RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-01874

xxxxxxxxxxxx	COUNSEL: NONE

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

She be awarded retirement points for all Unit Training Assemblies (UTA) and Annual Tours (AT) from 1 Nov 16 through 31 Oct 18 and from 21 Jan 21 to the present.

The applicant selected “Reprisal/Whistleblower,” an option on DD Form 149, Application for Correction of Military Record, item 13 (Are any of the following issues/conditions related to your request).  However, she did not provide an explanation in her submission.

APPLICANT’S CONTENTIONS

Her Retention Retirement (R/R) years during this period need to be updated to reflect satisfactory years towards a reserve retirement.  She was medically disqualified from participation in UTAs and ATs from 1 Nov 16 to 31 Oct 18, which barred her from accumulating R/R points.  Additionally, her commander illegally discharged her on 21 Jan 21; she was in sanctuary and should not have been separated.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force Reserve technical sergeant (E-6).

Dated 24 Jan 20, AF Form 422, Notification of Air Force Member’s Qualification Status, provided by the applicant, indicates she was found fit and returned to duty with the following restrictions: Reserve participation in UTAs; ATs; and man-days within CONUS (including Hawaii and Alaska).  The form indicated the applicant may be assigned to locations with fixed MTFs only; no duty assignments under field conditions. 

On 12 Jan 21, according to Reserve Order XXXX, dated 29 Jan 21, provided by the applicant, she was honorably discharged in accordance with AFR 35-41, Volume 3, Separation Procedures for Air Force Reserve Members. 

Dated 29 Jun 21, according to the applicant’s service history points summary, she had 18 years, 3 months, and 4 days of satisfactory service.

On 12 Feb 21, according to AF Form 102, Inspector General Personal and Fraud, Waster & Abuse Complaint Registration, the applicant filed an Inspector General (IG) complaint against her squadron for age and gender discrimination by not allowing her retainability until she reached 20 years of satisfactory service.  She accepted a job in xxxxx and wanted to discuss with her leadership her options for remaining in the service since she was close to retirement.  Her commander refused to extend her reenlistment and did not give her a reason for this denial.

On 12 Sep 21, the closure letter from the IG to the applicant states her complaint was dismissed in accordance with AFI 90-301, Inspector General Complaints Resolution, Paragraph 3.24, Table 3.13, Rule 1, stating the applicant has not brought forth evidence of a violation of Air Force Instruction, policy or law.  In their analysis, the IG stated there was a discussion with her supervisor, Flight Chief and her Enlisted Performance Reports were reviewed by the commander before making his decision.  According to her command, the applicant was unable to meet UTA requirements evidenced by a history of reschedules and requests for future reschedules.  Her duty performance was reviewed and the applicant was unable to perform her primary duties per AF Form 469, Duty Limiting Condition Report.  The applicant was occupying a mobility position but was Assignment Limitation Coded to only deploy to places with permanent medical facilities.  Per her leadership, participation expectations were laid out to the applicant before her commander extended her enlistment.  Those expectations were that she would actively participate in UTAs and work to find an Individual Mobilization Augmentee (IMA) position.  A verbal agreement was made between the applicant and her leadership that she would transfer to another unit that could accommodate her travel to/from xxxxx.  She was told that her reenlistment was not being denied; however, she was given an extension to her enlistment for six months to find a new job.  AF Form 1288, Application for Ready Reserve Assignment, was signed by her commander and the applicant was granted a six month extension; however, she was not able to find an IMA job.  The applicant was not discharged; she voluntarily separated.  Sanctuary was not violated because it was neither a formal, involuntary separation nor a reenlistment denial; the applicant was given multiple opportunities to reenlist in other squadrons on base or find an IMA job elsewhere.  She simply chose not to reenlist and her term of service with the squadron ended.

Dated 17 Feb 22, an email from AFRC/SG indicates a participation waiver was requested for the applicant on 7 Jun 18 but was denied.

For more information, see the excerpt of the applicant’s record at Exhibit B, advisories opinions at Exhibits C and D, and the IG Report at Exhibit F.

APPLICABLE AUTHORITY

Per 10 U.S.C. § 1034 and AFI 90-301, Inspector General Complaints Resolution,  reprisal against military members for making protected disclosures is prohibited.  

Department of the Air Force Instruction 36-2110, Total Force Assignments, Chapter 17 Administration of Sanctuary in the Air Reserve Component.  10 U.S.C. § 12686(a), Reserves on Active Duty within Two Years of Retirement Eligibility: Limitation on Release from Active Duty and § 12646(e), Commissioned Officers: Retention of After Completion of 18 Years or More, but Less Than 20 Years of Service establish an active duty retirement sanctuary for members of all Air Reserve Component. A member of a Reserve component who is on active duty (other than for training), who is within two years of becoming eligible for retired pay or retainer pay under a purely military retirement system may not be involuntarily released from that duty before member becomes eligible for that pay, except as provided by this chapter. The sanctuary statute does not deny anyone their entitlement to a 20-year retirement; members may continue to accrue active duty points while performing any voluntary tour of active duty with a signed/approved waiver in place. 

Active duty sanctuary protection begins with 18 years of TAFMD and ends with 20 years of TAFMS.  It provides a member with a limited entitlement to remain on active duty for the purpose of qualifying for an active duty military retirement. Additionally, it protects the Air Force from unexpected costs and ensures control on pay.  In general, active duty sanctuary means any Air National Guard or Air Force Reserve officer/enlisted member who attains 18 (but less than 20) years of active duty must be retained on active duty unless he/she: voluntarily separates; is medically disqualified for continued service; or is separated or discharged for cause.

AFI 36-2254, Volume I, Reserve Personnel Participation, dated 26 May 10.  Paragraph 1.6.1 states all members must meet the medical standards in AFI 48-123, Volume I, Medical Examinations and Standards, and applicable Reserve medical guidance to be considered medically qualified to participate in any pay or point gaining activity.  

Paragraph 1.6.3. states a member identified as having a potentially disqualifying condition in accordance with AFI 48-123, notated on an AF Form 469, Duty Limiting Condition Report, by any Air Reserve Component or Active Duty medical squadron will not be allowed to participate in any pay or point gaining activity until the disqualifying condition has been removed or an approved waiver is received from AFRC/SG in accordance with AFI 48-123. Any IDT which is missed due to this medical limitation will be considered excused. Member will be excused from any type of military duty requirements until the profile has been finalized by AFRC/SGP or removed. When applicable, the Personnel Data System will be updated to reflect the member as excused.

AIR FORCE EVALUATION

ARPC/DPTS recommends denying the applicant’s request to award retirement points.  According to AFMAN 36-2136, Reserve Personnel Participation, chapter 2, paragraph 2.2, “Points may only be credited to the date a reservist actually performed the duty...”  Additionally, according to the same reference paragraph 2.3.2., “Award a year of satisfactory federal service for retirement when a reservist earns a minimum of 50 points (including membership points) in their full Retention/Retirement year…”  The applicant did not participate for points from 8 Jun 16 through 17 May 19; therefore, she did not earn a minimum of 50 points and was not awarded satisfactory R/R years from 1 Nov 16 through 31 Oct 18.  Furthermore, the applicant did not participate on or after 21 Jan 21; accordingly, points were not awarded.  

The complete advisory opinion is at Exhibit C.

AFRC/SG does not make a recommendation but informs the Board on 7 Jun 18, a participation waiver was requested for the applicant; however, on 24 June 18, AFRC/SG denied the request.  The applicant had mobility restrictions, which by policy limited her participation.

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinions to the applicant on 23 Feb 22 for comment (Exhibit E), and the applicant replied on 29 Mar 22.  In her response, the applicant contends she did nothing wrong but was still denied reenlistment.  She was in sanctuary and should have been allowed to complete her 20 years of service.  She did take a civilian job in xxxxx but was willing and able to fly back at her expense to begin year 19 of satisfactory service but was denied reenlistment without her consent.  To support her request, the applicant submitted the following new evidence: (1) Email on non-consent, (2) Email from myPers, (3) Congressional Response, and (4) Medical Documents.

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 not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of ARPC/DPTS and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Specifically, the applicant did not have an approved participation waiver from AFRC/SG to participant in UTAs nor did she adequately participate for points from 8 Jun 16 through 17 May 19.  Therefore, she did not earn a minimum of 50 points and was not awarded satisfactory R/R years from 1 Nov 16 through 31 Oct 18.  Points may only be credited to the date a reservist actually performs the duty.  With regard to Reserve Sanctuary, according to DAFI 36-2110, an Air Force Reserve member who attains 18 (but less than 20) years of active duty must be retained on active duty unless he/she  voluntarily separates. The applicant was not discharged.  She was given multiple opportunities to reenlist in other squadrons on base or find an IMA job elsewhere; however, when her term in the squadron ended she simply chose not to reenlist and voluntarily separated.    Therefore, the Board recommends against correcting the applicant’s records. 

4.  The applicant indicated on her DD Form 149, she has been the victim of reprisal and has not been afforded full protection under the Whistleblower Protection Act (10 U.S.C. § 1034).  By policy, reprisal complaints must be filed within one year of the alleged incident or discovery to facilitate the IG investigation.   She filed an IG complaint in 2021 alleging discrimination.   In the analysis, the IG found was there no reprisal, as there was no causation between the protected communication (the applicant’s complaint with the IG) and the personnel action (her separation from the Air Force Reserve).  Nevertheless, based on the authority granted to this Board pursuant to 10 U.S.C. § 1034, the Board reviewed the complete evidence of record to reach their own independent determination of whether reprisal occurred. Based on their review, the Board concludes the applicant has failed to establish that any of the actions she alleges were due to reprisal. Therefore, in the absence of persuasive evidence to the contrary, the Board does not find the applicant has been the victim of reprisal pursuant to 10 U.S.C. § 1034.

5.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

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-2021-01874 in Executive Session on 17 Mar 22 and 19 Apr 22:

, 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 19 May 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DPTS, w/atchs, dated 29 Jun 21.
Exhibit D: Advisory Opinion, AFRC/SG, dated 17 Feb 22.
Exhibit E:	Notification of Advisories, SAF/MRBC to Applicant, dated 23 Feb 22.
Exhibit F:	Applicant’s Response, w/atchs, dated 29 Mar 22.
Exhibit G: Report of Investigation – WITHDRAWN.

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.