RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-04660 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His extended active duty (EAD) orders be amended to include the statement “The period of service under these orders is exempt from the five-year limit as provided in 38 U.S.C. 4312(c)(4)(B).” _________________________________________________________________ APPLICANT CONTENDS THAT: The Assistant Secretary of the Air Force, Manpower and Reserve Affairs’ (SAF/MR) memorandum dated 31 Mar 08 authorizes inclusion of the statement on his EAD orders. In support of his request, the applicant provides copies of special order AGA-300 and the SAF/MR memorandum. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is currently serving in the Air Force in the grade of lieutenant colonel. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), as codified in Chapter 43 of Title 38 U.S.C, provides reemployment protections for members of the uniformed services. Title 38 U.S.C. 4312(c) set a five-year limit for retaining reemployment rights; however, certain duty is exempt from the five-year limit. Department of Defense Instruction (DoDI) 1205.12, Civilian Employment and Reemployment Rights of Applicants for, and Service Members and Former Service Members of the Uniformed Services, implements USERRA. In accordance with (IAW) paragraph 6.6., the Secretary of the Air Force (SECAF) shall make an exemption determination for periods of active duty when a member is ordered to active duty because of war or national emergency and, if the purpose of the order to active duty is for the direct or indirect support of the war or national emergency, the orders should be so annotated. The SECAF, in SAF/MR memo dated 31 Mar 08, has exempted service performed by a member ordered to active duty tour under Title 10 U.S.C. 12301(d) on or after September 14, 2001, for the purpose of providing direct or indirect support of missions and operations associated with the National Emergency By Reason of Certain Terrorist Attacks, declared by Presidential Proclamation 7463, dated September 14, 2001. The exemption is specifically based on the authority of Title 38 U.S.C. 4312(c)(4)(B), which exempts service of a member ordered to active duty under any provision of law because of a war or national emergency declared by the President or the Congress. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIPR recommends denial. The applicant was ordered to EAD under AFI 36-2008, Voluntary Extended Active Duty for Air Reserve Commissioned Officers. The introductory paragraph states it does not apply to officers volunteering for EAD in support of contingencies or “code-named” operations and that contingencies or war do not change the requirements in AFI 36- 2008. The statutory authority to order an Air Reserve Component (ARC) officer to EAD under AFI 36-2008 is Title 10 U.S.C 12301(d). The applicant applied for permanent recall under AFI 36-2008 via AF Form 125, Application for EAD with the United States Air Force. DPSIPR states service under permanent recall does not fit the SECAF’s criteria for exemption under Title 38 U.S.C. 4312(c)(4)(B). The applicant was not ordered to EAD in support (direct or indirect) of missions and operations associated with the National Emergency. As such, his EAD orders are not linked to the National Emergency. While his duties may support contingency operations, as do the duties of many members on the ADL, they do not affect the purpose of his EAD. Additionally, the applicant’s service is not non-career service as it can result in his eligibility for active duty retirement. The complete DPSIPR evaluation, with attachments, is at Exhibit B. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 23 Apr 12 for review and comment within 30 days (Exhibit C). As of this date, this office has not received a response. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the office of primary responsibility and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. 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 that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that 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 Docket Number BC-2011-04660 in Executive Session on 18 Jul 12, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 18 Oct 11, w/atchs. Exhibit B. Letter, AFPC/DPSIPR, dated 25 Apr 12, w/atchs Exhibit C. Letter, SAF/MRBR, dated 25 Apr 12.