FOURTH ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-1994-02998

XXXXXXXXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

The Board reconsider her request to:
1.	Retire as a lieutenant colonel (Lt Col/O-5) with 28 years of active duty service.
2.	Identify the Air Force Reserve (AFRes) position to which she was transferred on 12 May 94, and direct Air Reserve Personnel Center (ARPC) to complete processing the SAF/MRB-directed transfer to the AFRes, dated 17 Jan 96.
3.	Identify the position and status to which she was returned after promotion to Lt Col, and direct ARPC to complete the 16 Mar 95 Lt Col promotion, and Mandatory Separation Date (MSD), as per the SAF/MRB directive, dated 1 Oct 96, and Senate approval. 
4.	Direct ARPC and Defense Finance and Accounting Service (DFAS) to review her records after all promotion items have been executed, as per the Record of Proceedings (ROP), dated 14 Jun 13.
5.	Void and remove the orders retiring her in the grade of major (Maj/O-4) and replace them with orders retiring her in the grade of Lt Col at the 28 year mark to which she could have served as a Lt Col had the SAF/MRB directive, dated 17 Jan 96, been properly executed.
6.	Remove all inappropriate documents from her records per the 14 Jun 13 ROP, to include the DD Form 214 which reflected an active duty end date of 11 Jul 91 and was voided by the SAF/MRB directive, dated 17 Jan 96.
7.	Replace the inaccurate “Corrected Appointment to the Guard” with the original, accurate appointment letter, per AFBCMR 90-01702 memo, dated 5 Dec 90. (New request not previously considered by the Board)
8.	Confirm accuracy and replace the original SAF/MRB directive, dated 17 Jan 96, with the corrected one indicating evaluation with Fiscal Year 1995 (FY95) and FY96 peers.

APPLICANT’S CONTENTIONS

The Air Force Board for Correction of Military Records (AFBCMR) mandated the applicant’s transfer to the AFRes, as a requirement for continued service at her new rank of Lt Col.  Follow-on Boards overlooked that mandate; thereby, failing to grant proper relief.
 
The applicant contended she was ready, willing, and able to serve, but was barred by not being transferred to the AFRes and returned to duty, as per the Special Review Board (SRB) procedures.  As a result of Board error, the applicant was not able to serve, and she contended her case deserves redress.

In Jun 94, the applicant applied to the AFBCMR maintaining she had been wrongfully removed from her Active Guard and Reserve (AGR) position and wished to continue her full-time military career.  The Board directed relief with a SAF/MRB memo, dated 17 Jan 96.  Unfortunately, the actions ordered by the 1996 AFBCMR never occurred and remain unresolved today.  There have been four AFBCMR proceedings, ending Jan 96, Oct 96, Feb 00, and Jun 13, referred to as Boards #1-#4.  As the years passed, the various Boards have repeatedly indicated completion without the required action being taken.

The memo granting relief from Board #1 directed reinstatement until the applicant fulfilled 20 years active duty and qualified for an active duty retirement, with the record amended to show she was not released from active duty in Jul 91, but continued to serve until her 20-year point, 11 May 94.  The memo also directed removal of two Officer Performance Reports (OPR), transfer to the AFRes, as of 12 May 94, and presentation of her amended file to the FY94 and FY95 SRBs for promotion consideration to Lt Col.  

While the Board decided to return the applicant to active duty until retirement eligible, her request was not to retire, but to return to active duty beyond her 20 years.  Additionally, despite the SRB evaluating her records without the OPRs, she was still separated due to the Air National Guard Selective Retention Board using the same tainted OPRs.  The Board was predisposed to retire the applicant at 20 years.  If she was not promoted by the SRB, she would be separated as a major in Jun 96, or having fulfilled the requirements for an active duty retirement, the applicant could then retire.  To allow for fair consideration for continued service and future opportunities, Board #1 directed a transfer to the AFRes, effective 12 May 94.  Placed into a reserve participating category, the applicant would be allowed to pursue opportunities for continued service as she requested.  If promoted to Lt Col, the applicant would be eligible to serve until the 28-year point (Lt Col MSD).  However, while the applicant was returned to active duty until the 20-year point, the OPRs removed from her record, and the SRB retroactively promoted her to Lt Col, effective 16 Mar 95, the transfer to the AFRes did not occur.

Board #2 implemented the results of the SRB directed by Board #1, and addressed the applicant’s request for a unit vacancy promotion.  The applicant was promoted to Lt Col, effective 16 Mar 95, but the Board denied her request for unit vacancy promotion.  Additionally, the applicant contended Board #2 should have taken action to ensure the transfer to the AFRes occurred and should have provided the necessary guidance for post-retirement promotion involving a return to duty.

Further, the applicant contended Board #3 failed to provide her redress when, having been promoted, she returned to the AFBCMR to request an update to her status and return to active duty to continue to serve.  Board #3 concluded the applicant had been provided full and fitting relief.  However, at the time of the Board #3 directive, the applicant should have been in the AFRes, but instead she remained Inactive Retired Reserve as a National Guard asset.  While Board #3 stated the applicant was promoted to the grade of Lt Col, it did not direct all the necessary and appropriate actions needed to implement an SRB promotion.  The applicant again contended she should have been transferred to the participating reserve at the 20-year point, clearly identifying her status, and allowing her to return to duty.  Her records should have been reviewed and she could have returned to flying.

Finally, the applicant contended Board #4 addressed her arguments that all actions were not complete, conceding, “…the Board acknowledges the Air Force did not complete all implementation actions in response to the 1 Oct 96 issuance of AFBCMR 94-02998.”  The Board went on to state ARPC was administratively correcting the applicant’s record by voiding and removing the orders retiring her in the grade of major and substituting orders retiring her in the grade of Lt Col, but no action has occurred.  Board #4 then found the remainder of the applicant’s petition was untimely and no further relief was merited.  The applicant contended Board #4 did not address or resolve the issues.  Board #1 provided an opportunity for further service by directing a transfer to the AFRes.  Her promotion to Lt Col established her eligibility to serve until 28 years of total service.  Neither of these issues were addressed by the Board’s response.  Moreover, the ARPC and DFAS reviews directed by Board #4 have not been accomplished.  Almost three years after Board #4’s findings, DFAS has not received any of the SAF/MRB memos.

In summary, the applicant contended if the mandated transfer to the AFRes had occurred, she would have been good-to-go as a fully serving Lt Col, entitled to serve until her MSD at the 28-year point, and could have found an active duty, full-time Lt Col slot.  The applicant wants the promotion she was granted and not to be discharged due to a failed major MSD, which was negated by the promotion to Lt Col. 

The applicant’s complete submission is at Exhibits AF and AG.

RESUME OF THE CASE

On 8 Aug 95 and 7 Dec 95, the Board considered the applicant’s requests to be reinstated into a full-time AGR position in the Air National Guard (ANG) or equivalent position; be reinstated into a flying position; have her OPRs rendered for the periods closing 6 Jun 90 and 6 Jun 91 be declared void and removed from her record; and, she be promoted to the grade of Lt Col, effective 8 Jan 90, with back pay and allowances.  The Air Force Board for Correction of Military Records issued AFBCMR Directive 94-02998 (Corrected Copy), dated 17 Jan 96, directing the two contested OPRs be declared void and removed from her records; her records be corrected to show she was not released from her AGR position on 12 Jul 91, but continued to serve until 11 May 94, at which point she would have attained 20 years of total active federal military service (TAFMS); on 12 May 94, she was released from her AGR tour and transferred to the AF Reserve; and, her corrected records be considered for promotion to the Reserve grade of Lt Col by Special Review Board for the Fiscal Years (FY) 1995 and 1996 Reserve of the Air Force Lt Col Selection Boards.  For an accounting of the facts and circumstances surrounding the applicant’s original request and the rationale of the earlier decision by the Board, see the ROP at Exhibit K.

By virtue of a letter, dated 20 May 96, the applicant’s counsel requested the applicant’s records be corrected to show she was promoted by unit vacancy.  In addition, the SRB previously directed in the 17 Jan 96 AFBCMR directive had convened and determined the applicant should have been recommended for promotion by the FY95 Reserve Air Force Lt Col Board.  The AFBCMR issued another directive, dated 1 Oct 96, directing that upon Senate confirmation, the applicant’s records be corrected to show she was promoted to the reserve grade of Lt Col, with an effective date and promotion service date of 16 Mar 95.  For an accounting of the facts and circumstances surrounding the applicant’s original request and the rationale of the earlier decision by the Board, see the Addendum to the ROP at Exhibit N. 

By virtue of a letter, dated 14 Nov 97, the applicant noted that she was a Lt Col with 20 years of active service, promoted while in a non-recognized reserve status and retired before completing three years time-in-grade; and, her record still contained inaccurate and unjust command documents (i.e., Letters of Admonishment (LOA) and Counseling (LOC)) and the Equal Employment Opportunity (EEO) investigation which were used as the basis of her separation and termination of her AGR position.  In view of this, she requested these documents be removed from her records and she be returned to active duty and transferred to reserve status on 12 May 94.  In the alternative, she requested she be credited with active service for the period 12 May 94 through 31 Dec 95 and granted a waiver to the time-in-grade requirement to allow retirement in the grade of Lt Col.  The AFBMCR notified the applicant in a letter, dated 9 Feb 2000, there was insufficient evidence of an error or injustice to warrant corrective action, and her application was denied.  For an accounting of the facts and circumstances surrounding the applicant’s original request and the rationale of the earlier decision by the Board, see the Second Addendum to the ROP at Exhibit Z.

By virtue of a request for reconsideration via DD Form 149, Application for Correction of Military Record, dated 18 Jan 12, the applicant requested her records be corrected in accordance with the previous AFBCMR directives issued by SAF/MRB in her case, to include:  her OPRs ending 6 Jun 90 and 6 Jun 91, and all associated attachments be removed as directed by AFBCMR 94-02998; completion of all actions associated with her transfer to the Air Force Reserve on 12 May 94, and subsequent promotion to Lt Col, in accordance with the SAF/MRB directive dated 17 Jan 96; consideration by an SRB to the grade of Lt Col for FY94/95, as directed by the original 17 Jan 96 SAF/MRB directive; and all evidence of her being twice passed over for promotion to the grade of Lt Col, discharge from the Air National Guard on 31 Dec 95, and retired as a major in Jun 96, be removed from her record.  In addition, the applicant requested a comprehensive reconsideration of her case and that she be granted the following relief:  promotion to the grade of Lt Col, effective and with a date of rank of 8 Jan 90, in line with other AGR rated officers in her squadron; correction of her record to reflect she was promoted to the grade of colonel (O-6) when she was first eligible in 1994; her record corrected to reflect she was not released from her AGR position on 11 May 94, but was transferred to the AFRes on 12 May 94, in flying status, until being retired in Apr 04 at her mandatory separation date (as a colonel), with full back pay, allowances, flight pay, and any special flight or retention bonuses.  

ARPC/DPTG confirmed the contested OPRs were removed, and replaced with AF Forms 77, Letter of Evaluation, per AFBCMR 94-02998, on 10 May 96, and uploaded to the applicant’s record in the Automated Record Management System (ARMS) on 22 May 96.  ARPC did not take action at the time on the provisions of the directive related to transferring her to the AFRes because the applicant was still participating as a traditional member of the ANG.  The ANG is considered part of the Air Reserve Component and its officers have reserve commissions and their appointments are governed by Air Force Instruction (AFI) 36-2005, Appointment in Commissioned Grades and Designation and Assignment in Professional Categories—Reserve of the Air Force and United States Air Force.  Had ARPC transferred the applicant into the AFRes at that time, she would have gone into the Individual Ready Reserve (IRR), which is comprised of Participating (Points Only) and Non-Participating members.  Regardless, the applicant would not have been in a participating status for pay unless she found a valid position.  Finally, ARPC convened an SRB to review the applicant’s updated records on 10 Jun 96, after the applicant’s effective retirement date of 1 Jun 95 (sic).  As a result, the applicant was recommended for promotion, prompting the 1 Oct 96 directive to be issued directing her records be corrected to reflect she was promoted to Lt Col with an effective promotion date of 16 Mar 95.  The OPR recommended the applicant’s retired rank be adjusted to reflect her 16 Mar 95 promotion to Lt Col, and she receive all compensation and entitlements associated with the adjustment retroactive to her effective retirement date, 1 Jun 96. (Exhibit AB)

The Board notified the applicant her request for reconsideration was denied as the application was untimely filed, and the Board did not find a sufficient basis to waive the failure to timely file and consider the case on its merits.  Additionally, the Board acknowledged the Air Force did not complete all required implementation actions in response to the 1 Oct 96 issuance of AFBCMR 94-02998; however, ARPC was administratively correcting the applicant’s record by voiding and removing the orders retiring her in the grade of major and replacing them with orders retiring her in the grade of Lt Col, and was ensuring the applicant’s records are free of inappropriate documents.  Finally, the Board stated ARPC’s administrative action would result in DFAS reviewing the applicant’s records to determine if she was entitled to any monetary benefits as a result of the correction of records.   For an accounting of the applicant’s original request and the rationale of the earlier decision, see the Third Addendum to the Record of Proceedings at Exhibit AE.

By virtue of a request for reconsideration via DD Form 149, Application for Correction of Military Record, dated 12 Jun 16, and subsequent letter, dated 8 Sep 17, the applicant requested her records be corrected to reflect implementation of the following relief:  her retirement as a Lt Col with 28 years of active duty service; ARPC identify the AFRes position to which she was transferred on 12 May 94, and complete processing the SAF/MRB-directed transfer to the AFRes, dated 17 Jan 96; ARPC identify the position and status to which she was returned after promotion to Lt Col, and complete the 16 Mar 95 Lt Col promotion (and Mandatory Separation Date) as per the SAF/MRB directive, dated 1 Oct 96, and Senate approval; ARPC and DFAS review her records after all promotion items have been executed, as per the ROP, dated 14 Jun 13; ARPC void and remove the orders retiring her in the grade of major (Maj/O-4) and replace them with orders retiring her in the grade of Lt Col at the 28 year mark to which she could have served as a Lt Col had the 17 Jan 96 SAF/MRB directive been properly executed;  remove all inappropriate documents from her records, per the 14 Jan 13 ROP, to include the DD Form 214 which reflected an active duty end date of 11 Jul 91 and was voided by the SAF/MRB directive, dated 17 Jan 96; replace the inaccurate “Corrected Appointment to the Guard” with the original, accurate appointment letter, per AFBCMR 90-01702 memo, dated 5 Dec 90; confirm accuracy and replace the original SAF/MRB directive, dated 17 Jan 96, with the corrected one indicating evaluation with FY95 and FY96 peers. (Exhibits AF and AG)

On 28 Sep 17, the Board notified the applicant her request for reconsideration was denied as it contained essentially a similar request which was previously considered and denied by the Board, and the applicant did not provide new, relevant evidence. (Exhibit AH)

In view of the applicant’s contentions and concerns expressed in her 12 Jun 16 application for correction, and subsequent letter, dated 8 Sep 17, and upon review of similar case outcomes, we agreed to reconsider the applicant’s request on our own motion.

STATEMENT OF FACTS

The applicant is a retired Air Force Reserve major (O-4), receiving an immediate (active duty) annuity under Title10, United States Code, Chapter 867, Section 8911 (10 USC 8911).

On 6 Jan 86, the applicant was furnished an honorable discharge from RegAF, in the grade of captain (Capt/O-3), with Narrative Reason:  Voluntary Resignation, Miscellaneous Reasons, and credited with 11 years, 8 months, 26 days active service.

On 8 Jan 86, the applicant was appointed as a major in the Air National Guard.

On 25 Mar 86, according to ANGSC/MPP memorandum, the applicant was approved for appointment, in the grade of captain, to the Air National Guard.  This memorandum corrected the applicant’s appointment grade of major on the original approval letter.

On 5 Dec 90, according to AFBCMR directive 90-01702, the applicant’s records were corrected to show she was promoted to the grade of major in the Air National Guard, and as a reserve of the Air Force, with a promotion service date and effective date of 8 Jan 86.

On 12 Jul 91, the applicant was furnished an honorable discharge, with Narrative Reason:  Termination of AGR Military Tour, and credited with 17 years, 2 months, 2 days active service.

On 11 May 94, according to AFBCMR directive 94-02998, dated 17 Jan 96, the applicant was furnished an honorable discharge, with Narrative Reason:  Completion of Required Active Service, and credited with 20 years, 1 day active service.

From 12 May 94 – 31 Dec 95, the applicant served in the Air National Guard as a drill status (traditional) guardsman.

On 16 Mar 95, according to AFBCMR directive 94-02998, dated 1 Oct 96, the applicant was promoted to the grade of Lt Col, with an effective date and promotion service date of 16 Mar 95.

On 31 Dec 95, the applicant was furnished an honorable discharge from the Air National Guard, with Authority and Reason:  AFI 36-3209, para 2.26., Non-Selected for Retention/Transfer to IRR.

From 1 Jan 96 – 31 May 96, the applicant served in the AFRes, Individual Ready Reserve status.

On 17 Jan 96, according to AFBCMR directive 94-02998, the applicant’s records were to be corrected to reflect:
-	OPRs rendered for the periods 7 Jun 89 – 6 Jun 90 and 7 Jun 90 – 6 Jun 91 were declared void and removed from her records;
-	On 12 Jul 91, she was not released from active duty, but continued to service on extended active duty until 11 May 94
-	On 12 May 94, she was released from active duty and transferred to the Reserves (sic)
-	The applicant’s records be considered for promotion to the reserve grade of Lt Col by an SRB with the records of officers who were and were not selected by the FY94 and FY95 Reserve of the Air Force Lieutenant Colonel Selection Boards; and, that the recommendations of the Special Review Board be forwarded to the AFBCMR at the earliest practicable date so that all necessary and appropriate actions may be completed. (Amended by corrected copy to read:  FY95 and FY96 Reserve of the Air Force Lieutenant Colonel Selection Boards vice FY94/95)

On 12 Feb 96, according to HQ ARPC/DP memorandum, the applicant was notified of her second deferral for promotion (to Lt Col), and her adjusted mandatory separation date of 13 Jun 96.

On 1 Jun 96, under Special Order Number XXXXX, dated 24 May 96, the applicant was transferred to the retired reserve, and her name placed on the United States Air Force Retired List, with the Retired Pay Grade of major, and Highest Grade Held on Active Duty of major.

On 10 Jun 96, according to HQ ARPC/DPTG memorandum, a Special Selection Board was scheduled to reconsider the applicant’s records for potential promotion against all those meeting the Reserve of the Air Force Lieutenant Colonel Selection Boards for 1995 and 1996.

On 21 Jun 96, according to documentation provided by the applicant, HQ ARPC/DP memorandum to AFBCMR reflects the applicant was recommended for promotion to the grade of Lt Col by the FY95 SRB.

On 1 Oct 96, according to AFBCMR directive 94-02998, the applicant’s record was to be corrected to reflect, upon Senate confirmation, she be promoted to the reserve grade of Lt Col, with an effective date and promotion service date of 16 Mar 95.

On 8 Apr 97, under HQ ARPC Reserve Order XXXXX, the applicant was promoted to the grade of Lt Col, effective 16 Mar 95.

On 19 Apr 10, under National Guard Bureau Special Order Number XXXXX, the applicant was extended federal recognition and promoted to the grade of Lt Col, with a date of rank and effective date of 16 Mar 95.

For more information, see the excerpt of the applicant’s record at Exhibit B. 

APPLICABLE AUTHORITY

10 USC Chapter 1407, Section 14506 

§ 14506. Effect of failure of selection for promotion: reserve majors of the Army, Air Force, and Marine Corps and reserve lieutenant commanders of the Navy
Unless retained as provided in section 12646, 12686, 14701, or 14702 of this title, each reserve officer of the Army, Navy, Air Force, or Marine Corps who holds the grade of major or lieutenant commander who has failed of selection to the next higher grade for the second time and whose name is not on a list of officers recommended for promotion to the next higher grade shall, if not earlier removed from the reserve active-status list, be removed from that list in accordance with section 14513 of this title on the later of 
	(1) the first day of the month after the month in which the officer completes 20 years of commissioned service, or 
	(2) the first day of the seventh month after the month in which the President approves the report of the board, which considered the officer for the second time.

10 USC Chapter 867, Section 8911 

§ 8911. Twenty years or more: regular or reserve commissioned officers
(a) The Secretary of the Air Force may, upon the officer’s request, retire a regular or reserve commissioned officer of the Air Force who has at least 20 years of service computed under section 8926 of this title, at least 10 years of which have been active service as a commissioned officer. (b) The Secretary of Defense may authorize the Secretary of the Air Force, during the nine year period beginning on October 1, 1990, to reduce the requirement under subsection (a) for at least 10 years of active service as a commissioned officer to a period (determined by the Secretary of the Air Force) of not less than eight years.

10 USC Chapter 69, Section 1370 

§ 1370. Commissioned officers: general rule; exceptions
(a) RULE FOR RETIREMENT IN HIGHEST GRADE HELD SATISFACTORILY.
	(1) Unless entitled to a higher retired grade under some other provision of law, a commissioned officer (other than a commissioned warrant officer) of the Army, Navy, Air Force, or Marine Corps who retires under any provision of law other than chapter 61 or chapter 1223 of this title shall, except as provided in paragraph (2), be retired in the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than six months.
		(A) In order to be eligible for voluntary retirement under any provision of this title in a grade above major or lieutenant commander, a commissioned officer of the Army, Navy, Air Force, or Marine Corps must have served on active duty in that grade for not less than three years, except that the Secretary of Defense may authorize the Secretary of a military department to reduce such period to a period not less than two years.
		(B-C) Not applicable to this case.
		(D) The President may waive subparagraph (A) in individual cases involving extreme hardship or exceptional or unusual circumstances. The authority of the President under the preceding sentence may not be delegated.
		(E-F) Not applicable to this case.
(b) RETIREMENT IN NEXT LOWER GRADE.
An officer whose length of service in the highest grade he held while on active duty does not meet the service in grade requirements specified in subsection (a) shall be retired in the next lower grade in which he served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than six months.
(c) Not applicable to this case.
(d) RESERVE OFFICERS.
	(1) Unless entitled to a higher grade, or to credit for satisfactory service in a higher grade, under some other provision of law, a person who is entitled to retired pay under chapter 1223 of this title shall, upon application under section 12731 of this title, be credited with satisfactory service in the highest grade in which that person served satisfactorily at any time in the armed forces, as determined by the Secretary concerned in accordance with this subsection.
	(2) In order to be credited with satisfactory service in an officer grade (other than a warrant officer grade) below the grade of lieutenant colonel or commander, a person covered by paragraph (1) must have served satisfactorily in that grade (as determined by the Secretary of the military department concerned) as a reserve commissioned officer in an active status, or in a retired status on active duty, for not less than six months.
	(3)
		(A) In order to be credited with satisfactory service in an officer grade above major or lieutenant commander, a person covered by paragraph (1) must have served satisfactorily in that grade (as determined by the Secretary of the military department concerned) as a reserve commissioned officer in an active status, or in a retired status on active duty, for not less than three years. 	
		(B) A person covered by subparagraph (A) who has completed at least six months of satisfactory service in grade may be credited with satisfactory service in the grade in which serving at the time of transfer or discharge, notwithstanding failure of the person to complete three years of service in that grade, if that person is transferred from an active status or discharged as a
Reserve commissioned officer —
			(i) solely due to the requirements of a nondiscretionary provision of law requiring that transfer or discharge due to the person’s age or years of service; or
			(ii) because the person no longer meets the qualifications for membership in the Ready Reserve solely because of a physical disability, as determined, at a minimum, by a medical evaluation board and at the time of such transfer or discharge such person (pursuant to section 12731b of this title or otherwise) meets the service requirements established by section 12731(a) of this title for eligibility for retired pay under chapter 1223 of this title, unless the disability is described in section 12731b of this title.

10 USC Chapter 1223, Section 12731

§ 12731. Age and service requirements
(a) Except as provided in subsection (c), a person is entitled, upon application, to retired pay computed under section 12739 of this title, if the person—
	(1) has attained the eligibility age applicable under subsection (f) to that person;
	(2) has performed at least 20 years of service computed under section 12732 of this title;	(3) in the case of a person who completed the service requirements of paragraph (2) before April 25, 2005, performed the last six years of qualifying service while a member of any category named in section 12732(a)(1) of this title, but not while a member of a regular component, the Fleet Reserve, or the Fleet Marine Corps Reserve, except that in the case of a person who completed the service requirements of paragraph (2) before October 5, 1994, the number of years of such qualifying service under this paragraph shall be eight; and 
	(4) is not entitled, under any other provision of law, to retired pay from an armed force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve.
(b) Application for retired pay under this section must be made to the Secretary of the military department, or the Secretary of Homeland Security, as the case may be, having jurisdiction at the time of application over the armed force in which the applicant is serving or last served.
(c) Not applicable to this case.
(d) The Secretary concerned shall notify each person who has completed the years of service required for eligibility for retired pay under this chapter. The notice shall be sent, in writing, to the person concerned within one year after the person completes that service. The notice shall include notice of the elections available to such person under the Survivor Benefit Plan established under subchapter II of chapter 73 of this title and the Supplemental Survivor Benefit Plan established under subchapter III of that chapter, and the effects of such elections.
(e) Notwithstanding section 8301 of title 5, the date of entitlement to retired pay under this section shall be the date on which the requirements of subsection (a) have been completed.
(f)
	(1) Subject to paragraph (2), the eligibility age for purposes of subsection (a)(1) is 60 years of age.
	(2) Not applicable to this case.

10 USC Chapter 1223, Section 12741

§ 12741. Retirement for service in an active status performed in the Selected Reserve of the Ready Reserve after eligibility for regular retirement
(a) AUTHORITY TO ELECT TO RECEIVE RESERVE RETIRED PAY.—
	(1) Notwithstanding the requirement in paragraph (4) of section 12731(a) of this title that a person may not receive retired pay under this chapter when the person is entitled, under any other provision of law, to retired pay or retainer pay, a person may elect to receive retired pay under this chapter, instead of receiving retired or retainer pay under chapter 65, 367, 571, or 867 of this title, if the person— 
		(A) satisfies the requirements specified in paragraphs (1) and (2) of such section for entitlement to retired pay under this chapter; 
		(B) served in an active status in the Selected Reserve of the Ready Reserve after becoming eligible for retirement under chapter 65, 367, 571, or 867 of this title (without regard to whether the person actually retired or received retired or retainer pay under one of those chapters); and 
		(C) completed not less than two years of satisfactory service (as determined by the Secretary concerned) in such active status (excluding any period of active service). 
	(2) The Secretary concerned may reduce the minimum two-year service requirement specified in paragraph (1)(C) in the case of a person who— 
		(A) completed at least one year of service in a position of adjutant general required under section 314 of title 32 or in a position of assistant adjutant general subordinate to such a position of adjutant general; and 
		(B) failed to complete the minimum years of service solely because the appointment of the person to such position was terminated or vacated as described in section 324(b) of title 32. (b) ACTIONS TO EFFECTUATE ELECTION.—As of the effective date of an election made by a person under subsection (a), the Secretary concerned shall— 
	(1) terminate the eligibility of the person to retire under chapter 65, 367, 571, or 867 of this title, if the person is not already retired under one of those chapters, and terminate entitlement of the person to retired or retainer pay under one of those chapters, if the person was already receiving retired or retainer pay under one of those chapters; and 
	(2) in the case of a reserve commissioned officer, transfer the officer to the Retired Reserve. (c) TIME AND FORM OF ELECTION.—An election under subsection (a) shall be made within such time and in such form as the Secretary concerned requires. 
(d) EFFECTIVE DATE OF ELECTION.—An election made by a person under subsection (a) shall be effective— 
	(1) except as provided in paragraph (2)(B), as of the date on which the person attains the eligibility age applicable to the person under section 12731(f) of this title, if the Secretary concerned receives the election in accordance with this section within 180 days after that date; or
	(2) on the first day of the first month that begins after the date on which the Secretary concerned receives the election in accordance with this section, if— 
		(A) the date of the receipt of the election is more than 180 days after the date on which the person attains the eligibility age applicable to the person under such section; or 
		(B) the person retires from service in an active status within that 180-day period.

AIR FORCE EVALUATION

The applicant was an Air National Guard major on statutory tour.  She was twice passed over for promotion to lieutenant colonel.  This prompted mandatory separation in accordance with 10 USC 8846, with a separation date of 13 Jun 96.  At that time, the applicant chose to retire effective 1 Jun 96.  Her retirement was processed by the Air Force Personnel Center as an active duty retirement under the authority of AFI 36-3203, Service Retirements, since the applicant qualified for such at the time of retirement.  

On 6 Jul 94, SAF/MRBC acknowledged receipt of the applicant’s request for AFBCMR review of her claim that the missed promotion opportunities and subsequent mandatory separation were the result of unjust treatment at the hand of her chain of command. The result of that request was AFBCMR Directives 94-02998, dated 17 Jan 96 and 1 Oct 96.

AFBCMR Directive, dated 17 Jan 96, directed transfer of the applicant to the Air Force Reserve, effective 12 May 94.  This action was not executed, and as a result, the applicant was honorably discharged from the Air National Guard, on 31 Dec 95, and transferred to ARPC Individual Ready Reserve, effective 1 Jan 96.  On 12 Feb 96, the applicant was notified of her second deferral for promotion (to Lt Col), her adjusted MSD of 13 Jun 96, and her options under 10 USC 8846.  The applicant voluntarily retired on 1 Jun 96.

AFBCMR Directive 94-02998, dated 1 Oct 96, directed the applicant’s record show, upon Senate confirmation, she was promoted to the reserve grade of Lt Col, with an effective date and promotion service date of 16 Mar 95.  When promoted retroactively, the applicant’s MSD was not adjusted in accordance with 10 USC 14701, to allow 28 years Total Federal Commissioned Service (TFCS), and the applicant, now retired, was never afforded the opportunity to return to participating reserve status to serve the additional time allowed.

ARPC/DPTT recommends partially granting the applicant’s request for reconsideration correcting the record to reflect the applicant’s new MSD, adjusted to allow 28 years TFCS as a Lt Col; to show the applicant was reinstated to the Air Force Reserve, as a participating reservist, while still in a retired status (10 USC 10145), with sufficient time and points to earn a reserve retirement in the grade of Lt Col (the applicant currently has 09 months, 21 days TIG as a Lt Col; the Board may choose to extend her reserve service to: 1) 3 years TIG; 2) 2 years TIG, with a Secretarial waiver; or 3) to meet the new MSD of 28 years TFCS); and at age 60, the applicant’s active duty retirement was converted to a reserve retirement (10 USC 12741), amending her retirement orders to reflect the higher grade of Lt Col.  Additionally, the applicant’s military record should be audited by ARPC to ensure all documentation rendered obsolete and/or superseded by AFBCMR directive is voided, removed, and/or replaced.  Finally, upon completion of all Board-approved corrections, DFAS should conduct an audit of the applicant’s military record to ensure all appropriate back pay and allowances are identified and disbursed.

The complete advisory opinion is at Exhibit AK.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 2 Jun 21 for comment (Exhibit AL), and the applicant replied on 29 Jun 21.  In her response, the applicant contended her multiple requests to complete execution of the AFBMCR 94-02998 SAF/MRB memorandums need to be placed in the context of time.  To do so, there are two overarching critical issues that collectively form the basis of her response:  1) establishing an accurate presentation of her entry into the ANG as a major, with an 8 Jan 86 promotion date, clarifying eligibility for promotion to Lt Col; 2) utilizing accurate information for promotion consideration, opportunity, and duty status.

The advisory summarizes seven lingering issues and an additional correction.  The applicant concurs with 1-6, as written.  The advisory also addresses and resolves the applicant’s additional request to replace the voided 25 Mar 86 ANGSC/MPP Approval for Appointment letter with the original document as part of conducting an audit.  The applicant also concurs with the advisory’s call for an audit and stated recognition that an accurate portrayal of facts has not occurred is essential.

The remaining issue cites the applicant is requesting replacement of the original 17 Jan 96 SAF/MRB memo directing a FY94/95 evaluation.  This is inconsistent with the facts presented in the 17 Jan 96 AFBCMR Report (sic) of Proceedings (ROP), her 10 May 13 reply to the advisory being supplemented, and her 12 Jun 16 request.  The applicant contended her request is the execution of the original 17 Jan 96 SAF/MRB (memo) which is, and has been, in her personnel records since 1996.

The applicant further contended the advisory reflects her 6 Jul 94 submission to the AFBCMR was to review missed promotion opportunities and mandatory separation, which is not consistent with the primary reason for submission, AGR separation, nor is the timing with her mandatory separation two years afterward.  The advisory also stated the retroactive 12 May 94 transfer to the Reserve was not made.  As a result, the applicant was separated from the ANG 31 Dec 95, and transferred to ARPC effective 1 Jan 96.  These actions occurred before the 17 Jan 96 AFBCMR directive, and were not due to the second deferral for promotion, which were independent actions.

The advisory also cites, on 12 Feb 96, her 13 Jun 96 MSD was established.  This MSD conflicts with the AFBCMR 17 Jan 96 ROP and 10 USC 8846 guidance, making it uncertain what information was available and used to determine the MSD, promotion eligibility, or promotion.

Further, the applicant contended, the advisory deduces that given an MSD, the applicant chose to retire effective 1 Jun 96; however, her retirement was not voluntary, but under duress in lieu of mandatory separation.  Despite awaiting a Special Review Board directed by the SAF/MRB 17 Jan 96 memo, the applicant was told she had to separate on the MSD, and advised by ARPC when she was mandatorily separated, she would lose all military affiliation, including the opportunity to retire.  Therefore, the applicant chose retirement as a temporary status to facilitate ease of return to duty when promoted.

Additionally, the applicant concurs with the advisory citing the AFBCMR 94-02998 SAF/MRB 1 Oct 96 memo, acknowledging the applicant’s MSD was not adjusted in accordance with 10 USC 14701, allowing additional service time and the opportunity to serve the additional time.  However, the advisory does not encompass the pertinent timing factors, and this emphasizes a misstep in the case.

In summary, the applicant contended the advisory’s recommendation to correct the record to reflect the new Lt Col MSD showing the applicant was reinstated to the Air Force Reserve as a participating reservist while in a retired status does not reflect the applicant’s status at the time of consideration for promotion or as of the promotion date.  The recommendation to return the applicant to reserve status on 1 Oct 96 is not in compliance with the 17 Jan 96 SAF/MRB directive to transfer to the Reserve on 12 May 94, which has been acknowledged as unexecuted.  The advisory also does not resolve the overriding loss of potential opportunity to allow 28 years TFCS and the opportunity to choose the participating reserve status including category, points, and pay.

Finally, the applicant contended had she not been separated, she would have remained in an AGR position even if not promoted to Lt Col.  The advisory correctly identified a multitude of missteps, and because of those missteps, procedural issues, differing information, and lack of central governing authorities, she has been forced to go to the executive branch multiple times, engage the legislative branch, and all the while provide her own funds for judicial support.  It is unclear that this advisory adequately corrects the errors for the gross injustices suffered over the past 35 years.  

The applicant contended, should the Board concur; her record should be corrected as follows:

1.	 Upon Special Review Board consideration for promotion to the grade of Lt Col with the FY94 and FY95 groups or as determined to be correct by the Board, the applicant’s mandatory separation date as a major is voided and appropriately established as 1 Apr 02 as a Lt Col.
2.	Promotion to the grade of Lt Col, effective 16 Mar 95 or earlier, as determined to be correct by the Board.
3.	Transfer to the Reserve on 12 May 94 as per the initial SAF/MRB 17 Jan 96 memo or as determined by the Board to an appropriate participating reserve status which allows the opportunity for credit of at least 28 years TFCS as a Lt Col, and an active duty retirement as a Lt Col.
4.	Upon completion of all Board-directed correction, ARPC conduct an audit to void/remove/replace all obsolete or superseded directives and provide the results under all media to the applicant.
5.	Upon completion of all Board-directed corrections, DFAS conduct an audit to identify and disburse all appropriate back pay, interest, allowances, and entitlements. 

The applicant’s complete response is at Exhibit AM.
 
FINDINGS AND CONCLUSION

After reviewing all Exhibits, to include the applicant’s rebuttal, the Board concludes the applicant has presented evidence sufficient to demonstrate an error or injustice regarding part, but not all, of her request.  Additionally, the Board concurs with the rationale and recommendations of ARPC/DPTT, with the third option allowing the applicant to serve until she reaches 28 years TFCS, finding it provides full and fitting relief.  In particular, the notification of mandatory separation due to being twice passed over for promotion is clearly erroneous, which is sufficient to justify changing the original findings and recommendation of the Board on the applicant’s request to adjust her MSD to 28 years TFCS upon her promotion to lieutenant colonel, return her to a participating reserve status until that MSD, approve a reserve retirement, in the grade of lieutenant colonel, remove/replace all erroneous documents in her record, as directed by previous AFBCMR directives, and direct an audit by ARPC and DFAS to ensure all AFBCMR directives have been fully executed and any appropriate back pays, allowances have been identified and disbursed.  However, for the remainder of the applicant’s request, the evidence presented did not demonstrate an error or injustice, and the Board therefore finds no basis to recommend granting that portion of the applicant’s request.  While the Board notes the applicant’s contention in rebuttal that she would have remained in an AGR position had she not been separated, the Board finds this speculative.  The applicant did not serve in an active duty status while in the grade of lieutenant colonel, and the Board was not compelled by the evidence provided by the applicant opining she would have been brought to active duty had she been retained.  Therefore, the applicant did not meet the statutory requirement for an active duty retirement in that grade, rendering her current active duty retirement, effective 1 Jun 96, in the grade of major, accurate.  Therefore, the Board recommends the applicant’s records be corrected as indicated below.

The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

RECOMMENDATION

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

1.	Her mandatory separation date was adjusted to 15 March 2002 as a result of her promotion to lieutenant colonel (O-5), effective 16 March 1995;
2.	On 2 June 1996, she was reinstated to the Air Force Reserve, as a participating reservist, under a special finding of indispensability under Title 10, United States Code, Section 10145 (10 USC 10145), and earned 35 non-paid points and 15 membership points each year toward satisfactory service, until her reassignment back to Retired Reserve at mandatory separation, 16 March 2002;
3.	On 1 March 2011, her active duty retirement under 10 USC 8911, was converted to a reserve retirement under 10 USC 1223, in accordance with 10 USC 12741, with the Retired Pay Grade of lieutenant colonel (O-5) and Highest Grade Held of lieutenant colonel (O-5);
4.	The DD Form 214, Certificate of Release or Discharge from Active Duty, with the separation date of 12 July 1991, is void/removed from her records;
5.	The AFBCMR directive 94-02998, dated 17 January 1996, is removed from her record and replaced with the corrected copy, same date, reflecting, “…evaluation with Fiscal Year 1995 (FY95) and FY96 peers.”
6.	ANGSC/MPP memorandum, Approval for Appointment of Prior Service Officer, “Corrected Letter – Destroy All Others”, dated 25 March 1986, is removed from her record and/or amended to reflect her promotion to major (O-4) in accordance with AFBCMR directive 90-01702, dated 5 December 1990.
7.	Air Reserve Personnel Center and Defense Finance and Accounting Service will conduct an audit of the applicant’s military records, post-correction, to ensure all AFBCMR directives have been fully executed and any appropriate back pays, allowances have been identified and disbursed.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-1994-02998 in Executive Session on 19 Aug 21:

, Panel Chair 
, Panel Member
, Panel Member

All members voted to correct the record.  The panel considered the following:

	Exhibit AE:	Third Addendum to Record of Proceedings, w/Ex. A-AD, dated 14 Jun 13
Exhibit AF:	Application, DD Form 149, w/atchs, dated 12 Jun 16.
Exhibit AG:	Applicant Request Letter, w/atchs, dated 8 Sep 17.
Exhibit AH:	Reconsideration Denial Letter, SAF/MRBC to applicant, dated 28 Sep 17.
Exhibit AI:	Applicant Letter to DFAS, w/atchs, dated 15 Nov 20. 
Exhibit AJ:	Notification of Reconsideration, SAF/MRBC to applicant, dated 17 Mar 21.
Exhibit AK:	Advisory, ARPC/DPTT, w/atch, dated 17 May 21.
Exhibit AL:	Letter, SAF/MRBC, dated 2 Jun 21.
Exhibit AM:	Letter, Applicant Response, dated 29 Jun 21.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.