RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02331
		INDEX CODE:  

		COUNSEL:  NONE

		HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  1 FEBRUARY 2006

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APPLICANT REQUESTS THAT:

The eight-month extension of his 27 October 1999 6-year enlistment be canceled.

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APPLICANT CONTENDS THAT:

He was miscounseled.  During his extension briefing, he was not informed of the six-year enlistee Zone A exception in Section IX of his extension agreement.  His tour length was subsequently changed from four years to three years after the extension was signed for the four-year tour eligibility.  Based on changes in policy concerning reenlistments, this extension will cause him to forfeit a Zone A Selective Reenlistment Bonus (SRB), potentially costing him $39,820 in bonus losses.  

Applicant provided a personal statement, two e-mails, and a copy of his extension request.  Applicant's complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 27 October 1999 for a period of six years.  On 2 April 2002, applicant extended his enlistment for eight months to qualify for a permanent change of station (PCS) assignment.  As a result, his date of separation was extended from 26 October 2005 to 26 June 2006.  Information in the Military Personnel Data System indicates on, 25 May 2005, the applicant reenlisted in the Regular Air Force for a period of 4 years and 13 months.  His reenlistment contract shows he was eligible to receive a Zone A, Multiple 4 SRB based on 4 years of service.  He is currently serving on active duty in the grade of staff sergeant, having been promoted to that grade on 1 July 2003.  He has an established date of separation of 24 June 2010.

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AIR FORCE EVALUATION:

AFPC/DPPAE states that on 2 April 2002 the applicant extended his enlistment for eight months to qualify for a PCS to become an instructor.  At the time he requested the extension, the tour requirement for an instructor was four years of retainability.  The applicant had to extend eight months, as that was the retainability requirement at the time he was approved for that assignment.  In October 2002, the retainability requirement for instructors changed from four years to three years.  However, the applicant had already PCSd to his new duty location and therefore DPPAE believes there is no reason to cancel the extension.  The extension was for the purpose of PCSing and the applicant did that.  Therefore, they recommend denial of applicant’s request.

A complete copy of the evaluation is at Exhibit C.

On 3 June 2005, a copy of a legal opinion in a similar case was provided to the applicant for review in comment.  In their opinion, HQ USAF/JAA indicated the Supreme Court has consistently held that a “soldier’s entitlement to pay is dependent upon a statutory right” and that “the common law governing private employment contracts has no place in the area of military pay.”  JAA opined that, based on the governing laws, certain court decisions, and the governing instruction, no service member has a statutory right to reenlist at the expiration of a current enlistment and Service Secretary may establish rules and procedures to implement an SRB program.  JAA provides an analysis of a case factually similar to the one under review decided in the Federal Court of Claims in 1995.  JAA stated the federal claims court concluded that the plaintiff was not entitled to the SRB because he failed to fulfill the eligibility requirements of the governing statute.  In sum, JAA indicated the Secretary has the legal authority to determine eligibility periods for reenlistment.  While the applicant’s window of eligibility was changed in a manner that prevented him from reenlisting, that, in and of itself, does not appear to be an error or injustice (see Exhibit D).

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 20 August 2004 and 3 June 2005, respectively, copies of the Air Force evaluation and the JAA opinion were forwarded to the applicant for review and response.  As of this date, this office has received no response.

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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.  Applicant contends that the tour length was changed from four years to three years after the extension was signed for the four-year tour eligibility.  However, based on the evidence of record, the Board majority is not persuaded that the applicant has been a victim of an error or injustice.  The applicant’s contentions are duly noted; however, the Board majority finds no evidence that the applicant was miscounseled or that he has been treated any differently than others who were similarly situated at that time.  The Board majority notes that, contrary to the applicant’s assertion he would be deprived of a Zone A bonus, he is currently receiving such a bonus based on his 25 May 2005 reenlistment.  In view of the above, the Board majority agrees with the opinions and recommendations of the Air Force offices of primary responsibility and adopts their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  In the absence of evidence to the contrary, the Board majority finds no compelling basis to recommend granting the relief sought in this application.

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THE BOARD RECOMMENDS THAT:

A majority of the panel finds insufficient evidence of error or injustice and recommends the application be denied.

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The following members of the Board considered this application in Executive Session on 29 June 2005, under the provisions of AFI 36-2603:

By a majority vote, the Board recommended denial of the application.  Ms. XXXXX voted to grant the applicant’s request but elected not to submit a Minority Report.  The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 23 Jul 04, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFPC/DPPAE, dated 19 Aug 04.
	Exhibit D.  Letter, HQ USAF/JAA, dated 21 Apr 05.
	Exhibit E.  Letters, SAF/MRBR, dated 20 Aug 04 and
	            AFBCMR, dtd 3 Jun 2005.

AFBCMR BC-2004-02331

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD 
			FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of 

	I have carefully reviewed the evidence of record and the recommendation of the Board members.  A majority found that applicant had not provided substantial evidence of error or injustice and recommended the case be denied.  I concur with that finding and their conclusion that relief is not warranted.  Accordingly, I accept their recommendation that the application be denied.

	Please advise the applicant accordingly.