RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-05927 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ THE APPLICANT REQUESTS THAT: His records be corrected to reflect that he was recalled to extended active duty (EAD) pursuant to 10 USC § 12301(d), instead of 10 USC § 688a, so he may qualify for accelerated Reserve retired pay pursuant to Title 10 USC § 12731(f). ________________________________________________________________ THE APPLICANT CONTENDS THAT: 1. His recall to EAD under 10 USC § 688a was illegal because said statute applies to “retired” members. Because he was awaiting retired pay at age 60, he was not technically “retired” and, thus, should have been ordered to EAD under 10 USC § 12301(d). 2. He should have been ordered to EAD under 10 USC § 12301(d), instead of 10 USC § 688a. Had he been ordered to EAD under the former, he would have qualified for early Reserve retired pay under 10 USC § 12731(f); however, because he was recalled under the latter, he must wait until he attains the age of 60 before he can begin to collect his retired pay. This constitutes an error as the Secretary of the Air Force (SecAF), through replies to Congressional inquiries, has consistently stated the Air Force has a policy to activate members of an Air Force Reserve Component in a manner that allows them to be eligible for the accelerated Reserve retired pay entitlement. 3. He is the victim of an injustice as his inability to qualify for the accelerated Reserve retired pay entitlement constitutes disparate treatment. In 2009, the Air Force solicited skilled aviation experts to fill critical shortages. About 490 officers were recalled to EAD using 10 USC § 688a. Over 400 of these were retired and already drawing retired pay. The remaining officers were reservists, 51 of which were either drawing retired pay, or would qualify for retired pay at the end of their tour as they qualified to be retained until qualifying for said pay under the “sanctuary” (10 USC § 12686). That left 31 Reserve officers, including the applicant, who were excluded from reduced retirement age or any other equitable consideration for volunteering for recall. 4. It is unfair that the applicant is not eligible for the accelerated retired pay entitlement when he is similarly situated to the more than 91,000 other reservists who are eligible for said entitlement because they were ordered to EAD under 10 USC § 12301(d). In support of his appeal, the applicant provides a personal statement; copies of a Secretary of the Air Force (SECAF) memorandum, dated 6 Jan 09; his EAD recall order, dated 18 Mar 10; and various other documents. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 1 Jul 09, the applicant, while serving as a lieutenant colonel with the Air Force Reserve, was transferred to the Retired Reserve to await retired pay at age 60. On 1 May 10, the applicant was recalled to EAD for a period of two years under the provisions of Title 10 USC §688a. His EAD tour was subsequently extended for two years, resulting in a projected date of separation from EAD of 30 Apr 14. Under 10 USC § 12731(f), a member of the Ready Reserve who performs active duty for 90 or more days can have that period credited towards qualifying for Reserve retired pay prior to attaining the age of 60 in increments of 90 days. In other words, if prior to receiving retired pay at age 60, a Reserve member is credited with 90 days of qualifying active duty, that 90 days can be subtracted from his or her age 60 retirement, thereby allowing receipt of Reserve retired pay 90 days earlier. Active duty performed under 10 USC §688a is not creditable service for the purpose of accelerating the receipt of retired pay under 10 USC § 12731(f). ________________________________________________________________ THE AIR FORCE EVALUATION: AF/JAA recommends denial and provides a comprehensive review of the issues raised by the applicant. While this evaluation was originally made in a separate case before the AFBCMR, it addresses each of the applicant’s contentions in the instant case. AF/JAA does not agree with the applicant’s analysis and conclusions and finds that he is not eligible for early age retirement credit under 10 USC § 12731(f). The applicant argues that he was improperly ordered to EAD pursuant to 10 USC §688a instead of 10 USC § 12301(d). He asserts there is a fundamental statutory distinction between Airmen who are “retired” and those who are in the Retired Reserve. The difference between the two groups is that the members of the former are receiving retired pay, while those in the latter are waiting until they are eligible for retired pay (i.e., old enough to begin receiving it). The crux of the applicant's argument is that Congress has used the terms “retired” and “Retired Reserve” in different places, and therefore the two terms must have distinct meanings. Since the applicant was in the Retired Reserve and not yet receiving retirement pay, he argues that he was not “retired,” and therefore is not eligible to be recalled to EAD under 10 USC § 688a, which pertains to the recall of "retired members." This argument is without merit because the applicant was clearly a member of the Retired Reserve, regardless of whether or not he had begun to collect his retired pay. There are three categories of Reserves in each branch of the service: the Ready Reserve, the Standby Reserve, and the Retired Reserve. Each reservist is assigned to one of those three exclusive categories. The Retired Reserve consists of reservists who "are or have been retired" under 10 USC § 3911, 6323, or 8911, or 14 USC § 291 (reservists who are officers that have voluntarily retired after completing 20 years of service and are eligible for retirement pay immediately upon retirement). The Retired Reserve also consists of all other reservists who, like the applicant, have transferred to the Retired Reserve, voluntarily or otherwise, and have accumulated enough service to earn retirement pay, but may be too young to actually start drawing it. All members of the Retired Reserve are considered “retired,” and those who are still too young to receive retirement pay have been colloquially referred to as “gray area retirees.” It should be noted that 10 U.S.C. § 12731(f) expressly creates eligibility to receive retirement pay at a reduced age for members of the Ready Reserve, but not for members of the Retired Reserve. 10 USC § 12731(f) provides these early retirement pay opportunities to members called up under statutes cited in 10 USC § 101(a)(13)(B), one of which is 10 USC § 688. Therefore, retirees called up to active duty under 10 USC § 688 may be eligible for early retirement pay if they meet the other criteria in 10 USC § 1273l(f). This is based on the plain reading of the Code and the applicant's contrary reading is simply unsupported. The applicant makes a valid point when he suggests that a reduction in the eligible age does not seem to provide much of a benefit to a retiree already receiving retired pay. This may be the result of Congress simply incorporating the list of provisions in the definition of “contingency operation” in 10 USC § 10l(a)(13)(B) rather than specifying the qualifying provisions within l0 USC § 12731 itself. Had Congress intended to include 10 USC § 688a as service entitling a member to early retirement pay eligibility, it certainly could have done so. Instead, the amendment that would have brought l0 USC § 688a under the umbrella of 10 USC § 12731(f) was withdrawn and never enacted into law. There is nothing legally deficient in the applicant’s recall to EAD under 10 USC § 688a and his service pursuant to 10 USC § 688a is not creditable toward eligibility to receive retirement pay at a reduced age. AF/JAA readily acknowledges that the laws governing the Reserve personnel system, along with the implementing regulations, are complex and scattered among numerous authorities. A complete copy of the AF/JAA evaluation is at Exhibit C. SAF/GCI did not make a recommendation. However, they found no evidence that the distinction between 10 USC § 688a and 10 USC § 12301(d) service as qualifying for early receipt of retirement pay was raised or discussed during the coordination of the authorizing package approved by SecAF in Jan 09. Had SAF/GCI anticipated this issue at the time, they are confident they would have recommended the SecAF recall Retired Reserve officers not yet receiving retired pay to EAD pursuant to 10 USC § 12301(d), rather than pursuant to 10 USC § 688a. SAF/GCI states that they will not speculate whether the SecAF would have accepted their recommendation, but if he had, the affected officers would have been recalled under 10 USC § 12301(d) and their resulting service would have qualified for early age retirement credit under 10 USC § 12731. A complete copy of the SAF/GCI evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 18 Jul 13 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit E). ________________________________________________________________ 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 the Secretary illegally ordered him to extended active duty (EAD) from the Retired Reserve under 10 USC § 688a. He essentially argues that because he had yet to receive retired pay, he was technically not "retired" and, as such, the noted statute was an ineffective means to recall him to EAD because it pertains exclusively to "retired" members. Because of this, he argues he should have instead been ordered to EAD under 10 USC § 12301(d), which, he states, would make his EAD service creditable for accelerated Reserve retired pay under the provisions of 10 USC § 12731(f). After a thorough review of the evidence of record and the applicant's complete submission the majority of the panel does not find the applicant's legal arguments or the evidence presented sufficient to conclude that his recall to EAD under 10 USC § 688a was an error on the part of the Air Force. In this respect, the majority agrees with the comprehensive legal analysis provided by AF/JAA indicating that the applicant's arguments are without merit. According to a number of governing statutes and departmental instructions, members of the Retired Reserve are in a retired status, regardless of whether or not they are in receipt of retired pay. The majority finds nothing in the applicant's arguments that would establish that 10 USC § 688a was an ineffective, erroneous, or illegal means to order him to EAD. Furthermore, while the applicant claims he should have been ordered to EAD under 10 USC § 12301(d), and SAF/GCI indicates they would have recommended the Secretary do so had they anticipated this issue, the majority declines to speculate as to whether or not the Secretary would have accepted this recommendation. Moreover, it would appear that the benefits of 10 USC § 12371 do not extend to members of the Retired Reserve in any event. The burden of proof of an error or injustice rests with the applicant, and the majority does not find that he has made his case that he should have been ordered to EAD under 10 USC § 12301(d) when the use of 10 USC § 688a was a perfectly legitimate exercise of the Secretary’s discretionary authority. In this respect, we note the applicant’s argument that his recall to EAD under 10 USC § 688a must be an error as it is inconsistent with Air Force policy, as articulated by the Secretary to Members of Congress, to activate members of an Air Force Reserve Component in a manner that allows them to be eligible for the accelerated Reserve retired pay entitlement. However, for the reasons cited by AF/JAA, the applicant was a retired member, not a member of the Ready Reserve, when recalled to EAD. Therefore, said recall was not inconsistent with the stated policy. The majority does not accept the applicant’s argument that he is similarly situated with the more than “91,000” members of the Reserve called to active duty under 10 USC § 12301(d). Rather, the applicant is a retired officer, and he has presented no evidence of disparate treatment vis-à-vis other retired officers recalled to EAD. Many other retired officers, some receiving retired pay and others like the applicant waiting to attain age 60 to do so, volunteered for EAD under this recall. They, like the applicant, will have their retired pay recomputed to account for the additional EAD service they performed, but will not be entitled to any additional benefit. 4. The applicant's case is well documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is denied. ________________________________________________________________ THE BOARD RECOMMENDS THAT: A majority of the panel finds insufficient evidence of error or injustice and recommends the application be denied. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-05927 in Executive Session on 11 Sep 13 and 14 Nov 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member By a majority vote, the Board voted to deny the application. voted to correct the records and has submitted a minority report, which is attached at Exhibit G. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 19 Oct 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AF/JAA, dated 28 Mar 13, w/atch. Exhibit D. Letter, SAF/GCI, dated 11 Jun 13. Exhibit E. Letters, SAF/MRBR, dated 18 Jul 13. Exhibit F. Minority Report, dated 17 Dec 13. Panel Chair