years and 11 days for pay as shown on  her  NGB  Form
22), had been reassigned to less physically demanding duties, her  commander
took the position that she could no  longer  support  mission  requirements.
Although policies did exist for retaining individuals  who  had  been  found
unfit under Limited Assignment Status, or if found fit, allowed issuance  of
an assignment limitation code and cross-training into  an  alternate  career
field if appropriate; however, there is no indication  in  the  record  that
any of  the  aforementioned  options  were  considered  viable  by  pervious
adjudicative bodies or her chain of command.

The Medical Consultant notes individuals with at least 15, but less than  20
satisfactory years of service  are  eligible  to  transfer  to  the  retired
Reserve (with retired pay upon reaching age 60) if found  unfit/disqualified
for a non-service incurred or aggravated medical condition.  The  Department
of Defense has expanded upon the interpretation of the law and has  extended
eligibility of  individuals  with  service-incurred  or  aggravated  medical
conditions.  It is likely the expanded  policy  interpretation  was  not  in
effect at the time of the applicant’s separation and, thus, would  not  have
been an option available to her.

The Medical  Consultant  finds  no  error  or  injustice  in  the  decisions
rendered by the  previous  PEB  in  2004.   While  there  is  no  proof  the
applicant did not receive counseling on the  option  for  retirement  before
accepting the separation with severance  pay,  even  if  believing  she  had
entered a sanctuary period for achieving 20 years of SAT  SVC,  the  Medical
Consultant opines depriving her of consideration for a retirement under  the
revised policy interpretation of Section 12731b bears the resemblance of  an
injustice.

The complete BCMR Medical Consultant’s evaluation, with  attachment,  is  at
Exhibit F.

_________________________________________________________________

APPLICANT’S REVIEW OF THE BCMR MEDICAL CONSULTANT’S EVALUATION:

The  applicant  concurs  with  the  recommendation  of  the   BCMR   Medical
Consultant.  She understands that should the Board grant her case  based  on
his recommendation, the severance pay  she  received  at  the  time  of  her
discharge will be revoked.

The applicant’s complete submission is at Exhibit H.

Examiner’s Note:  The applicant received severance pay  in  the  approximate
amount of $66,000.  If the Board grants her retirement from  the  Air  Force
Reserve, she would not  receive  retirement  benefits  until  age  60.   The
applicant is 46 years of age.

_________________________________________________________________

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.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of  error  or  injustice.   Although  we  find  no  error  in  the
processing of the applicant’s  discharge,  it  appears  she  may  have  been
improperly counseled regarding all available options for her  retirement  at
age 60.  Also, we note the comments provided by the BCMR Medical  Consultant
referencing her eligibility to transfer to the Retired Reserve  due  to  her
length in  years  of  satisfactory  service.   In  addition,  based  on  the
applicant’s statement, it appears she understands the requirement  to  repay
the disability severance pay and is willing to do so;  thus,  we  feel  that
her status should be changed to retirement. Therefore,  we  agree  with  the
recommendation provided by the BCMR Medical  Consultant  and  conclude  that
her records be corrected as indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

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

      a.   She was not discharged from the New Mexico Air National Guard  on
15 November 2004, with entitlement to Disability Severance pay.

      b.  On 15 November  2004,  competent  authority  found  her  unfit  to
perform military duty by reason of physical disability, not in the  line  of
duty.

      c.  She applied for transfer to the Retired Reserve  effective  on  16
November 2004, eligible  for  Reserve  retired  pay  at  age  60  under  the
provision of Title 10, United States Code (U.S.C.), Section 12731b.

      d.  She is eligible to make an election under  the  Reserve  Component
Survivor Benefit Plan (RCSBP).

_________________________________________________________________

The following members  of  the  Board  considered  AFBCMR  BC-2008-04239  in
Executive Session on 30 Mar 10, under the provisions of AFI 36-2603:

      Vice Chair
      Member
      Member

The following documentary evidence was considered:

      Exhibit A.  DD Form 149, dated 10 Apr 09, w/atch.
      Exhibit B.  Applicant’s Available Personnel Records.
      Exhibit C.  Letter, HQ AFPC/DPSIDR, dated 17 Nov 09.
      Exhibit D.  Letter, SAF/MRBR, dated 11 Dec 09.
      Exhibit E.  Letter, Applicant, dated 22 Dec 09.
      Exhibit F.  Letter, BCMR Medical Consultant, dated 18 Feb 10.
      Exhibit G.  Letter, AFBCMR, dated 24 Feb 10.
      Exhibit H.  Letter, Applicant, dated 14 Mar 10.




                                   Vice Chair
                         DEPARTMENT OF THE AIR FORCE
                               WASHINGTON, DC




AFBCMR BC-2008-04239

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 APPLICANT be corrected to show that:

      a.   She was not discharged from the New Mexico Air National Guard  on
15 November 2004, with entitlement to Disability Severance pay.

      b.  On 15 November  2004,  competent  authority  found  her  unfit  to
perform military duty by reason of physical disability, not in the  line  of
duty.

      c.  She applied for transfer to the Retired Reserve  effective  on  16
November 2004, eligible  for  Reserve  retired  pay  at  age  60  under  the
provision of Title 10, United States Code (U.S.C.), Section 12731b.

      d.  She is eligible to make an election under  the  Reserve  Component
Survivor Benefit Plan (RCSBP).





     JOE G. LINEBERGER

     Director

     Air Force Review Boards Agency






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