ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2006-00462
		INDEX CODE:  111.05

	XXXXXXXXXXXXXXX	COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1.  His records be corrected to show he be retired on 1 Sep 99 in the grade of lieutenant colonel, upon the completion of 28 years of service rather than on 1 Jul 93, with all back pay, allowances, and a re-computation of his retired pay based on the additional years of service.

2.  The 56.5 days of accrued annual leave that he sold in 1993 be recalculated and paid to him as if he had retired on 1 Sep 99 rather than 1 Jul 93.

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STATEMENT OF FACTS:

On 10 May 07, the Board considered and partially granted the applicant’s request. 

The Board recommended his records be considered for promotion to the grade of Colonel by a Special Selection Board (SSB) for the Calendar Year 1992A (CY92A) Colonel Central Selection Board (CSB).  The Board further directed his records be considered for retention by an SSB for the 1993 Selective Early Retirement Board (SERB), which convened on 20 Jan 93, using the modified selection process the Secretary of the Air Force prescribed for the specifically designated board and which was slightly modified by the Federal Court of Claims in Berkley.  For an accounting of the facts and circumstances surrounding the applicant’s initial request and the rationale of the earlier decision by the Board, see the Record of Proceedings at Exhibit H (with Exhibits A through G).

On 24 Sep 07, the applicant was considered and nonselected for promotion to the grade of colonel by the CY92A SSB.  

On 14 Jan 08, his records were considered by the S0593A SSB for the 1993 SERB, which included the corrections directed by the Air Force Board for Correction of Military Records (AFBCMR) and he was selected to be retained.

By application, dated 2 Jun 08, he requests reconsideration of his appeal, requesting that his active duty retirement date be changed from 1 Jul 93 to 1 Sep 99 and that he be provided active duty pay and benefits from his retirement date of 1 Jul 93 to 1 Sep 99.  Further, that his retired pay be recalculated using the 1 Sep 99 retirement date and he receive all back pay and entitlements.  He also requests the annual leave that he sold upon his retirement in 1993 be recalculated and paid to him as if he retired on 1 Sep 99.

He contends that since he was selected for retention by the S0593A SSB and he had no intention of retiring in 1993, he would have retired at the 28-year point.

In support of his appeal, the applicant provides background documentation related to his appeal.

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

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AIR FORCE EVALUATION:

AFPC/DPSOR recommends denial indicating that although the applicant contends he would have retired on 1 Sep 99, there is no way to predict if he would have served until that time.  He might have voluntarily requested an earlier retirement date than 1 Sep 99 for another personal reason.  

DPSOR notes the applicant reached retirement eligibility as of 1 Sep 91 at which point he had 20 years total active federal military service.  Since he had three years time in grade on 1 Feb 91 he could have retired in the grade of lieutenant colonel on 1 Sep 91 or anytime after that date as long as there were no active duty service commitments barring his retirement.

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

AFPC/DPSIMC recommends denial.  DPSIMC indicates the applicant must clearly show that an error or injustice by the Air Force 
caused him to lose leave.  After reviewing his case, they find no error or injustice by the Air Force.

If the Board grants the member a later retirement date, the applicant would only be able to sell 4.5 days as he previously sold 56.5 days and 60 is the maximum that can be sold during a military career.

A complete copy of the AFPC/DPSIMC evaluation is at Exhibit K.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The AFPC/DPSOR advisory opinion does not recognize the gravity of the SERB process, its affect on those selected to separate, and the Air Force’s intent for the treatment of SERB-selected officers.  The Air Force took extraordinary steps to not disclose the identity of those officers.  He was verbally notified of his SERB selection by Brigadier General XXXXX during the first week of March 1993, and the Air Force assured him his status would not be known beyond the generals in his chain of command.  He was required to apply for a retirement that he did not want, and he did so without disclosing that he had been “SERB’d.”  Yet the advisory opinion implies he should have disclosed his status to the noncommissioned officer (NCO) handling his retirement and have asked for an involuntary retirement.  He believes this is contrary to the express intent of the Air Force.  Disclosing his status was something he chose not to do, and was not required to do.

He requested and secured a joint spouse assignment reporting in the summer of 1993, which is supported by the statement from his immediate supervisor, which verifies his intent to prolong his career and stay on active duty.  

He does not seek any additional paid leave but to recalculate the amount paid for the 56.5 days he sold upon retirement at the 1999 rate.

The applicant’s complete response, with attachments, is at Exhibit M.

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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 warranting a correction to the record.  In an earlier finding, the Board determined the applicant’s records should be considered for promotion to the grade of colonel by an SSB for the CY92A CSB and also directed his records be considered for retention by an SSB.  The applicant was considered and not selected for promotion to the grade of Colonel by the CY92A SSB, but was selected for retention by the S0593A SSB.  As a result of his selection for retention by the S0593A SSB, the applicant now requests that his records be corrected to reflect that he retired on 1 Sep 99, with 28 years of service with entitlement to all back pay and allowances.  We believe that since he was selected for retention by the S0593A Special SERB, it would be equitable to retire the applicant in the grade of lieutenant colonel on 1 Sep 99, which is at his mandatory separation date of 28 years of service.  In view of this and based on the totality of the circumstances surrounding his case, we are of the opinion, that he should be allowed to retire effective 1 Sep 99 in the grade of lieutenant colonel, with entitlement to all back pay, allowances any other entitlement resulting from the correction to his records.  Further, since officers are authorized to sell leave upon retirement, we believe the leave he sold should be recalculated and paid at the 1 Sep 99 rate rather than the 1 Jul 93 rate.  Accordingly, we recommend the applicant’s records be corrected to the extent set forth 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 active duty on 30 Jun 93, and retired for length of service on 1 Jul 93, but on that date he was continued on active duty in the grade of lieutenant colonel.

	b.  On 31 Aug 99, he elected spouse-only coverage under the Survivor Benefit Plan (SBP) based on a reduced level of retired pay.

	c.  He elected to receive a cash settlement for fifty-six and one-half (56.5) days of unused accrued leave on 31 Aug 99, rather than 30 Jun 93.

	d.  He was relieved from active duty on 31 Aug 99 and retired for length of service, effective 1 Sep 99, in the grade of lieutenant colonel.

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The following members of the Board considered AFBCMR Docket Number BC-2006-00462 in Executive Session on 23 Sep 09 under the provisions of AFI 36-2603:

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

   Exhibit H.  Record of Proceedings, dated 10 May 07,
               w/atchs.
   Exhibit I.  DD Form 149, dated 2 Jun 08, w/atchs.
   Exhibit J.  Letter, AFPC/DPSOR, dated 17 Jun 08, w/atchs.
   Exhibit K.  Letter, AFPC/DPSIMC, dated 27 Jun 08.
   Exhibit L.  Letter, SAF/MRBR, dated 11 Jul 08.
   Exhibit M.  Letter, Applicant, dated 30 Jul 08, w/atchs.