RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00737
		INDEX CODE:   136.00

	XXXXXXX	COUNSEL:  NONE

	XXXXXXX	HEARING DESIRED: YES

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APPLICANT REQUESTS THAT:

His records be corrected to show that he retired from the Air Force Reserve at age 60 rather than being separated with Disability Severance Pay.

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APPLICANT CONTENDS THAT:

He was denied the filing of his application for Reserve retirement at age 60 based on a legal opinion, dated 5 Dec 94, and then later received a letter, dated 14 May 03, from HQ ARPC allowing the retirement application.  His application was denied because severance pay was determined to be retired pay.

He states he was never briefed that he would lose his retirement eligibility or survivor benefits.  He was briefed that the letter of eligibility for retired pay at age 60 was conclusive.

In support of his appeal, applicant submitted a handwritten note; copies of letters he received from HQ ARPC regarding his retirement at age 60; AF Form 100, Request and Authorization for Separation, dated 7 Sep 88 and excerpts from Title 10 USC 1223 and 1215.

Applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 13 Oct 53.  He was released from active duty and transferred to the Air Force Reserve on 12 Sep 57.  His grade at the time of his release from active duty was airman second class (A1C/E-4).  He was credited with 3 years, 11 months of active duty service.  

He served in the Air Force Reserve from 13 Sep 57 until his discharge on 15 Sep 88 due to physical disability with entitlement to severance pay.  He was progressively promoted to the grade of senior master sergeant with an effective date and date of rank of 17 Oct 63.  Applicant was credited with 11.30 years of active duty service for pay at the time of his discharge.  His ARPC Form 168, dated 26 Aug 88 reflects he was credited with 31 years and 11 months of satisfactory Federal service.  

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AIR FORCE EVALUATION:

HQ ARPC/DPP reviewed this application and recommended denial.  Applicant was medically disqualified for military service in 1988.  By law, he could either be discharged with entitlement to disability severance pay or, if eligible, request transfer to the Inactive Status List Reserve Section (ISLRS) to await pay at age 60.  Since the applicant has over 20 years of satisfactory service, he was eligible to transfer to ISLRS to await retired pay, however, he elected to be discharged with disability severance pay.  

Applicant claims he was never briefed, as required by law, regarding what effect accepting the disability severance pay would have on his retired pay benefits.  DPPR could not verify whether or not applicant did receive a briefing prior to separation. However, the statutory separation counseling requirement did not exist when the applicant was separated from military service in 1988.

A review of the applicant’s package submitted to HQ ARPC/JA, in 2003, determined that the applicant was not eligible for Reserve retired pay because he had accepted and received disability severance pay.  

A complete copy of the evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant provided a response to the evaluation by letter dated 8 May 04, explaining the reasons why he believes he should be entitled to retired pay at age 60.  

In support of his appeal, he provided a personal statement and excerpts from Title 10 USC attached a copy of a letter from the Veterans Administration (VA).

Applicant’s complete response, with attachments, 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 warranting a correction to the record.  The applicant, as the record now stands, was not entitled to retired pay when he reached age 60.  The applicant contends he was not properly briefed that when he accepted severance pay in 1988, he forfeited his eligibility to receive retired pay.  After reviewing the circumstances surrounding this case, we believe it is likely the applicant did not receive proper counseling at the time.  In this respect, we note the applicant had been previously notified he was eligible for retired pay at age 60.  In addition, we find it inconceivable the applicant would have forfeited his retirement pay after serving over 31 years of satisfactory federal service.  The applicant, once he reached the age of 60, applied for his retired pay.  We believe, based on all evidence, his records should be corrected to entitle him to retired pay.  The severance pay he received will have to be recouped, and he will be provided the opportunity to make an election under the Reserve Component Survivor Benefit Plan (RCSBP).

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 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:

		a. He was not discharged from the Air Force Reserve, but was transferred to the Retired Reserve Section on 15 September 1988 to await pay at age 60 rather than being discharged due to physical disability with entitlement to severance pay.

		b. He was assigned to the USAF Retired List on 15 May 1995 and was eligible for retired pay under the provisions of Title 10, United States Code, Section 12731.

		c. He be provided the opportunity to make an election under the Reserve Component Survivor Benefit Plan (RCSBP).

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The following members of the Board considered AFBCMR Docket Number BC-2004-00737 in Executive Session on 1 September 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 25 Feb 04, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, HQ ARPC/DPP, dated 6 Apr 04.
     Exhibit D.  Letter, SAF/MRBR, dated 9 Apr 04.
     Exhibit E.  Letter, Applicant, dated 1 May 04, w/atchs.

                                   Chair

AFBCMR BC-2004-00737

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 XXXXXXX, XXXXXXX, be corrected to show that:

		a. He was not discharged from the Air Force Reserve, but was transferred to the Retired Reserve Section on 15 September 1988 to await pay at age 60 rather than being discharged due to physical disability with entitlement to severance pay.

		b. He was assigned to the USAF Retired List on 15 May 1995 and was eligible for retired pay under the provisions of Title 10, United States Code, Section 12731.

		c. He be provided the opportunity to make an election under the Reserve Component Survivor Benefit Plan (RCSBP).