RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2021-03405

XXXXXXXXXXXXXX	COUNSEL:  NONE
	
	HEARING REQUESTED:  YES

APPLICANT’S REQUEST

Correct official military record to transfer her from 24X Personnel Accountability System (PAS) code (separated status) to X9 PAS code (retired reserve status).

APPLICANT’S CONTENTIONS

This will correct an administrative oversight from when she out-processed/separated from active duty status.   When she separated under Force Shaping – Voluntary Separation Pay (VSP), from active duty on 31 Dec 10, she was never given the option nor educated that she was eligible to retire from the Air Force Reserve (AFR).  She was not present to sign her DD Form 214, Certificate of Release or Discharge from Active Duty, when she was discharged from active duty.

Additionally, she never received any correspondence from the Air Reserve Personnel Center via email, letter, or phone call informing her she was eligible to retire when she separated from active duty.  Only recently, when she began the retirement process via myPers, was she told that due to her X9 status, she would retire at the 24X status, which would make her ineligible for the benefits, such as retirement ID card, health insurance, Base Exchange and commissary privileges.

She proudly served in all four components of the Air Force, and a representative from myPers encouraged her to submit the DD Form 149, Application for Correction of Military Record.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former member AFR captain (O-3).

On 31 Dec 10, the applicant was furnished an honorable discharge from the Regular Air Force, with Narrative Reason for Separation:  Force Shaping – VSP, and credited with 8 years, 1 month, 3 days active service, and 17 years, 3 months, and 20 days total prior inactive service.

On 1 Jan 11, according to ARPC IMT 92, Appointment Order (Reserve Order XXXXX), the applicant was appointed to the Ready Reserve, with assignment to Headquarters, Air Reserve Personnel Center (ARPC) Non-Obligated, Non-Participating Ready Reserve Section (HQ ARPC/NNRPS), with Remarks: Based on Receipt of Separation Pay Incurred a 3 Year Service Commitment.

On 1 Jan 13, according to Reserve Order XXXXX, dated 19 Nov 13, the applicant was reassigned from the HQ ARPC/NNRPS to the HQ ARPC Inactive Status List Reserve Section (ISLRS).

On 13 Mar 13, according to HQ ARPC/DPTT letter, Second Deferral for Promotion, the applicant was twice deferred for promotion, and in accordance with Title 10, United States Code, Section 14505, would be automatically transferred to the Retired Reserve on her mandatory separation date of 1 Oct 13.

On 12 Dec 13, according to Reserve Order XXXXX, dated 17 Dec 13, the applicant was honorably discharged from all appointments in the United States Air Force.

On 7 Jan 22, according to documentation provided by the applicant, HQ ARPC/DPTT notified the applicant, via memorandum, Subject: Notification of Eligibility (NOE) for Reserve Retired Pay at Age 60, that she had completed the required years of service under Title 10, United States Code, Section 12731, and was entitled to retired pay upon application, normally at age 60.

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

APPLICABLE AUTHORITY/GUIDANCE

AFI 36-3203, Service Retirements, dated 29 Jan 21, paragraph 9.3. Former Members. A former member is defined as an individual who qualified for retirement but elected not to transfer to the retired reserve and was subsequently discharged for physical disqualification, misconduct, upon expiration of the member’s contract, or resigned the officer’s commission. These members have no military status but are authorized certain entitlements and benefits in accordance with AFI 36-3026V1_IP, Identification Cards for Members of the Uniformed Services, Their Eligible Family Members, and Other Eligible Personnel.

According to paragraph 9.4.10, transfer to the retired reserve is not automatic. The following members must apply online through vPC: (1) AFR members who meet retirement eligibility requirements of 10 U.S.C § 12731 except for attainment of age 60; (2) AFR members not on EAD who have been found physically disqualified are transferred to the retired reserve if the members apply and meet the requirements outlined in 10 U.S.C. § 12731.  Effective date will be 30 days from the date of application; or (3) AFR members whose selective early removal from the RASL [Reserve Active Status List] as directed by the Secretary of the Air Force. 

According to paragraph 9.5, categories of personnel who are not eligible for transfer to the Retired Reserve include members who were administratively discharged for cause, personnel who elected discharge or resigned the individual’s commission in lieu of transfer to the retired reserve (former members) or AFR members who have been found physically disqualified and placed on the temporary disability retired list or permanent disability retired list are not eligible for transfer to the retired reserve.

Members Awaiting Pay at Age 60 (Personnel Accounting Symbol Code ZA) are eligible for reserve retired pay under 10 U.S.C. § 12731, but have not reached eligibility age, normally age 60 will receive: (1) Appropriate Armed Forces of the United States ID card, per AFI 36-3026V1_IP; (2) Unlimited Commissary privileges; (3) Base Exchange privileges; (4) Other base privileges, including Information, Ticket & Tours programs and theater; (5) Membership in an open mess, if authorized by the base commander; (6) Authorization to wear the uniform on special occasions; (7) Some travel entitlements as advised by the Transportation Management Office; (8) Full-time coverage under Veterans’ Group Life Insurance when elected; (9) TRICARE Retired Reserve; and (10) Federal Employees Dental and Vision Insurance Program (FEDVIP). 

AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members, dated 14 Apr 05.  Paragraph 1.2.1. Former Members. Previous policy allowed AFR members who chose discharge instead of transfer to the Retired Reserve to be reappointed or reenlisted for the purpose of transfer to the Retired Reserve any time prior to age 60. These members became eligible for partial use of some benefits prior to age 60, and upon attainment of age 60, they were eligible for full benefits whether they were re-affiliated or not. This criterion has changed. Members who are discharged today, instead of retired, will not be allowed to re-affiliate and will only be entitled to retired pay and medical care at age 60. These former members and their eligible family members will be issued the DD Form 1173, Uniform Service Identification and Privilege Card, on the member's 60th birthday. All members who are eligible for transfer to the Retired Reserve and choose discharge must be formally counseled concerning this policy and its effects on their benefits.

AIR FORCE EVALUATION

ARPC/DPTT recommends denying the application.  Based on the documentation provided by the applicant and analysis of the fact, there is no evidence of an error or injustice because the applicant did not apply to be transferred to the Retired Reserve prior to being discharged.  The applicant should not have been eligible for a reserve retirement due to her separation documents from the Regular Air Force and ARPC believes the member received an erroneous NOE.  However, per AFI 36-3209, paragraph 5.20.2., “once a member received the notification of eligibility letter, this eligibility may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of service performed, unless it resulted directly from the fraud or misrepresentation by the member concerned.”  Additionally, per AFI 36-3203, paragraph 9.4.10., transfer to the Retired Reserve is not automatic, members must apply online through Virtual Personnel Center for transfer to the Retired Reserve.  The applicant is eligible for a former member identification card at this time, and is still eligible to apply for reserve retired pay at age 60 (or at an approved reduced retirement pay age, if applicable).

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 15 Jun 22 for comment (Exhibit D), but has received no response.

AMENDED AIR FORCE EVALUATION

In an amended advisory, ARPC/DPTT recommends granting the application.  Based on the documentation provided by the applicant and analysis of the facts, there is evidence of an error or injustice because the applicant was transferred to the wrong section of the Air Force Reserve upon her return from RegAF.  Additionally, there is no independent confirmation the applicant was aware that she needed to make an application for retirement when she returned to the Air Force Reserve.  

When the applicant transferred to the Air Force Reserve at the end of her active duty assignment, she was assigned to the Non-Obligated No-Participating (NNRPS) portion of the Individual Ready Reserve.  Her DD Form 214 reflects she was separated from the Regular Air Force due to force shaping and received separation pay.  Per the separation pay agreement, the applicant had a minimum 3-year service commitment due to receipt of separation pay.  The applicant should not have been transferred to NNRPS because she had over 20 years of satisfactory service at that time.  She should have been transferred to the Inactive Status List Reserve Section (ISLRS) to sit for the remainder of the 3-year requirement for accepting separation pay upon release from RegAF.

Due to being assigned to NNRPS for two years, the applicant met at least one promotion board, which would not have occurred had she been assigned to ISLRS.  It appears the two actions, twice deferral and assignment to the wrong PAS code, occurred in the same timeframe, and overlapped.  Per her separation pay contract, the applicant should have been in ISLRS from 1 Jan 11 – 31 Dec 13.  The applicant should have been identified as having 20 satisfactory years of service and been afforded the opportunity to apply for retirement versus being discharged.  At the time of the applicant’s transfer to the 24X PAS code, she had 24 years of satisfactory service.

ARPC/DPAMR sent out notification letters to members assigned to ISLRS at the 30-month mark to inform them of pending discharge.  The letters did not, however, direct potential retirement applicants to apply for retirement.

The complete amended advisory opinion is at Exhibit E.

APPLICANT’S REVIEW OF AMENDED AIR FORCE EVALUATION

The Board sent a copy of the amended advisory opinion to the applicant on 19 Jul 22 for comment (Exhibit F), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was not timely filed, but it is in the interest of justice to excuse the delay.

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.  The Board concurs with the rationale and recommendation of the amended ARPC/DPTT advisory and finds a preponderance of the evidence substantiates the applicant’s contentions.  The applicant was transferred to the wrong section of the Air Force Reserve upon her return from the Regular Air Force and there was no independent confirmation the applicant was aware she had to apply for retirement once returned.   Therefore, the Board recommends correcting the applicant’s records as indicated below.

4.  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 pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show her discharge from the Air Force Reserve, effective 12 December 2013, be rescinded, she be assigned to the Retired Reserve Section, and placed on the United States Air Force Reserve Retired List, effective 12 December 2013.

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-2021-03405 in Executive Session on 18 Aug 22:

, Panel Chair 
, Panel Member
, Panel Member

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

Exhibit A:	Application, DD Form 149, w/atchs, dated 21 Sep 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, ARPC/DPTT, w/atchs, dated 31 May 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to applicant, dated 15 Jun 22.
Exhibit E:	Amended Advisory opinion, ARPC/DPTT, w/atchs, dated 19 Jul 22.
Exhibit F:	Notification of Advisory, SAF/MRBC to applicant, dated 19 Jul 22.

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.