RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-04052 COUNSEL: HEARING DESIRED: YES APPLICANT REQUESTS THAT: 1. His official records be corrected to show that he was afforded sanctuary protection in Jan 12. 2. He be reinstated to active duty effective the date of the Board’s final decision. 3. He receive service credit with back pay, allowances and benefits from the date of his removal from active duty orders. 4. He be credited with the time remaining to secure 20 years of active duty service and a Regular Air Force retirement, or he be recalled to active duty status to allow him to receive a Regular Air Force retirement. APPLICANT CONTENDS THAT: On 11 Apr 11, he was ordered to perform a Military Personnel Appropriation (MPA) tour for 215 days, which was subsequently amended to 315 days. He secured over 18 years of active federal service prior to the end of those orders. Federal law does not permit the Air Force to require a waiver of sanctuary for airmen performing MPA tours in excess of 179 days. As a result, he attained sanctuary while on active duty and, therefore, his separation from active duty was unlawful, as was his Reserve retirement. In Docket Number BC-2011-05004, the AFBCMR considered the law applicable and resolved the matter for that applicant and should do the same in this case. He should receive sanctuary protection based on the AFBCMR’s decision in BC-2012-03639 to correct his record to reflect that he was placed on medical continuation orders until 26 Jul 12 without a waiver. In support of the applicant’s appeal, the applicant provides a seven page brief from counsel; copies of AFBCMR Docket No. BC- 2011-05004, orders and various other documents associated with his requests. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant, while serving as a colonel with the Air Force Reserve, was recalled to Extended Active Duty (EAD) to support operations at US CENTCOM from 2 Apr 10 to 1 Sep 10. On 13 Mar 11, the applicant was recalled to EAD in support of Operation ENDURING FREEDOM/NEW DAWN. He continued supporting contingency operations until his demobilization on 2 Mar 12. On 1 Jun 12, the applicant was transferred to the Retired Reserve and placed on the USAF Reserve Retired List, awaiting pay at age 60. He was credited with 30 years of satisfactory Federal service. On 18 Jun 12, the Vice Commander, Air Force Reserve Command (AFRC/CV) approved the applicant’s LOD determination for a finding of Existed Prior to Service – Service Aggravated (EPTS- SA.) On 6 Jul 12, the applicant was notified of AFRC/CV’s decision. On 14 Jun 13, the Board granted the applicant’s request for medical continuation for the period 3 Mar 12 to 26 Jul 12. IAW 10 U.S. Code § 12686 and under regulations to be prescribed by the Secretary concerned, which shall be as uniform as practicable, a member of a reserve component who is on active duty (other than for training) and is within two years of becoming eligible for retired pay or retainer pay under a purely military retirement system (other than the retirement system under chapter 1223 of this title), may not be involuntarily released from that duty before he becomes eligible for that pay, unless the release is approved by the Secretary. AIR FORCE EVALUATION: AFRC/A1K recommends approval. A1K notes that the Command's review of the applicant's claim has resulted in support of the applicant's stated assertion on this matter as being correct. Thus, the basis for the command's position is established. The complete A1K evaluation, with attachments, is at Exhibit B. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Counsel notes that the applicant concurs with the recommendation to grant the requested relief and reaffirms the appropriate relief is to grant the applicant constructive service credit from the date of removal from active duty to the date the applicant would have accrued 20 years of eligibility for Regular Air Force retirement. According to the service history, the applicant has 18 years, 8 months and 3 days of active federal service. In addition, the advisory opinion acknowledges that the applicant’s orders and consecutive sanctuary waivers were unlawful and that he was entitled to continue to serve on active duty until he secured 20 years of active service. The applicant’s complete response, with attachments, is at Exhibit E. ADDITIONAL AIR FORCE EVALUATION: AFRC/A1K noted that their position remains the same and recommends approval. A1K notes the Command's review of the applicant's claim found that the applicant should have been afforded an opportunity to remain on active duty In Accordance With (IAW) the provisions of AFI 36-2131, Administration of Sanctuary in the Air Reserve Component. Specifically, the applicant had 18 but less than 20 years of active duty service. Thus, based on the applicant’s years of service he should not have been released from active duty unless he voluntarily agreed to be released from such service, or was being involuntarily separated, or was medically disqualified or was separated or discharged for cause. Since none of these circumstances were the cause of the applicant’s separation, he should not have been involuntarily released from active duty before he became eligible for active duty retired pay, unless his release was approved by the Secretary of the Air Force. The complete A1K evaluation is at Exhibit F. APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION: On 28 Jul 14, additional advisory was forwarded to counsel; however, counsel’s address had changed. (Exhibit G). On 17 Nov 14, counsel notes that the applicant concurs with the advisory opinion’s recommendation that the Board grant the requested relief. The applicant’s counsel complete response, with attachments, is at Exhibit I. 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 error or injustice. After a thorough review of the evidence of record and the applicant’s complete submission we believe relief is warranted. In this respect, we note the applicant was recalled to EAD in support of contingency operations in Southwest Asia. Subsequently, his orders were extended and the applicant secured over 18 years of active federal service prior to the end of those orders. IAW Title 10 USC § 12686, the applicant should not have been involuntarily released from active duty before he became eligible for active duty retired pay. In view of this, we 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 and injustice. As such, we recommend the applicant’s record be corrected to show that on 24 Nov 11, he was granted sanctuary protection. Additionally, we recommend his record be corrected to show that on 26 Jul 12, he was not released from active duty, but was continued on active duty until 30 Nov 13, at which time he qualified for an active duty retirement. Accordingly, we recommend the applicant's record be corrected as indicated below. 4. 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 RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that: a. He was granted sanctuary protection on 24 Nov 11. b. He was not released from active duty, on 26 Jul 12, but on that date, he was continued on active duty until 30 Nov 13, at which time he qualified for active duty retirement. c. His election of Survivor Benefit Plan option will be corrected in accordance with his 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-2013-04052 in Executive Session on 7 Aug 14 and 3 Dec 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 26 Jun 13, w/atchs. Exhibit B. Pertinent Excerpts from Personnel Records. Exhibit C. Memorandum, AFRC/A1K, dated 9 Jan 14, w/atch. Exhibit D. Letter, SAF/MRBR, dated 17 Jan 14. Exhibit E. Letter, Applicant’s counsel, dated 14 Feb 14, w/atchs. Exhibit F. Letter, AFRC/A1K, dated 28 Jul 14. Exhibit G. Email, AFBCMR, dated 28 Jul 14. Exhibit H. Email, AFBCMR, dated 17 Nov 14. Exhibit I. Email, Applicant’s Counsel, dated 17 Nov 14, w/atchs 1 2