RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00665

XXXXXXXXXXXXXX	COUNSEL: NONE	

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

He be approved to retire under 10 U.S.C. § 1251 due to reaching age 62.    

APPLICANT’S CONTENTIONS

On 25 Jun 19, he was approved to retire on 1 Jun 20 at the age of 62 in accordance with AFI 36-3203, Service Retirements, dated 18 Sep 15.  However, on 31 Dec 19, he was informed his retirement would be rescinded and he would not be able to retire on 1 Jun 20 because of the Office of the Secretary Defense (OSD) decision to suspend retirements based on their interpretation of the law.  When the FY21 National Defense Authorization Act (NDAA) was released, 10 U.S.C. § 1251 was revised but did not grandfather those currently on active duty to retire with less than 20 years.  However, the NDAA included that officers added to the retired list prior to the enactment of the law would be retired with retired pay.  He was advised to seek relief from the AFBCMR since it was unfair that OSD directed to stop members from retiring when they announced their interpretation.    

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a lieutenant colonel (O-5) in the Air Force.

On 18 Jun 19, the applicant applied for retirement effective 1 Jun 20.

Per Special Order XXXXX dated 25 Jun 19, the applicant’s retirement effective 1 Jun 20 with 13 years, 9 months and 8 days of active duty service was approved.  

Special Order XXXXX dated 31 Dec 19, rescinded Special Order XXXXX dated 25 Jun 19 and the applicant’s approved retirement was canceled. 

The applicant’s record of individual printout (RIP) shows he is a medical officer (Air Force Specialty Code-44A3, Physician) and  his total active federal military service date (TAFMSD) and total active federal commission service date (TAFCSD) are 16 Jan 07.  

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

APPLICABLE GUIDANCE/DIRECTIVE

Public Law 116-283, FY2021 William M. (Mac) Thornberry National Defense Authorization Act, 1 Jan 21, Section 507, Mandatory Retirement for Age.  Notwithstanding paragraph (1), in the case of a regular commissioned officer who was added to the retired list before the date of the enactment of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, the officer shall be retired, with retired pay computed under section 1401, retirements under 10 U.S.C. § 1251, retired pay multiplier for years of service.    

10 U.S.C. § 1251(a) General Rule.  Unless retired or separated earlier, each regular commissioned officer of the Army, Navy, Air Force, Marine Corps or Space Force serving in a grade below brigadier general or rear admiral (lower half), shall be retired or separated, as specified in subsection (3), on the first day of the month following the month in which the officer becomes 62 years of age.  

10 U.S.C. § 1251(e)(1)(A) If the officer has at least 6 but fewer than 20 years of creditable service, the officer shall be separated with separation pay. 

10 U.S.C. § 1251(e)(2) Notwithstanding paragraph (1), in the case of a regular commissioned officer who was added to the retired list before the date of the enactment of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, the officer shall be retired, with retired pay computed under section 1401.    

AFI 36-3203, Service Retirements, paragraph 3.1, Retirement Eligibility.  Unless granted a waiver under some provision of law, to be eligible for a non-disability active duty retirement, officers and enlisted members must complete 20 years total active federal military service.  Likewise, an officer must have 10 years of total federal commissioned service (TFCS).  

AFI 36-3203, Service Retirements, Table 5.1, Note 2, Under 10 U.S.C. 1251, the Secretary of the Air Force may defer Regular medical officers, dental officers and nurses from retirement until age 68, if during the period of deferment, the officers perform duties necessary to meet the needs of the Air Force.  

AIR FORCE EVALUATION

AFPC/DP2SSR recommends approval.  Had the Office of the Under Secretary of Defense (OUSD) not directed the Services to stop retiring members under 10 U.S.C. § 1251 before the law was actually revised, the applicant’s projected retirement would have been honored.  

In Apr 11, AFPC Retirements became aware of other Services retiring officers under 10 U.S.C. § 1251, regardless of years of service.  On 20 Apr 11, AFPC/JA provided a legal opinion that officers under the grade of brigadier general (O-7) could be retired the month following age 62, regardless of the number of years of service completed.  It was also determined that retired pay would be calculated based on the years of service actually completed.

On 6 Nov 19, the Office of General Counsel provided the Director of Military Compensation with an interpretation of 10 U.S.C. § 1251 that the law does not allow retirement with less than 20 years of service.  On 26 Dec 19, the OUSD directed all the services to immediately stop processing all pending retirement actions under 10 U.S.C. § 1251 for officers with less than 20 years of service.  AFPC received the memorandum on 31 Dec 19 and took action to cancel all pending retirements, to include the applicant’s retirement projected for 1 Jun 20.  

The law does allow officers to request waivers to continue to serve on active duty beyond age 62.  As such, the applicant could request a waiver to remain on active duty to reach 20 years of active service.  To reach retirement eligibility, he would have to continue to serve until 31 Jan 27.  At this point, he would be over 68 years of age.  

AFPC asked AF/A1PP if they would consider offering the applicant retirement under the Temporary Early Retirement Authority (TERA) since he would complete 15 years of service by his current adjusted date of separation (31 May 22) for retirement on 1 Jun 22; however, AF/A1PP declined the request.

The applicant was caught in the middle of a policy interpretation vice a legislative change.  Had the Services been allowed to continue the practice of retiring officers under 10 U.S.C. § 1251, regardless of the years of service completed, until the law was actually changed, he would have been retired.  Should the Board elect to grant the request for his record to be corrected on his original approved 1 Jun 20 retirement, he will incur a debt as he has been on active duty.  

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 21 for comment (Exhibit D), and the applicant replied on 22 Jun 21.   He agrees with the recommendation and the potential of creating a debt for him if the Board grants his case.

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, the Board concludes the applicant is the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DP2SSR and finds a preponderance of the evidence substantiates the applicant’s contentions.  The Board notes Public Law 116-283 stated officers added on the retired list per 10 U.S.C. § 1251, retirement due to age with retired multiplier for years of service, prior to the enactment of the FY21 NDAA shall be retired.  The applicant’s approved retirement date was 1 Jun 20 and the FY21 NDAA was not enacted until 1 Jan 21.  In this respect, it appears a misinterpretation of the proposed law and an administrative error led to the applicant’s retirement to be rescinded on 31 Dec 19, resulting in an injustice to the applicant.  The Board also notes in an email dated 22 Jun 21, the applicant concurred with the recoupment and debt that will result from approval of his retirement effective 1 Jun 20.  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 the APPLICANT be corrected to show he was discharged from active duty on 31 May 20 and retired effective 1 Jun 20 in the grade of lieutenant colonel (O-5) per 10 U.S.C. § 1251 .  He was credited  with 13 years, 9 months and 8 days service for basic pay, 13 years, 4 months and 15 days for active service for retirement and 13 years, 4 months and 12 days of service per 10 U.S.C. § 1405.  

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-2021-00665 in Executive Session on 12 Oct 21:

 , 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 18 Mar 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2SSR, dated 26 Mar 21.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 13 Apr 21.
Exhibit E:	Applicant’s response, dated 22 Jun 21.

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.