RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-04459 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: He receive credit for early retired pay under the provisions of Title 10, United States Code (USC), Section 12731, for orders that cite Title 10, USC, Sections 502 and 502(f). _________________________________________________________________ APPLICANT CONTENDS THAT: During the last two years of his enlistment he worked about 400- 600 days on Title 10 and Title 32-502-F orders which should have qualified him for the Early Retirement Program. In support of his request, the applicant provides copies of documents extracted from his military personnel records and a memorandum from NGB/CF and an email communiqué. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is a former Air National Guard member who was transferred to the Reserve Retired List on 30 Sep 09. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force (Exhibit C). _________________________________________________________________ AIR FORCE EVALUATION: HQ ARPC/DPTTRB recommends denial noting the applicant's active duty orders in 2008 and 2009 that cite Title 10, USC, Sections 502 and 502(f) provide no indication that the applicant’s service was in response to a national emergency as declared by the President or a national emergency supported by Federal funds, and would therefore not qualify to reduce his Reserve retirement eligibility age. The 2008 National Defense Authorization Act, PL 110-181, amended Title 10, USC, Section 12731 to allow a service member to reduce their Reserve retirement eligibility age from 60 years old down to a minimum of 50 years old by three months for each aggregate of 90 days of qualifying service that was performed under the provision of Title 10, USC, Section 12731 (f) since 28 Jan 08. Qualifying service includes a call to active service authorized by the President or the Secretary of Defense under section 502(f) of Title 32 for purposes of responding to a national emergency declared by the President or supported by Federal funds. DoDI 1215.07, Service Credit for Retirement, para 6.5.2.3, clarifies that national emergency modifies the phrase "or supported by Federal funds" as well as "declared by the President…". Thus, qualifying service under Title 10, USC, Section 12731 (f)(2)(B)(ii) is service in response to a national emergency as declared by the President or a national emergency supported by Federal funds. Also, DoDI 1215.07, paragraph 6.5.2.4 states that the orders issued to members of the National Guard for service under section 502(f) of reference (f) shall cite the circumstances calling for the service, as appropriate, as listed in subparagraph 6.5.2. The HQ AFRC/DPTTRB complete evaluation is at Exhibit B. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: He believes the issue with his orders are that the program came into effect after the orders were issued and there was no real direction on how orders had to be written to cover a program that didn't even exist at the time. The type of orders in question (Temporary Active Guard Reserve (AGR)) would print the default setting unless the system was specifically told to print something different. He further points out that there was no guidance available at the time to establish any qualification criteria. When he first applied for this program he was told that the Temporary AGR orders did not count because the Temporary AGR time would apply to an active duty retirement. Since he is a part timer he is not eligible for an active duty retirement under the AGR Program. Operation Noble Eagle has been in effect since 9/11 and all extra manning and support should be covered under Operation Noble Eagle as a National Emergency declared by The President or as an operation supported by federal funds regardless of what his orders state. The applicant’s complete response, with attachments, is at Exhibit E. _________________________________________________________________ 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. Insufficient relevant evidence has been presented to demonstrate the existence of an error or an injustice. The applicant's complete submission, to include his rebuttal and the Security Forces Manager statement, was thoroughly reviewed and his contentions were duly noted. However, we do not find the applicant’s assertions or the documentation presented in support of his appeal sufficient to overcome the rationale provided by the Air Force office of primary responsibility (OPR) and adopt its rationale as the basis for our decision the applicant has been the victim of an error or injustice. In our view the orders provided by the applicant do not meet the criteria for credit prescribed in Title 10, USC, Section 12731. While the applicant contends the orders were published in such a way as to obscure the fact the duty he performed should qualify, we find the evidence provided insufficient to make this conclusion. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-04459 in Executive Session on 26 Jun 12, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2011-04459 was considered: Exhibit A. DD Form 149, dated 2 Nov 11, w/atchs. Exhibit B. Applicant’s Military Personnel Records. Exhibit C. HQ ARPC/DPTTRB, dated 30 Dec 11. Exhibit D. Letter, SAF/MRBR, dated 6 Jan 12, w/atch. Exhibit E. Letter, Applicant, undated, w/atch.