RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-05059 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: Her records be corrected to show she was continued on active duty for the period 1 Oct 10 to 11 Dec 11, she receive all back pay, allowances, and benefits to which she would have been entitled. ________________________________________________________________ APPLICANT CONTENDS THAT: On 20 Sep 10, she invoked sanctuary pursuant to Title 10 U.S.C, §12686 and should have been entitled to remain on active duty until she was eligible for retirement; however, her request was wrongfully ignored and denied a year later. At the time she invoked sanctuary she had been on continuous orders since 2003. She initially signed a sanctuary waiver on 5 Oct 09 that was voided because it exceeded 179 days and did not contain the required waiver statement. However, due to the initial confusion as to whether her National Guard unit or the gaining agency was responsible to process the request, there were inordinate delays. On 23 Nov 10, she submitted a request for resolution to the state National Guard, only to be notified on 16 Dec 10 that that the agency who afforded her the tour that took her into sanctuary was responsible for resolving the situation. In Sep 11, the Colonel’s Group determined that she was indeed entitled to be retained on active duty under the provisions of sanctuary until she was eligible for retirement and offered her an active duty deployment. However, at the same time, the Judge Advocate General (JAG) requested resolution to this matter directly from the Secretary of the Air Force (SECAF). On 4 Oct 11, the SECAF determined she had obtained sanctuary status as a result of error and directed her release from active duty. Such action was inappropriate and erroneous and resulted in her release from active duty without due process. As the action resulted in her being without active orders for over a year, causing her an extreme financial hardship, she is also the victim of an injustice. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant was a member of the Arizona Air National Guard (ANG) and was ordered to active duty on 31 Mar 03. She served on a variety of consecutive tours of active duty, which resulted in her serving on active duty continuously until the matter under review. Title 10 U.S.C, §12686(a), also known as “Sanctuary,” provides that under regulations to be prescribed by the Secretary concerned, 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, may not be involuntarily released from that duty before he/she becomes eligible for that pay, unless release is approved by the Secretary. Title 10 U.S.C, §12686(b), provides that the Secretary concerned may require a member to waive their right to invoke the provisions above when performing a period of duty of less than 180 days as a condition of such order to active duty. On 5 Oct 09, the applicant initiated a waiver of her rights to invoke the provisions of sanctuary for the period 1 Oct 09 through 30 Sep 10, a period of one year. On 20 Sep 10, the applicant invoked her right to retention under the provisions of sanctuary, indicating, in part, that the waiver she signed on 5 Oct 09 was legally ineffective as the law precluded such a waiver from being executed on periods of active duty of 180 days or more. On 30 Sep 10, the applicant was released from active duty and, according to information extracted from the Military Personnel Data System (MilPDS), she was credited with 18 years, 8 months, and 23 days of active service as of the date of her release from active duty." On 23 Nov 10, the applicant requested resolution to her sanctuary issue through Arizona National Guard officials. On 2 Dec 10, the Adjutant General, Arizona National Guard, responded to the applicant’s request for sanctuary indicating that such a request fell under the purview of the agency that afforded the applicant the active duty tour in question. On 5 Oct 11, SAF/JAR notified the applicant of the Secretary’s determination that she should be released from active duty, indicating the applicant obtained retention under the provisions of sanctuary as the result of an error and therefore approved her release from active duty. Notwithstanding this decision, the Secretary directed that the applicant be afforded opportunities for future Title 10 service. On 1 Mar 13, the applicant was retired and credited with 20 years and 17 days of active service. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force, which are attached at Exhibits C and D. ________________________________________________________________ AIR FORCE EVALUATION: NGB/A1P recommends denial of the applicant’s request for back pay and entitlements. While there was confusion and delay regarding the applicant’s claiming sanctuary, she was eventually able to obtain the days needed to qualify for active duty retirement. A complete copy of the NGB/A1P evaluation is at Exhibit C. SAF/GCI notes on 20 Sep 10, the applicant invoked sanctuary under Title 10 U.S.C, §12686(a). At the time of her request for sanctuary, she was on active duty orders for 365 days. Prior to being issued said orders, the applicant signed a waiver waiving her rights to claim sanctuary. She was released from active duty upon the expiration of her orders. However, her waiver was deemed invalid due to her orders exceeding 179 days. On 4 Oct 11, the SECAF approved the applicant’s release from active duty. On 12 Dec 11, the applicant once again began serving on active duty until she obtained 20 years of service for an active duty retirement. She retired on 1 Mar 13. The applicant was properly released from active duty on 4 Oct 11 and is not entitled to back and entitlements for the time period between that release and her return to active duty on 11 Dec 11. However, an error occurred when the applicant was released from active duty on 1 Oct 10, and because she invoked sanctuary, her records should be corrected to reflect she remained on active duty from 1 Oct 10 through 4 Oct 11. A complete copy of the SAF/GCI evaluation, with attachment, is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Counsel indicates that it has been acknowledged that the applicant was on active duty in sanctuary from 1 Oct 10 to 4 Oct 11 with entitlement to pay and allowances for that period. Therefore, the issue of whether the Secretary acted within the law by releasing the applicant from active duty involuntarily three months prior to her becoming eligible for retirement needs to be resolved. The advisory writer is correct that under the provisions of 10 U.S.C. §12686(a) a service member who has invoked sanctuary “may not be involuntarily released from active duty before they become eligible for retired pay unless the Secretary approves the release.” The statute also states the Secretary is to prescribe the regulations under which he has authority to act pursuant to the law. Under the provisions of AFI 36-2131, Administration of Sanctuary in the Air Reserve Components, a service member on active duty that asserts sanctuary must be retained on active duty unless they are voluntarily separated, medically disqualified for continued service, or is separated/discharged for cause. In effect, the Secretary determined he can only involuntarily release a service member who has invoked sanctuary, is medically qualified and wants to continue to serve for cause. The Secretary cited error as the basis for the applicant’s release from active duty, however; under AFI 36-2131 error is not a basis for release from active duty. The Secretary was not acting under the regulation he prescribed when he released the applicant involuntarily without cause in Oct 11. Furthermore, the applicant was not afforded any due process in relation with her involuntary release from active duty. The Secretary acted outside the purview of his authority when he involuntarily released the applicant from active duty on 4 Oct 11. While SAF/GC recommends the applicant be credited with active duty service, with pay and entitlements for the period 1 Oct 10 through 4 Oct 11, Counsel states the applicant should also receive credit for active duty with full pay allowances for the period 5 Oct 11 to 11 Dec 11. Counsel’s complete response is at Exhibit F. ________________________________________________________________ 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 warranting partial relief. The applicant contends that she was erroneously released from active duty on 1 Oct 10, despite properly invoking her right to retention on active duty under the provisions of the law commonly known as “Sanctuary” when it was determined that the waiver of her right to retention was legally ineffective. After a thorough review of the evidence of record and the applicant’s complete submission, we agree. In this respect, we note the comments of SAF/GC indicating that an error occurred when the applicant was released from active duty on 30 Sep 10, despite invoking her right to retention under Sanctuary on 20 Sep 10. Instead, she should have been retained on active duty until she qualified for retirement under the provisions of 10 USC 12686(a), unless said release was approved by the Secretary concerned. However, in our view, once the Secretary determined that she should be released from active duty on 1 Oct 11, she was no longer entitled to be retained on active duty until qualifying for retirement. While Counsel argues the Secretary acted outside his authority as prescribed in AFI 36-2131, Administration of Sanctuary in the Air Reserve Components, because the applicant was not released from active duty voluntarily, medically disqualified for continued service, or separated/discharged for cause, we are not convinced the Secretary acted outside his authority when he directed the applicant be released from active duty on 1 Oct 11. In this respect, we note that while the applicant was not released from active duty for these three noted exceptions to the protections provided by 10 USC §12686(a), the governing instruction in no way limits the Secretary’s authority to release a member from active duty who has attained sanctuary for another reason. In this respect, we note that that AFI 36-2131, paragraph 1.1, indicates that in general (emphasis added), Active Duty sanctuary means any Air National Guard (ANG)/United States Air Force Reserve (USAFR) officer/enlisted member who attains 18 (but less than 20) years of AD must be retained on active duty unless he/she: voluntarily separates; is medically disqualified for continued service; or is separated or discharged for cause. Therefore, while Counsel’s arguments on this point are duly noted, we are not convinced that the Secretary acted outside his authority when he directed the applicant be released from active duty on 1 Oct 11. We note the applicant was able to subsequently qualify for an active duty retirement shortly after the events in question and therefore are not convinced that granting relief beyond that being recommended is in the interest of justice. Therefore, we recommend the applicant’s records be corrected to the extent 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 she was not released from active duty on 30 September 2010, but on that date, she continued to serve on active duty until 4 October 2011, when her release from active duty was approved by the Secretary of the Air Force. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2013-05059 in Executive Session on 14 Oct 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 24 Oct 13, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, NGB/A1PP, dated 29 Jan 14. Exhibit D. Letter, SAF/GCI, dated 23 Jun 14, w/atch. Exhibit E. Letter, SAF/MRBR, dated 25 Jun 14. Exhibit F. Letter, Counsel, dated 16 Jul 14. 1 2