RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-02261 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His retirement date be changed to 1 Oct 10 and recoupment of his debt of $57,000.00 be stopped. ________________________________________________________________ APPLICANT CONTENDS THAT: He was notified on 3 Sep 10 that he had been retired effective 31 Jul 10. He had an active duty service commitment date (ADSCD) of Jul 12 as a result of signing a Multi-Year Incentive Special Pay agreement. In support of his appeal, the applicant provides a copy of his retirement order, Special Order AC-011481, dated 3 Sep 10; his DD Form 214, Certificate of Release or Discharge from Active Duty, issued in conjunction with his 31 Jul 10 retirement, and email correspondence. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant signed special pay contracts on 7 Oct 05 and 18 Jul 07, which obligated him to 29 Jun 13. His Date of Separation (DOS) was incorrectly listed in the military personnel data system (MILPDS) when the contracts were processed. Title 10, United States Code (USC) mandates that lieutenant colonels retire at 28 years of total active commissioned service; as a result, the applicant did not have retainability for the ADSC he incurred through the medical special pay contracts. Upon notification of his retired status, AFPC/DPAMF initiated a package to recall the applicant to active duty from retirement. While his package was being expedited the applicant willingly volunteered his services (without pay) to help mitigate the shortage of surgeons imposed by his retirement. Although, the recall package was approved his Critical Skills Retention Bonus was never authorized. The applicant was considered and nonselected for promotion to colonel nine-times and he was not selected for continuation. The applicant was relieved from active duty, effective 31 Jul 10, based on maximum service and retired 1 Aug 10 in the grade of lieutenant colonel. He was credited with 28 years and 27 days of service for retirement. ________________________________________________________________ THE AIR FORCE EVALUATION: AFPC/DPAMF2 recommends changing the applicant's retirement date to 1 Oct 10 to reflect his active service and volunteer service through this period and ensure that he is eligible for the normal liability coverage afforded to active duty surgeons. In addition, they recommend that the Defense Finance and Accounting Service (DFAS) cease action to recoup unearned portions of the applicant's medical special pay. The complete AFPC/DPAMF2 evaluation, with attachment, is at Exhibit C. AFPC/DPSOR recommends for the time the applicant continued to treat patients after his 31 Jul 10 mandatory separation date (MSD), that he be retired effective 1 Oct 10 to cover any existing or future medical liability for having continued to treat patients past his 31 Jul 10 MSD. They have no recommendation concerning the applicant’s medical specialty pay recoupment except to recognize that the AF offered the applicant a SPTC to accept the special pays and erroneously changed the DOS from the valid 31 Jul 10 MSD to 29 Jun 13 to match the medical specialty pay ADSCs. Public Law 108-375, 28 Oct 04, Section 501, Transition of active-duty list officer force to a force of all Regular officers, specified all officers on the active duty list (ADL) be Regular officers by 1 May 05 (AFI 36-2006, Oath of Office (Military Personnel) and Certificate of Commission, incorporating Change 1, dated 12 Oct 2006). Until this law went into effect, the applicant was a Reserve officer and agreed to serve under special period of time contracts (SPTCs) in exchange for medical special pays. After the transition to the all- Regular force, the AF erroneously continued to offer SPTCs to Regular medical officers and changed their DOS to match the ADSC that accompanied the SPTC. The AF changed the applicant's MSD from 31 Ju1 10, required by 10 USC Section 633, to 29 Jun 13, a year after his 28 Jun 12 multi-year specialty pay ADSC. The applicant also had a 30 Sep 11 incentive special pay and a 30 Jun 11 additional special pay ADSC. The AFPC/DPOSR evaluation is at Exhibit D. DFAF-IN recommends the applicant’s separation date and code be changed to authorize non recoupment of bonus monies paid. They note the applicant separated from the Air Force on 31 Jul 10 due to retirement. The member served as a general surgeon until 3 Sep 10, to include work with surgical patients. His Master Military Pay Account (MMPA) was posted with a discharge date of July on 26 Oct 10. This retirement was back dated due to an error in MILPDS. Although DPAMF recommends not recouping the unearned portion of the member's medical special pay this debt has been posted to Defense Debt Management System (DDMS). The complete DFAS-IN evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: Copies of the evaluations were forwarded to the applicant on 16 Sep 11 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit F). ________________________________________________________________ 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 corrective action. The Air Force offices of primary responsibility and the Defense Finance and Accounting Service have adequately addressed the issues presented by the applicant and we are in agreement with their opinions and recommendation. As such, we find that the applicant erroneously performed duty beyond his official MSD due to no fault of his own. We note the Air Force erroneously extended the applicant’s ADSC as a result of an unauthorized specified period of time contract, leading the applicant to believe he was authorized to perform the assigned duties and that he would receive medical special pays. We believe the applicant’s retroactive retirement and the debt he has incurred constitutes an injustice and agrees with the Air Force OPRs and DFAS that relief is warranted. Therefore, in the interest of equity and justice, we recommend the applicant’s records 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 that: a. On 31 July 2010, he was continued by competent authority pursuant to Title 10, United States Code, Section 637(b), thereby establishing a new Mandatory Separation Date of 30 September 2010. b. He was not discharged from the Air Force on 31 July 2010 and retired for length of service on 1 August 2010, but was continued on active duty, and eligible for all rights, privileges, and liability coverage afforded to all Air Force surgeons, until 30 September 2010, at which time he was discharged and retired on 1 October 2010. c. His Narrative Reason for Separation was changed to “Mandatory Retirement: Maximum Service or Time in Grade,” with the corresponding Separation Program Designator (SPD) of “SBC” rather than “Voluntary Retirement: Maximum Service or Time in Grade,” with the corresponding Separation Program Designator of “RBC.” ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-02261 in Executive Session on 8 March 2012, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated. 11 Jun 10, w/atchs Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPAMF2, dated 22 Jul 11, w/atch. Exhibit D. Letter, AFPC/DPSOR, dated 1 Aug 11. Exhibit E. Letter, DFAS-IN, undated. Exhibit F. Letter, SAF/MRBR, dated 16 Sep 11.