ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00665-2

XXXXXXXXXXXXXX	COUNSEL: NONE 

  	HEARING REQUESTED: NO	

APPLICANT’S REQUEST

He be approved for retirement under the Temporary Early Retirement Authority (TERA), effective 1 Jun 22.  

RESUME OF THE CASE

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

On 12 Oct 21, the Board granted the applicant’s request he be retired effective 1 Jun 20, per 10 U.S.C. § 1251, with 13 years, 4 months and 15 days of active duty service.  The Board agreed with AFPC/DP2SSR the applicant was the victim of a policy interpretation vice a legislative change.  On 18 Jun 19, the applicant applied for retirement effective 1 Jun 20 per 10 U.S.C. § 1251 and on 25 Jun 19, his retirement was approved.  The FY21 National Defense Authorization Act (FDAA) including changes for retirement under 10 U.S.C. § 1251 was not enacted until 1 Jan 21, after the applicant’s approved retirement date.  Accordingly, the applicant’s approved retirement should not have been rescinded.   

For an accounting of the applicant’s original request and the rationale of the earlier decision, see the AFBCMR Directive Memorandum, dated 15 Dec 21 and Record of Proceedings at Exhibit F. 

Per Special Order XXXXX dated 5 Jan 22, the applicant was retired in the grade of lieutenant colonel, effective 1 Jun 20 per the Board’s decision and the AFBCMR Directive.  

APPLICABLE AUTHORITY/GUIDANCE

Public Law 102-484, National Defense Authorization Act (NDAA) for FY93, provided the Secretary of Defense with a temporary additional force management tool to assist with the drawdown of active military forces.  Subsection 4403(f) of the Act directed the use of a subaccount within the officer and enlisted budget activities of the Active Military Personnel Appropriation for retirement payments to members participating in the Temporary Early Retirement Authority (TERA) program.  Public Law 112-81, National Defense Authorization Act for FY12 reinstated TERA through 31 Dec 18.  Public Law 114-328, of the NDAA for FY17 extended this authority until 31 Dec 25.  

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.  While the Board granted the applicant’s request and the applicant concurred with the recoupment of debt for the approval of his 1 Jun 20 retirement, the Board does not find it in the interest of justice for the applicant to have served on active duty for two years without pay and compensation and not be credited for a period of service served.  Accordingly, the Board recommends the applicant’s records be further corrected.  The Board notes AFPC/DP2SSR indicated in their advisory, dated 26 Mar 21, retirement under TERA was not recommended; however, the Board finds retirement under TERA effective 1 Jun 22 is the proper and fitting relief. Section 508 of Public Law 114-328 authorized the Secretary of Defense to extend to the Service Secretaries the ability to utilize TERA until 31 Dec 25.  Accordingly, the Board, on behalf of the Secretary of the Air Force, recommends the applicant be granted retirement effective 1 Jun 22, under the TERA.   Further, since the applicant continued to perform active duty, the Board recommends any debt the applicant will incur for recoupment of pay, allowances, special pay, survivor benefit plan (SBP) and Tricare premiums be waived in the interest of justice.  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 that:  

	a.  He was not retired 1 June 2020, but continued to serve on active duty, discharged from active duty on 31 May 2022 and retired effective 1 June 2022, in the grade of lieutenant colonel (O-5) under the Temporary Early Retirement Authority (TERA), per 10 U.S.C. § 1293, note.  

	b.  His debt for basic pay and allowances received after 31January 2022, be partially remitted in an amount equal to the amount of basic pay and allowances that were paid to him after 31 January 2022 minus the amount of retired pay owed him for the time period he was paid basic pay and allowances after 31 January 2022.  

	c.   His election of the Survivor Benefit Plan (SBP) will be corrected in accordance with his expressed preferences and/or as otherwise provided for by law or the Code of Federal Regulations.

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-2021-00665-2 in Executive Session on 12 Jul 22:

 , Panel Chair
 , Panel Member
 , Panel Member

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

Exhibit F:	Record of Proceedings, w/ Exhibits A-E, dated 3 Dec 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.