RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2007-03724 INDEX CODE: 136.00 COUNSEL: XXXXXXXXX HEARING DESIRED: YES ________________________________________________________________ _ APPLICANT REQUESTS THAT: His record be changed to show he was retired from extended active duty (EAD) for length of service in accordance with (IAW) 10 United States Code (U.S.C.) 8914, rather than retirement under 10 USC 12731 awaiting Reserve retired pay at age 60. ________________________________________________________________ _ APPLICANT CONTENDS THAT: He has served faithfully for over 22 years in both the US Marine Corps and the Air National Guard (ANG). He tested positive for marijuana use and received a General, Under Honorable Conditions (UHC) discharge after appearing before an Administrative Discharge Board (ADB). However, while the Board intended that he be discharged from active duty, the Board also intended for him to receive active duty retired pay IAW Title 10, 8914. As it stands, the Air Force has denied him active duty retired pay noting that he is qualified for and will receive Reserve retired pay at age 60 IAW 10 USC 12731. Denying him active duty retired pay (as opposed to Reserve retired pay) imposes not only a 13- year delay for eligibility to receive any retired pay (time between his discharge and age 60), but assigning a dollar value to those 13 years indicates he will lose over $320,000 during the 13-year wait. The punishment then, for using marijuana once, is a General discharge and a $320,000 fine – an outcome that is both grossly unfair and a consequence unintended by the ADB. In support of his appeal, the applicant has provided a statement from counsel with 13 attachments. Applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: Applicant began his military career on 24 July 1974. He was progressively promoted to the grade of master sergeant effective and with a date of rank of 1 May 2000. On 27 June 2002, the applicant submitted a urine specimen that later tested positive for a metabolite of marijuana. He subsequently admitted smoking marijuana on only one occasion that led to his positive test, but at no other time. On 25 October 2003 an ADB was convened. The Board’s decision was to discharge the applicant with a general, under honorable conditions (UHC) discharge. The Board’s recommendation was accepted by the commander and found legally sufficient by the Staff Judge Advocate (SJA) on 20 November 2003. He was, therefore, involuntarily discharged, effective 18 October 2003, with a general discharge for misconduct after having served over 22 years. He is currently awaiting Reserve retired pay at age 60. ________________________________________________________________ _ AIR FORCE EVALUATION: The AFRBA legal consultant provided a legal review of this case file without a recommendation. He contends that the member has unquestionably demonstrated an error since he never got an answer on his request for an active duty retirement. The error could only be considered a harmless error if the AFBCMR is convinced that the active duty retirement would not have been approved, something very difficult to determine. The Legal Advisor’s complete review is at Exhibit B. ________________________________________________________________ _ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 27 March 2009 for review and comment within 30 days. 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; however, it is in the interest of justice to excuse the failure to timely file. 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 find the applicant has not sustained his burden of showing that he has suffered an error or is the victim of an injustice in not being accorded a length of service retirement. The applicant was an Active Guard Reserve (AGR) member on extended active duty (EAD) when he committed the offense leading to his discharge. At the time of his offense, he had the requisite service for a Reserve retirement with pay at age 60, but not a length of service retirement. However, by the time the actions related to his case were completed, the applicant had served over 20 years of active service and was entitled to request an active duty length of service retirement. Although the applicant was eligible to request either a length of service retirement or transfer to the Retired Reserve, the evidence of record indicates he applied for transfer to the Retired Reserve to await Reserve retired pay at age 60, in lieu of an administrative discharge. The Secretary of the Air Force Personnel Council (SAFPC) considered his request and denied it, in part, on the fact that to approve his transfer to the RRL in lieu of an ADB the applicant’s character of service would either have to be honorable or not listed at all. The egregiousness of the applicant’s offense with regard to his standing as a senior enlisted military member also played a role in the denial. SAFPC also noted that the decision to deny his transfer to the RRL at that time in no way interfered with the applicant’s eventual receipt of Reserve retired pay at age 60. The AFRBA Legal Advisor opines that SAFPC should have considered whether to grant the applicant an active duty length of service retirement and that the failure to provide the applicant an answer on this issue was an error. Even conceding this point, we are not convinced that the failure to consider this issue has caused the applicant to be the victim of an injustice. We find the rationale offered by SAFPC in denying the applicant’s transfer to the RRL equally applicable when applied to the issue of a length of service retirement. Additionally, given the applicant’s eligibility to collect retired pay at age 60, we do not believe the denial of an active duty length of service retirement to be inappropriate or excessively harsh. Therefore, based on the available evidence of record, we find no basis upon which to recommend favorable consideration of 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 issue involved. 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 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 AFBCMR Docket Number BC-2007-03724 in Executive Session on 23 April 2009, under the provisions of AFI 36-2603: The following documentary evidence with regard to AFBCMR Docket Number BC-2007-03724 was considered: Exhibit A. DD Form 149, dated 18 Oct 06, w/atchs. Exhibit B. Letter, AFRBA Legal Advisor, dated 26 Mar 09, w/atch. Exhibit C. Letter, AFBCMR, dated 27 Mar 09.