RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2020-02630

XXXXXXXXXXXXXX	COUNSEL:  NONE

HEARING REQUESTED:  NO

REQUEST

The continued, uninterrupted and unaltered payment of retired pay and other benefits to which he is entitled by virtue of his retired status.  

CONTENTIONS

These retirements were not the result of an administrative error on behalf of the government, nor were they the result of fraud, misrepresentation, fault, or lack of good faith of himself; he was erroneously placed in retired status due to the misapplication of 10 U.S.C. §1251, in connection with the processing of his retirement from active duty.  

The Secretary of the Air Force (SECAF) complete submission is at Exhibit A. 

STATEMENT OF FACTS

The applicant is a retired Air Force Colonel (O-6).

On 30 October 2014, according to special order number AC-000095, the applicant’s retirement was approved with an effective date of 1 October 2015.  

On 30 September 2015, the applicant was honorably discharged, retired effective 1 October 2015. 

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

APPLICABLE AUTHORITY

10 U.S.C. §1251, Age 62: regular commissioned officer in grades below general and flag officer grades, exception, states each regular commissioned officer of the Air Force serving in a grade below brigadier general shall be retired on the first day of the month following the month in which the officer becomes 62 years of age.  See Exhibit C.   

On 6 November 2019, the Department of Defense Office of General Counsel, examined the text and legislative history of 10 U.S.C. §1251, and concluded that any retirement of an officer with less than 20 years active service that was approved under the authority of §1251 was erroneous.”  See Exhibit D. 

On 16 March 2020, the Acting Under Secretary of Defense, Personnel and Readiness, issued a memorandum to the Secretaries of the Military Departments requesting each Secretary validate his or her respective list of affected officers and then file before the appropriate Board for Correction of Military/Naval Records a request that the military records of all affected retirees under his or her jurisdiction be corrected.  See 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, the Board concludes the applicant is the victim of an error or injustice and finds a preponderance of the evidence substantiates the contentions.  In this regard, the Board finds that to deny the applicant of continuing to receive, without interruption or alteration, their retired pay and benefits is an injustice.  Therefore, the Board recommends correcting the applicant’s records as indicated below.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that on 1 October 2015, he was eligible and properly retired under 10 U.S.C. §1251.  This correction is for the limited purpose of ensuring the officer’s receipt of retired pay and all other retirement benefits at the same prorated rate determined to be appropriate when his retirement was approved, but not intended to provide him any compensation or benefit beyond that which he was promised.

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-2020-02630 in Executive Session on 17 December 2020:

, Panel Chair
, Panel Member
, Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	SECAF Memorandum, w/atchs dated 10 May 2020.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Applicable Authority, 10 U.S.C. § 1251.
Exhibit D:	Memorandum, DoD Office of General Counsel, dated 6 November 2019.
Exhibit E:	Memorandum, Acting Under Secretary of Defense, Personnel and Readiness,
		dated 16 March 2020.  

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings pertaining to Docket Number BC-2020-02630, as required by AFI 36-2603, paragraph 4.11.9.