RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2013-04794
COUNSEL: NONE INDICATED
HEARING DESIRED: NO
APPLICANT REQUESTS THAT:
Her disability retirement be changed to a retirement under the Temporary Early Retirement Authority (TERA).
APPLICANT CONTENDS THAT:
She became aware of her eligibility for retirement under TERA upon receiving a service connected 50% disability rating from the Department of Veterans Affairs (DVA). At the time of her separation, she should have received the same retirement benefit privileges as given to other service members that retired under TERA. However, she was offered a permanent discharge and retirement with a 40% disability rating. She served honorably and would have remained serving twenty years or more, but due to having arthritis and the military offering an early out she elected to accept the permanent disability retirement.
The applicants complete submission, with attachments, is at Exhibit A.
STATEMENT OF FACTS:
The applicant initially entered the Regular Air Force on 11 Jun 76.
On 30 Jun 94, the Secretary of the Air Force directed the applicant be permanently retired under the provisions of 10 USC § 1201, Regulars and members on active duty for more than 30 days: retirement.
On 29 Aug 94, the applicant was released from active duty and was permanently retired for physical disability in the grade of master sergeant, with a 40 percent compensable disability rating, effective 30 Aug 94. She was credited with 18 years, 2 months, and 19 days of total active service.
The remaining relevant facts pertaining to this application are described in the letter prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.
AIR FORCE EVALUATION:
AFPC/DPSOR recommends denial. The applicant was not eligible to apply for retirement under the TERA since she was found physically unfit for continued service under Air Force Regulation 35-4, Physical Evaluation for Retention. In the National Defense Authorization Act for Fiscal Year 1992 (FY92 NDAAA), Public Law (PL) 102-484, 23 Oct 92, Congress enacted TERA, which permitted selected military members early retirement. This temporary legislation was a force-shaping drawdown tool; not an entitlement. In addition it permitted each service to target segments of its eligible population where it would most likely have losses occur. The guidelines for the FY94 program were published in Military Personnel Flight Letters (MPFL) 93-024 and 93-041. In MPFL 93-024, it states in part, the Air Force outlined members who were specifically excluded from consideration under TERA, which included members who were not physically fit for retention under the provisions of AFR 35-4. As such, there is no evidence of an error or injustice in the applicants record.
A complete copy of the AFPC/DPSOR 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 8 Sep 14 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D).
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. We took notice of the applicants complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility (OPR) and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.
THE BOARD DETERMINES THAT:
The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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-2013-04794 in Executive Session on 18 Nov 14, under the provisions of AFI 36-2603:
Panel Chair
Member
Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 12 Dec 13.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFPC/DPSOR, dated 9 Mar 14, w/atch.
Exhibit D. Letter, SAF/MRBR, dated 8 Sep 14.
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