RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2019-03552

xxxxxxxxxxxxx	COUNSEL:  XXXXXXXXXXXX
	
	HEARING REQUESTED:  NO

APPLICANT’S REQUEST

Amendment to Special Order AA-0446 to remove the statutory authority and reference to Title 10, United States Code, Section 12310 (10 USC 12310).

APPLICANT’S CONTENTIONS

The Position Description (PD) for the Headquarters AGR Colonel position, 1C1032080, listed only 10 USC 10211 as its authority.  The Special Order AA-0446, dated 23 Aug 12, lists both 10 USC 10211 and 10 USC 12310 as the authority.  The Special Order AA-0446 authorization is in error requiring a modification/amendment to delete the 10 USC 12310 portion.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a currently serving Air Force Reserve brigadier general (O-7).

On 23 Aug 12, under Special Order AA-0446, the applicant was ordered to extended active duty (voluntary) per 10 USC 12301(d) for duty in accordance with 10 USC 10211 and 10 USC 12310, with a DOS, 31 Oct 15, unless sooner relieved.

On 28 Aug 12, under Special Order AA-0449, Special Order AA-0446, was amended to read:  Effective date of duty is 1 Oct 12.  Report to new assignment no later than 8 Oct 12.

AGR Tour Position Description for Team Chief, Inspections Division (IGI), Position Number 1C1032080, reflects Authority: Title 10, United States Code, Section 10211.

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

AIR FORCE EVALUATION

AFRC/A1K recommends denying the application.  In accordance with HAF/RE memorandum, Legal Authorities Cited on Active Guard Reserve (AGR) Activation Orders, signed 6 May 15, Air Reserve Personnel Center (ARPC) was directed to accomplish:
a. All orders hereafter created for AGRs assigned to positions listed in Attachment 1 (or a successor list provided by AFRC/A1R) shall reflect 10 USC Section 10211 as their statutory authority.  10 USC Section 12310 shall not be listed.
b. Conduct a review and amend as necessary all AGR orders in force, as of, or after, 28 Jan 08.  Specifically, orders for positions in Attachment 1 will list 10 USC 10211 as their statutory authority and reference to 10 USC Section 12310 shall be removed.  Any position number no longer in use, or other position which possibly qualifies for consideration as a 10 USC 10211 authorized position shall be referred to AFRC/A1R for a determination of the appropriate statutory authority to be listed on the order.

The memorandum also stated, “The Fiscal Year 2008 National Defense Authorization Act (effective 28 Jan 08) amended 10 USC Section 12731 to allow for early receipt of retirement benefits for duty under specific sections of US Code. Voluntary duty under 10 USC Section 12301(d) is specifically included, while duty performed under 10 USC Section 12310 is specifically excluded.”

Additionally, in accordance with ARPC/A1R memorandum, Authority Determination for AGR Orders, dated 26 Oct 16:
(a) In 2013, HQ AFRC determined that the authority statement on AGR orders could not contain references to both 10 USC 10211 and 10 USC 12310.
(b) Officer personnel perform AGR Duty under 10 USC 10211 if their unit of assignment is one of the following: (1) AGR officers assigned to units designated as “HQ AF Reserve”, “HQ USAF Direct Support Element”, “Force Generation”, “US Air Force”, “AFRC Recruiting”, “AF Review Board Agency”, “Air Reserve Personnel Center”, “AF Element Joint Chief of Staff MCA”, “Office Secretary of Defense”, or (2) AGR officers assigned to AFRC units designated as “Air Force”, or (3) AGR officers assigned to units designated as “IMA Readiness Management” or “Individual Reservist Readiness and Integration” and the unit is not a detachment or operating location. All other AGR officers perform duty under 10 USC 12310.

Further, email documentation obtained from HQ ARPC/DPA, Reserve Assignments Division, states, “…there are not any 1C PAS Codes listed on the Title 10 USC 10211 eligibility roster.”  It further states, “The attached (Authority Determination for AGR Orders, dated 26 Oct 16) further explains that only Reserve MAJCOM positions are eligible since the law states, “At the seat of government directing reserve affairs…”  Liaisons have not been successful when requesting RRPA (Reduced Retirement Pay Action).  This duty falls under 10 USC 12310.”

Finally, email documentation obtained from HQ USAF/REXX, Joint and HQ Manpower and Org, states, “The original PD erroneously stated 10211 vice the 12310.  However, that position no longer exists (deleted in 2019) so there is no updated PD.”

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 13 Apr 20 for comment (Exhibit D), and the applicant replied on 12 May 20.  In his response, the applicant contended the Air Combat Command (ACC) IG AGR position is a position at headquarters responsible for reserve affairs, affecting reserve components policy, regulations, and the amendment should be authorized, and the AFRC/A1K reply denying the request is patently erroneous.  The arbitrary attachment of 10 USC 12310 to the order was unauthorized and orchestrated unilaterally by AFRC/A1L without consulting with the Office of Primary Responsibility (OPR), the author of the PD, which directed the applicable Title 10 authorization.  

The Team Chief’s ultimate responsibility is to uphold the responsibilities outlined in Air Force Instruction (AFI) 90-201, The Air Force Inspection System, on behalf of the Secretary of the Air Force and the Chief of Staff of the Air Force.  The AFRC AGR position within ACC IG was new as of 2012.  AFRC wanted an officer assigned to ensure their equities were represented appropriately.

AFRC/A1K’s paragraph e., “liaisons have not been successful when requesting RRPA…” is misleading.  The applicant contended he was not a liaison.  He advised senior leaders on AFRC requirements and mission capabilities.  Per the applicant, additional perspective of the Team Chief’s relationship efforts was provided in AFI 90-201, dated 21 Apr 15, which highlights the advisory relationship he had between all three service components.

The applicant provided his Officer Performance Reports for 2013, 2014, and 2015.  He contended prior to being assigned as the Deputy IG, he was the Chief of Plans and Execution Division, where he developed the ACC Unit Effectiveness Inspection (UEI) strategy process.  As an IG Team Chief, he ensured Combat Air Force units were ready and compliant for the ACC Commander through the UEI process, including complaints and Fraud, Waste, and Abuse programs.

Further, the applicant referenced 10 USC 10211, “at headquarters responsible for reserve affairs, to participate in preparing and administering the policies and regulations affecting those reserve components.”  The applicant contended in his advisor role to the ACC IG, he initiated and collaborated with AFRC IG, to prepare and author a Memorandum of Agreement (MOA) of unit inspections between ACC and AFRC IG. The purpose was to establish basic policy, procedures, and responsibilities for cross-command inspection of ACC-gained units.  The applicant provided copies of emails from 2013-2014 which he contended show he assisted in writing the MOA between ACC and AFRC.

Additionally, the applicant contended the process for determining which AGR tours qualify under 10 USC 10211, described in the “Authority Determination for AGR Orders” guidance memo, dated 26 Oct 16, is inconsistent.  It states AFRC/A1R, in coordination with AFRC/JA, conducted a review of all AGR positions to determine which met the intent of each statute.  If that were the case, then AFRC/A1R would have had to reference the ACC IG PD and observe the authorized authority was 10 USC 10211 only.  The applicant further contended that disparity would have to be resolved in coordination with AFRC/JA during the 2015 first findings review.  As Special Order AA-0446 already inadvertently stated both 10 USC 10211 and 12310, there seems to be a disconnect as to how AFRC/A1R and AFRC/JA resolved the authority disparity.

The applicant also contended additional disparity was injected into the process by using the Personnel Accounting Symbol (PAS) Codes eligibility roster, and essentially discounting what his PD authorization indicated.  Also indicated was only Reserve MAJCOM positions were eligible, at which the applicant proposed he occupied a Reserve MAJCOM position.  Both the error on the AGR order and the PAS Code error show the process is lacking in integrity and wrought with errors.

The applicant further contended waiting for a Reduced Retirement Pay Age (RRPA) determination before fixing an AGR tour authorization did not comply with the process in place in 2015.  Secondly, the applicant’s case did not receive RRPA determination because his position was not listed on the PAS Code eligibility roster, and had a non-qualifying Title 10 order assigned.  The applicant provided documentation that reflected from 1 Oct 12 to 15 Oct 15, the AGR orders were non-qualifying for RRPA consideration.  The applicant further objected to the statement that ACC/IG did not make policy, in accordance with 10 USC 10211, and referred the Board to the AFRC Deputy IG PD.  Instead of referencing the ACC IG AGR PD and the appropriate Title 10 authority, AFRC/A1R determined the AGR authority in some manner, assigned a PAS Code to a position that did not meet the assigned organization listing, and if it did not match the codes in the eligibility roster, it would not qualify.

Finally, the applicant again contended the AFRC method for AGR Authority Determination is convoluted and wrought with error, and the OPR who wrote the ACC IG PD wrote it correctly as 10 USC 10211 specific.  The PAS Code was immaterial in 2012, and only became relevant in 2015 or 2016 when the determination process was implemented. 

In closing, the applicant contended he spent time from 2016 to 2018 trying to work a solution with Air Reserve Personnel Center (ARPC) and AFRC, and believed he did due diligence to seek out a remedy.  The applicant firmly believes the Special Order AA-0446 should be amended allowing the order to qualify for RRPA.  This matter should be decided in the best interest of equity and fairness to the member, and when an issue is in doubt, the decision should be in favor of equity.

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 rebuttal response, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFRC/A1K and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  While the original PD erroneously listed 10 USC 10211 as the authority, the applicant’s PD clearly falls under the authority of 10 USC 12310, as clarified by ARPC/A1R memorandum, Authority Determination for AGR Orders, dated 26 Oct 16.  Therefore, the Board recommends against correcting the applicant’s records.

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

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-2019-03552 in Executive Session on 12 May 20, 15 May 20, and 20 May 20:

, 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 10 Jul 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFRC/A1K, dated 9 Apr 20.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 13 Apr 20.
Exhibit E:	Applicant Response, w/atchs, dated 10 May 20.

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.