RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-02513
		INDEX CODE:  110.00

	APPLICANT	COUNSEL:  None

	SSN	HEARING DESIRED: No

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APPLICANT REQUESTS THAT:

His records be corrected to reflect that he is eligible to receive Reserve retired pay, retirement benefits and be paid retroactively under the 1995 National Defense Authorization Act.

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APPLICANT CONTENDS THAT:

He was not properly advised of any eligible benefits he may have qualified for when he became disabled from his civilian employment (Exhibit A).

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STATEMENT OF FACTS:

The relevant facts pertaining to this application, extracted from the applicant's military records, are contained in the letter prepared by the appropriate office of the Air Force.

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AIR FORCE EVALUATION:

ARPC/DPP states that under the provisions of Title 10, United States Code (U.S.C), Section 12731, a retired reserve member is eligible for retired pay upon completion of at least 20 years of satisfactory service with the last 6 years of qualifying service in a Reserve component.  As of Sep 90, the applicant completed 33 years, 7 months and 7 days of honorable federal service, however, only 18 years, 9 months and 26 days of service is creditable for retired pay.  

Under 10 U.S.C, Section 12371a, a reserve member may be eligible for retired pay based on physical disqualification, providing the 
member completed 15-20 years of satisfactory service on or after 5 Oct 94.  Unfortunately, there is no provision in the law that allows a member to retire with less than 20 years of service prior to 5 Oct 94 for physical disqualification.  The applicant's records do not reflect that he was physically unfit for worldwide duty.

Title 10 U.S.C, Section 1176(b) allows for sanctuary of enlisted reservists who have at least 18, but less than 20 years of satisfactory service, as computed under Title 10 U.S.C, Section 12371, to remain in active status.  Due to the force drawdown, it was realized some members would not always be able to stay in their current positions.  In October 1994, procedures were established to assign displaced reservists into the active Standby Reserve in order for them to complete their 20 years of satisfactory service for retirement.  The law was retroactive to 23 Oct 92, thus leaving the applicant ineligible for sanctuary since his last discharge was on 9 Sep 90.

In summary, ARPC/DPS states that the applicant did not complete 20 years of satisfactory and is not eligible for retirement under the provisions of 10 U.S.C, Section 12371 or 12371A.  The applicant is not eligible for retirement under 10 U.S.C., Section 1176(b), because he was discharged in 1990 before the enactment of the law.  In view of the above, they recommend denying the applicant’s request.

A complete copy of the evaluation is attached at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant states he requested a change in his discharge because he was medically disabled and did not pass a reenlistment physical at Ft Hamilton. Since he did not pass the reenlistment physical, he completed CDC courses, as advised for points only.  His prior reenlistment physicals were done at his reserve unit and although they were aware of his disability he was always found fit for duty.  The applicant further states he was never advised of any benefits, rights or that he still could have served to attain 20 years or more.  He feels that if he had not been hospitalized at the End of Term of Service (ETS) he would have reenlisted and would not be experiencing this problem.  He states he has satisfactory creditable service for almost 19 years and feels he should have received a medical discharge.  

The applicant feels he should have been discharged in accordance AFR 35-41. He states the Reserves have conveniently changed the 
necessary regulations and rules that would aid him in receiving a medical discharge.  

As stated, he informed his unit he was disabled. When he began receiving Social Security he completed the Form 40A for points only and returned the check.

He states he should conveniently receive a medical discharge and back pay since the Reserves conveniently changed rules and regulations.

Applicant's complete response is attached at Exhibit E.

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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 probable error or injustice.  After careful consideration of the circumstances of this case and the evidence provided by the applicant, it appears that he has not met the eligibility criteria in accordance with Title 10 U.S. C. Section 12731 or 12731a, to receive a reserve retirement or pay.  Applicant’s contentions are duly noted; however, we agree with the opinion and recommendation of the Air Force and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of probable 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 Docket Number 01-02513 in Executive Session on April 11, 2002, under the provisions of AFI 36-2603:

			Panel Chair
			Member
			Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 28 Aug 01, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, ARPC/DPP, dated 29 Jan 02.
   Exhibit D.  Letter, SAF/MRBR, dated 8 Feb 02.
   Exhibit E.  Applicant's response, dated 25 Feb 02.