RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2007-01269
	INDEX CODE:  110.02
	XXXXXXXXXXXXXX			COUNSEL: 

							HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  26 October 2008

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APPLICANT REQUESTS THAT: 

His retired grade be corrected to reflect the grade of colonel (O-6).
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APPLICANT CONTENDS THAT:

He was informed that due to restructuring he would be involuntarily separated from active duty and forced to retire.  He served over six months in the grade of colonel which qualifies him under the provisions of Title 10 United States Code (USC), Section 1370(a)2(A) and (a)(3), and Air Force Instruction 36-3202, paragraph 7.2.4, to retire in the grade of colonel (O-6).  

In support of his appeal, the applicant provided a personal statement; a statement from his counsel; Notification of Involuntary Separation; Commander, Georgia Air National Guard (GA ANG) memorandum; GA ANG Adjutant General memorandum; USAF/A4/7 memorandum; and Request for Retirement Reconsideration, dated 15 July 2003, with attachments.   

The applicant’s complete submission, with attachments, is at Exhibit A.
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STATEMENT OF FACTS:

On 1 December 2002, the applicant retired from the GA ANG under Title 10 USC Section 8911, after serving 21 years, 7 months, and 27 days of active duty service.  During his last Active Guard/Reserve (AGR) tour scheduled for 1 August 2001 through 31 July 2002, the applicant was selected for promotion to the grade of colonel effective 21 March 2002.  

On 20 April 2002, the applicant was notified that his AGR tour was being extended to 30 November 2002 and, due to force management reasons, he would be involuntarily separated on that date.  The notification from the Commander, GA ANG, explained that the four-month extension was to allow the applicant sufficient personal time to prepare for his separation and subsequent retirement effective 1 December 2002.  

On 30 November 2002, the applicant was honorably discharged in the grade of colonel (O-6) for the purpose of retirement.  He retired effective 1 December 2002.  According to the applicant, upon receiving his initial retirement pay, he discovered that he was retired in the pay grade of lieutenant colonel (O-5) because he had not served three years time-in-grade as a colonel.  

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AIR FORCE EVALUATION:

ARPC/DPP recommends the applicant’s request be denied.  DPP states in order to retire under the provisions of title 10 USC, Section 8911, in a grade above major, a member must complete three years active duty service in grade per Title 10 USC, Section 1370(a)(2)(A).  The three year time-in-grade requirement is reduced to six months if the member is involuntarily released from active duty, without his consent.  The applicant did not complete three years active duty service in the grade of colonel to retire voluntarily.  The applicant did complete over six months of active duty service in the grade of colonel; however, it is their opinion that he was not involuntarily released from active duty without his consent.  

DPP states the applicant, like many others, consented to an AGR tour of defined length.  The conclusion of those tours has not been held to be “involuntary” because the member was fulfilling a limited duty he voluntarily accepted.  To now conclude that failure to perform further duty is “involuntary” in the sense of Title 10 USC, Section 1370(a)(3) would possibly affect numerous individuals and would not be within the intention of the statue.  

DPP states if the Board does not agree with their recommendation, it should be shown the applicant’s release from active duty on 30 November 2002 was involuntary, without his consent.

The DPP advisory, with attachment, is at Exhibit D.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel responded that the Air Force advisory opinion fails to address critical statutory issues, the uncontradicted statements of several general officers with first hand knowledge of the issues, and the applicant’s good-faith reliance on the representations made by the National Guard Bureau (NGB) and the GA ANG Human Resources Office.  The applicant acted to his detriment in good faith reliance on the advice given to him by the “experts.”  He would not have accepted the involuntary retirement had he known that his grade would not be determined as colonel (O-6) for retirement.  It is clear that if the answer had been anything other than the answer he received, he would not have been forced to retire.  There is no basis in law or equity for denying the applicant’s appeal.  Any other result would be a clear injustice.

The counsel’s rebuttal 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 timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  After a thorough review of the evidence of record, the Board has determined the evidence supports the fact that the applicant was involuntarily released from active duty effective 30 November 2002 and retired effective 1 December 2002.  The Board notes his commander’s letter of notification to the applicant, dated 20 April 2002, which states, “…my decision to direct you to involuntarily retire should in no way be construed as negatively reflecting on your professional or personal performance.”  The fact his commander extended the applicant’s orders from 31 July 2002 to 30 November 2002 in order to allow the applicant sufficient time to prepare for his separation, does not negate the commander’s decision to involuntarily release him.  In any event, we feel he has suffered an error or injustice that should be rectified in his favor.  In view of the foregoing, it is our opinion that the applicant’s records should be corrected as indicated 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 he was involuntarily discharged on 30 November 2002 under the provisions of Air Force Instruction 36-3209, and retired effective 1 December 2002 under the provisions of Title 10, United States Code, Section 8911, in the grade of colonel (0‑6).  

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The following members of the Board considered this application in Executive Session on 9 August 2007, under the provisions of AFI 36-2603:

	XXXXXXXXXX, Panel Chair
	XXXXXXXXXX, Member
	XXXXXXXXXX, Member

All members voted to correct the records, as recommended.  The following documentary evidence for AFBCMR Docket Number BC-2007-01269 was considered:

Exhibit A.  DD Form 149, dated 18 Apr 07, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, ARPC/DPP, dtd 29 May 07, w/atch.
	Exhibit D.  Letter, SAF/MRBR, dated 1 Jun 07.
	Exhibit E.  Counsel’s Rebuttal, dated 24 Jul 07.

									XXXXXXXXXX
									Panel Chair