RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2001-01833
							INDEX CODE:  136.00
			COUNSEL:  NONE

				HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

He be granted a 15-year retirement under the Temporary Early Retirement Authority (TERA) Program.
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APPLICANT CONTENDS THAT:

In October 1992, Congress enacted the TERA Program authorizing 15 year retirements providing the Secretary of Defense a tool with which to affect the drawdown of military forces.  During the time he was assigned as a Missile Launch Officer.  His wing was deactivated, resulting in the elimination of his position.  

The Air Force offered financial incentives in order to meet mandated drawdown requirement.  He was considered for possible involuntary separation by the Reduction In Force (RIF) Board but he was not selected for involuntary separation.   In 1993, the Air Force campaign to reduce the number of active duty personnel, coupled with a decreasing number of officer billets in his career field, caused a requirement to reassign Missile Launch Officers at his wing.  He applied to retrain with the Air Force Office of Special Investigations (OSI), but his request to retrain was denied.  He then sought retraining as an officer into his prior enlisted career field of Security Police.  This was also denied based on the then current needs of the Air Force.  He applied for a Special Duty Assignment as the United States Air Force Liaison Officer to the Department of Military Instruction at the United States Military Academy (USMA) at West Point.  In 1993, he was selected and served as an Assistant Professor at the USMA (1993-1996).  

During this time, his primary career field continued to be reduced significantly.  Air Force publications indicated that the Air Force was unable to meet reduction goals in the officer corps and continued to offer incentives for officers to resign or retire early under the TERA program.  In January of 1995, it was suggested to him that given his background, coupled with the current reductions in the Air Force, he should seek an appointment to a position with a federal law enforcement agency.  He applied with the United States Secret Service for the position of Special Agent.  He was advised that the Secret Service hiring process for Special Agents lasted up to 24 months.  As he would have completed 15 years of active duty service in August of 1996, it was his intention to stay with the Air Force until that date, and retire under the TERA program upon being offered a commission with the Secret Service.  He notified his commander of his application for a Secret Service position.  His commander stated that in light of his prior enlisted service, which made him eligible for a 20-year retirement in less than five years, it would not be practical to retrain into a new Air Force Specialty Code.  It was also suggested that the most logical decision would be to obtain an early retirement under the TERA program and begin a new career in federal law enforcement.  This would allow him to continue to serve his country in an accepted profession under the TERA program, and be rewarded in his retirement for his past service in the USAF.  

In April of 1996, he received an offer of an appointment to the position of Special Agent in the Secret Service.  He accepted an appointment in the Secret Service and began his application for a 15-year retirement under the TERA program, which would be effective on November 8, 1996.  At the time of his application to retire under the TERA program, the Air Force was experiencing difficulty meeting its drawdown goals and was authorizing officers to retire under the program.  The Air Force continued to use the TERA program as a drawdown tool to reduce the number of officer billets through the end of fiscal year 1999.  On 6 May 1996, AFPC denied his request for retirement under the TERA program, stating that he was over seven months short of the eight years active commissioned service required to retire as an officer.  The letter went on to state that he would be authorized, however, to retire at an enlisted grade under TERA.  However, the letter further stated that he was not entitled to such retirement, as the goal for enlisted drawdowns had been met.  That statement was not entirely accurate.  In fact, exceptions were being granted, and enlisted personnel were being authorized to retire under TERA.  He contends that his retirement, at any pay grade, effectively drew down the officer corps, in compliance with the goals, and therefore, the decision to deny his retirement under TERA was in error.  

In 1996, the Air Force failed to meet the mandated reductions in the officer corps and continued to offer early retirements to personnel with 15 years of service in fiscal years 1997 - 1999.  He had accumulated more than 15 years of active duty service at the time he separated from the Air Force to accept a position with the U.S. Secret Service.  This length of service qualified him for retirement under the TERA program.  Unfortunate timing left me several months short of fulfilling the eight-year officer active duty service requirement needed to retire as an officer under the TERA program, and he accepts the fact that his retirement annuity would therefore be calculated on the basis of his highest enlisted grade.  However, he disputes the unsupported assertion of AFPC that his separation as an officer with immediate reenlistment at an enlisted grade prior to the acceptance of his retirement application "would be counted as a drawdown loss toward the enlisted goal for FY96, not the officer goal".  The USAF Academy Commander at USMA points out in a letter dated 1 May 1996, that his retirement "could be counted as one of the voluntary reductions of the officer corps.  Capt XXX--- would not be filling an enlisted billet. He would be on active duty in his enlisted grade for less than 24 hours."  His decision to retire in 1996 was clearly in the best interest of the Air Force, as it helped the Department of Defense comply with congressionally mandated end strengths by drawing down the officer corps.  

Denial of his request to retire under TERA violated the intent of the program.  His request to retire at an enlisted grade under the TERA program should have been granted as an exception to policy. He believes AFPC applied the wrong standard when it denied his request for exception to policy on the basis of his failure to state an "extreme hardship."  Evidence exists to show exceptions to policy were liberally granted through 1998.  In a May 1998 article in the Air Force News, the Air Force Deputy Chief of Staff for Personnel, refers to the many non-hardship exceptions to policy authorizing early retirement that had been granted over the preceding years.  In another news article, the Retirement and Separations Chief, stated that the Air Force did not meet reduction in force goals for officers.  It was stated that any retirement request in fiscal year 1996 meeting the proper criteria and in the best interest of the Air Force would be approved.  Therefore, his request for early retirement should have been approved.  He was never advised of the need to demonstrate "extreme hardship" when requesting an exception to policy.  The first time he heard of the need to prove "extreme hardship" was when his request for an exception to policy was denied, incorrectly characterizing his intent as merely a decision to seek external employment.  It is fundamentally unfair to hold a person to an unadvertised standard.

In support of his request, applicant provided a personal statement, documentation associated with his request for retirement under the TERA program, an extract form AFI 36-3203; and a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty.  His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant, a prior service enlisted member, was appointed a second lieutenant, Reserve of the Air Force, on 3 Jun 89.  He was progressively promoted to the grade of captain, having assumed that grade effective and with a date of rank of 7 Jun 93 and voluntarily ordered to extended active duty on that same date.  

On 24 May 96, applicant prepared an AF Form 780, Officer's Voluntary Application for Separation, requesting separation from the Air Force effective 8 Nov 96.  His request was approved and he was discharged from the Air Force on that date.  He served 7 years 2 months and 27 days as a commissioned officer; and, 8 years 1 month and 13 days as an enlisted member.  
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AIR FORCE EVALUATION:

The AFPC/DPPRR recommends denial.  DPPRR states that applicant applied for retirement under the TERA in May 1996.  Although he had 15 years total active duty, he did not have the minimum 8 years commissioned service time required by law to be eligible for the TERA program.  He opted to resign his commission and retire as an enlisted member.  However, the FY96 Enlisted TERA program closed for applications on 30 Oct 95.  He submitted an Exception to Policy request, which required HQ USAF approval.  His request was disapproved because he did not provide significant justification to warrant approval from HQ USAF.  His vice wing commander sent a letter to AFPC in response to his disapproval and a response was sent back explaining why the applicant did not qualify for early retirement.  He has not provided any additional documentation to prove an injustice occurred.  The DPPPR evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 24 Aug 01 for review and response within 30 days.  Applicant subsequently withdrew his application.  

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ADDITIONAL AIR FORCE EVALUATION:

Applicant resubmitted his application on 14 Apr 03 and an additional advisory was requested.  AFPC/DPPRR again reviewed his application and recommends denial.  DPPRR states that although he had 15 years total active duty (of which 6 years and 9 months were total active commissioned service), he did not have 8 years of commissioned service time required by law to be eligible for the TERA program.  The provisions established by law are not subject to waivers.  He submitted an exception to policy for temporary early retirement, requesting to resign his commission and retire as an enlisted member.  Again, provisions of law are not subject to waivers or exception to policy.  Therefore, his request was denied with the suggestion that he wait for the Fiscal Year 1997 (FY97) TERA to determine if he would be eligible for that option.  

He did not meet the eligibility requirements to retire as enlisted. In accordance with AFI 36-3203"...officers with 20 years of total active who wish to retire before completing 10 years of active commissioned service (8 years if retired before 30 Sep 95...)...must first be separated...They must also be accepted for, and enlisted in the Regular Air Force for the purpose of retirement."  The only option was to apply for separation from the Air Force, which he opted to do since he was not eligible for the TERA program.  The DPPPR evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 24 Jun 03 for review and response within 30 days.  As of this date, this office has received no response.

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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 error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendation of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  After thorough review of the evidence presented in support of his appeal, we are not persuaded that the standards of Air Force policy, which implement the law, were inappropriately applied in this case.  In the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

4.  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 issue involved.  Therefore, the request for a hearing is not favorably considered.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material 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.

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The following members of the Board considered AFBCMR Docket Number BC-2003-01833 in Executive Session on 13 Aug 03, under the provisions of AFI 36-2603:

	Panel Chair
    Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 14 Apr 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRR, dated 16 Aug 01.
    Exhibit D.  Letter, SAF/MRBR, dated 24 Aug 01.
    Exhibit E.  Letter, AFPC/DPPRR, dated 24 Jun 03, w/atchs.
    Exhibit F.  Letter, SAF/MRBR, dated 24 Jun 03.