RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-01764
		INDEX CODE:  136.01
XXXXXXX	COUNSEL:  NONE
		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1.  His retirement date be changed from 1 November 2006 to 1 June 2007 or the first day of the month after the Board's decision.

2.  In the alternative, applicant request his records be changed to show that on 1 November 2006 he was recalled from the retired Reserves to active status and served on extended active duty and then back to inactive status in the retired Reserves.

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APPLICANT CONTENDS THAT:

He did not receive copies one and four of his DD Form 214 showing his release from active duty effective 31 October 2006, until 14 May 2007.  As a result, he has not been able to file his disability and Montgomery GI Bill benefits claim with the Department of Veterans Affairs (DVA).  In addition, he has been unable to apply for dental treatment from the DVA.

In support of his request, the applicant provided a personal letter; a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty; retirement orders; and excerpts from the United States Code (U.S.C.) and AFI 36-3202, Separation Documents. 

The complete submission, with attachment, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant enlisted in the Air Force on 7 October 1986. 

Data extracted from the personnel data system reflects he submitted his request for retirement on 1 November 2005 to be effective 1 November 2006.  On 9 January 2006 his request was approved and orders were issued.

During the time between his request for retirement and his retirement date, the Air Force retirement processing was transitioning from the base level to the Air Force Contact Center (AFCC).  As a result, the DD Form 214 process transitioned to the AFCC for members with a projected departure date (PDD) after 1 October 2006.  The military personnel flight (MPF) was required to continue to out-process all members with a PDD of 30 September 2006 or earlier.  Case files with a PDD of 1 October 2006 or later should have been forwarded to the AFCC for processing.  The MPF accomplished his DD Form 214 prior to his PDD but instead of holding the Unit Personnel Records Group (UPRG) until the applicant's retirement date to distribute copies of the DD Form 214, the record was sent to the AFCC sometime before 1 November 2006.  The last copy should have been kept in the MPF relocation folder for one year.  Because his DD Form 214 was not present in his UPRG, his record was held at the AFCC awaiting the required copy from the MPF.  On 14 May 2007 the MPF provided copies of the DD Form 214 to the applicant.

The applicant retired from active duty in the grade of master sergeant on 1 November 2006.  He served 20 years and 24 days on active duty.

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AIR FORCE EVALUATION:

AFPC/DPPRRP recommends denial.  DPPRRP states the applicant was certainly inconvenienced by not having valid copies of his DD Form 214.  Because a DD Form 214 is so important, DPPRRP deemed the applicant should have immediately elevated his concerns to the MPF commander, the AFCC, or other higher level if he did not immediately receive his DD Form 214 after his 1 November 2006 retirement.  As a senior noncommissioned officer, the applicant should have used the available chain of command to resolve his problem, particularly since he clearly needed the DVA certification to pay for his schooling.  Since the applicant's retirement, the base-level military members have since transitioned and, unfortunately, historical continuity was lost. DPPRRP's analysis found the transition to a centralized retirement process was a contributing factor to the confusion and disconnect with the applicant's DD Form 214.  However, if the applicant had elevated the problem soon after his retirement, either the MPF or the AFCC could have issued him a DD Form 214 in a timely manner.

The complete DPPRRP evaluation, with attachments, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded stating AFPC's advisory content and unapologetic tone are disappointing.  AFPC's response blames him; however, he has no training in the retirement process.  The 31 October 2006 release from active duty violated federal law.  10 U.S.C. forbids release from active duty without two things being ready for delivery to the retiree, the DD Form 214 and final pay.  10 U.S.C. forbids discharge prior to ETS except as provided by the secretary concerned, sentence of a general court or special court martial; or as otherwise provide by law.  In his case, the DD Form 214 did not exist until he went to the MPF and demanded it on 14 May 2007.  He watched MPF personnel prepare and issue the DD Form 214 to him.  Since the form did not exist, it was not ready for delivery thus violating 10 U.S.C.  Since AFI 36-3203 requires preparation of a DD Form 214, 10 U.S.C. was violated.  Military courts have had no problems with using 10 U.S.C. to keep accused wrongdoers on active duty for trial.  If it is fair and just for the military to involuntarily retain personnel when these laws are not followed, then it is fair and just to apply those laws in his case.  AFPC's advisory opinion falsely states his UPRG was sent to the AFCC sometime before 1 November 2006.  After requesting certified copies, AFPC sent him a letter dated 5 June 2007 indicating they did not have his UPRG.  The MPF had the record filed with active duty UPRGs.  The advisory opinion falsely states the AFCC could have provided the DD Form 214 had he elevated the problem to them.  This evidently is not true considering the AFCC promised him a DD Form 214 on 5 June 2007 and they still have not provided it.  The advisory opinion also falsely states he used government funds to move from Bolling AFB to Jacksonville Florida, which he did not use.  As far as the applicant is concerned, AFPC's attention to detail is demonstrably no better than that of the Bolling AFB, MPF.  Confronted with the MPF's failure in its duty under law and regulation, the AFPC opinion now invents a nonexistent duty for him and unapologetically blames him for not following it.  Finally the applicant states the law requires a DD Form 214 and the Secretary of the Air Force issued regulations requiring its issuance.  He called on multiple occasions to obtain it and the MPF failed to issue one for 192 days.  This has caused him harm in the form of delay and outright loss of statutory entitlements. Since the Air Force malfeasance wrongfully blocked his receipt of veterans' entitlements for 192 days, he asks that his records be changed to reflect the additional active duty service.

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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.  In this regard, the Air Force is correct to some extent that the applicant must bear some of the burden for the loss of his benefits.  We are somewhat troubled however, by what appears to be an insinuation that the Air Force is blameless in this matter. The DD Form 214 is an extremely important document to former service members and in cases where members depart on terminal leave it is the ultimate responsibility of the Air Force to ensure the DD Form 214 is made available to former members in a timely manner.  Clearly, this did not happen in this case.  Other than his assertions, we are unable to ascertain based on the evidence provided, exactly which entitlements he was truly denied and the impacts thereof.  Nevertheless, considering the fact that the Air Force erred in not providing the applicant his DD Form 214 until over six months after his date of separation, we believe that in order to resolve any injustices suffered his records should be corrected to the extent indicated below.

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THE BOARD RECOMMENDS:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that he was not discharged from the Air Force on 31 October 2006 and retired for length of service on 1 November 2006, but was continued on active duty until 30 November 2007, at which time he was discharged and retired on 1 December 2007.

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The following members of the Board considered Docket Number BC-2007-01764 in Executive Session on 2 October 2007 under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence pertaining to Docket Number BC-2007-01764 was considered:

	Exhibit A.	DD Form 149, dated 1 June 2007, w/atchs.
	Exhibit B.	Applicant's Master Personnel Records.
	Exhibit C.	Letter, AFPC/DPPRRP, dated 19 July 2007.
	Exhibit D.	Letter, SAF/MRBR, dated 31 August 2007.
	Exhibit E.	Letter, Applicant, dated 20 September 2007, w/atchs.

	 

MEMORANDUM FOR	THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS (AFBCMR) 
FROM:	SAF/MR
SUBJECT:	AFBCMR Case of XXXXXXX

After carefully reviewing the circumstances of this case, I do not agree with the recommendation of the Air Force Board for Correction of Military Records panel to change the date of the applicant’s retirement from the Air Force based on the applicant’s late receipt of his DD Form 214.

The applicant contends that his discharge from active duty was contrary to the provisions of Title 10, U.S.C., Section 1168(a) which states a member of an armed force may not be released from active duty until his certificate of release from active duty is ready for delivery to him.  As pointed out in the applicant’s own submission, the DD Form 214 was prepared on the date he was released to start permissive TDY and terminal leave, but could not be delivered under Air Force policy because the applicant’s actual retirement was at a future date.  Unfortunately, a series of subsequent errors caused the form to be delayed beyond what was reasonable.  Based upon this delay, and the impact the applicant claimed it had, the Board concluded it was necessary to grant the applicant a full year of extra active duty service to correct an injustice.

	The applicant asserts that the delay in the receipt of his DD Form 214 has caused a delay or loss of benefits he is entitled to, but has not provided sufficient evidence detailing the benefits lost or his efforts to satisfy the requirements for receipt of the benefits.  Absent such evidence, the applicant has suffered what might best be described as annoyance and inconvenience.  Thus, the recommended remedy would provide the applicant an inappropriate windfall by granting additional active duty service credit, pay and benefits and increased retirement pay for the rest of his life.  The Board takes exception to the office of primary responsibility placing blame on the applicant for the late delivery.  I also find that shifting of the blame to the member is not appropriate.  The system failed the applicant and should admit that it failed.  Nevertheless, the purpose of the correction process is to correct errors and prevent injustices, not to extract a penalty for administrative oversight or even incompetence. 

	Although legal analysis is not specifically addressed in the panel rationale, I understand that non-receipt of the DD Form 214 does not constitute a material error invalidating the applicant’s release from active duty.  This is especially the case if one considers the applicant was released to start permissive TDY and terminal leave based on his requested voluntary retirement date.  Accordingly, I do not conclude the applicant has a legal right to the proposed remedy.  If he did, it would be appropriate to approve the Board’s recommendation on that basis.
 
	Having found the relief recommended by the Board not appropriate to the circumstances of the case, I have decided to deny the application. 

								

Attachment:
Complete Case File