RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2011-04954

						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

He be reinstated to active status.  

APPLICANT CONTENDS THAT:

He should be retained under AFI 36-2504, Officer Promotion, Continuation and Selective Early Removal in the Reserve of the Air Force.  Officers who have completed at least 18 years but less than 19 years of creditable service for retirement will be retained until completion of 20 years of satisfactory service or for 3 years after the required discharge date, whichever comes first (Section 12646).  

Officers with more than 19 years but less than 20 years of creditable service for retirement, will be retained until completion of 20 years of satisfactory service or 2 years after the required discharge date, whichever comes first (Section 12646).  

He found a Reserve unit with a vacancy, but a Reserve Recruiter told him he is no longer eligible for service in the Air Force Reserve.  

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

STATEMENT OF FACTS:

In a memorandum dated 14 August 2008, HQ ARPC/DPP advised the applicant that due to his second deferral for promotion, and in accordance with Title 10, United States Code, Section 14506, he would be discharged.  He was also advised that his adjusted mandatory separation date was 1 March 2009 and since he did not qualify for transfer to the Retired Reserve, orders announcing his discharge and an honorable discharge certificate would be sent to him.  

According to Special Order CB-25 dated 28 February 2009, the applicant was discharged from all appointments in the Air Force on 1 March 2009, based on being twice deferred for promotion to the grade of Lt Col.

According to a copy of the applicant’s point credit summary (PCARS), dated 5 Jan 16, provided by ARPC, the applicant accrued 19 years, 7 months and 25 days of satisfactory service as of 1 Mar 09.

On 17 Dec 11, the applicant submitted a DD Form 149 requesting he be reinstated to active status contending he was erroneously discharged on 1 Mar 09, based on only having 17 good Retention/Retirement years of service in the Air Force Reserve (Exhibit A).  

On 27 Apr 12, ARPC/DPB advised the applicant he was approved for a special selection board (SSB) consideration in lieu of the FY08 Lt Col Line and Non-line (PR) Selection Board.  The reason for the SSB was due to a correction of his participation points, resulting in 19 years, 7 months, and 25 days of satisfactory service through 1 Mar 09 (Exhibit A).  

On 3 Jul 12, the applicant requested that his application, be administratively closed until the completion of a pending Evaluation Review Appeals Board.  On 11 Jul 12, the applicant’s case was administratively closed (Exhibit A). 

According to documentation submitted by ARPC/DPTT, although the applicant met the SSB in July 2012, he still was not selected for promotion.

10 U.S. Code § 12646  Commissioned officers: retention of after completing 18 or more, but less than 20, years of service, states in part that: If on the date prescribed for the discharge or transfer from an active status of a reserve commissioned officer he is entitled to be credited with at least 19, but less than 20, years of service computed under section 12732 of this title, he may not be discharged or transferred from an active status under chapter 573, 1407, or 1409 of this title or chapter 21 of title 14, without his consent before the date on which he is entitled to be credited with 20 years of service computed under section 12732 of this title.

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.

AIR FORCE EVALUATION:

ARPC/DPTT recommends denial of the request to reinstate the applicant to active status, stating it is not feasible to reinstate the applicant due to the amount of time between his separation date and the date his service history was corrected; he is no longer qualified to perform duties required by his Air Force specialty.

Nonetheless, in July 2011, the applicant’s satisfactory service was administratively corrected to capture missing creditable service by Headquarters, Air Reserve Personnel Center to show he had 19 years, 7 months, and 25 days of satisfactory Federal service.  Consequently, they recommend the applicant’s discharge order be revoked and he be allowed to transfer to the Retired Reserve effective 7 Jul 09 (corrected Retirement Retention period) which would result in 20 years of satisfactory Federal service. 

Should the Board elect to grant the applicant’s request, is record should be corrected as follows:  The discharge on 1 March 2009 be revoked, that the applicant apply for transfer to the Retired Reserve effective on 7 Jul 09 and the application was approved by competent authority.  This action would give the applicant 20 years of satisfactory Federal service and make him eligible for Reserve retired pay on his 60th birthday, in accordance with Title 10, U.S.C., Section 12731. Direct a notification of eligibility for Reserve retired pay letter be sent along with information for applicant to make a Reserve Component Survivor Benefit Election. 

A complete copy of the ARPC/DPTT evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 31 Mar 16, for review and comment within 30 days (Exhibit D).  As of this date, no response has been received by this office.

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 injustice to warrant reinstating the applicant to active service.  We took notice of the applicant’s complete submission in judging the merits of the case and agree with the recommendation of the Air Force OPR and adopt the rationale expressed as the basis for our conclusion that the applicant is not the victim of an error or injustice.  Therefore, in the absence of persuasive evidence to the contrary, we find no basis to recommend granting this portion of the relief sought in this application.  

4.  Notwithstanding our determination above, sufficient relevant evidence has been presented to demonstrate the existence of an injustice to warrant partial relief.  In this respect we note that subsequent to his discharge from service on 1 March 2009, the applicant’s satisfactory service was corrected, in July 2011, to show that he had 19 years, 7 months, and 25 days of satisfactory Federal service upon his discharge.  IAW 10 U.S. Code § 12646, members with at least 19, but less than 20, years of service computed under section 12732 of this title, may not be discharged or transferred from an active status without their consent before the date on which a member is entitled to be credited with 20 years of service.  In view of this, we believe the applicant has suffered an injustice.  Therefore we agree with the recommendation of the Air Force OPR to correct the applicant’s record to revoke his 1 March 2009 discharge, allow the applicant to apply for transfer to the Retired Reserve effective on 7 Jul 09 to give him 20 years of satisfactory Federal service so he is eligible for Reserve retired pay on his 60th birthday.  We also agree the applicant should he be given an opportunity to make a Reserve Component Survivor Benefit Election. Accordingly, we recommend his records be corrected as indicated below.  

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that:  

a. Special Order CB-25 dated 28 February 2009, pertaining to his discharge on 1 March 2009 be revoked.

b. Competent authority approved his application for transfer to the Retired Reserve effective 7 July 2009. 

c. His record be corrected to show that the election of Survivor Benefit Plan option(s), will be corrected in accordance with the member’s expressed preferences and/or as otherwise provided for by law or the Code of Federal Regulations. 

The following members of the Board considered AFBCMR Docket Number BC-2011-04954 in Executive Session on 19 May 16, 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-2011-04954 was considered:

	Exhibit A.  DD Forms 149, dated 17 Dec 11 and 6 Jun 15, 
			  w/atchs.
	Exhibit B.  Excerpts, Master Personnel Records.
Exhibit C.  Memorandum, ARPC/DPTT, dated 24 Feb 16 w/atchs.
	Exhibit D.  Letter, SAF/MRBR, dated 31 Mar 16.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.