RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

	          INDEX CODE 110.03  136.01   131.00
IN THE MATTER OF:	DOCKET NUMBERS:  BC-2003-01681
		                 Case #2
	 	COUNSEL:  None

	 	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

His original mandatory separation date (MSD) of 30 Sep 02 and retirement in the grade of lieutenant colonel (LTC) on 1 Oct 02 be rescinded and he be reinstated to active duty in the grade of colonel until his new MSD of 1 Jul 04.
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APPLICANT CONTENDS THAT:

HQ ARPC/DPBS’s extensive Special Selection Board (SSB) delays resulted in one SSB pushing his retirement MSD and the last one being conducted after his retirement MSD. Although notified about the first SSB on 15 Jun 01, it did not convene until 10 months later. Neither he nor his supervisor was notified of his nonselection in a timely manner, which impacted preparation time for follow-on SSB and career move decisions. His late release from the Stop/Loss List in late Jul 02 gave him only 2.5 months to retire and get his affairs in order. The second SSB date was changed from Aug 02 to Oct 02. Despite a pending SSB in Oct 02, he was told he was not eligible for a waiver because, as a Reserve officer, he had already exceeded 20 years for active duty service. Thus, he had to retire on his MSD (30 Sep 02) against his will on 1 Oct 02. He was not given any official correspondence of his promotion alternatives or acknowledgement of his promotion, its active duty service commitment (ADSC) date or even how he could serve that commitment for retirement as a colonel. He discusses how adversely he has been impacted by HQ ARPC’s mishandling of his situation. As of 1 Oct 02, he technically has already served 17 months time in grade (TIG) as a colonel on active duty. He would like to serve the remainder of his ADSC on active duty and retire from active duty as a colonel.

Included in his submission are emails between himself, HQ AFRC and HQ ARPC regarding various outcomes to his case. The applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant was a Reserve LTC who entered extended active duty (EAD) on 1 Oct 99. However, due to numerous administrative and material errors, the applicant was not considered for promotion to the grade of colonel in 1999/2000 by either the Reserve or Active Duty promotion boards. In a 4 Feb 00 appeal, he requested SSB consideration for the Fiscal Year 2000 (FY00) Air Force Reserve Colonel Promotion Selection Board, which convened on 18 Oct 99, and any subsequent Reserve Colonel Promotion Board for which he was not considered. On 19 Apr 01, the AFBCMR determined that when the applicant entered EAD on 1 Oct 99 on an Active Duty for Special Work Tour, he should have been retained on the Reserve Active Status List (RASL). The AFBCMR directed he be considered by SSB for the FY00 board and any subsequent Reserve boards for which he was not considered.

For an accounting of the facts and circumstances surrounding the applicant’s previous appeal and the rationale of the earlier decision by the Board, see the Record of Proceedings at Exhibit C.

On 15 Jun 01, the applicant was notified that he was being granted SSB consideration for the FY00 and FY01 Air Force Reserve Colonel Promotion Selection Boards. An SSB was scheduled for Mar 02. The second SSB was tentatively scheduled for Jun 02. 

The FY00 SSB convened in Mar 02, but did not select the applicant. In Jun 02, he learned he was not selected. He was also informed that the FY01 SSB tentatively scheduled for Jun 02 was actually scheduled for Aug 02. In Jul 02, he was advised that the FY 01 SSB was rescheduled for Oct 02, but he had to involuntarily retire because of his 30 Sep 02 MSD. 

On 1 Oct 02, the applicant retired in the grade of LTC for maximum service/TIG with 20 years, 1 month and 17 days of active service.

In the meantime, his records met the FY01 SSB on 21 Oct 02 and he was selected for promotion to the grade of colonel. He was notified of his selection on 14 Jan 03. Reserve Order BA-233, dated 14 Feb 03, directed his promotion to colonel effective and with a date of rank (DOR) of 1 May 01.

As a result of his selection, the applicant’s MSD would now be 1 Jul 04. If reinstated to active duty, his earnings would be offset by his retired pay and any possible civilian earnings.

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AIR FORCE EVALUATION:

AFSLMO/CA advises that, since the applicant’s promotion was effective 1 May 01 and his retirement was not effective until 1 Oct 02, he should receive retroactive pay for that time. In order for the applicant to remain on active duty, AFSLMO would have had to find a colonel billet for him and approve an additional EAD tour. Due to end strength ceilings, they generally do not approve additional active duty tours or requests for new EAD tours. They would not extend the active duty tour for the sole purpose of allowing TIG accrual for retirement. They do not consider the Historian career field critical now, nor would they have considered it critical in Oct 02. Of the different scenarios they present, they believe the applicant should be given the opportunity to return to a Reserve assignment as an colonel with his MSD adjusted for his promotion; he can then accrue time for retirement in the grade of colonel as a Reservist. 

A complete copy of the evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant is disappointed and troubled by the lack of urgency in processing his case and the length of time taken to produce such a superficial advisory. Even his name is spelled incorrectly. AFSLMO’s speculation of possible EAD events back in Oct 02 vice his new MSD distorts the picture. They forget that Air Force administrative errors placed him in this predicament. Technically, the 1 Oct 02 MSD is a non-issue because, with a retroactive promotion to 1 May 01 and a new MSD of 1 Jul 04, he would have ample opportunity to apply for another EAD assignment but at the colonel level. The opportunities he lost during that timeframe are the real issue here, not the EAD/MSD extension dates. As a rated senior officer with critical Air Force Specialty Codes (AFSCs) and unique skills that filled active duty leadership positions, he would have had no problem getting an extension or another tour. Bottom line, he believes he would still be on active duty today if he had received his timely promotion to colonel during that period. He discusses the difficulties and financial hardships with the Reserve service options presented in the advisory. Declining the promotion is not an option, for this is precisely what his appeal for SSB consideration was all about. Instead of being rewarded for a senior officer promotion, he’s being penalized to accept it, especially knowing it was caused by the Air Force and no fault of his own. He believes a legal interpretation with regard to the TIG requirement may be necessary.  He can live with either recommendation for reinstatement or retirement as a colonel, but the Reserve options would be hardships. He asks for an expeditious decision.

A complete copy of applicant’s response, with attachments, is at Exhibit F.

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ADDITIONAL AIR FORCE EVALUATION:

HQ USAF/JAA notes the three options proposed by HQ ARPC:

	a.  The applicant would be recalled to active duty, pay back all his active duty LTC retired pay, accept an active duty assignment, and serve until he completed three years TIG (1 May 04) or until his new MSD of 1 Jul 04.

	b.  The applicant would return to the Select Reserve (SelRes), forgo and pay back the LTC active duty retired pay, serve until he reached his MSD, at which time he would be eligible for active duty colonel retired pay.

	c.  The applicant would return to the SelRes under the retired active duty program permitting him to receive active duty LTC retired pay while serving as a Reserve colonel until he reached his MSD, when he would continue to receive active duty LTC retired pay but his active duty retired pay would be recalculated to colonel retired pay.

	The applicant voluntarily agreed to EAD orders for three years, from 1 Oct 99 to 1 Oct 02. His promotion to colonel, even retroactively, does not alter the fact that the duration of his EAD orders would not have changed. In other words, three years means three years and his EAD orders terminated on 1 Oct 02, when he had served, albeit constructively, as an colonel for 17 months. Other than the applicant’s bare assertions, the Board has no evidence before it that he would have had the opportunity to reapply for other EAD assignments or may have qualified for some other recall program, etc. As for his argument that his separation was involuntary for purposes of Section 1370, with his retroactive promotion to colonel, his service is no longer limited to 28 years of commissioned service and he may now serve 30 years. Thus, with the applicant’s retroactive promotion to colonel he is, in effect, “unretired,” restored to the RASL, and no longer qualifies for retirement in the grade of colonel after only six months TIG pursuant to the provisions of Section 1370. Considering the equities for both the applicant and the Air Force, the Board should consider Option C above. The applicant would be admitted to the SelRes, under the retired active duty program, effective 1 Oct 02. He would not be required to repay any active duty retired pay and may continue receiving active duty retired pay. Further, the Board may consider ordering the applicant receive constructive SelRes service from 1 Oct 02 to his active SelRes participation or his Jul 04 MSD, whichever comes first, and that his service be credited for retired colonel pay purposes including any authorized retired pay recalculations. While the applicant’s circumstances are unfortunate, it would be inappropriate to place him in a better position than he would have otherwise found himself on 1 Oct 02. The Board has no evidence that he would have been permitted to serve on active 
duty for an additional 19 months to achieve the requisite three years TIG to qualify for active duty retired pay as an colonel. More likely than not, he would have continued to serve, in a Reserve capacity, as colonel. Option C is appropriate. 

A complete copy of the additional evaluation is at Exhibit G.

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APPLICANT’S REVIEW OF THE ADDITIONAL EVALUATION:

The applicant concurred with HQ USAF/JAA’s advisory opinion. He requests the following: he be assigned to the SelRes under the retired active duty program effective 1 Oct 02; he be allowed to remain retired as an LTC and continue to receive active duty retired pay; he receive constructive SelRes service from 1 Oct 02 to his active SelRes participation or his MSD (Jul 04), which ever comes first; his service be credited for retired colonel pay purposes, including any authorized retired pay recalculations from 1 Oct 02 to present; he continue to receive retired pay once he has attained the required TIG for colonel but recalculated to the new colonel retired pay level. He believes the SelRes option under the active duty retired program to be in the best interests of himself and the Air Force.

The applicant’s complete response is at Exhibit I.

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ADDITIONAL AIR FORCE EVALUATION:

Based on the applicant’s STOP LOSS and other contentions, an advisory was also requested from HQ AFPC/DPPRRP and is summarized below.

HQ AFPC/DPPRRP asserts the applicant was on the Active Duty List (ADL) for the entire duration of his EAD tour, was involuntarily separated from active duty pursuant to Title 10, USC, Section 12301(d), elected to retire from active duty in accordance with AFI 36-3203 effective 1 Oct 02, and was retroactively promoted to colonel on 1 May 01 after he had been retired. The applicant is entitled to receive the benefits he would have been afforded if he had been promoted while on active duty. They believe he should be retired as a colonel effective on his original retirement date of 1 Oct 02, with only 17 months of TIG.

A complete copy of the HQ AFPC/DPPRRP evaluation, with attachments, is at Exhibit J.

In view of the conflicting opinions between the HQ USAF/JAA HQ and HQ AFPC/DPPRRP evaluations, an additional advisory was requested from HQ USAF/JAA to determine whether HQ AFPC/DPPRRP’s recommendation was within legal constraints. HQ USAF/JAA’s additional evaluation is summarized below.

HQ USAF/JAA notes HQ AFPC/DPPRRP based their recommendation on Title 10, USC, Section 1370, which requires only six months TIG for retirement purposes when an officer’s transfer or separation is due to the requirements of a nondiscretionary provision of law such as attaining the maximum years of service. They also note that HQ AFPC/JA was initially consulted telephonically but was never provided the applicant’s file. HQ AFPC/JA has since advised HQ AFPC/DPPRRP that their recommendation is unsupported by statute or case law. However, HQ AFPC/DPPRRP declined to withdraw or correct its recommendation and HQ AFPC/JA has subsequently withdrawn its stated concurrence and now concurs with HQ USAF/JAA. They reaffirm their recommended relief as stated in their 14 Nov 03 advisory.

A complete copy of the HQ USAF/JAA evaluation, with attachment, is at Exhibit L.

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APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Complete copies of the 7 Jan 04 HQ AFPC/DPPRRP and the 18 Feb 04 HQ USAF/JA advisories were forwarded to the applicant on 16 Jan and 24 Feb 04, respectively, for review and comment within 30 days. As of this date, the applicant has provided no further comment and presumably continues to concur with HQ USAF/JA’s recommended relief.

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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 timely filed.

3.	Sufficient relevant evidence has been presented to demonstrate the existence of probable error or injustice to warrant granting partial relief. After carefully considering the circumstances of this case, the applicant’s submission, and the conflicting evaluations, we conclude some form of Option C suggested by the 14 Nov 03 HQ USAF/JAA advisory offers a compromise that best serves the interests of the applicant and the Air Force while complying with the intent of the law. We agree with HQ USAF/JAA’s assertion that placing the applicant in a better position than he would have otherwise found himself on 1 Oct 02 would be inappropriate. The applicant has not persuaded us that he would have been permitted to serve on active duty for an additional 19 months and achieve the requisite three years TIG to qualify for active duty retired pay as a colonel. We agree that he should be given the opportunity to serve in a Reserve capacity as a colonel. The applicant’s active duty retired pay as an LTC would not be changed by his Reserve service as a colonel. However, at age 60 he will be eligible for Reserve retired pay as a colonel. Therefore, we recommended the applicant be approved to serve in the Select Reserves in the grade of colonel, under the retired active duty program, and continue to collect his active duty retired pay in the grade of LTC, with entitlement to Reserve retired pay in the grade of colonel upon reaching age 60. 

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(s) involved. Therefore, the request for a hearing is not favorably considered.

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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, following his retirement from active duty on 1 October 2002 in the grade of lieutenant colonel, competent authority approved his return to the Select Reserve in the grade of colonel on 2 October 2002, under the provisions of the Retired Active Duty Program, with entitlement to active duty retired pay in the grade of lieutenant colonel; and that he was approved to serve in the Select Reserve in the grade of colonel and credited with constructive Select Reserve service from 2 October 2002 until meeting the three-year time-in-grade requirement for colonel or his mandatory separation date, whichever comes first, with entitlement to Reserve retired pay in the grade of colonel upon reaching 60 years of age.

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The following members of the Board considered this application in Executive Session on 7 April 2004, under the provisions of AFI 36-2603:

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

   Exhibit A.  DD Form 149, dated 21 Apr 03, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Record of Proceedings, dated 4 May 01.
   Exhibit D.  Letter, AFSLMO/CA, dated 12 Aug 03.
   Exhibit E.  Letter, SAF/MIBR, dated 15 Aug 03.
   Exhibit F.  Letter, Applicant, dated 11 Sep 03, w/atchs.
   Exhibit G.  Letter, HQ USAF/JAA, dated 14 Nov 03.
   Exhibit H.  Letter, AFBCMR, dated 21 Nov 03.
   Exhibit I.  Letter, Applicant, dated 9 Dec 03.
   Exhibit J.  Letter, HQ AFPC/DPPRRP, dated 7 Jan 04, w/atchs.
   Exhibit K.  Letter, SAF/MRBR, dated 16 Jan 04.
   Exhibit L.  Letter, HQ USAF/JAA, dated 18 Feb 04.
   Exhibit M.  Letter, AFBCMR, dated 24 Feb 04.
                                   Panel Chair

AFBCMR BC-2003-01681

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to          , be corrected to show that, following his retirement from active duty on 1 October 2002 in the grade of lieutenant colonel, competent authority approved his return to the Select Reserve in the grade of colonel on 2 October 2002, under the provisions of the Retired Active Duty Program, with entitlement to active duty retired pay in the grade of lieutenant colonel; and that he was approved to serve in the Select Reserve in the grade of colonel and credited with constructive Select Reserve service from 2 October 2002 until meeting the three-year time-in-grade requirement for colonel or his mandatory separation date, whichever comes first, with entitlement to Reserve retired pay in the grade of colonel upon reaching 60 years of age.

                                                                          Director
                                                                          Air Force Review Boards Agency