RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-03438
		COUNSEL:  NONE
		HEARING DESIRED:  NO

________________________________________________________________

THE APPLICANT REQUESTS THAT:

His discharge with disability severance pay be changed to a 
Reserve retirement.  

________________________________________________________________

THE APPLICANT CONTENDS THAT:

He was not properly advised of his choices of either getting a 
Reserve retirement or being discharged with severance pay.

He received no counseling, legal or otherwise, as to which 
choice to make and no one on the base knew what the discharge 
with severance pay represented.

His condition of Post-Traumatic Stress Disorder (PTSD) had him 
confused, mildly suicidal and unable to make rational decisions. 

He chose the most expedient short term remedy and took the 
$143,000.00, which was the wrong choice; however, it was not 
explained to him that it would cost him his retirement.

No rational individual would have made that choice.

Since he has waived his disability separation with severance pay 
and accepted 100 percent disability with the Department of 
Veterans Affairs (DVA), the DVA is now recouping the 
$143,000.00.

In support of his appeal, the applicant provides personal 
statements and an email communique from AFPC/DPPDS, dated 16 May 
01.

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

________________________________________________________________

STATEMENT OF FACTS:

Based on the available records, on 28 Sep 99, the applicant’s 
Line of Duty Determination (LOD) was finalized as “In the Line 
of Duty.”

On 5 Jun 01, the applicant was discharged with entitlement to 
disability severance pay, with a compensable disability rating 
of 20 percent.  He was credited with 29 years, 2 months, and 
29 days of service for pay.

The applicant’s Date of Birth (DOB) is 28 Sep 44.  

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THE AIR FORCE EVALUATION:

ARPC/DPTT recommends denial, stating, in part, that the 
applicant claims he was not aware of the repercussions 
associated with accepting discharge with severance pay versus 
receiving retired pay at age 60.  The ARPC Retirement Branch has 
no way of knowing what guidance he received but receipt of 
discharge with severance pay prohibits entitlement to military 
retired pay.  

The applicant accumulated 6,417 total retirement points and 
completed 29 years, 2 months, and 21 days of satisfactory 
Federal service to be eligible for Reserve retirement pay under 
the provision of Title 10, United States Code (U.S.C.), Section 
12731.  He was given the option to be transferred to the Retired 
Reserve awaiting retirement pay at age 60 or be discharged with 
disability severance pay.  

The applicant was discharged from the United States Air Force 
Reserve, effective 5 Jun 01, under the provision of Title 
10, U.S.C., Section 1203 with entitlement to discharge with 
severance pay computed in accordance with Title 10, U.S.C., 
Section 1212.  

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

AFPC/DPFD recommends denial, stating, in part, that the 
applicant has failed to provide adequate evidence to support his 
contention that an error or injustice occurred during the 
disability process or time of separation.

Based on information obtained from the Military Personnel Data 
System (MilPDS), on 11 Apr 01, the Informal Physical Evaluation 
Board (IPEB) reviewed the case and determined that his condition 
was unfitting for continued military service and recommended 
discharge with disability severance pay with a compensable 
rating of 20 percent for PTSD under the Veterans Affairs 
Schedule for Rating Disabilities (VASRD) code 9411.  On 24 Apr 
01, the applicant concurred with the IPEB's recommendation.  He 
did not use his two appeal rights to have his case reviewed by 
the Formal Physical Evaluation Board (FPEB) or the Secretary of 
the Air Force Personnel Council (SAFPC).  A discharge message 
was sent out 16 May 01 which established his Date of Separation 
(DOS) as 5 Jun 01.  

The complete DPFD evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:

He was not aware that he could fight the injustice he has lived 
with for so long.  He has worked very hard over the past year to 
prepare his case for the Board’s review. 

Congress created the Physical Disability Board of Review (PDBR) 
specifically to remedy the injustice of not providing a military 
retirement for those members who were forced out due to having 
combat related PTSD.  He missed the cut off to request his case 
be reviewed by a matter of months based on his DOS, but, 
nonetheless, it does not mitigate the impact of not having the 
right to be a retired officer after serving almost 30 years 
honorably.

ARPC and the Disability Evaluation System (DES) office that 
reviewed his case cannot show proof that he was ever provided 
counseling that he cou1d choose to wait until he was 60 to take 
his retirement and not have to take the severance check instead. 
He was a pilot assigned to an Air National Guard (ANG) base.  
His wing commander told him he had no choice but to take the 
money or get nothing.  He lost his civil service and his 
military career.  Why would he not wait until he was age 60 if 
he only had to wait for five years?  Why would he trade in a few 
years of retirement pay in one severance check instead of 
receiving a steady monthly check for the rest of his life once 
he turned 60?  He had over 6,000 points and 28 years and would 
have never thrown away his retirement.  

He has flashbacks so severe that they manifested as psychosis, 
depression, PTSD, and alcoholism which nearly cost him his 
employment.  He was almost fired because he could not manage his 
emotions around other people; however, he is doing well.

Although seriously struggling, he was able to keep it together 
pretty well at work; however, his home life was a mess.

In an electronic mail (email), dated 21 Nov 13, the applicant 
notes that his records accurately reflects he received severance 
pay/military separation instead of receiving a medical 
retirement.  At the time of his "mustering-out," he was 
suffering from extreme PTSD and was incapable of understanding 
his options.  He was not offered any explanations nor counseling 
as to the significance of his situation.  He was strong-armed 
into signing the paperwork even though he was incapable of any 
logical thought. 

As a West Point graduate with 29 years, 2 months, and 29 days of 
the service in the military; accruing 6,402 points towards a 
military retirement, a tremendous injustice has been perpetrated 
against him and he would like it corrected.  Furthermore, he 
would like to not be required to pay back the severance pay, 
which is currently being deducted from his DVA disability pay.

In further support of his appeal, the applicant provides 
personal statements; copies of medical reports from his civilian 
medical providers and various other supporting documents.

The applicant’s complete response, with attachments, is at 
Exhibit F.

________________________________________________________________

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 an injustice warranting corrective 
action.  Although we find no evidence of an error on the part of 
the Air Force, after careful consideration of the applicant’s 
submission, we believe that based on the applicant’s mental 
state at the time of separation he may have made what appears to 
be a not so well thought out decision.  Although the applicant 
has not submitted substantial evidence showing that he was 
miscounseled, we find it unreasonable that he would forego a 
retirement with almost 30 years of service for disability with 
20 percent severance pay.  Therefore, in the interest of justice 
we recommend his discharge with severance pay be changed to a 
Reserve retirement.  The applicant notes that recoupment action 
has been initiated by the DVA and essentially requests that it 
be remitted; however, according to the law, the applicant is 
subject to recoupment for the entire disability severance pay.  
As such, we find no basis to act on this portion of his request.  
Accordingly, we recommend the applicant's records be corrected 
to the extent 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.  On 5 Jun 2001, he was not discharged with disability 
severance pay but was relieved of his current assignment and on 
6 June 2001, he was transferred to the Air Force Reserve Retired 
List awaiting pay at age 60, under the provisions of Title 10, 
United State Code (USC), Section 12731.

	b.  His election of Reserve Component Survivor Benefit Plan 
option will be corrected in accordance with his expressed 
preferences and/or as otherwise provided for by law or the Code 
of Federal Regulations.

________________________________________________________________

The following members of the Board considered AFBCMR Docket 
Number BC-2013-03438 in Executive Session on 15 May 2014, under 
the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

Although chaired the panel, due to her unavailability, has 
signed as Acting Panel Chair. The following documentary evidence 
was considered:

    Exhibit A.  DD Form 149, dated 15 Jul 13, w/atchs. 
    Exhibit B.  Applicant's Available Master Personnel Records.
    Exhibit C.  Letter, ARPC/DPTT, dated 27 Nov 13, w/atchs.
    Exhibit D.  Letter, AFPC/DPFD, 6 Dec 13.
    Exhibit E.  Letter, SAF/MRBR, dated 10 Jan 14.
    Exhibit F.  Letter, Applicant, 7 Feb 14, w/atchs. 




                                   
                                   Acting Panel Chair