RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2015-05252
		
 						COUNSEL:  NONE

						HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

Her active duty retired pay in the grade of colonel (O-6) be converted to Reserve retired pay in the grade of brigadier general (O-7) per 10 U.S.C. § 12741. 

APPLICANT CONTENDS THAT:

She was involuntarily retired effective 1 April 2011.  Her retired grade is brigadier general and after age 60 she can request her retired pay be converted.  An August 2015 ARPC/DTTRB audit reflects she had 1 year, 8 months and 30 days toward her two-year satisfactory service requirement.  

Three years have not passed since she turned age 60.  She was also not comfortable pursuing the correction while The Adjutant General (TAG) and previous administration were still in place.

She served honorably in the Alaska Air National Guard (AK ANG) until she was told to retire by the TAG for force management reasons.  The working climate was not conducive to requesting any further extension of her retirement date.  In September 2014, the Governor asked the TAG to resign after an investigation revealed numerous leadership problems.  At the time, she did not know she would be short the few months’ time in grade (TIG) in order to convert to brigadier general retirement pay after age 60.  She was not retired for any dereliction of duty or misconduct and has never been the subject of an Inspector General (IG) inquiry or investigation.  Her involuntary retirement was not for cause.  

Her NGB Form 22, Report of Separation and Record of Service, reflects her pay grade as O-7 and her retirement order (AA-0518) shows her retired pay grade as brigadier general which was subsequently corrected in Special Order AA-0564.  

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

STATEMENT OF FACTS:

The applicant was discharged from the AK ANG on 31 March 2011 in the grade of brigadier general and retired in the grade of colonel on 1 April 2011 per 10 U.S.C. § 8911.   

The AK NG TAG in a letter dated 20 October 2010, requested the applicant be involuntarily retired on 1 April 2011 not for cause but based on a force management plan.  

The applicant’s NGB Form 22, Report of Separation and Record of Service, reflects her effective date of separation as 31 March 2011 and character of service as honorable.  

Reserve Order EK-0563 dated 18 April 2011, rescinded Special Order AA-0518 dated 6 April 2011 which reflects the applicant retired on 1 April 2011 in the grade of brigadier general.   

Special Order AA-0564 dated 18 April 2011, reflects the applicant was placed on the Air Force Retired List in the pay grade of colonel effective 1 April 2011 per AFI 3203, Service Retirements, and 10 U.S.C. 8911.  She was credited with 22 years, 5 months and 5 days of active service for retirement.  

On 7 March 2015, the applicant signed the Application to Convert to Reserve Retired Pay Under the Provision of Title 10 U.S.C. § 12741 to be effective on 11 October 2013 (DOB is 11 October 1953).  

10 U.S.C. § 12741, Retirement for service in an active status performed in the Selected Reserve of the Ready Reserve after eligibility for regular retirement.  As amended in 2009: Election of Reserve Retired Pay.  A person who, after becoming entitled to retired or retainer pay, serves in an active status in a Reserve component is entitled to retired pay if the person elects under this section to receive retired pay.  

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

AIR FORCE EVALUATION:

NGB/GO recommends approval of the applicant’s request that her regular retirement in the pay grade of colonel under 10 U.S.C. § 8911 be converted to a non-regular retirement in the pay grade of brigadier general under 10 U.S.C. § 12741.   

In 2009, Congress passed legislation that fixed a flaw in 10 U.S.C. § 12741 allowing officers to qualify for non-regular retirement for continued traditional service after qualifying for regular retirement.  Prior to the legislative change, officers who qualified for regular retirement, and deferred their regular retirement, to continue serving as a traditional airman, could not qualify for non-regular retirement without drawing regular retired pay and subsequently returning to an active status under a finding of indispensability.  When passing the change to 10 U.S.C. § 12741, Congress inserted a requirement that affected officers such as the applicant.  Congress required officers to serve for 730 days as a traditional airman, plus any active duty time the officer may have performed since leaving active duty service.  This means that if an officer served 60 days of active duty, the 730 day service requirement would be extended to 790 days.  The 730 day requirement was in addition to the TIG requirements in 10 U.S.C. § 1370, which the applicant met when she was involuntarily separated not for cause.  The applicant who served around this time was harmed as a result of the lack of appropriate guidance concerning the limitations of the new language.  Had the appropriate guidance concerning the legislative changes been provided to the AK NG TAG, he would have certainly delayed separating the applicant until she met the requirement to retire under 10 U.S.C. § 12741 as a non-regular brigadier general.  This assumption is supported by the fact, the AK NG TAG ensured the applicant was separated involuntarily not for cause to meet the TIG requirement under 10 U.S.C. § 1370.  If he had no intention for her to qualify for retirement as a general officer, he would simply have separated her without distinguishing the involuntary separation as not for cause.  

A complete copy of the NGB/GO evaluation is at Exhibit B.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 15 November 2016 for review and comment within 30 days (Exhibit C).  As of this date, no response has been received by this office.

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was not timely filed.  While the applicant claims a date of discovery of less than three years ago, in our view, the reasonable date of discovery of the alleged error or injustice was more than three years ago and the application is therefore untimely.  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 (OPR) and adopt its rationale as the basis for our conclusion the applicant has been the victim of an error or injustice.  Since the applicant’s effective retirement date of 1 April 2011 does not permit retirement under 10 U.S.C. § 12741, we further recommend the applicant’s records be corrected to show her DOS was 31 March 2013, instead of 31 March 2011, and she was retired on 1 April 2013.  Therefore, we recommend the applicant's records 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:

a. Her NGB Form 22, Report of Separation and Record of Service, Item 8b, Effective Date, be amended to reflect her date of separation was 31 March 2013, instead of 31 March 2011.      

b.  Special Order AA-0564 dated 18 April 2011, be amended to reflect she was placed on the Air Force Retired List in the pay grade of colonel effective 1 April 2013 per AFI 36-3203, Service Retirements, and 10 U.S.C. § 8911, instead of 1 April 2011.  She was credited with 22 years, 5 months and 5 days of active service for retirement.  

c.  Her retirement in the pay grade of colonel (O-6) under 10 U.S.C. § 8911 was converted to a Reserve retirement in the pay grade of brigadier general (O-7) per 10 U.S.C. § 12741, effective 11 October 2013 (DOB 11 October 1953).   

The following members of the Board considered AFBCMR Docket Number BC-2015-05252 in Executive Session on 2 March 2017 under the provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

All members voted to correct the records as recommended.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-05252 was considered:

	Exhibit A.  DD Form 149, dated 2 December 2015, w/atchs.
	Exhibit B.  Memorandum, NGB-GO, undated 
	Exhibit C.  Letter, AFBCMR, dated 15 November 2016.  	 

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.