RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2019-00391

XXXXXXXXXXXXXX	COUNSEL:  NONE

	HEARING REQUESTED:  NO

APPLICANT’S REQUEST

His Reserve Order EL-1949, dated 11 February 2016, and any related service records, be amended to reflect his highest held grade of Lieutenant Colonel (Lt Col - 05) instead of Major (Maj - 04).

His record be corrected to reflect he was continued on Reserve active service until completing 28 years of active service.

He receive all denied related retirement benefits.

By rebuttal, his Reserve Order HE-0016, dated 14 July 2003, be rescinded/removed.

APPLICANT’S CONTENTIONS

He processed his application for Air Force Reserve retired pay and the Total Force Service Center (TFSC) determined that his highest successful grade held for retired pay was in the grade of Maj (04), although he satisfactorily held the grade of Lt Col (0-5).  In addition, the TFSC reduced his total accrued reserve retirement points.  The action to reduce his retirement grade, military participation, and retirement pay were due to his Reserve Order HE-0016. Specifically, his order was retroactive in nature and assigned a separation from active duty service date prior to the date of the order.  As such, it caused the removal of his active duty service already performed, which had an effect on his corresponding retirement benefits.  Had the transfer from active service not occurred, he would have continued on active service until he completed 28 years.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force Reserve major (O-4).

On 19 January 1993, according to Reserve Order PC-1128, the applicant received a commission in the Reserve in the grade of captain (03), effective 1 January 1993.  He received an assignment to Headquarters Air Reserve Personnel Center (HQ ARPC) Ready Reinforcement Personnel Section (RRPS), after resigning from the Regular air force.  

On 27 December 1994, according to Reserve Order JE-0400, the applicant was relieved from RRPS and assigned to the Non-Obligated Non-Participating Ready Personnel Section (NNRPS), effective 30 December 1994.  Specifically, the reason for this action was due to the applicant’s failure to obtain a physical examination.  

On 26 March 1995, according to Reserve Order DA-2855, the applicant was released from HQ ARPC Reserve Section and assigned to Wright Patterson Air Force Base (WPAFB), Ohio (OH), effective 12 April 1995.  

On 6 December 2000, according to Reserve Order BA-2007, the applicant was promoted to the grade of Lt Col (05), effective and with a date or rank (DOR) of 23 January 2001.  

On 7 March 2001, according to Reserve Order DA-01983, the applicant was relieved from WPAFB, OH and assigned to NNRPS, effective 5 October 2001.  According to HQ ARPC/DPAM, the applicant was in an Individual Mobilization Augmentee (IMA) position and the reason for the assignment action transfer was due to a civilian job or school conflict.  

On 30 September 2001, according to Reserve Oder DA-03957, the aforementioned Reserve Order DA-01983, dated 7 March 2001 was revoked due to the United States Air Force Reserve (USAFR) Stop-Loss Message #1 – Noble Eagle.  According to HQ ARPC/DPAM, this was a result of the attack of 11 September 2001.  The applicant remained assigned to his IMA position.  

On 14 July 2003, according to Reserve Order HE-0016, the applicant was released from the NNRPS and assigned to the Inactive Status List Reserve Section (ISLRS), effective 16 May 2002.  It further noted, the transfer had no effect on his annual VSI payments and that he would remain in ISLRS until his VSI agreement expired.

On 19 September 2003, according to the applicant’s Air National Guard/United States Air Force Reserve (ANG/USAFR) Point Credit Summary, he was credited with 06075 total points for retirement, during the period of 7 September 1979 through 31 December 2003.  

On 8 February 2016, according to applicant’s service history, he was credited with 06051 total points for retirement.  This document reflects a pen-and-ink adjustment to the applicant’s membership points.  In addition, it shows the applicant’s transfer to ISLRS on 16 May 2002 and no points earned after 15 May 2002.

On 11 February 2016, according to Reserve Order Number EL-1949, the applicant’s highest grade satisfactorily held for retired pay reflects the grade of Maj (04), effective 24 February 2016.  He was placed on the on the retired list in that grade.  

On 23 December 2020, the Air Force Board for Correction of Military Records (AFBCMR) received a copy of the applicant’s Air Force Reserve Point Credit Summary (PCARS), reflecting his receipt of 06075 retirement points.      

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

AIR FORCE EVALUATION

ARPC/DPAM recommends denying the applicant’s request to return to a participating reserve unit to accumulate active service.  Active service would not provide the applicant with the necessary satisfactory service required to hold the grade of Lt Col (05) in retirement.  While the applicant was assigned to ISLRS, he had many opportunities to return to a participating unit to accumulate the additional satisfactory service in order to fulfill his required three years of satisfactory service in order to hold the grade of Lt Col (05).   There has been no evidence presented to prove the applicant’s transfer to ISLRS was contrary to law or regulation.  

According to Reserve Service Programs, the applicant’s original reassignment from his reserve unit to NNRPS was in accordance with (IAW) AFI 36-2115, Assignments Within the Reserve Components, Table 4.2, Rule 14 and 15 (Conflict with Civilian Job or School Conflict). The revocation of his transfer order was appropriate based on a national emergency and the USAFR Stop-Loss order. The Stop Loss ended effective 15 May 2002 and the applicant transferred to ISLRS on 16 May 2002. His transfer to ISLRS was IAW AFI 36-2115, Assignments Within the Reserve Components, Table 4.3, Rule 10, which allows for the transfer of members with over 20 years of satisfactory service, who fail to meet participation standards established in AFI 36-2254V1, Reserve Personnel Participation, directly to ISLRS.  According to the applicant’s point history, he was not credited with any participation points after 1 January 2001.

The Retirements Section of ARPC indicated that according to Title 10, United States Code (U.S.C.), Chapter 69, section 1370(d)(3)(A), an officer in the grade of Lt Col (05) must have three years of satisfactory service in grade to be able to retire at the higher grade.  The applicant received promotion to the grade of Lt Col (05), effective 23 January 2001. However, after his promotion, he did not actively participate to earn the required three satisfactory service years from the date of promotion. Therefore, the applicant transferred to the AF Retired Reserve with pay in the grade of major (04), effective 24 February 2016.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 10 September 2019 for comment (Exhibit D), and the applicant replied on 23 September 2019.  The applicant contends he had been assign to the NNRPS for over one year at the publishing of Reserve Order HE-0016.  Due to the retroactive nature of the order, it caused the removal of some retirement points after the fact from his records, as well as, his service history in NNRPS. Therefore, his retirement pay, regardless of his final grade in retirement, was measurably reduced. There has been no reason offered for the retroactive nature of the order or any justification given for the reduction in his retirement benefits.  Due to the unlawful reduction in his retirement pay benefits by revising his service history, he requested the order be removed or negated.  

The only issue identified with his military service is participation.  However, military members assigned to NNRPS do not participate.  Simply, the lack of participation does not mean unsatisfactory performance.  By agreeing to assign him to NNRPS, ARPC agreed that non- participation was satisfactory and no participation was expected.  In addition, by choosing, to wait to assign him to the ISLRS for over one year after has assignment to NNRPS; ARPC waived any potential participation concerns that existed before his assignment to NNRPS.

Reserve Order HE-0016 is the only order identified in changing his assignment to NNRPS. Without this order, he would have remained assigned to NNRPS until completing 28 years in the grade of Lt Col (05).  In addition, Reserve Order EL-1949 is the only order identified that altered his grade.  Title 10 USC 1370 does not require a specific level of participation to be satisfactory; only the accomplishment of three years of satisfactory service.  By remaining in NNRPS until 2008, he would have completed over four additional years of satisfactory service in NNRPS at the grade of 0-5 from 2003.

Reservist are not empowered to compel the Air Force to allow them to perform military duty (i.e. accomplish participation). ARPC has offered no evidence that participation opportunities were made available in the time periods they find dissatisfactory. Nor was he assigned to a Reserve unit where all personnel routinely participate together. Also, at all times, the Air Force was free to assign him voluntarily or involuntarily to active duty gaining participation as needed/desired.

The applicant’s complete response is at Exhibit E.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, to include the applicant’s response, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of ARPC/DPAM by finding a preponderance of the evidence does not substantiate the applicant’s contentions.  In this respect, the applicant request his records to reflect the grade of Lt Col (05) versus Maj (04) for retire pay and that he completed 28 years of active service during his reserve service.  We note that the highest grade held is determined based on time in grade (TIG) and reserve active service is based on total active federal military service (TAFMS), the applicant’s records are correct.  With respect to the applicant request to rescind/remove Reserve Order HE-0016, dated 14 Jul 03, this request is outside the Board’s purview.  While the applicant contends through his assignment to NNRPS, ARPC implicitly agreed for his non-participation to be satisfactory and the delay of his assignment to ISLRS should waive his active participation, such an agreement is inadmissible and it is the obligation of the applicant to fulfill his requirement for participation to acquire satisfactory service.  In addition, the Board notes the applicant further contends that due to the retroactive nature of his Reserve Order HE-0016, dated 14 Jul 03, some retirement points were removed from his records, as well as, his service history in NNRPS.  The Board found the retroactive effect of the applicant’s Reserve Order HE-0016 to be unclear; however, it should not have had any retroactive implications to the applicant’s retirement points.  Specifically, the Board determined the effect of the order should be no earlier than the date of its issuance and the applicant’s previously annotated points are correct.  Therefore, the total retirement points should reflect 06075 instead of the pen-and-ink change total retirement points of 06051 annotated in the applicant’s record.  Upon authentication of the Board’s determination and recommendation, the office of primary responsibility (OPR) administratively corrected the applicant’s retirement points, as indicated in the statement of facts.  As such, the Board recommends against correcting the applicant’s record and finds no basis to grant any relief beyond that rendered administratively.  

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.  

CERTIFICATION

In an earlier Executive Session, following thorough reviews of the evidence of record and the documentation submitted in support of three complex requests for relief, the Board recommended deferral of these cases.  The Board found that these requests required additional evaluations from appropriate Air Force offices of primary responsibility in order to assist the Board in determining if a material error or injustice occurred and, if so, determine appropriate avenues for relief.  Subsequent to lengthy evaluations, a second Executive Session was convened and recommendations were rendered for the deferred case.  With the recommendation apportioned to the three complex cases, this second executive session completes the adjudication recommendation required for the nine cases considered by this Board.  

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2019-00391 in Executive Session on 3 December 2019 and 9 December 2020:

, Panel Chair 
, Panel Chair
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following.  

Exhibit A:	Application, DD Form 149, w/atchs, dated 27 December 2018.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, ARPC/DPAM, w/atch, dated 4 September 2019.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 10 September 2019.
Exhibit E:	Applicant’s response, dated 23 September 2019.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9, for Docket Number BC-2019-00391.