RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-02836 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. Her records be corrected to change her mandatory separation date (MSD) from 31 Dec 12 to 31 Dec 15 to allow retirement eligibility. 2. She be reinstated into her Individual Mobilization Augmentee (IMA) position. 3. She be granted constructive service credit from the date of her 31 Dec 12 discharge. ________________________________________________________________ APPLICANT CONTENDS THAT: She was unjustly denied a MSD extension after performing almost 18 years reserve service. She received notification of disapproval for her MSD extension only two months prior to entering sanctuary despite being continually led to believe that she would be able to serve until she attained sufficient service to qualify for retirement. Health professions officers are authorized to be retained until age 68; however, she was involuntarily separated from active status when she was only 64, two months prior to entering sanctuary, when she would have been automatically retained until she qualified for retirement. She requested a MSD waiver to reach retirement eligibility, but her request was denied even though there is a critical need for her specialty. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant’s military personnel records indicate that she commenced her service in the Air Force Reserve on 3 May 95. On 8 May 07, ARPC/DPPRS notified the applicant that her MSD was recomputed and changed from 31 Dec 08 to 31 Dec 10 due to a change to Title 10, United States Code, Section 14509, as implemented by the Fiscal Year 2007 National Defense Authorization Act (NDAA). On 4 Aug 10, by action of the Secretary of the Air Force (SecAF), the applicant’s request for an extension of her 31 Dec 10 MSD to 31 Dec 16 (age 68) was disapproved; however, her retention in active status until 31 Dec 12 (age 64) was approved. On 12 Mar 12, the applicant requested retention in active status until reaching age 68 (31 Dec 16). On 31 Dec 12, the applicant’s MSD expired. On 13 Mar 13, AFRC/CC recommended disapproval of the applicant’s request, citing over-manning (140 percent) in the applicant’s specialty. On 20 Mar 13, the SAFPC disapproved the applicant’s request for retention until age 68. On 24 May 13, by direction of the President, the applicant was honorably discharged, effective 31 Dec 12. The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force offices of primary responsibility, which are attached at Exhibits C, D, and E. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPTT recommends denial indicating there is no evidence of an error or an injustice. The applicant requested an extension to her MSD to allow her the opportunity to complete 20 years of satisfactory service for retirement. The SecAF disapproved her request and she was discharged on 31 Dec 2012. A complete copy of the AFPC/DPTT evaluation is at Exhibit C. AFRC/A1K recommends denial indicating there is no evidence of an error or an injustice. The Secretary of the Air Force Personnel Council (SAFPC) acts as SecAF delegated authority to make decisions on MSD extension requests. As such, the command supports the decision of SAFPC and its decision precludes reinstatement and credit for retirement as requested by the applicant. A complete copy of the AFRC/A1K evaluation is at Exhibit D. SAF/MRBP recommends denial indicating there is no evidence of an error or injustice. The applicant is a Reserve Clinical Social Worker who was age 64 and had 17 years, 7 months, and 28 days of satisfactory service when SAFPC reviewed her request for an MSD extension on 20 Mar 13. On 12 Mar 12, the applicant submitted a request for a two-year MSD extension under Title 10, USC, Section 14703. Her reason for requesting this waiver was to retire with twenty years of service. While her unit of assignment recommended approval, the Resource Management Group (RMG) Program Manager, RMG commander, and Commander, Air Force Reserve Command (AFRC) recommended disapproval indicating that the manning in the applicant’s career field did not support her retention. Specifically, the AFRC Commander indicated there is no operational requirement for approval of the applicant’s request. The AFRC-wide clinical social worker (42S3/4) manning was 140 percent (22 authorized, 29 assigned). Clinical social worker (42S3/4) was not listed as a Reserve Component Wartime Health Care Specialty with critical shortages. SAFPC recognized the applicant had more than 17 years of satisfactory service toward retirement; however, they cited over-manning in the career field and recommendations for disapproval from the command as their rationale for the decision. While it is unfortunate the applicant will not receive a 20-year Reserve retirement, the manning in her career field did not support her retention beyond her MSD. A complete copy of the SAF/MRBP evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant reiterates that an additional two years would allow her the opportunity to retire with 20 years of service. She is well supported by military members that worked for her and with her, attesting to her exemplary service and meeting the needs of the Air Force Mental Health community. However, individuals that do not know her made the decision of not allowing the extension of her MSD. Upon her initial commissioning there was no waiver requirement; however, the rules were apparently changed and she was asked to submit a request for an age waiver. She was not allowed to extend her MSD for the third time due to manning; however, it was approved the first time. She does not understand how mental health cannot be considered critical in this time when men and women are seeking services in the record numbers due to the effects of wartime commitments. She argues that she is suffering from retribution as she was considered a “whistle blower” (Exhibit H). ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an injustice. The applicant argues that she was consistently told that she would be able to serve long enough to qualify for a reserve retirement and that the denial of her mandatory separation date extension, so close to qualifying for retention under the provisions of sanctuary, renders her the victim of an injustice. After a thorough review of the evidence of record and the applicant’s complete submission, we believe it is in the interest of justice to recommend corrective action. While there is no evidence the denial of the applicant’s mandatory separation date (MSD) extension was inappropriate to the circumstances, arbitrary or capricious, or represented an abuse of discretionary authority, we believe the inordinate delay in the denial of the applicant’s MSD extension, resulting in her being notified several months after her MSD had expired, and just two months prior to qualifying for retention beyond her MSD, renders her the victim of an injustice. In this respect, we note the applicant timely requested an extension of her 31 Dec 12 MSD in Mar 12; however, it appears that, for whatever reason, an entire year elapsed before the applicant’s request was processed by SAFPC, resulting in her being notified of the denial five months after her MSD expired and just two months prior to her attaining 18 years of reserve service when she would have qualified for automatic retention until qualifying for a reserve retirement. In our view, and in light of the unique circumstances at play in this particular case, we believe the inordinate delay on the part of the Air Force in notifying the applicant of its decision, taken together with the resultant timing of the response to the applicant, served to create the expectation that the applicant’s request would ultimately be approved. Therefore, we believe it would be in the interest of justice to recommend her records be corrected to reflect that competent authority approved her request for an MSD extension until 3 May 15 when she would have been eligible for reserve retirement and that she was not discharged on 31 Dec 12, but continued to serve as an Individual Mobilization Augmentee (IMA). Additionally, we find it appropriate to credit her with the pay and points required to ensure the period 31 Dec 12 through the date of this decision is satisfactory service for retirement purposes. In arriving at the appropriate amount of credit to be awarded, we calculated the average of her participation during the five years preceding her original MSD. While we note the applicant is requesting that her records be corrected to reflect a new MSD of 31 Dec 16, in our view, the corrections noted above constitute proper and fitting relief. With this recommendation, the applicant is free to continue to serve as an IMA, provided she is otherwise qualified, so she can attain the requisite satisfactory service required to ensure that the period ending 3 May 15 is satisfactory service. Therefore, to preclude any further injustice to the applicant, we recommend her records be corrected to the extent indicated below. 4. We note that in her rebuttal response, the applicant indicates that she was known as a “whistleblower,” the implication being the denial of her MSD extension renders her the victim of reprisal in violation of the Whistleblower Protection Act (10 USC 1034). However, after a thorough review of the evidence of record, notwithstanding our determination above of a probable injustice, we have determined the applicant has not established that the denial of her MSD extension was in any way motivated by retaliation for making protected communications. In reaching this determination, we note that other than her own uncorroborated assertions, she has submitted no evidence that she initiated a protected communication or of the existence of a reprisal motive. Therefore, absent evidence to the contrary, we find no basis exists upon which to recommend granting any relief other than that indicated below. 5. The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ THE BOARD REOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that: a. On 30 Dec 12, competent authority approved her request for an extension of her mandatory separation date (MSD) until 3 May 15. b. On 31 Dec 12, she was not discharged from all appointments, but continued to serve as a member of the Air Force Reserve. c. She was awarded 102 paid active duty (AD) points, 21 paid inactive duty training (IDT) points, and 15 membership points for the retention/retirement (R/R) year 3 May 12 through 2 May 13, resulting in 138 total retirement points and one year of satisfactory Federal service for retirement, instead of 58 AD points, 24 IDT points, 15 membership points. d. She was awarded 102 paid AD points, 21 paid IDT points, and 15 membership points for the R/R year 3 May 13 through 2 May 14, resulting in 138 total retirement points and one year of satisfactory Federal service for retirement. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2013-02836 in Executive Session on 18 Mar 14, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the records as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 7 Jun 13, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, ARPC/DPTT, dated 29 Aug 13. Exhibit D. Letter, AFRC/A1K, dated 11 Sep 13. Exhibit E. Letter, SAF/MRBP, dated 22 Oct 13. Exhibit F. Letter, SAF/MRBC, dated 22 Oct 13. Exhibit G. E-mail, AFBCMR, dated 29 Oct 13. Exhibit H. Letter, Applicant, dated 8 Nov 13. 1 2