RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:	DOCKET NUMBER:	BC-2008-01153 COUNSEL: NONE
XXXXXXXXXXXXXXXXX	HEARING DESIRED:	NO

APPLICANT REQUESTS THAT:

His	Air	Force	Reserve	time,	served	after	his	active	duty	
retirement, be counted in	his retired pay.				

APPLICANT CONTENDS THAT:
He was one of 38 active duty retirees approved to serve in the Ready Reserve by the Assistant Secretary of the Air Force for Manpower, Reserve Affairs, Installations and Environment. His 3936 plus points for retirement in the Air Force Reserve, after his active duty retirement, could count for an additional 131 months, or nearly 11 more years of service credit towards his retired pay multiplier.

In support of his appeal, the applicant provides a copy of a congressional inquiry to his Congressman.

The applicant’s complete  submission, with attachment, is at Exhibit A.

STATEMENT OF FACTS:
Retirement Order AC-7824, dated 15 March 1973, shows the applicant retired from the Regular Air Force as a technical sergeant (TSgt/E-6) on 1 April 1973. On 20 July 1973, Reserve Order DA- 3804, dated 18 July 1973, shows the applicant joined an Air Force Reserve unit. His Point Credit Summary Service History shows that while he was assigned to the Air Force Reserve, he earned 3936 Reserve points for retirement, 2895 points of which were active duty points as of 19 July 1991. He departed the unit on 1 July 1992 as shown on Reserve Order A-899, dated 1 May 1992. The applicant’s 60th birthday was XX December XXXX.

On  5  February  2009,  the  applicant’s  initial  appeal,  dated
23 February 2007, was administratively closed due to the fact that he had not exhausted his administrative remedies as required by Air Force Instruction 36-2603, Air Force Board for Correction of Military Records. (Exhibit F)

AIR FORCE EVALUATION:
AFPC/DPSOR recommends approval. DPSOR states that on 30 October 2000, Public Law 106-398 added Title 10, United States Code (USC), Section 12741 that allows retirement from active Reserve service after a regular active duty retirement. Under this provision of law, the effective date of election for someone who is over the age of 60 would be “on the first day of the month that begins after the date on which the Secretary concerned receives the election.

While serving in the Air Force Reserve, the applicant attained the Reserve grade of chief master sergeant (CMSgt/E-9) effective 1 May 1991, as indicated by Reserve Order P-89, dated 1 May 1991. The evidence of record shows he was on active duty flight operations prior to 9 September 1990 and on active duty for the Presidential 200,000 Selected Reserve Involuntary Call-up for a year during Operations DESERT SHIELD and DESERT STORM from 9 September 1990 to
8 September 1991. He served on active duty in the grade of CMSgt from 1 May 1991 to 8 September 1991.

DPSOR indicates that only in recent years have active duty retirees been specifically recruited into the Air Reserve Components (ARC) to fill their critical vacancies. When an active duty retiree wants Reserve points for retirement credited to their retired pay at age 60, the retiree can request a retirement under Title 10, USC, Section 12731, in lieu of their active duty retirement under Title 10, USC, Section 8911 (officer) or Section 8914 (enlisted) using the provisions of Title 10, USC, Section 12741. Upon application for a Reserve retirement, the Air Force Reserve Personnel Center (ARPC) considers the points for retirement earned while the active duty retiree was in the Air National Guard or Air Force Reserve, and rolls the points earned for retirement into the service dates for recalculation for the member’s retired pay.

Because the applicant was age 60 in 1995 and the law was not passed until 30 October 2000, it is likely the applicant was not afforded the opportunity to request a Reserve retirement once it was authorized for cases such as his. Cases like this applicant’s are probably rare because few active duty retirees served in the ARC prior to 30 October 2000.

Under the current program implementing Title 10, USC, Section 12741, AFPC would honor the higher, retired grade of CMSgt and would honor the additional Reserve points for retirement if such an active duty retiree, who is a Reserve participant, requests a Reserve retirement at age 60. The law does not appear to exclude active duty retirees who participated and earned points for retirement in the Guard or Reserve prior to its passage on
30 October 2000. The law does not specifically state that points earned prior to 30 October 2000 cannot be counted for a Reserve retirement, nor does it contain a restriction as to how long,
2

after a member becomes age 60 that he/she is eligible to apply. Although the applicant reached age 60 on , his case still fits the scenario described in Title 10, USC, Section 12741(d)(2).

The complete AFPC/DPSOR evaluation, with attachments, is at Exhibit B.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
In response to the Air Force evaluation, the applicant provided copies of his point summaries; Reserve promotion order; Re- computation of Retired Pay for ARC Members in Support of Desert Shield/Storm; DD Form 214, Armed Forces of the United States Report of Transfer or Discharge; a performance report; Certificate of Appreciation; Letter of Commendation, and DD Form 214, Certificate of Release or Discharge from Active Duty.

The applicant’s complete response is at Exhibit D.

ADDITIONAL AIR FORCE EVALUATION:
AF/JAA recommends the applicant’s appeal be administratively closed. JAA indicates the issues raised are complex as they relate to a program administered by ARPC in which more than just the applicant may be affected, and the fact the applicant has not filed a request with ARPC. JAA states the applicant should file his request with ARPC and reserve his application to the Board for a later time if he is dissatisfied with the record ARPC creates.

The complete JAA opinion is at Exhibit E.

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:
On 29 December 2009, the applicant requested the Board resume processing his appeal, as he had not received a response from the two packages he submitted to ARPC requesting Reserve retirement under Title 10, USC, Section 12741.

The applicant’s letter, with attachments, is at Exhibit G.

SAF/GC LEGAL OPINION:
A SAF/GCM opinion, dated 20 September 2010, indicates that prior to the effective date of Title 10, USC, Section 12741, a Reserve member could not receive Reserve retired pay if he or she was

entitled to retired pay under any other provision of law. This changed when Title 10, USC, Section 12741 became effective on
30 April 2001. On that date, a Reserve member could elect Reserve retired pay provided the member met four requirements: 1) has become “entitled to retired or retainer pay” under chapters 65, 367, 571, or 867 of Title 10; 2) subsequently served in active status in a Reserve component satisfactorily; 3) obtained the eligibility age for Reserve retired pay; and 4) elected under Title 10, USC, Section 12741, to receive Reserve retired pay. The plain language of the statute does not require any of the first three requirements to have occurred after the effective date of Title 10, USC, Section 12741. Likewise, the legislative history of Section 12741 is silent as to whether Congress intended to exclude those members who completed their qualifying service prior to its effective date. They have coordinated this issue with the Office of the Secretary of Defense General Counsel, and they agree with their conclusion that Section 12741 does not place limits on when a member’s qualifying service must occur. The statute does not place restrictions on the time and form of election, as well as the effective date of receipt of the retired pay. Most important of these restrictions is that the member must affirmatively make an election to receive Reserve retired pay in the higher grade.

GCM indicates that in the applicant’s case, his formal request, pursuant to Section 12741, for Reserve retired pay, was received in February 2009. Accordingly, his Reserve retired pay would become effective 1 March 2009, the first day of the month that begins after the date on which the Secretary received the election.

The complete GCM opinion is at Exhibit H.

APPLICANT'S REVIEW OF SAF/GC LEGAL OPINION:
On 13 October 2010, the applicant provided a letter indicating that ARPC has still not responded to his request for Reserve retirement and that they now claim they have not seen his military records.

The applicant’s letter is at Exhibit I.

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.
1.	

3.	Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. In this respect, we note that in accordance with SAF/GCM Memorandum, dated 20 September 2010, members can elect Reserve retired pay under Title 10 USC, Section 12741, provided the member meets four requirements: 1) had become “entitled to retired or retainer pay” under chapter 65, 367, 571, or 867 of Title 10; 2) subsequently served in an active status in a Reserve component satisfactorily; 3) obtained the eligibility age for Reserve retired pay; and 4) elected to receive Reserve retired pay under Section 12741. According to SAF/GCM, the statue does not require any of the first three requirements to have occurred after the effective date of Section 12741. According to the evidence of record, the applicant has satisfied the first three requirements and has made several attempts to make an election with the Air Reserve Personnel Center (ARPC); however, ARPC has not resolved this issue to date. Therefore, we believe an injustice has occurred which should be rectified in favor of the applicant. Consistent  with the analysis that Congress intended for this benefit to be provided, and assuming that most members that fall under this category will elect what is most advantageous, we recommend the applicant’s record be corrected to show he elected a Reserve retirement as soon as the option was available and advantageous. Since the applicant had already obtained the age of 60 prior to the enactment of the law, we believe the record should be corrected to show he requested and was granted a Reserve retirement the day after the law was in effect. In view of the foregoing, it is our opinion that the applicant’s records should be corrected as indicated below.

THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show the applicant submitted an application to the Secretary of the Air Force on 1 May 2001 for a Reserve Retirement under the provisions of Title 10 USC Section 12741, and competent authority approved his request to retire in the grade of chief master sergeant (E-9) to include his additional service date credit and higher service multiplier.

The following members of the Board considered AFBCMR Docket Number BC-2008-01153 in Executive Session on 19 April 2011 and 2 June 2011, under the provisions of AFI 36-2603:

XXXXXXXXXXXXXXXXXXXXX, Panel Chair XXXXXXXXXXXXXXXXXXXXX, Member XXXXXXXXXXXXXXXXXXXXX, Member

All members voted to correct the records, as recommended. The following documentary evidence for AFBCMR Docket Number BC-2008- 01153 was considered:

Exhibit A.	DD Form 149, dated 23 Feb 07, with atch. Exhibit B.	Letter, AFPC/DPSOR, dated 24 Jun 08, w/atchs. Exhibit C.	Letter, SAF/MRBR, dated 25 Jul 08.
Exhibit D.	Letter, Applicant, dated 7 Aug 08, w/atchs. Exhibit E.	Letter, AF/JAA, dated 30 Jan 09.
Exhibit F.	Letter, AFBCMR, dated 5 Feb 09.
Exhibit G.	Letter, Applicant, dated 29 Dec 09, w/atchs. Exhibit H.	Letter, SAF/GCM, dated 20 Sep 10.
Exhibit I.	Letter, Applicant, dated 13 Oct 10.