RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-03025

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His Date of Initial Entry Military Service (DIEMS)/Date of Initial Entry Uniformed Services (DIEUS) be changed from 17 July 1986 to 5 January 1987.

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APPLICANT CONTENDS THAT:

His initial enlistment agreement AF Form 3007 [Enlistment Agreement (Non-Prior Service) United States Air Force], dated 17 July 1986, was a voided contract.  The new superseded AF Form 3007 date reads 5 January 1987, and the original contract was voided on 5 January 1987.

In support of his appeal, applicant provided copies of two AF Forms 3007, one dated 17 July 1986 and the other dated 5 January 1987.

Applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

Applicant enlisted in the Reserve of the Air Force on 17 July 1986, for entry into the Delayed Entry/Enlistment Program (DEP), for a period of eight years, with the understanding that he would be ordered to active duty as a Reservist unless he reported for enlistment into the Regular component of the Air Force by 5 May 1987.  Applicant was discharged from the DEP on 4 January 1987, for immediate enlistment into the Regular component of the Air Force on 5 January 1987, for a period of six years.

His total active federal military service date (TAFMSD) and Paydate is 5 January 1987.  His DIEMS/DIEUS is 17 July 1986.  He has served on continuous active duty and entered his current enlistment on 4 February 2002.

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AIR FORCE EVALUATION:

HQ AFPC/DPPAOR reviewed the applicant’s request and states that upon entry to active duty, applicant’s DIEUS date was established in accordance with AFI 36-2604, Service Dates and Dates of Rank, Table 1, Rule 13, giving the applicant a DIEUS of 17 July 1986, IAW his DD Form 4, date 17 July 1986 (Exhibit C).

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states that after consulting with the Base Legal Office, he learned that when the AF Form 3007 (Annex A to DD Form 4), dated 17 July 1986, was voided, the entire DD Form 4 became void as well.  He further states that when the Air Force offered him a new contract by adding two more years, which made it a six-year enlistment on 5 January 1987, they withdrew all obligations made on the 17 July 1986 contract with the 4-year enlistment.

Upon signing the new DD Form 4 and Annex A (AF Form 3007) on 5 January 1987, all other forms signed on 17 July 1986 were voided, rescinded and should no longer exist.  He says in accordance with contract law once a portion of the contract is voided the entire contract is null and void.  Finally, he says, the AF Form 3007, Annex B, is an Enlistment Agreement to the United States which is referenced in AFI 36-2604, Rule 13, as a requirement for the DIEUS date (Exhibit E).

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ADDITIONAL AIR FORCE EVALUATION:

HQ AFPC/DPPRR reviewed the applicant’s request and recommended denial.  They addressed the applicant’s eligibility for the Career Status Bonus (CSB).  Prior to 1 August 1986, there were only two retirement plans: “final basic pay” for those who entered prior to 8 September 1980 and the “high-3” for those who entered after 8 September 1980.  In 1986, the Military Retirement Reform Act (MRRA), commonly referred to as “REDUX,” was enacted for those who entered service after 31 July 1986.  The term “date entered service” means the date the person is enlisted, inducted or appointed…not TAFMSD.  This includes cadets at service academies…, and persons in the Delayed Entry Program.

When those affected by the MRRA challenged Congress that it was reducing retirement benefits to 40% at 20 years, unless they stayed for 30 years, Congress realized that the program needed to be revised.  Instead of repealing the law, in Oct 99, they created the CSB program giving those affected by the MRRA a choice of retirement plans: 50% at 20 years or a bonus of $30,000 at the 15-year point and only 40% at 20 years (unless you complete 30 years, then you would receive 50%).

By signing the contract prior to 1 August 1986, the applicant’s retirement pay plan was, is and always will be “High-3”…the MRRA did not affect the applicant (Exhibit F).

HQ AFPC/JA also reviewed the applicant’s request and recommended denial, stating the applicant failed to present relevant evidence warranting relief.  They state that applicant signed the DD Form 4 on 17 July 1986, certifying that he had carefully read the form, that all of his questions had been answered and that no promise or guarantees, other than those recorded on the DD Form 4 or attached annex (Annex A) would be honored by the Air Force.  (Annex A to the form is the AF Form 3007 which applicant signed on 17 July 1986.)  It also reflects that he took the requisite oath on 17 July 1986.

The same DD Form 4 shows that, on 5 January 1987, the applicant requested to be discharged from the DEP and enlisted in the Regular component of the Air Force for a period of six years.  It also states that “No changes have been made to my enlistment options OR, if changes were made, they are recorded on Annex B which replaces Annex A.”  (Annex B is the AF Form 3007 which applicant signed on 5 January 1987, and which superseded Annex A).  The form reflects that the applicant took the oath again on 5 January 1987.

They further addressed applicant’s eligibility for the “REDUX” plan.  The National Defense Authorization Act for Fiscal Year 2000 (FY2000 NDAA) reformed the retirement system for those individuals who first became military members on or after 1 August 1986.  The MRRA provided such members a retirement system with a reduced multiplier until age 62 and a reduced lifetime Cost-of-Living Adjustment (COLA) with a one-time catch up at age 62.  The FY2000 NDAA places these members under the prior retirement provisions (High-3 Retirement) unless they elect to receive a $30,000 Career Status Bonus (CSB) at the 15th year of active duty service.  An election to receive the CSB requires the member to agree to remain in the service until completion of 20 years of active duty service and be subject, upon retirement, to the retirement provisions of REDUX.

Clearly his eligibility for the CSB hinges on the date he first became a member (DIEMS/DIEUS).  If his DIEMS/DIEUS is 17 July 86, he is not eligible for the CSB.  If his DIEMS/DIEUS is 5 January 1987, he is eligible.

The MRRA, P.L 99-348, Section 105, provides, “For purposes of this chapter and other provisions of law providing for computation of retired or retainer pay of members of the uniformed services, a person shall be considered to first become a member of a uniformed service on the date the person is first enlisted, inducted, or appointed in a uniformed service.”  There is no requirement that the member be in continuous service after he first becomes a member.  Once a member enlists in a Regular or Reserve component of an armed force for the first time, he “first becomes a member of a uniformed service” and establishes his retirement eligibility under REDUX.  Therefore, the date a person first enlists or is appointed as a member of a uniformed service controls his entitlement under REDUX no matter whether there is a break in service or status before 1 August 1986.

Lastly, they addressed the applicant’s assertions that his base legal office advised him that when his initial AF Form 3007, dated 17 July 1986 was voided, his entire Air Force contract became void.  It is not clear to AFPC/JA whether applicant’s recruiter miscounseled him or some judge advocate miscounseled him or both.  Even if the assumption is made that a recruiter and/or judge advocate misrepresented the significance of the superseded AF Form 3007 (i.e., misinformed applicant that his DIEUS would change), this is clearly not a misrepresentation upon which the applicant relied to his detriment.  Applicant signed the AF Form 3007 on 5 January 1987, almost 13 years before enactment of the FY2000 NDAA, which created the CSB.  Applicant cannot claim that he enlisted in the Regular component of the Air Force in 1987 in reliance upon a promise that he would be eligible for a CSB.

A complete copy of the Air Force evaluation is at Exhibit G.

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APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION:

A copy of the additional Air Force evaluation was forwarded to the applicant on 5 April 2002 for review and comment within 30 days.  As of this date, no response has been received by this office (Exhibit H).

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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.  After a thorough review of the evidence of record and applicant's submission, we are not persuaded that his uncorroborated assertions, in and by themselves, are sufficiently persuasive to override the rationale provided by the Air Force.  We note the detailed comments provided by the Staff Judge Advocate in which he concludes that the applicant signed the DD Form 4 on 17 July 1986, certifying that he had carefully read the form, that all of his questions had been answered and that no promises or guarantees, other than those recorded on the DD Form 4 or attached annex (Annex A) would be honored by the Air Force.  In regards to the miscounseling, the applicant provided no evidence to substantiate his contention.  Therefore, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden of having suffered either an error or injustice.  There being insufficient 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 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 this application AFBCMR Docket Number 01-03025 in Executive Session on 29 May 2002, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 18 Oct 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ AFPC/DPPAOR, dated 22 Nov 01, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 14 Dec 01, w/atchs.
    Exhibit E.  Letter, Applicant, dated 8 Jan 02, w/atchs.
    Exhibit F.  Letter, HQ AFPC/DPPRR, dated 5 Mar 02, w/atchs.
    Exhibit G.  Letter, HQ AFPC/JA, dated 29 Mar 02, w/atchs.
    Exhibit H.  Letter, SAF/MRBR, dated 5 Apr 02, w/atchs.