RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02159
		INDEX NUMBER:  131.09
	XXXXXXX	COUNSEL:  

	XXXXXXX	HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

He be advanced to the grade of captain, his highest grade held, not only during his final retirement at age 60, but also while he is serving on active duty.

In his rebuttal to the Air Force evaluation at Exhibit F, applicant requests he be given an exception to policy waiver to hold the grade of captain in the Air Force Reserve.

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APPLICANT CONTENDS THAT:

Applicant provides excerpts from the US Code, Title 10, Sections 1370, 8963, 8964, AFI 36-3203, and copies of his official orders for retirement and assignment to active duty.

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

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STATEMENT OF FACTS:

The applicant initially enlisted in the Air Force Reserve on    17 Feb 72 and served until 6 Aug 72.  He then enlisted in the Regular Air Force (RegAF) on 7 Aug 72 and served until 6 Aug 76 when he was released to the Air Force Reserve.  He was discharged from the Air Force Reserve on 16 Feb 78.  Applicant enlisted in the RegAF again on 6 Feb 79 to attend Officer Training School (OTS).  He was commissioned a second lieutenant in the Air Force Reserve on 3 May 79 and subsequently received a regular commission.  He separated from active duty on 15 Aug 85 and transferred to the AF Reserve.  The applicant enlisted in the RegAF on 15 Nov 85 in the grade of sergeant (E-4) and served until he retired in the grade of master sergeant (E-7) effective 1 Nov 01.  The applicant enlisted in the Air Force Reserve Individual Mobilization Augmentee (IMA) program on 13 Aug 03 and was promoted to the grade of senior master sergeant (E-8) on     1 Jan 04.  

The applicant previously applied to the Board in Jun 90 while serving on active duty in the grade of staff sergeant (E-5) to be reinstated to active duty as a commissioned officer.  The Board denied his request (Misc Exhibit).

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AIR FORCE EVALUATION:

ARPC/DPR recommends denial of the applicant’s request.  In accordance with AFI 36-2005, Table 2.1, the applicant must be under age 40 to be eligible for appointment in the grade of captain.  He must apply to HQ ARPC/DPPRC at age 60 to retire in the highest grade held.

The complete evaluation is at Exhibit C.

AFPC/DPPRRP recommends denial of the applicant’s request.  The applicant being an enlisted member at the time of his retirement was retired under the law that applies to Air Force enlisted members.  While he did serve on active duty as a commissioned officer from 3 May 79 to 15 Aug 85, he was not entitled to retire as an officer because he had less than 10 years of active commissioned service as required by the applicable law.  Although the applicant cites the US Code, Title 10, Section 1370 as being applicable to his case, this section of the law only applies to those who retire as commissioned officers, not enlisted members.

The complete evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the Air Force evaluation, applicant requests an exception to policy waiver to hold the rank of captain in the Air Force Reserve.  He also provides the following specific responses to their evaluation:

	  a.  His Total Active Federal Military Service Date (TAFMSD) is 6 Feb 73, which gives him 31 years, 7 months, 24 days of service credit.

	  b.  He should have returned to active duty at the minimum rank of captain after he transferred as a captain from the Regular Air Force (RegAF) into the Air Force Reserve from 13 Aug 85 to 15 Nov 85.

	  c.  The Air Force “Retiree-to Reserve Program” did not exist prior to Jul 01.  The program allows the opportunity to continue serving in the Air Force Reserve after retirement and to build longevity.

The applicant recounts the number of Manpower Authorization days of continuous active duty he has served and opines it should contribute to his service time for reinstatement to captain.

The applicant also advises the Board of his retention of legal counsel.

The applicant’s complete response, with attachments, is at Exhibit F.

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ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s request, AFPC/DPPRRP provided an additional evaluation based on the applicant’s response to their initial evaluation.  They point out the applicant’s TAFMSD is actually 5 May 75 vice 6 Feb 73, which means the applicant will not have a combined 30 years of service until May 05.  

AFPC/DPPRRP also discusses the options open to the applicant regarding retirement after active reserve service performed after regular retirement.  At age 60 the applicant may request to have his retirement calculated under 10 USC, Section 12733.  His retired pay would then include the service he originally retired with plus all points credited for retirement under 10 USC, Section 12733.

The complete evaluation, with attachments, is at Exhibit G.

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APPLICANT’S RESPONSE TO ADDITIONAL AIR FORCE EVALUATION:

In his response to the additional Air Force evaluation, the applicant restated his request for an exception to policy waiver to hold the grade of captain in the Air Force “Retiree to Reserve” program.

The applicant asks the question of how the Retiree to Reserve program affects his TAFMSD and where is the guidance that applies to the program.  The applicant also asks how his service in the Reserves will be credited after 5 May 05.  Since he is scheduled to serve beyond 5 May 05, when he is to be advanced on the retired list, shouldn’t he also advance in the Reserves.  Applicant wants to know how someone can be retired as an officer and serve on active duty as an enlisted member.

The applicant’s complete response, with attachments, is at Exhibit I.

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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 error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the primary basis for our conclusion that the applicant has not been the victim of an error or injustice.  The applicant has not presented evidence to justify granting a waiver for him to serve in the IMA program in the grade of captain.  He was accepted into the “Retiree to Reserve” program based on his enlisted grade and specialty skills.  He provides no evidence his services are needed in the IMA program as a commissioned officer or that he has even applied for such a position with the Reserves.  We believe the evaluations provided by AFPC/DPPRRP address the relevant issues of why the applicant is serving as an enlisted member and how any service beyond his retirement will impact his entitlements.  Although the applicant may advance in grade on the retired list, this does not lead to an entitlement to serve in the IMA program in the higher grade.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered Docket Number BC-2004-02159 in Executive Session on 11 January 2005, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 21 Jun 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, ARPC/DPR, dated 23 Aug 04.
    Exhibit D.  Memorandum, AFPC/DPPRRP, dated 29 Sep 04.
    Exhibit E.  Letter, SAF/MRBR, dated 8 Oct 04.
    Exhibit F.  Memorandum, Applicant, dated 4 Nov 04, w/atchs.
    Exhibit G.  Memorandum, AFPC/DPPRRP, dated 10 Nov 04,
                w/atchs.
    Exhibit H.  Letter, AFBCMR, dated 19 Nov 04.
    Exhibit I.  Memorandum, Applicant, dated 16 Dec 04.