RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  99-01016
		INDEX NUMBER:  107.00

		COUNSEL:  NONE

		HEARING DESIRED:  YES

APPLICANT REQUESTS:

(1) Relief from the provisions of the “pay cap” of 5 USC 5532(c) as applied to his compensation; or, if not granted or if not within the jurisdiction of the Board,

(2) An option to relinquish his retirement from the Air Force and to elect either (a) the Voluntary Separation Incentive (VSI) or (b) the Special Separation Benefit (SSB) under the Temporary Early Retirement Authority (TERA) in respect of his service, either retroactively, or prospectively with cash to equal; or if not granted,

(3) Reinstatement on active duty, retroactive to 1 May 1995; or

(4) Other appropriate relief.

Note:  If (3) is afforded, Applicant secondarily requests consideration for promotion to 0-6 or higher, as appropriate, based on comparison to “look-back” Air Force selection board records for 11 (sic 8) fiscal years from 1987 through 1995, and to the present.  These were years in which he was not considered by active or Reserve promotion boards, despite his O-5 date of rank of November 1984, and, he believes, despite a competitively promotable service record.

APPLICANT CONTENDS THAT:

The reasons the applicant believes the records to be in error or unjust and the evidence submitted in support of the appeal are at Exhibit A.

STATEMENT OF FACTS:

On 1 Jul 1970, the applicant was appointed a second lieutenant, Reserve of the Air Force.  On 25 Nov 1970, he was appointed a first lieutenant, Reserve of the Air Force, Judge Advocate General Department.  On 15 Dec 1970, he was voluntarily ordered to extended active duty in the temporary grade of captain.  He was released from active duty in that grade on 8 Mar 1977.  On 20 Dec 1982, he entered on active duty in the grade of major and was released on 17 Jun 1983, and transferred to the XXXXXXXXX Air National Guard (XX ANG).  On 20 Jun 1983, he entered on active duty in the grade of major and was released on 31 Jan 1984, and transferred to the XX ANG.  On 1 Feb 1984, he entered on active duty in the grade of major and was relieved from his assignment with the XX ANG, effective 31 Mar 1984.  The applicant was appointed in the XXX XXXXX (XX) ANG, effective 1 Apr 1984, in the grade of lieutenant colonel.  The applicant was relieved from his assignment with the XX ANG on 29 Apr 1995.  On 30 Apr 1995, he was transferred to Headquarters, Air Reserve Personnel Center (ARPC) and transferred to the Retired Reserve in the grade of lieutenant colonel, under the provisions of ANGR 36-05, Voluntary Retirement with Less Than 20 Years of Service, Subject to PL 102-484, TERA (Temporary Early Retirement Authority), effective 1 May 1995.  His Total Active Service for Retirement was 19 years and 12 days.

The relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force.  Accordingly, there is no need to recite the information in this Record of Proceedings.

AIR FORCE EVALUATION:

The Office of the Senior Attorney-Advisor, AFPC/JA, reviewed this application and concluded that no “error” exists in the applicant’s military record and, accordingly, no “correction” under 10 USC 1552(a)(1) is required.  However, they also concluded that there exists a potential “injustice” which would not be improper for the Board, in its discretion under 10 USC 1552(a)(1), to “remove.”  This office believes that the VSI and SSB options are the only practicable, lawful alternatives which should be considered by the Board.  They went on to discuss Dual Compensation Rules for Military Retirees and Title III Reserve Pay--Dual Compensation--Pay Caps.  They stated that their discussions of the law only resolves the question of whether there is an error in the applicant’s record (answer--no) and whether the applicant could prevail in court on the legal issue (answer--no).  But the discussion does not answer the question of whether the applicant suffered an injustice, which the Board should act to remove.  “Injustice” has been defined in situations when no “error” occurred, as treatment by the military authorities that shocks the sense of justice, but is not technically illegal.  They reviewed the merits of a claim based on justice or equities--or lack of same--in this application, and, in their view, the issue is a close call.  AFPC/JA recommended denial on the grounds of “error.”  Although they do not believe it would be inappropriate to grant relief on the grounds of “injustice,” they deferred to the Board’s judgment.  AFPC/JA’s complete evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 26 Jul 1999, for review and comment within 30 days (Exhibit D). In accordance with the applicant’s request of 6 Aug 1999, he was granted an extension in order to reply to the advisory opinion (Exhibit E).  The applicant’s response to the advisory opinion is at Exhibit F.  Upon further review of the application and rebuttal comments, the AFBCMR staff determined that an additional advisory opinion was required (Exhibit G).

ADDITIONAL AIR FORCE EVALUATION:

The Office of the Judge Advocate General (HQ USAF/JAG), reviewed this application and agreed with AFPC/JA’s analysis that no error occurred when the Air Force did not affirmatively brief the applicant on the pay cap provision of 5 USC 5532(c).  However, they disagree with AFPC/JA that the issue of injustice was a “close call.”  They know of no law, regulation or court decision that imposes a duty upon the Air Force to brief a member considering early separation options, and the impact each option may have on yet unrealized post-service employment opportunities.

The applicant’s request to have his records considered for promotion to O-6 is also without merit.  Factored into his business decision to retire early was his own assessment of the likelihood of his being selected for promotion.  Although the ANG policy that prohibited assigning an O-6 AGR billet to a GS-12 position made the applicant’s promotion unlikely, in the opinion of the office of the JAG, it did not constitute an injustice.  HQ USAF/JAG’s complete evaluation is at Exhibit H.

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 9 Dec 1999, for review and response within 30 days (Exhibit I).  The applicant requested documents and information pertaining to the processing of his application (Exhibit J).  The AFBCMR’s response is at Exhibit K.  The applicant’s response to the advisory opinion, with attachments, is at Exhibit L.

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 probable error or injustice.  Applicant’s contention that he was unaware of the “pay cap” of 5 USC 5532(c) relating to military retirees who are subsequently employed by the Federal government and his stated belief that the failure to provide appropriate information to him during any phase of his retirement processing were duly noted.  However, we do not find his arguments sufficiently persuasive to override the rationale provided by the Office of the Judge Advocate General (AF/JAG).  We therefore agree with the opinion and recommendation of that office and adopt its rationale as the basis for our conclusion that no basis exists to recommend favorable action on his request.

4.  With respect to the applicant’s contention that he was not considered for promotion to the grade of colonel by either active duty or Reserve promotion boards, the applicant stated his awareness of the Air National Guard’s policy of prohibiting the assignment of an O-6 AGR billet to a GS-12 position.  Moreover, we have seen no evidence showing that he was treated differently than others who were similarly situated.  In view of the foregoing, and in the absence of evidence to the contrary, we find no compelling basis to recommend favorable consideration on the applicant’s requests.

5.  The documentation provided with this case was sufficient to give the Board a clear understanding of the issues involved and a personal appearance, with or without counsel, would not have materially added to that understanding.  Therefore, the request for a hearing is not favorably considered.  

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of probable 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.

The following members of the Board considered this application in Executive Session on 30 March 2000, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 12 Apr 99, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/JA, dated 8 Jul 99.
   Exhibit D.  Letter, SAF/MIBR, dated 26 Jul 99.
   Exhibit E.  Letter, Applicant, dated 6 Aug 99, w/BCMR’s
               response.
   Exhibit F.  Letter, Applicant, dated 8 Sep 99.
   Exhibit G.  Letter, AFBCMR, dated 15 Nov 99.
   Exhibit H.  Letter, HQ USAF/JAG, dated 3 Dec 99.
   Exhibit I.  Letter, AFBCMR, dated 9 Dec 99.
   Exhibit J.  Letters, Applicant, dated 20 Dec and 31 Dec 99,
               w/atchs.
   Exhibit K.  Letter, AFBCMR, dated 11 Jan 00, w/atchs.
   Exhibit L.  Letter, Applicant, dated 7 Feb 00, w/atchs.