RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

	                           INDEX CODE 113.00  131.04  131.05
IN THE MATTER OF:	DOCKET NUMBERS:  BC-2004-01089
		
	 	COUNSEL:  None

	XXXXXXX	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

1.  His active duty (AD) service from 18 Jan 01 until 31 May 02, be credited as the highest grade held of lieutenant colonel.

Or 

2.  Consider six months time-in-service (TIS) from the period Jun 02 until Apr 04 as equivalent service for lieutenant colonel due to satisfying the “intent” of Title 10, USC, Section 1370.

Or

3.  His Reserve retired grade of major be upgraded to lieutenant colonel when he reaches age 60 [and is eligible for Reserve retired pay.] 

Or

4.  Grant him a Presidential waiver for time-in-grade (TIG) requirements based on exceptional or unusual circumstances under the provisions of Title 10, USC, Section 1370(a)(2)(D) [extreme hardship or exceptional/unusual circumstances].

Or

5.  Grant retroactive AD retirement in the grade of major effective on 1 Jun 02.

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APPLICANT CONTENDS THAT:

The issue is satisfactory service performed in the highest grade. He was selected for promotion in Sep 00, with an “effective date of 18 Jan 01.”  His promotion was delayed until he completed his AD service commitment as an Active Guard Reservist in the grade of major.  As a lieutenant colonel in the Reserves, he served satisfactorily for 22 months until his mandatory separation date (MSD) of 1 Apr 04.  The Air Reserve Personnel Center (ARPC) determined that over six months of this time was creditable service for retirement.  To say he has not satisfactorily served at the highest grade held for at least six months deserves reconsideration.  His decision not to retire in Jun 02 as a major was based on incorrect guidance provided. 

The applicant’s complete submission, with attachments, is at Exhibit A. 

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STATEMENT OF FACTS:

The applicant, a Reserve major, entered AD on 3 Nov 97.  While on an Active Guard Reserve (AGR) tour, the applicant was notified on 6 Dec 00, by Reserve Order (RO)-BA-2021, that he was promoted to the Reserve grade of lieutenant colonel effective and with a date of rank (DOR) of 18 Jan 01.  However, the order also advised the applicant that, until he reverted to an Individual Mobilization Augmentee (IMA) status and was placed in a higher graded position, he would not be authorized to pin-on the new grade.  Further, separate orders would be issued when the pin-on was authorized. 

On 31 May 02, after 21 years and 18 days of active service, the applicant was released in the grade of major from AD and converted to a traditional Reserve status (IMA) on 1 Jun 02. 

Reserve Order BA-475, dated 4 Jun 02, ordered the applicant’s promotion to the Reserve grade of lieutenant colonel with a date of rank (DOR) of 18 Jan 01 and an effective date of 1 Jun 02, when he converted to a traditional Reserve status (IMA).

According to HQ ARPC/DPP, the Military Personnel Data System (MILPDS) shows two different dates for DOR to lieutenant colonel for the applicant: (1) the 18 Jan 01 date of his selection to lieutenant colonel, and (2) the 1 Jun 02 Grade Current Effective date, which is the actual effective date of his promotion to lieutenant colonel. 

On 27 Jun 02, the applicant emailed HQ ARPC/DPPR, asking whether he could retire “active-duty wise” as a lieutenant colonel if his MSD of Apr 04 were not extended.  He advised ARPC the effective date of his promotion was 1 Jun 02. In a 11 Jul 02 email, ARPC advised him that, based on his 18 Jan 01 DOR, which was the date listed in “the system,” his retired pay grade would be lieutenant colonel if he was separated on his MSD because he would have one year of AD, “well over the six months required.” 

The applicant applied for retired pay under the provision of Title 10, USC, Section 8911, to be effective 1 Apr 04, his Mandatory Separation date (MSD). 

To retire under the provision of Title 10, USC, Section 8911, an officer in a grade above major must complete three years AD in grade (Title 10, USC, Section 1370).  This requirement is reduced to six months active duty if the officer has to separate under a mandatory provision of law.  The applicant’s promotion to lieutenant colonel on 18 Jan 01 was not effective until after he had been released from AD and reassigned to the Reserves on 1 Jun 02.  After his return to the Reserves, he earned 16 AD days for the Retirement/Retention (R/R) year ending 17 Jan 03, 39 AD days for R/R year ending 17 Jan 04, and 7 AD days for the current R/R year.  When the applicant was transferred to the Retired Reserves on his MSD of 1 Apr 04, he had earned only 62 days of AD in the grade of lieutenant colonel.

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AIR FORCE EVALUATION:

HQ ARPC/DPP advises since the applicant retired due to his MSD, he needed to complete at least six months (180 days) AD as a lieutenant colonel.  However, he only completed 58 [since updated to 62] days.  The 11 Jul 02 email verifies that someone at ARPC told him his AD time would count from his DOR of 18 Jan 01.  The confusion arises from the MILPDS, which shows two different dates for DOR.  The retirement technician must have looked at the wrong date [18 Jan 01 rather than the effective date of 1 Jun 02] when he advised the applicant his TIG would be computed from the 18 Jan 02 date.  The applicant believes the six months additional time he was credited with for 1405 service should count towards the six-month TIG requirement.  Title 10, USC, Section 1405, is the Reserve time a member can be credited with when not on full time AD.  Once the member qualifies for retirement with 20 years of Total Active Federal Military Service (TAFMS), the Section 1405 service is added to the TAFMS to determine the retired pay percentage multiplier used when computing retired pay.  Since Section 1405 service is actually Reserve time, this time cannot be credited towards the AD TIG required under Title 10, USC, Section 1370.  The AD time the applicant completed between 18 Jan 01 and 31 May 02 was served as a major.  He apparently received erroneous information regarding his DOR but this does not change the requirement of law. Since he did not meet the TIG required by law, the applicant cannot retire in the grade of lieutenant colonel.  Also, there is no provision of law that allows Section 1405 service to be credited toward an AD TIG requirement.  Under Title 10, USC, Section 1370(a)(2)(B), only the President may waive the TIG requirement for an individual case involving extreme hardship or exception or unusual circumstances. This authority may not be delegated.  The request should be disapproved.

A complete copy of the evaluation, with attachments, is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant advises that, in Mar 03, he volunteered for and received Reserve Order OEF-03019, dated 8 Apr 03, for 139 days of active duty in support of Operation Enduring Freedom.  The requesting command revoked these orders two days before his activation due to the high success of the Iraqi War.  Had this order not been cancelled, he would have exceeded the active duty service requirement.  He fulfilled the “expectation” of Section 1370 by serving in the grade of lieutenant colonel for nearly two years. He accrued 65 active duty points, which far exceeds the minimum point annual participation as a reservist. He presents alternative remedies for the Board to consider. 

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

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ADDITIONAL AIR FORCE EVALUATION:

HQ USAF/JAA addresses the applicant’s request and his alterative forms of relief.  The inaccurate information he received from the ARPC technician does not change the requirement that he could not pin on lieutenant colonel until he reverted from serving on an AGR tour to IMA status.  Consequently, there does not appear to be an error or injustice permitting the applicant to count the 18 Jan 01 to 31 May 02 period toward the time required to retire in the higher grade.  Also, while his point accrual as in IMA in the grade of lieutenant colonel may not have been minimal from a Reserve standpoint, it does not meet the statutory requirement for serving six months TIG (where retirement is due to a MSD).  Further, he was correctly advised that active participation in the Reserves would not meet the TIG requirement for active duty retirement.  The applicant argues that over six months of his satisfactory service from Jun 02 until Apr 04 were determined by ARPC as creditable service for retirement.  This time is computed under Title 10, USC, Section 1405, which is Reserve time.  His attempt to use this section to bolster his TIG fails because, once he was qualified for retirement with 20 years Total Active Federal Military Service (TAFMS), Section 1405 service is added to the TAFMS when computing retired pay.  Because Section 1405 is actually Reserve time (not including AD), it cannot be credited toward the AD TIG requirements.  His request for a Presidential waiver under Section 1370(a)(2)(D) because he could not be promoted while on AGR status even though selected for promotion does not rise to the level of exceptional or unusual circumstances as this result obtains in all cases where officers are serving in an AGR status.  His final alternative request is to be allowed to retire as a major effective 1 Jun 02, ostensibly because it would have been more financially beneficial to do so.  While the email exchange between the retirement technician and the applicant does not expressly indicate he would have retired in Jun 02 had he been provided accurate advice concerning TIG requirements, it is for the Board to determine whether the erroneous information constituted an error or injustice that it would be appropriate to retroactively retire him as a major effective Jun 02.

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

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APPLICANT’S REVIEW OF ADDITIONAL EVALUATION:

The applicant asserts the advisory opinions clearly admit the Reserve technician rendered erroneous information concerning his qualification to retire as a lieutenant colonel.  The 11 Jul 03 email from ARPC repeated he would retire as a lieutenant colonel.  Based on this advice, he had total confidence he could retire at his highest grade held and had no reason to apply for retirement earlier as a major.  He was eligible for immediate “voluntary retirement” as a major as early as Jun 01 but was committed to his AGR tour until Jun 02.  He demands his date of retirement be retroactive to 1 Jun 02 as a major.  He provides reasons for seeking a waiver of the TIG requirements to retire as a lieutenant colonel.  He relied heavily on ARPC advice to postpone retirement.  To retire two years later in the same grade that he previously qualified for is a great injustice to him and his family.

The applicant’s complete submission, with attachments, is at Exhibit G.

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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 error or injustice to warrant retiring the applicant from AD in the grade of major effective 1 Jun 02.  The applicant’s promotion to lieutenant colonel could not be effective while he was on his AGR tour.  After he was released from AD and reverted to IMA status, he was promoted to the grade of lieutenant colonel effective 1 Jun 02.  While his service as an IMA may not have been minimal, it does not meet the statutory requirement for serving six months TIG, where retirement is due to a MSD.  Active participation in the Reserves does not meet the TIG requirement for AD retirement.  The applicant argues that six months of his service from Jun 02 to Apr 04 should be considered as equivalent service for higher grade purposes.  However, because Section 1405 service is actually Reserve time (not including AD), this period cannot be credited toward the AD TIG requirement.  The applicant only earned 62 days of AD in the grade of lieutenant colonel.  As for a Presidential waiver, his situation does not rise to the level of exceptional or unusual circumstances as all officers serving in an AGR status are similarly affected.  While the information the applicant received in Jul 02 from the retirement technician was incorrect, we note he did not request it until nearly a month after he had been released from AD.  However, in the interests of fairness, we assume the applicant would have opted to retire from active duty in Jun 02 in the grade of major had he been provided accurate advice concerning TIG requirements.  We believe granting the applicant an active duty retirement on 1 Jun 02 in the grade of major is a reasonable compromise that also remains in compliance with the applicable statutes, and this we so recommend.

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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, on 31 May 2002, he was not released from active duty and transferred to the Air Force Reserves, but on that date he was relieved from active duty and retired under the provisions of Section 8911, Title 10, United States Code, effective 1 June 2002, in the grade of major.

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The following members of the Board considered this application in Executive Session on 9 September 2004 under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence relating to AFBCMR Docket Number BC-2004-01089 was considered:

   Exhibit A.  DD Form 149, dated 30 Mar 04, w/atchs.
   Exhibit B.  Letter, HQ ARPC/DPP, dated 28 Apr 04, w/atchs.
   Exhibit C.  Letter, SAF/MRBR, dated 30 Apr 04.
   Exhibit D.  Letter, Applicant, dated 14 May 04, w/atchs.
   Exhibit E.  Letter, HQ USAF/JAA, dated 8 Jul 04.
   Exhibit F.  Letter, AFBCMR, dated 14 Jul 04.
   Exhibit G.  Letter, Applicant, dated 4 Aug 04, w/atchs.

                                   

AFBCMR BC-2004-01089

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, on 31 May 2002, he was not released from active duty and transferred to the Air Force Reserves, but on that date he was relieved from active duty and retired under the provisions of Section 8911, Title 10, United States Code, effective 1 June 2002, in the grade of major.