RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-03305 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. He be given credit for the active duty he performed from 29 Jan 08 through 27 Jan 11 under the provisions of Title 10, United States Code (U.S.C.) § 12301(d) and 12310, and his retirement age be reduced from age 60 to 57 under the provisions of Title 10 U.S.C. § 12731(f). 2. In the applicant’s rebuttal dated 15 Oct 12, he requests his orders be amended to reflect that he was on voluntary active duty per 10 U.S.C. § 12301(d) and duty In Accordance With (IAW) 10 U.S.C. § 10211 and it be ruled as qualifying under 10 U.S.C. § 12731 as duty under 10 U.S.C. § 12301(d) further described by 10 U.S.C. § 10211. ________________________________________________________________ APPLICANT CONTENDS THAT: The Air Force Personnel Center (AFPC) stated that his active duty time does not qualify for the reduced age credit because it is defined as “extended active duty.” He has never served on extended active duty and clearly applied for and was accepted for a Title 10 U.S.C. § 12301(d) position with the Air National Guard. A 19 Sep 05 memorandum from the Assistant Secretary of the Air Force (Manpower and Reserve Affairs), states that “When an ARC member is ordered to active duty under section 12301(d) of Title 10 on or after September 14, 2001, in 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, affected members are to have the following statement included in their orders: The period of service under these orders is exempt from the five-year limit as provided in Title 38 U.S.C. § 4312(c)(4)(B).” This statement is on his orders. On 18 Mar 10, the Chief, NGB issued a Memorandum that provided in part, “It is NGB policy that all military members assigned to perform duty on behalf of the NGB will be ordered to active duty on a voluntary basis under the programmatic authorities of 10 U.S.C. § 12310 or 12402 or pursuant to active duty for operational support in support of the reserve component (ADOS- RC). In each of these cases the order to active duty authority is 10 U.S.C. § 12301(d).” Emphasis added. Department of Defense Instruction (DoDI) 1215.07, Paragraph 6.5.2.2, states in part, that “A member ordered to active duty under section 12301(d) of reference (c) shall receive credit for all days served regardless of the nature of the duties performed (e.g., whether performing training or operational support duties.)” He was clearly on an active duty tour (Statutory Tour) and not a National Guard AGR tour. At best, the reference to duty IAW 10 U.S.C. § 12310 is a description of the nature of the duties he performed. In support of his request, the applicant provides a personal statement, copies of the Assistant Secretary of the Air Force (Manpower and Reserve Affairs) (SAF/MR) memorandum dated 19 Sep 05, an excerpt from Section 647 of the 2008 NDAA and DoDI 1215.07, the Chief, NGB memorandum dated 18 Mar 10, and various other documents in support of his request. The applicant's complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 23 Jan 07, Special Order AA 178, ordered the applicant to active duty (voluntary per 10 U.S.C. 12301(d) for duty IAW 10 U.S.C § 12310) for 4 months. The orders indicated that the period of service under these orders was exempt from the five-year limit as provided in 38 U.S.C § 4312 (c)(4)(b). On 31 Jan 07, Special Order AA-178 was amended to change the period from 4 months to 48 months. 38 U.S.C. § 4312. Reemployment rights of persons who serve in the uniformed services who are absent from a position of employment is necessitated by reason of service in the uniformed services shall be entitled to the reemployment rights and benefits. On 21 Mar 11, the applicant was transferred to the Retired Reserve awaiting retired pay, at age 60. On 22 Jul 13, he became eligible for Reserve retired pay. Additional relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letter prepared by the appropriate office of the Air Force at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: ARPC/DPTT recommends denial, and states in part, that the applicant does not meet the qualification for reduced retired pay age under Title 10, U.S.C., § 12731(f), since Title 10, U.S.C., § 12310, is clearly listed as service that does not qualify for reducing the retirement age. Further, there is no direct correlation between the USERRA and reduced retired pay age eligibility. DPTT states that on 28 Jan 07, the applicant was ordered to active duty (voluntary) under the provision of Title 10, U.S.C., Section 12301(d), for duty IAW Section 12310, for a period of 48 months to be the Chief, Technician Personnel Division, ANG Readiness Center, Andrews AFB, MD. On 27 Jan 11, he was released from active duty and was transferred back to the MN ANG. He was eligible for Reserve retirement under the provisions of Title 10, U.S.C., § 12731, and was transferred to the Retired Reserve awaiting retired pay, effective 21 Mar 11, per his request. He turns age 60 on 22 Jul 13 and will be eligible for Reserve retired pay on that date. DPTT further states that they cannot comment on whether the wording of the explanation as to why the applicant was not eligible for the reduced retired pay age included “extended active duty.” However, he was told that his orders included Title 10, U.S.C. § 12310 and that such service was not eligible to reduce his retired pay age. The Fiscal Year 2008 National Defense Authorization Act, Section 647, reads: B(i) Service on active duty described in this subparagraph is service on active duty pursuant to a call or order to active duty under a provision of law referred to in section 101(a)(13)(B) or under section 12301(d) of this title. Such service does not include service on active duty pursuant to a call or order to active duty under section 12310 of this title. The complete DPTT evaluation, with attachments, is at Exhibit B. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The memorandum from ARPC/DPTT clearly states that he was ordered to active duty under the provision of Title 10, U.S.C., § 12301(d), for duty IAW § 12310. The AF/JAA memorandum is important for many reasons: First it shows that the type of active duty that most accurately describes his service at NGB was service under 10 U.S.C. § 10211, “active duty (other than for training) at the seat of government, and at headquarters responsible for Reserve Affairs, to participate in preparing and administering the policies and regulations affecting those Reserve components.” This is exactly the scope of his duties as the Chief of Air Technician Personnel while assigned to NGB. Secondly, it clearly notes that service under 10 U.S.C. § 12310 is typically referred to as “AGR duty.” If he were to have been in the Air Force Reserves this would have been true; however, in the National Guard, AGR duty is governed by Title 32 U.S.C., § 502(f). Finally, it notes that under 10 U.S.C., § 12731 “[T]o qualify, the active duty must be pursuant to 10 U.S.C., § 12301(d) or to a contingency operation as defined in 10 U.S.C. § 101(a)(13)(B), emphasis added. The type of duty he performed should have been characterized as active duty (voluntary) per 10 U.S.C. § 12301(d) and duty IAW 10 U.S.C. § 10211 instead of active duty (voluntary) per 10 U.S.C. § 12301(d) and duty IAW 10 U.S.C. § 12310. This would accurately reflect the actual type and nature of the duties he performed. However, in either case, the term “and duty IAW” is a description of the type and nature of the duties performed and not the authority used to call him to active duty. The memorandum from JAA ignores completely the language contained in Department of Defense Instruction (DoDI) 1215.07, paragraph 6.5.2.2. The exclusion of duty under 10 U.S.C. § 12310 was intended to exclude Air Force Reserve AGR duty to make such duty in the Air Force Reserve par with ANG AGR duty which was excluded because it is IAW 32 U.S.C., § 502(f) and does not qualify. In the ANG, AGR members are under the control of The Adjutant General and the Governor for their State. On his tour, he was under the control of the National Command Authority and the President. Therefore, his records should be corrected to reflect the type of duty he was on i.e., “active duty (voluntary) per 10 U.S.C. § 12301(d) and duty IAW 10 U.S.C. § 10211.” He also requests that this duty be ruled as qualifying under 10 U.S.C. § 12731 as duty under 10 U.S.C. § 12301(d) further described by 10 U.S.C. § 10211. The applicant's complete response is at Exhibit D. ________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: NGB-JA recommends denial. JA states that the applicant’s active duty service occurred at NGB, and his orders properly cited 10 U.S.C. Section 12301(d) IAW 10 U.S.C. Section 12310. His service does not qualify for reducing the non-regular retirement age. The applicant’s 28 Jan 07 orders to active duty properly cited 10 U.S.C. § 12301(d) IAW 10 U.S.C. § 12310. Under 10 U.S.C. § 12310, the Secretary concerned may order a member of a Reserve component under the Secretary’s jurisdiction to active duty pursuant to 10 U.S.C. § 12301(d) to perform Active Guard and Reserve duty organizing, administering, recruiting, instructing, or training the Reserve components. These duties are consistent with the type of active duty that the applicant performed at the NGB. JA states that they have consistently interpreted 10 U.S.C. § 10211 to apply only to officers who are serving or assigned as National Guard advisors at a headquarters other than NGB. Thus, if the applicant had been ordered to active duty to “participate in preparing and administering the policies and regulations affecting the Reserve components” at Headquarters, Department of the Air Force; the Office of the Secretary of Defense; the Joint Staff; a Combatant Command; or some headquarters other than NGB, his orders would have been characterized as under 10 U.S.C. § 12301(d) IAW 10 U.S.C. Section 10211. The complete JA evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant states that his orders do not state “10 U.S.C. § 12301(d) IAW 10 U.S.C. § 12310” as stated in the legal advisory, rather, they state “10 U.S.C. § 12301(d) for duty IAW 10 U.S.C. § 12310” emphasis added. The “for duty” words clearly describe the type of duty to be performed, not the authority for the duty. The advisory does not discuss DoDI 1251.07 paragraph 6.5.2.2. which explicitly states, “A member ordered to active duty under section 12301(d) of reference (c) shall receive credit for all days served regardless of the nature of the duties performed (e.g. whether performing training or operational support duties).” It is clear that his duty was under 10 U.S.C. § 12301(d) and that the description of the nature of these duties was as described in 10 U.S.C. § 12310. The nature of his duties performed does not disqualify him from receiving the credit. If his orders were under 10 U.S.C. § 12310, which they were not, then, he would be disqualified. If Congress had intended for the type of duty under Section 12310 to be disqualifying they would have so stated, instead, they disqualified duty under Section 12310 only. The Legal advisory fails to take into account the effect of the 2008 NDAA which established the NGB as a defense activity with a four star officer in command who is designated as the principle advisor on Guard issues to the Defense Secretary and to military leaders. The Chief of the National Guard Bureau (CNGB) was promoted to a four star billet in the 2008 NDAA by increasing the number of Flag Officer billets in Combatant Commands to make room for promotion of the CNGB. The NGB is now organizationally on par with HQ DAF, OSD, Joint Staff and Combatant Commands and therefore, should be accorded the same deference that is accorded to those commands. Officers that serve in those commands serve under 12301(d) and qualify for the credit and have Section 10211 noted as their type of duty. NGB officers should be afforded the same consideration. Officers at NGB are there as active duty officers under 10 U.S.C. § 12301(d), not as AGR officers under 10 U.S.C. § 12310. The applicant’s complete response is at Exhibit G. ________________________________________________________________ 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 and do not find it supports a determination that his retirement age should be reduced to the age of 57 or that his orders should be amended as requested. Therefore, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. We note the applicant argues that DoDI 1215.07 states that members ordered to active duty under section 12301(d) of reference (c) shall receive credit for all days served regardless of the nature of the duties performed. While this is true, we note that DoDI 1215.07 specifically excludes Active Guard/Reserve duty under section 12310. As such, since the applicant's active duty service occurred at the National Guard Bureau and his orders properly cited 10 U.S.C § 12301(d) IAW 10 U.S.C § 12310, his service does not qualify for reducing the non-regular retirement age. Additionally, the applicant requests his orders be amended to reflect that he was on voluntary active duty per 10 U.S.C. § 12301(d) and duty IAW 10 U.S.C. § 10211 and it be ruled as qualifying under 10 U.S.C. § 12731. However, he has not provided any evidence that would warrant an exception to policy to the law. Making corrections without sufficient evidence would be unfair to others similarly situated and establish a basis for circumventing the procedures in place. Therefore, in the absence of substantial evidence to the contrary, we conclude the applicant has failed to sustain his burden of establishing that he has suffered either an error or an injustice. Accordingly, in the absence of evidence showing the applicant was treated differently from others similarly situated, we find no basis to recommend granting the relief sought. ________________________________________________________________ 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-2012-03305 in Executive Session on 3 Dec 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to Docket Number BC-2012-03305 was considered: Exhibit A. DD Form 149, dated 16 Jul 12, w/atchs. Exhibit B. Letter, ARPC/DPTT, dated 12 Sep 12, w/atchs. Exhibit C. Letter, SAF/MRBR, dated 24 Sep 12. Exhibit D. Letter, Applicant, dated 15 Oct 12. Exhibit E. Letter, NGB-JA, dated 16 Oct 13. Exhibit F. Letter, SAF/MRBC, dated 29 Oct 13. Exhibit G. Electronic Mail, Applicant, dated 7 Nov 13. Panel Chair