RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-01325

						COUNSEL:  NONE

						HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

1.  His military retired grade of colonel (O-6) be corrected to the retired grade of brigadier general (O-7), effective 20 Jun 09, his 60th birthday.

2.  Back pay be awarded from 7 Oct 01, the date he was required to resign his Active Guard Reserve (AGR) position, until 1 Dec 04, his actual retirement date.  

APPLICANT CONTENDS THAT:

At the time of his promotion to O-7 (7 Oct 01), unwritten Air Force policy denied Air National Guard (ANG) wing commanders the opportunity to obtain a letter of indispensability, which resulted in his having to convert from AGR to full time Dual Status Civil Service, GS-15/O-7 Drill Status Guardsman, and defer his AGR retirement.  During the matter in question, the Air Force General Officer Management Office (GOMO) told him that at age 60 he could convert his eventual O-6 active duty retirement to an O-7 Reserve retirement.  In Jun 09 (his 60th birthday month) he was denied that conversion to O-7 because of the lack of a letter of indispensability.  Additionally, the lack of a letter of indispensability denied him active duty retirement benefits from 7 Oct 01 to 1 Dec 04.  

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:

On 7 Oct 01, the applicant was promoted to the grade of brigadier general (O-7).  

On 18 Dec 01, the applicant was released from his Active Guard Reserve (AGR) tour, furnished an honorable discharge, and was credited with 21 years, 2 months, and 25 days of active service.  He reverted to a full time Dual Status Civil Service/Drill Status Guardsman.

On 10 Sep 04, the applicant applied for an active duty retirement.

On 17 Nov 04, the application for retirement was approved with an effective retirement date of 1 Dec 04.  He was relieved from his, then, present Reserve assignment; was credited with 22 years, 11 months, and 25 days of active service, and retired in the grade of O-6.  

Upon his effective date of retirement, the applicant was transferred to the Retired Reserve and his name was placed on the United States Air Force Retired List.  If eligible, he could convert his O-6 active duty retirement to an O-7 Reserve retirement upon reaching his 60th birthday (20 June 2009). 

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.    

AIR FORCE EVALUATION:

ARPC/DPTT recommends denial indicating there is no evidence of an error or an injustice warranting the requested relief.  They could not comment on the applicant’s contention that based on unwritten AF policy, he was unable to obtain a letter of indispensability which would have allowed him to remain on active duty after 18 Dec 01.  The applicant was not required by law to defer his active duty retirement on 7 Oct 01, but chose to stay and participate as a traditional Reservist in the grade of O-7 instead of applying for an active duty retirement, and policy in place on 18 Dec 01 did not allow retirement under the provision of Title 10, U.S.C., Section 8911 and then, subsequently participate in the Reserve.  In review of the applicant’s military records, they were able to determine that on 1 Dec 04 he was retired from active duty in the grade of O-6 because he had not completed the Time-In-Grade requirement of three years of active duty in the grade of O-7 as required by Title 10, U.S.C., Section 1370 (a)(2)(A).  During their research they could not verify he was denied conversion of his active duty retired pay to Reserve retired pay.  His records contained no documentation requesting conversion of his active duty retired pay to Reserve retired pay under the provision of Title 10, U.S.C., Section 12741 (Atch 3).  In accordance with the 20 Sep 10, SAF/GCM memorandum, the effective date of Reserve retired pay upon conversion would be the first day of the month after the application for conversion is received by Air Reserve Personnel Center (ARPC).  On 6 May 15, ARPC did mail the required application to the applicant.  Notwithstanding the above, ARPC/DPTT recommends granting conversion from active duty retired pay in the grade of O-6 to Reserve retired pay in the grade of O-7, effective on the first day of the month after the application for conversion is received by ARPC in accordance with the 20 Sep 10, SAF/GCM memorandum.  

A complete copy of the ARPC/DPTT evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant refutes the OPR’s statement that he was not denied conversion of his active duty retired pay to Reserve retired pay.  In support of his response, he contends that in Mar 09 he was informed by an ARPC staff member that he was ineligible to convert to a Reserve retirement under Title 10 U.S.C., Section 12741.  He was told it would be a waste of time if he was to submit a retirement application as it would be denied.  He states that it was not until later (Sep 14 as indicated on his DD Form 149) that he learned of the 29 Oct 09 amendment to Title 10, U.S.C., Section 12741, allowing for conversion in his situation; and, that general officers in similar situations as his, were granted a letter of indispensability as ANG wing commanders, an option never afforded to him.  While he may not agree with the OPR’s recommended courses of action, he understands their logic.  He requests that his effective date of conversion be 29 Oct 09, the date of the amendment allowing for conversion in his situation.  He did file his application for conversion on 12 May 15, however, to grant his conversion date effective at that point would not correct the injustice. 

A complete copy of the applicant’s response to the Air Force Evaluation is at Exhibit E.

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 an error or injustice regarding the applicant’s request for back pay to 7 Oct 01.  After a thorough review of the evidence of record and the applicant’s complete submission, to include his response to the Air Force Evaluation; we agree with the opinion and recommendation of the Air Force office of primary responsibility (OPR) and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice regarding the applicant’s request for back pay to be awarded from 7 Oct 01, the date he was required to resign his AGR position, until his actual retirement day of 1 Dec 04.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting this portion of the requested relief.

4.  Notwithstanding the determination above, sufficient relevant evidence has been presented to demonstrate the existence of an injustice that supports corrective action in the matter of the applicant’s request to convert his active duty retired pay to Reserve retired pay.  In this respect, we note that in Mar 09 the applicant was informed by ARPC he was not eligible to convert his active duty retired pay to Reserve retired pay in accordance with Title 10, U.S.C., Section 12741.  However, on 29 Oct 09, that statute was amended allowing conversion of active duty retired pay to Reserve retired pay.  We note the comments of ARPC/DPTT recommending conversion from active duty retired pay to Reserve retired pay in the grade of O-7 effective the first day of the month after his application for conversion is received by ARPC in accordance with the 20 Sep 10, SAF/GCM memorandum.  However, we believe in the interest of justice, the applicant’s records should be corrected to reflect the application for conversion was received by ARPC on 29 Oct 09 (date of the amendment to Title 10, U.S.C., Section 12741, which allows conversion in the applicant’s particular situation), with Reserve retired pay in the grade of O-7 effective on 1 Nov 09.  Therefore, we recommend the applicant’s records be corrected to the extent 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 RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that 29 October 2009, competent authority accepted his application to convert from active duty retired pay to Reserve retired pay under the provision of Title 10 U.S.C., Section 12741, and approved he receive Reserve retired pay in the grade of brigadier general (O-7) effective 1 November 2009.

The following members of the Board considered AFBCMR Docket Number BC-2015-01325 in Executive Session on 7 Oct 15, under the provisions of AFI 36-2603:

All members voted to correct the records as recommended.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-01325 was considered:

	Exhibit A.  DD Form 149, dated 20 Mar 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, ARPC/DPTT, dated 15 May 15, 
			  w/atchs.
	Exhibit D.  Letter, SAF/MRBR, dated 31 Jul 15.
	Exhibit E.  Letter, Applicant, dated 24 Aug 15.