RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-05322 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected to reflect that on 31 Jul 07, he was released from active duty and retired in accordance with the provisions of 10 USC Section 1251, rather than being transferred to the Air Force Reserve. ________________________________________________________________ APPLICANT CONTENDS THAT: On his 62nd birthday, 8 Dec 06, he was serving on active duty as a regular officer in the grade of lieutenant colonel and was involuntarily separated from active duty on 31 Jul 07 with less than 20 years of active service. However, he should have qualified for a modified retirement in accordance with 10 USC Section 1251. He has never been contacted by the Air Force regarding this matter and only heard of this through unofficial sources. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant’s military personnel records indicate that he commenced his service in the Regular Air Force on 27 Jun 69 and served on active duty until 28 Jun 72, when he was released from active duty in the grade of captain (O-3) at the expiration of his term of service and was credited with three years and two days of total active service. On 22 May 02, the applicant was ordered to extended active duty (EAD) for a period of 31 months with a DOS of 21 Dec 04. On 25 Nov 03, the Secretary of the Air Force Personnel Council (SAFPC) approved a waiver to retain the applicant on active duty until 21 Dec 06. In Sep 06, AFPC/DPAMD further extended his DOS to 31 Jul 07 for the purpose of a deployment. On 31 Jul 07, the applicant was involuntarily honorably discharged on his mandatory separation date (MSD) upon attaining the maximum age for service (62). On 1 Aug 07, the applicant joined the Air Force Reserve. Shortly after his deployment, he was notified of a discrepancy with his DOS when he transferred to the USAFR. Therefore, the applicant submitted a request to correct his records to the Air Force Board of Military Corrections (AFBCMR). On 5 Dec 07, the AFBCMR extended his mandatory separation date (MSD) to 30 Jun 08 to allow him to continue to serve in the active Reserve. On 14 Apr 08, SAFPC approved another waiver for the applicant to remain in active status until 30 Jun 10. On 3 Jun 10, the applicant was discharged from the Air Force Reserve, effective 30 Jun 10. In accordance with 10 USC Section 1251, unless retired or separated earlier, each regular commissioned officer of the Army, Navy, Air Force, or Marine Corps serving in a grade below brigadier general or rear admiral (lower half), in the case of an officer in the Navy, shall be retired on the first day of the month following the month in which the officer becomes 62 years of age. The remaining relevant facts pertaining to this application are described in the letter prepared by the Air Force office of primary responsibility which is attached at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSOR recommends approval, indicating the applicant was a regular dental officer who served on active duty beyond age 62 until he was involuntarily separated on 31 Jul 07. As a regular officer, he was eligible for a mandatory retirement under 10 USC Section 1251, effective 1 Aug 07. Public Law 108-375 Section 501(a)(2), 28 Oct 04, amended 10 USC Section 532(a)(2), changing the maximum age to be able to complete 20 years of active commissioned service from 55 to 62 for original appointment as a commissioned officer. Medical and dental officers and chaplains were exempt from the maximum age requirement both prior to and after the change in the maximum age requirement (10 USC Section 532(d)(1)). The applicant was a regular commissioned officer and his MSD should have been the last day of the month in which he became age 62. His date of birth is 8 Dec 44, therefore, his MSD should have been established as 31 Dec 06. However, due to the approved adjustments to his DOS ultimately resulting in a DOS of 31 Jul 07 and the retirement approval authority being unaware of the ability to retire an officer under this law if the officer did not have 20 years or more total active federal military service, he was not given an opportunity for retirement. A complete copy of the AFPC/DPSOR evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant submits that the Advisory Opinion from AFPC/DPSOR accurately summarizes his creditable service history and supports his opinion that he qualifies for a modified retirement. He provides additional accounts that summarize his history of service and reiterates he was not informed of his option to retire when he was involuntarily separated from active duty. He submits that had he been informed that he qualified for retirement benefits, he would in all probability not volunteered for continued duty in the Air Force Reserve. ________________________________________________________________ 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. Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We took notice of the applicant's complete submission in judging the merits of the case and agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion the applicant has been the victim of an error or injustice. Therefore, we recommend the applicant’s record 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 on 31 July 2007, he was released from active duty and retired, effective 1 August 2007, under the provisions of Section 1251 of Title 10, United States Code. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-05322 in Executive Session on 8 Aug 13, under the provisions of AFI 36-2603: , Vice Chair , Member , Member All members voted to correct the records as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 25 Oct 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSOR, dated 2 Apr 13, w/atchs. Exhibit D. Letter, SAF/MRBR, dated 14 Apr 13. Exhibit E. Letter, Applicant, dated 3 May 13