RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-00273 COUNSEL: XXX HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. He be credited with 24 years and 4 months of total active service, thereby entitling him to an active duty retirement. 2. In the alternative, he be credited with 18 years, 9 months, and 1 day of total active service, thereby entitling him to retention on active duty under the provisions of “sanctuary” under 10 USC 12686. He be reinstated to active duty to complete the requirements for retirement, or provided sufficient constructive service credit to qualify for an active duty retirement. ________________________________________________________________ APPLICANT CONTENDS THAT: 1. He had attained more than 18 years of total active service, thus qualifying him for retention under “sanctuary” under the provisions of 10 USC 12686. However, the Air Reserve Personnel Center (ARPC) erroneously computed his total creditable active service to show he had not attained 18 years of active duty service. As a result, he was erroneously involuntarily released from active service and forced to request a reserve retirement rather than an active duty retirement. 2. He was denied an extension of his active duty orders for the purpose of obtaining documents relative to his sanctuary claim. 3. He was issued an erroneous DD Form 214, Certificate of Release or Discharge from Active Duty. In support of his request, the applicant provides an eight page supplemental statement of counsel, and copies of his DD Forms 214, Certificate of Release or Discharge from Active Duty; NGB Form 22, National Guard Bureau Report of Separation and Record of Service; DD Form 4, Enlistment/Reenlistment Document; and correspondence related to his expiration of term of enlistment. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: According to Title 10, United States Code (USC), Section 12686 (10 USC 12686), also known as “sanctuary,” a member of a reserve component who is on active duty (other than for training) and is within two years of becoming eligible for retired pay or retainer pay under a purely military retirement system, may not be involuntarily released from that duty before he becomes eligible for that pay, unless the release is approved by the Secretary of the military department concerned. The applicant’s military personnel records indicate he enlisted in the Regular Air Force on 27 Dec 84 and was honorably discharged on 6 Jun 86 and credited with one year, five months, and ten days of total active service. On 18 Feb 87, the applicant enlisted in the Florida Army National Guard (ARNG). On 7 Jun 88, he was honorably discharged and credited with 1 year, 3 months, and 19 days of total reserve service. His NGB Form 22 reflected he was previously credited with one year, five months, and nine [sic] days of total prior active service from his previous period of service with the Regular Air Force. On 8 Jun 88, the applicant enlisted in the Air Force Reserve for a period of six years. On 1 Dec 88, the applicant enlisted in the California Air National Guard (ANG) in the grade of staff sergeant (E-5). On 6 Feb 89, he commenced a period of active duty and was released from active duty on 31 Oct 89. He was credited with 8 months and 26 days of total active service as well as the one year, five months, and ten days of previous active service attributable to his first period of service with the regular Air Force. On 21 Feb 93, he was honorably discharged from the California ANG and credited with 4 years, 2 months, and 21 days of total reserve service. On 22 Feb 93, the applicant enlisted in the Regular Air Force and served on active duty until his honorable discharge on 13 Aug 97. He was credited with 4 years, 5 months, and 22 days of total active service and four years and three months of total prior active service. At this point in his service, he had been credited with 8 years, 8 months, and 22 days of total active service. On 14 Aug 97, the applicant enlisted in the Air Force Reserve. On 20 Oct 97, he was voluntarily ordered to extended active duty for a period of four years, unless sooner relieved, with an original expiration term of service of 19 Oct 01. His tour of active duty was extended multiple times, ultimately resulting in an expiration term of service of 30 Sep 07. According to the applicant’s military personnel records, he was relieved from his reserve assignment on 30 Jan 07 and transferred to the Individual Ready Reserve (IRR), effective 1 Feb 07, due to a conflict between his civilian employment and military obligations. The contested DD Form 214 was issued documenting a period of active service from 20 Oct 97 through 30 Sep 07. The applicant was credited with 9 years, 11 months, and 11 days of active service for this period; and 8 years, 9 months, and 28 days of total prior active service; for a total of 18 years, 9 months, and 9 days of total active service. According to the applicant’s Air National Guard (ANG)/Air Force Reserve (AFR) Point Credit Summary, dated 27 Sep 11, he was credited with only 72 active duty points during the period 18 Feb 05 through 30 Sep 07, indicating he was not performing continuous active duty during this period. On 14 Oct 08, the applicant was relieved from his reserve assignment and placed on the Reserve Retired List, awaiting retired pay at age 60. A corrected DD form 214 was issued documenting a period of active service from 20 Oct 97 through 30 Apr 05. The applicant was credited with 7 years, 6 months, and 11 days of active service for this period, and 8 years, 9 months, and 22 days of prior active service, for a total of 16 years, 4 months, and 6 days of total active service. ________________________________________________________________ AIR FORCE EVALUATION: ARPC/JA recommends denial, indicating there is no evidence of an error or injustice. Key to resolving the issue of the applicant’s total years of active service, and the merit of his request, is the period 30 Apr 05 through 30 Sep 07 that was erroneously documented on a DD Form 214 issued by ARPC. The erroneous DD Form 214, documenting a released from active duty date of 30 Sep 07, credits the applicant with more than the requisite 18 years of total active service and would provide a basis for his claims. However, a thorough review of a variety of ARPC records systems establishes the applicant accrued only 16 years, 4 months, and 6 days of total active service before retiring from the Air Force Reserve. ARPC issued a correction to this DD Form 214 and a review of the available pay documents, as well as the Point Credit Account and Reporting System (PCARS), and all of the evidence available supports this correction. A statement from the supervisor of the individual that published the erroneous DD Form 214 makes it clear the applicant’s total active service, as reflected on this form, was erroneously calculated. Specifically, the end date of the applicant’s active duty order was utilized as the sole basis in calculating the applicant’s total active service, without the customary verification of the service from multiple sources to ensure the applicant indeed served the full term of his orders, which he did not. ARPC’s research of pay and points credit records indicates that he was not paid during the period in question. The lack of any pay and points records for this allegedly performed duty is a sufficient basis to conclude that such duty was not, in fact, performed. The applicant has not provided any external evidence (e.g. bank records or tax records) that would establish that he was serving on active duty during the period in question. While the applicant cites an array of legal decisions to support the proposition that he was misinformed or operating under erroneous information when he applied for a Reserve retirement, none of the legal authority cited in his application is relevant to the factual issue serving as the basis for the requested relief – the length of his active duty service. ARPC records support the conclusion the DD Form 214 was in error and the re-issued form reflects the applicant’s accrued time as 16 years, 4 months, and 6 days of active service. There is no basis for equitable relief in this case. The applicant did not rely on the inaccurate DD Form 214 to his detriment. It is reasonable to conclude that he knew his end of service date was not 30 Sep 07 because ARPC records reveal he did not receive military points or pay after 30 Apr 05, and he has provided no evidence of any such pay. Instead, the record reveals that he transferred to the Individual Ready Reserve on 1 Feb 07, after not having earned pay or points for nearly two years, due to a conflict between the requirements of his reserve service and his civilian employment. A complete copy of the ARPC/JA evaluation, with attachments, is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to applicant on 30 Jul 10 for review and comment within 30 days (Exhibit D). In response, the applicant’s counsel requested his case be administratively closed pending the applicant’s return from an overseas deployment (Exhibit E). The applicant’s case was administratively closed on 9 Sep 10 (Exhibit F). The applicant, through counsel, refutes the ARPC contention the applicant did not serve on active duty during the period in question. While ARPC cites various information sources to support this claim, they indicate that only the applicant’s active duty order indicates he served the period in question. However, this is incorrect as there are two documents, the only two that matter, which accurately reflect the applicant’s service—the active duty order and the DD Form 214. ARPC had no authority to issue a corrected DD Form 214 that is contrary to the applicant’s orders. It should also be noted the advisory opinion ignores at least one other issue. According to the calculations in the advisory opinion, the applicant is entitled to only 16 years, 4 months, and 6 days of total active service; however, the evidence submitted as Tab G of the applicant’s submission accounts for 1 year, 3 months, and 19 days of service for which the applicant has not been credited. A complete copy of the applicant’s response is at Exhibit G. ________________________________________________________________ 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 an error or injustice. The applicant contends he had attained more than 18 years of total active service, thus qualifying him for retention under “sanctuary” under the provisions of 10 USC 12686, but the Air Reserve Personnel Center (ARPC) erroneously computed his total creditable active service to show he had not attained 18 years of active duty service. After a thorough review of the evidence of record and the applicant’s complete submission, including his response to the Air Force evaluation, we are not convinced that he has been the victim of an error or injustice. In this respect we note the ARPC/JA comments indicating the original DD Form 214, which reflected the applicant had attained more than 18 years of active service, was issued due to an administrative error. Specifically, the service reflected on the contested DD Form 214 was erroneously computed based solely on the applicant’s active duty orders, without the customary verification of the actual service he performed. However, in our view, a preponderance of the evidence indicates the applicant did not actually serve the entire period of his orders as he contends. In this respect, we note that his ANG/AFRC Point Credit Summary indicates that he only earned 72 active duty points during the more than two and one-half year period from 18 Feb 05 through the 30 Sep 07, when he was allegedly performing continuous active duty. Additionally, the record reflects he was relieved from his reserve assignment and transferred to the Individual Ready Reserve (IRR) on 1 Feb 07, nearly eight months prior to the expiration of his active duty orders on 30 Sep 07. The stated reason for his transfer to the IRR was a conflict between the requirements of the applicant’s military duties and his civilian employment, a situation hardly possible if the applicant was serving on active duty at the time of his transfer. In view of these facts, we find the documentation presented insufficient to convince us the contested DD Form 214 was anything more than an administrative error and find that ARPC’s action to issue the corrected DD Form 214 was appropriate in the face of said error. We note Counsel’s assertion on rebuttal indicating there is another 1 year, 3 months, and 19 days of active service which is unaccounted for in ARPC’s computations; however, the documentation provided is insufficient to convince us that ARPC’s calculation of the applicant’s active service, as reflected on the reissued DD Form 214, is incorrect. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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-2010-00273 in Executive Session on 27 Sep 11, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 22 Jan 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, ARPC/JA, dated 1 Jul 10, w/atchs. Exhibit D. Letter, SAF/MRBR, dated 30 Jul 10. Exhibit E. Letter, Counsel, dated 27 Aug 10. Exhibit F. Letter, AFBCMR, dated 9 Sep 10. Exhibit F. Letter, Counsel, dated 21 Dec 10.