RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-05412 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: He be awarded retroactive stop-loss special pay compensation for the period from 11 September 2001 through 31 October 2002. ________________________________________________________________ APPLICANT CONTENDS THAT: 1. His claim for retroactive stop-loss special pay compensation pursuant to Public Law (PL) 111-32, § 310, submitted originally on 22 September 2010, was denied. That denial was timely appealed on 20 June 2011, and the appeal was finally denied by way of a letter from AFPC/DPSO on 12 August 2011. The denial letter stated, in part, “at no time were you held beyond an approved retirement date due to stop-loss” However, PL 111-32, § 310, in addition to covering circumstances extending service beyond an approved retirement date, states “…or whose eligibility for retirement was suspended pursuant to 10 U.S.C. § 12305, or any other provision of “stop-loss authority.” 2. On 11 September 2001, he was eligible to retire but subjected to stop-loss, and while in that status he was ordered to make a permanent change of station (PCS) in October 2001. As a result of this PCS, he incurred a 12-month active duty service commitment (ADSC) and thus, had his eligibility to retire suspended until at least October 2002 as a direct result of the stop-loss provision. Although he could have thereafter retired in October 2002, assuming the stop-loss rules were no longer in effect, he continued to serve until his mandatory retirement date (MSD) of 31 December 2002. After retiring on his MSD he was immediately voluntarily recalled to active duty and served until he reverted to retired status effective 1 June 2003. 3. He is not claiming that he should be compensated for the period of time between 1 January 2003 through 1 June 2003. He is only claiming retroactive stop-loss special pay compensation for the time between 11 September 2001, when the stop-loss rules went into effect, and the 12-month period of active duty service commitment he incurred between October 2001 and October 2002 by virtue of being ordered to PCS at a time when he was subject to stop-loss rules, during which time his eligibility for retirement was suspended within the meaning of (PL) 111-32, § 310. In support of his request, the applicant provides copies of his February 2011 military retiree account statement, his DD Form 214, Certificate of Release or Discharge from Active Duty, and letters from the Air Force personnel services directorate, his congressional representative, and the Department of Veterans Affairs (DVA). The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant is a former commissioned officer of the Regular Air Force. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate offices of the Air Force at Exhibits C and D. ________________________________________________________________ AIR FORCE EVALUATION: 1. HQ AFPC/DPSOR recommends denial. DPSOR states the applicant was not involuntarily held on active duty due to stop-loss. Based on the documentation on file in his master personnel records, he was subject to a 12-month active duty service commitment (ADSC) due to his PCS assignment, not stop-loss. The applicant acknowledged and accepted his ADSC voluntarily. His military records show he was not affected by stop-loss and was not involuntarily held on active duty. The applicant's military records also show his Air Force specialty code (AFSC), 51J4, was affected by stop-loss, but he did not have an approved or requested retirement or separation at the time stop-loss was in effect. The effective stop-loss date for the Air Force judge advocates began on 2 October 2001, not 11 September 2001. 2. The applicant incurred the 12-month ADSC on 24 October 2001 for his PCS to Hurlburt Field, FL. On the AF Form 63, Active Duty Service Commitment (ADSC) Acknowledgment Statement, the applicant acknowledged and agreed to accept and serve the ADSC. If he wanted to decline the ADSC associated with his PCS assignment, he could have applied for retirement or separation within 7 calendar days following receipt of the PCS assignment notification. The applicant did not decline the ADSC associated with his PCS assignment and signed the AF Form 63 on 24 October 2001. 3. The applicant was retired from the Air Force 31 Dec 2002 under the provisions of AFI 36-3203, Service Retirements, due to maximum service for time in grade. He served on active duty for a period of 27 years and 10 months. Based upon the guidance of AFI36-3203, dated 8 Sep 2006, the applicant was retired correctly. 4. The applicant submitted a claim for Retroactive Stop-Loss Special Pay Compensation to HQ AFPC/DPSOS on 22 September 2010 and was disapproved on 5 November 2010. On 10 June 2011, AFPC/DPSOS received the applicant's appeal for Retroactive Stop Loss compensation. His claim was re-adjudicated on 12 August 2011 and the appeal was disapproved. The complete AFPC/DPSOR evaluation is at Exhibit C. 1. AFPC/JA recommends denial. JA states that at the time stop- loss went into effect, the applicant had not submitted a retirement application. Nor did he submit a retirement application during the September through October 2001 time frame. In fact, very soon after stop-loss went into effect, the applicant voluntarily accepted a PCS assignment where he reported for duty in mid-October 2001. The applicant’s Air Force Form 63, dated 24 October 2001, reflects that he acknowledged and agreed to accept and serve the ADSC associated with the PCS assignment, and that he did not apply for retirement or separation within seven days following receipt of the PCS notification as he could have done. 2. The Applicant is requesting that his record be changed to require payment under the Retroactive Stop Loss Compensation program pursuant to P.L. 111-32, Section 310. In the Supplemental Appropriations Act of 2009, P.L. 111-32, 123 STAT. 1859 (2009), Section 310, Congress provided an appropriation to the Department of Defense in addition to the normal appropriation for a program entitled Retroactive Stop-Loss Special Pay Compensation to Eligible Claimants. Eligibility for payment was extended under the program to members of the Armed Forces, including members of the reserve components, and former and retired members under the jurisdiction of the Secretary who, at any time during the period beginning on 11 September 2001, and ending on 30 September 2009, served on active duty while the member's enlistment or period of obligated service was extended, “or whose eligibility for retirement was suspended,” pursuant to section 123 or 12305 of Title 10, United States Code, or any other provision of law (commonly referred to as a “stop-loss authority”) authorizing the President to extend an enlistment or period of obligated service, or suspend an eligibility for retirement, of a member of the uniformed services in time of war or national emergency declared by Congress or the President. Relying on the language in Section 310 of P.L.111-32, “or whose eligibility for retirement was suspended.” 3. The applicant claimed, in his initial 2010 retroactive stop- loss compensation claim, as he does now, that he intended to retire in or about the time frame that stop-loss in the Air Force was invoked, but that he did not do so because such an application would not have been approved (eligibility for retirement having been “suspended”). In response, they note first that the record contains no objective evidence that would corroborate the applicant's claim that he intended to retire at that time. On the contrary, the applicant had no retirement application on file at the time stop-loss went into effect. He voluntarily accepted a staff judge advocate position and PCS in that time frame and he never chose to request retirement in lieu of the PCS assignment. Under these circumstances, it does not seem likely that the applicant actually intended to retire at the onset of stop-loss, nor that he was held involuntarily in the Air Force as the guidance required. 4. In order to implement the retroactive stop-loss compensation claims program in the Air Force, Air Force Active Duty Personnel Service Delivery Memorandum (PSDM) 09-60, dated 21 October 2009, was promulgated. It defined eligibility for payment as follows: This benefit is payable to current and former Armed Forces members, including reserve component members, who at any time from 11 September 2001 to 30 September 2009, had an approved separation or retirement date and were involuntarily held in service beyond this date as a direct result of stop-loss. 5. In this case, the applicant did not have an approved application for retirement on file at the time stop-loss went into effect, and he never applied for retirement during that initial period. Consequently, he was never held involuntarily, and an approved retirement was never “suspended” pending the termination of stop-loss. The applicant was eligible for retirement during the stop-loss period; the Air Force took no action during the stop-loss period to suspend eligibility for retirement. They confirmed that exceptions and waivers to stop- loss were approved in appropriate cases to permit separation or retirement of Air Force JAG members during that time. The applicant never applied for retirement prior to, or during the period of stop-loss. Therefore, he never had an approved retirement date extended, or a new application denied, nor was he ever held involuntarily. Simply stated, the applicant was not eligible for retroactive stop-loss compensation, and the decisions by the Air Force in 2010 and 2011 to deny his claims were proper. The same holds true now. The complete AFPC/JA evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 17 February 2013 for review and comment within 30 days (Exhibit E). To date, a response has not been received. ________________________________________________________________ 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 careful notice of the applicant's complete submission in judging the merits of the case; however, we do not find the evidence provided sufficient to override the rationale provided by the Air Force offices of primary responsibility. We have noted the applicant’s contention that he was ordered to make a permanent change of station (PCS) at a time when he was subject to stop- loss rules, during which time his eligibility for retirement was suspended within the meaning of (PL) 111-32, § 310. However, we find no evidence substantiating that the applicant was involuntarily held in service beyond an approved separation or retirement date as a direct result of stop-loss. Thus, we agree with the opinions and the recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. In view of the above and in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application. ________________________________________________________________ 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 this application in Executive Session on 4 September 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in AFBCMR Docket Number BC-2012-05412: Exhibit A. DD Form 149, dated 1 Nov 2012, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSOR, dated 19 Dec 2012, w/atchs. Exhibit D. Letter, AFPC/JA, dated 11 Feb 2013. Exhibit E. Letter, SAF/MRBR, dated 17 Feb 2013. Panel Chair