RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-02739
		INDEX CODE:   136.00
		COUNSEL:  NONE

		HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

Her records be corrected to show that she will be eligible to receive Reserve retired pay and benefits at age 60 rather than being separated with Disability Severance Pay; and the severance pay be set side.

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APPLICANT CONTENDS THAT:

Upon separation, she was not given a choice between a Reserve retirement and separation with disability severance pay. After receiving information regarding SBP, she was under the impression she would receive her retirement at age 60.

In support of her application, applicant submits emails, Special Order #AD-528, Special Order #AD-668, letters from SAF/MRBP, and ARPC/DPPRB. 

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

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STATEMENT OF FACTS:

Applicant enlisted in the Air National Guard on 7 March 1980 for a period of four years. 

The applicant served in the Air National Guard from 7 March 1980 until her discharge on 4 August 2005 due to physical disability with entitlement to severance pay.  She was progressively promoted to the grade of master sergeant with an effective date and date of rank of 13 June 2003.  Applicant’s NGB Form 22, National Guard Bureau Report of Separation and Record of Service, reflects she was credited with 25 years, 4 months and 26 months of satisfactory Federal service.  

The applicant was medically disqualified for military service in 2005. By law, Title 10, USC, Section 1209, the applicant could either be discharged with entitlement to disability severance, or if eligible, request transfer to the Inactive Status List Reserve Section (ISLRS) and apply for Reserve retired pay at age 60. Since the applicant had over 20 years of satisfactory service, she was eligible to transfer to ISLRS and apply for retired pay at age 60. She elected to be discharged with disability severance pay instead of requesting transfer to ISLRS. The applicant was discharged on   4 August 2005

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AIR FORCE EVALUATION:

HQ ARPC/DPP recommends denial and states the applicant’s record indicates she completed the service requirements for Reserve retired pay under the provision of Title 10, USC, Section 1231, on 1 March 2000. The applicant was issued the official Notification of Eligibility for Retired Pay at age 60 information letter on 1 July 2000. According to Title 10, USC, Section 12738, once a person has completed the years of service required for eligibility for retired pay, the person’s eligibility for retired pay may not be denied or revoked on the basis of an error, miscalculation, misinformation, or administrative determination of the years of service performed unless it resulted directly from the fraud or misrepresentation of the person. However, Title 10, USC, Section 12738, does not guarantee the member will receive retired pay at age 60; it only says the pay cannot be denied based on an administrative error, misinformation, or miscalculation. 

The applicant’s claim that she was never given a choice of electing transfer to ISLRS, so she could apply for Reserve retired pay, instead of accepting disability severance pay cannot be verified or denied by ARPC. The two options are given to the member by the Air Force Personnel Center Disability Operations Branch at Randolph AFB, Texas at the time the disability is processed. ARPC contacted AFPC and they confirmed that their procedures are to give the options to the member before a case is processed for disability severance pay; however, they can provide no verification in this case since the documents are only kept on file for 90 days. 

The applicant had the option of electing disability severance pay or transferring to ISLRS in order to apply for Reserve retired pay at age 60. Since the applicant elected and received disability severance pay under the provisions of Title 10, USC Section 1212, she is not eligible to apply for and receive retired pay under the provision of Title 10, USC, Section 12731 at age 60. There is no provision of law that allows a member to accept both disability severance pay and Reserve retired pay. 

ARPC/DPP’s complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviews the Air Force evaluation and states the Informal Physical Evaluation Board and the Formal Physical Evaluation Board both recommended a 10 percent disability rating and discharge with severance pay. She appealed both findings to the Secretary of the Air Force. Again her unit or anyone else never gave her a choice after receiving the call informing her that she will be discharged in three weeks.

Applicant’s complete response 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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice warranting a partial grant of the requested relief.  The applicant contends she was not properly briefed that when she accepted severance pay in 2005, she forfeited her eligibility to receive retired pay. After reviewing the circumstances surrounding this case, we believe it is likely the applicant did not receive proper counseling at the time.  In this respect, we find it inconceivable the applicant would have forfeited her retirement pay after serving over 25 years of satisfactory federal service.  The applicant, once she reached the age of 60, applied for her retired pay.  We believe, based on all evidence, her records should be corrected to entitle her to retired pay and the opportunity to make an election under the Reserve Component Survivor Benefit Plan (RCSBP). In regards to her request for the severance pay she received to be set aside, the Board notes that there is no provision of law that allows the applicant to accept both disability severance pay and Reserve retired pay. The severance pay will have to be recouped. Accordingly, the Board recommends that her records be corrected only to the extent 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:

		a.  She was not discharged from the Air Force Reserve, but was transferred to the Retired Reserve Section on 4 August 2005 to await pay at age 60 rather than being discharged due to physical disability with entitlement to severance pay.

		b.  She be provided the opportunity to make an election under the Reserve Component Survivor Benefit Plan (RCSBP).

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The following members of the Board considered AFBCMR Docket Number BC-2007-02739 in Executive Session on 29 November 2007, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2007-02739 was considered:

     Exhibit A.  DD Form 149, dated 21 Aug 07, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, HQ ARPC/DPP, dated 12 Oct 07.
     Exhibit D.  Letter, SAF/MRBR, dated 26 Oct 07.
     Exhibit E.  Applicant’ Response, dated 5 Nov 07, w/atchs.