RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-00283
		INDEX CODE:  110.02, 135.00

XXXXXXXXXXXXXXXX	COUNSEL:  NONE

XXX-XX-XXXX	HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

His retirement orders and his records be corrected to show that he was entitled to Retired Reserve pay at age 60.

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APPLICANT CONTENDS THAT:

He was transferred to the Reserve Retired List in Sep 94, but was not eligible for retired pay at age 60 under Title 10 USC Section 1331, which was amended by the FY95 National Defense Authorization Act.  He meets the criteria of the law based on service requirement and being involuntarily separated from a Reserve unit due to medical disqualification during the period of 12 Mar 93 - 31 Dec 01.

In support of his appeal, applicant provided a copy of a letter from HQ AFRES/DPAA, dated 2 Jun 94, a copy of a letter from DPAA, dated 26 May 94, and a copy of Retirement Order EK-5700, dated 20 Jul 94.

Applicant’s complete response is at Exhibit A.

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STATEMENT OF FACTS:

Based on available records, applicant enlisted in the Regular Air Force on 5 Feb 64.  He was released from active duty and transferred to the Air Force Reserve on 30 Aug 65.  His grade at the time of his release from active duty was airman second class (A2C/E-3).  He was credited with 1 year, 6 months, and 26 days of active duty service.  He was in the inactive Reserve from 31 Aug 65 to 4 Feb 70.  From 5 Feb 70 to 12 Dec 78, applicant was in civilian status.  

He served in the Selective Reserve from 13 Dec 78 until his discharge on 1 Sep 94 due to medical disqualification.  He was transferred to the Honorary Retired Reserve on 2 Sep 94 and was credited with 16 years, 6 months, and 26 days of satisfactory Federal service.  His Retirement Order, RO EK-5700, reflects the reason as “age 37, complete 8 yrs of sat svc, not elig for retired pay at age 60 under 10 USC 1331.”

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AIR FORCE EVALUATION:

HQ ARPC/DPP considered this application and recommended denial.  They provided the following analysis of the circumstances surrounding the applicant’s case:

     a.  In order to establish eligibility for Reserve retired pay under the provisions of Title 10, USC, Section 12731, a member must complete at least 20 years of satisfactory service, with the last 6-8 years of qualifying service in a Reserve component.  A review of the applicant’s records indicates he was found physically disqualified by the Administrative Physical Disqualification Review Board on 26 May 94.  He was advised he was eligible for transfer to the Honorary Retired Reserve and he elected this option in lieu of further discharge processing.  He had completed 16 years, 6 months, and 26 days of satisfactory service creditable toward retired pay eligibility at the time of his transfer to the Honorary Retired Reserve, 2 Sep 94.

     b.  There was no provision of law that allowed medically disqualified members to retire with less than 20 years of service until the Fiscal Year (FY) 1995 National Defense Authorization Act was signed into law on 5 Oct 94.  To establish eligibility for Reserve retired pay under this provision, a member must complete at least 15 years, but less than 20 years of satisfactory 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 Selective Reserve on or after 5 Oct 94.  The applicant completed the service requirements and was medically disqualified; however, he was transferred to the Honorary Retired Reserve prior to the effective date of the law.

The applicant did not complete 20 years of satisfactory service; therefore, he is not eligible for retirement under the provisions of Title 10, USC, Section 12731.  In addition, he is not eligible for retirement under the provisions of 10 USC, Section 12731a, since he was transferred to the Honorary Retired Reserve on 2 Sep 94, prior to the enactment of the law.  

A complete copy of the evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant provided a personal statement to further explain the circumstances surrounding the options made available to him after learning he was medically disqualified to continue in the Reserve.

He poses the following question to the Board, “What does the date of Mar 12, 93 - Dec 31, 01 for enlisted mean in Title 10 USC 1331, if not for the people who lost all their years of service through no fault of their own?”

Applicant’s complete response is 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.  Sufficient relevant evidence has been presented to demonstrate the existence of error or 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 warranted.  After careful review of the evidence of record and in light of the applicant’s history of participation throughout his career, and that his transfer to the Honorary Retired Reserve took place 33 days before the effective date of the law, we are inclined to believe that favorable consideration of his request is warranted.  While we cannot determine with any certainty, it appears there may have been mitigating circumstances surrounding the applicant’s transfer to the Honorary Retired Reserve in lieu of continued discharge processing and his continued employment in a civilian capacity.  Had the applicant been aware of the new law governing medically disqualified reserve members with over 15 years but less than 20 years of service, it is reasonable to assume he would have requested an effective date in order to transfer to the Retired Reserve under this law.  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 transferred to the Honorary Retired Reserve on 2 Sep 94, 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, and on 6 Oct 94, 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 AFBCMR Docket Number BC-2003-00283 in Executive Session on 7 May 2003, 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 23 Jan 03, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, HQ ARPC/DPP, dated 25 Feb 03, w/atchs.
     Exhibit D.  Letter, SAF/MRBR, dated 7 Mar 03.
     Exhibit E.  Letter, Applicant, dated 17 Mar 03.

                                   
                                   Panel Chair

MEMORANDUM FOR	THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR
		CORRECTION OF MILITARY RECORDS (AFBCMR)
FROM:	SAF/MR
SUBJECT:	AFBCMR Application of XXXXX, XXX-XX-XXXX
I have carefully reviewed the circumstances of this case and do not agree with the AFBCMR panel’s recommendation 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 Force Reserve on September 1, 1994, 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 he meets the criteria of the law based on “service requirement and being involuntarily separated from a Reserve unit due to medical disqualification during the period March 12, 1993 through December 31, 2001.”
In light of the applicant’s history of participation, the Board believes, in effect, had the applicant been aware of the new law governing medically disqualified Reserve members with at least 15 years of service, he would have requested a separation date to coincide with the change in the law.  Hence, it concludes that depriving the applicant of retired pay at age 60 would be unjust and also would circumvent the intent of the legislation.  I disagree.  To the contrary, I believe granting the applicant’s request would be circumventing the intent of the law.  The applicant was found physically disqualified for further military duty on May 26, 1994.  He was notified of the discharge action on June 2, 1994, and elected transfer to the Honorary Retired Reserve in lieu of further discharge processing.  In accordance with the governing regulation in effect at the time, once discharge action was initiated, it was usually processed in 60 calendar days.
As indicated earlier, the early retirement law that permits disabled active reservists to retire with eligibility for retired pay at age 60 if they have at least 15 years of satisfactory service was effective October 5, 1994, and was not retroactive.  Since the applicant was discharged prior to that date, 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, or that he had a regulatory right to delay his discharge processing until the new early retirement law became effective would be grossly unfair to the hundreds of active reservists who do 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.

Assistant Secretary
(Manpower & Reserve Affairs)