RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-03422
		INDEX CODE:  113.00
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His records be corrected to show that he met the service requirements to be eligible to receive retired pay at age 60.

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APPLICANT CONTENDS THAT:

The law has changed to allow members with 15 to 20 years of satisfactory service to be treated as having met the requirements for eligibility for retired pay at age 60 if they are separated due to medical disqualification.  At the time of his separation he had 17 years of satisfactory service and over 21 years of total service for pay.  His commander requested a waiver to allow him to remain in the Guard with his medical condition, but the request was denied.

In support of his request, applicant provided a copy of his NGB Form 22, Report of Separation and Record of Service; his DD Form 214N, Armed Forces of the United States Report of Transfer or Discharge; Special Order AB----, documents associated with his commander's waiver request, documents associated with his Medical Evaluation Board; and, AF Form 526, Point Credit Summary.  His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant served a variety of Reserve and Guard assignments in the Navy Reserve, Coast Guard Reserve, and the Air National Guard (ANG).  On 19 Aug 94, he was discharged from the ANG and the Reserve of the Air Force for medical disqualification reasons, in the grade of technical sergeant.  He completed 21 years, 8 months, and 4 days of Federal service and 17 years of satisfactory Federal service.

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AIR FORCE EVALUATION:

ARPC/DPP recommends denial.  DPP states that the Fiscal Year 1995 National Defense Authorization Act, which allowed medically disqualified members to retire with less than 20 years of service, was signed into law on 5 Oct 94.  To establish eligibility for Reserve retired pay a member must complete at least 15 but less than 20 years of satisfactory Federal service, with the last 6 years of qualifying service in a Reserve component.  In addition, the member must be medically disqualified and involuntarily separated from the Selected Reserve on or after 5 Oct 94.  The applicant completed the service requirement; however, he was discharged prior to the effective date of the law.  The DPP 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 20 Dec 02 for review and comment 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.  Sufficient relevant evidence has been presented to demonstrate the existence of an injustice.  We believe that the applicant's request for a correction of his record in such a manner as to establish his entitlement to receive retired pay at age 60 is supported by the evidence of record.  After reviewing the evidence of record and in light of the applicant's history of participation throughout his career of military service, and that he was discharged less than 2 months before the effective date of the law, we are inclined to believe that favorable consideration of his request is warranted.  Further, it appears that his superiors made every reasonable attempt to retain him in the Air National Guard, but through no fault of the applicants, they were unable to do so.  In view of the above, we believe that to deprive him of retired pay at age 60 would be an injustice to the applicant and would circumvent the intent of the legislation.  Accordingly we recommend that his records be corrected to the extent indicated below.

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THE BOARD RECOMMENDS THAT:

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

	a. He was not relieved from his assignment and discharged from the Air Force Reserve on 19 August 1994, but was continued in his Reserve assignment.

	b. He was found unfit for duty due to physical disqualification, applied for transfer to the Retired Reserve Section, was honorably discharged from the Tennessee Air National Guard on 6 October 1994, and was transferred to the Air Reserve Personnel Center, Non-Affiliated Reserve Section (NARS), effective 7 October 1994.

	c.  On 8 October 1994, he was transferred to the Retired Reserve Section, Awaiting Pay, per Title 10, United States Code, Section 12731b.

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The following members of the Board considered Docket Number BC-2002-03422 in Executive Session on 9 Apr 03, under the provisions of AFI 36‑2603:

Panel Chair
Member
Member

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 18 Oct 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPP, dated 10 Dec 02, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 20 Dec 02.

					

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR 
CORRECTION OF MILITARY RECORDS

FROM:  SAF/MR

SUBJECT:  AFBCMR Case on 

	I have carefully reviewed the circumstances of this case and do not agree with the AFBCMR panel’s decision to grant the applicant's request for a correction of records to render him eligible for Reserve retired pay at age 60.

	Subsequent to the applicant's medical disqualification and separation from the Air National Guard (ANG), the Fiscal Year 1995 National Defense Authorization Act rendered medically disqualified members with at least 15 years of satisfactory Federal service eligible to receive Reserve retired pay at age 60.  Applicant contends that since he had completed 17 years of satisfactory Federal service and his commander requested that he be allowed to remain in the ANG in spite of his medical conditions, he should be entitled to receive retired pay.

	In light of the applicant’s history of participation, the fact that his superiors attempted to retain him in the ANG, and the fact that he was discharged less than two months before the effective date of the law, the Board believes denial would circumvent the intent of the legislation.  I disagree.  To the contrary, I believe that to grant the applicant’s request would be circumventing the intent of the law.

	As indicated earlier, the law that permits active Reservists who become medically disqualified to retire with eligibility for retired pay at age 60 if they have at least 15 years of satisfactory Federal service was effective October 5, 1994, and was not retroactive.  The applicant was discharged prior to the effective date of the law.  Thus, he was not eligible for retirement under this provision of the law.

	I am not unsympathetic to the applicant’s dilemma.  Nonetheless, to grant the applicant’s request in the absence of clear-cut evidence that the Congress intended that the applicable law be applied retroactively, would be grossly unfair to the hundreds of active Reservists who did not qualify for retired pay because of becoming physically disqualified short of retirement eligibility.  Accordingly, it is my decision that the application be denied in its entirety.