RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-01847
		INDEX CODE:  136.00

		COUNSEL:  NONE
	
		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

She be returned to active duty on an Active Guard Reserve (AGR) tour to Lackland AFB or Randolph AFB in San Antonio, TX, and that she be allowed to complete 20 years of Total Active Federal Military Service (TAFMS) and retire.

She be paid all back pay and allowances from 22 Feb 00 to the present.

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APPLICANT CONTENDS THAT:

She was in the sanctuary zone when she entered the Air Force Reserve on 3 Dec 99.  She completed Active Duty for Special Work (ADSW) tours over a period of 14 months and never had an approved waiver on file at HQ ARPC.  She was utilized as an active duty asset and was paid for those active duty days but was never briefed that she had the right to invoke sanctuary protection and to stay on active duty until she reached 20 years of TAFMS.  She believes the Air Force Reserve should correct this situation now that they are aware of the problem.

In support of her appeal, the applicant provided copies of her pay calendar, point credit summary, active duty orders, leave and earning statements, and other documents associated with the matter under review, to include personal statements, and letters from the Assistant Vice Commander, Air Force Reserve Command (AFRC/ACV) and the Inspector General, Air Force Reserve Command (AFRC/IGQ).

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

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STATEMENT OF FACTS:

Applicant’s available military personnel records indicate she enlisted in the Regular Air Force on 24 Nov 75.  She was released from active duty on 18 Jan 94 under the provisions of AFR 39-10 (Early Release Program - Special Separation Benefit (SSB)), with entitlement to $60,043.88 in separation pay.  She was credited with 18 years, 1 month, and 25 days of active service.

She was assigned to the Air Force Reserve on 3 Dec 99 in Information Management.

AF Forms 938, Request and Authorization for Active Duty Training/Active Duty Tour, indicate that from 24 Feb 00 to 13 Apr 01, she performed Special Active Duty for Support (ADS) tours in support of the 433d Logistics Group. 

In May 03, the applicant submitted a claim for sanctuary protection.  On 13 Jan 04, the applicant’s claim for sanctuary protection was denied by AFRC/ACV.  The applicant filed an IG complaint and, on 21 May 04, AFRC/IGQ determined that there was no violation of law, regulation, or procedure regarding the denial of her claim for sanctuary protection.

Information extracted from the Personnel Data System indicates the applicant is currently serving in the Air Force Reserve in the grade of master sergeant, having been promoted to that grade on 1 Apr 02.  She was credited with 23 years of satisfactory Federal Service for retirement.

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AIR FORCE EVALUATION:

AFRC/DPX recommended denial indicating the applicant made no claim for sanctuary protection while serving on active duty (other than for training).  Therefore, she did not meet the eligibility criteria to invoke a claim to sanctuary proctection.  Her claim for sanctuary protection was denied on 13 Jan 04 in accordance with the governing law and Air Force instruction.  

A complete copy of the AFRC/DPX evaluation is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to applicant on 16 Jul 04 for review and response.  As of this date, no response has been received by this office (Exhibit C).

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ADDITIONAL AIR FORCE EVALUATION:

AFPC/DPPRRP provided an advisory opinion concerning the implications connected with accepting an SSB.  They indicated the law requires recoupment of the applicant’s SSB payment of $60,043.88 if she receives an active duty retirement, a Reserve retirement, or disability compensation based on service for which she received the SSB.  According to AFPC/DPPRRP, the applicant did not indicate she understood the implications of having signed the SSB agreement; one of them being that she agreed not to request or apply for reenlistment in a Regular component of a military service; the other that SSB recoupment would occur if and when she received retired pay.

A complete copy of the AFPC/DPPRRP evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant reviewed the additional advisory opinion and provided a response indicating she is not disputing the fact she accepted the SSB, and understands she will have to repay the money.  However, her dispute is the fact she was placed on active duty orders, without an approved waiver, over a period of 15 months and that the procedures stated in the Air Force instruction were not followed.  Because the policy pertaining to her as a sanctuary candidate was not followed, she was not permitted to claim sanctuary protection after she had been identified “after the fact.”  If the procedures had been followed, she would have claimed sanctuary protection and would still be on active duty.  Although she would have to repay the SSB, she would be eligible for an active duty retirement. 

Applicant’s complete response is at Exhibit F.

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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.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  The applicant's complete submission was thoroughly reviewed and her contentions were duly noted.  However, we do not find the applicant’s assertions and the documentation provided in support of her appeal sufficiently persuasive to override the rationale provided by AFRC/DPX.  We note the applicant elected to separate from active duty under the SSB program after having served for over 18 years.  She was subsequently assigned to the Air Force Reserve where it appears she served on Special ADS tours for many months.  She believed she was entitled to sanctuary protection, and eventually made such a claim.  However, it appears her claim for sanctuary protection was not submitted until more than two years after she last served on her ADS tours.  Her claim was eventually denied by ARPC/ACV because she did not make an affirmative request for sanctuary protection while serving on active duty (other than for training).  Furthermore, notwithstanding the applicant’s allegations, an IG investigation of the denial of her claim determined there was no violation of law, regulation, or procedure.  In view of the foregoing, and in the absence of sufficient evidence to the contrary, we agree with the recommendation of ARPC/DPX and adopt their rationale as the basis for our decision that the applicant has failed to sustain her burden of establishing she has suffered either an error or an injustice.  Accordingly, we find no compelling basis to recommend granting the relief sought in this application.

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 issues involved.  Therefore, the request for a hearing is not favorably considered.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered this application in Executive Session on 18 November 2004, under the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFBCMR Docket Number BC-2004-01847 was considered:

    Exhibit A.  DD Form 149, dated 7 Jun 04, w/atchs.
    Exhibit B.  Letter, AFRC/DPX, dated 6 Jul 04.
    Exhibit C.  Letter, SAF/MRBR, dated 16 Jul 04.
    Exhibit D.  Letter, AFPC/DPPRP, dated 16 Sep 04.
    Exhibit E.  Letter, SAF/MRBR, dated 24 Sep 04.
    Exhibit F.  Letter, applicant, undated.