RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-03580

XXXXXXXX (DECeased member)	COUNSEL: NONE

XXXXXXXXX (APPLICANT)	HEARING REQUESTED: YES

APPLICANT’S REQUEST

The deceased member’s (applicant’s spouse) Reserve retirement be changed to an active duty retirement under the provisions of Title 10 United States Code Section 9311, Twenty years or more: regular or reserve commissioned officers (10 U.S.C § 9311).  

APPLICANT’S CONTENTIONS

The deceased member’s retirement under 10 U.S.C §12732, Entitlement to retired pay: computation of years of service, as referenced in Reserve Order XX-XXXX, dated 17 Jun 21 is incorrect.  He first served on active duty orders in the Regular Air Force from 31 Jan 84 to 29 Sep 92.  Subsequently he completed over 9.5 years of active duty Service with the Air Force Reserve.  His career does not apply to the Retired Reserve Categories in DoDI 1215.06, Uniform Reserve, Training and Retirement Categories for the Reserve Components; 10 U.S.C. § 9311, is the only statute that fits the deceased member’s career.  He passed away before receiving retirement pay; therefore, he was not considered for an active duty retirement as an officer (10 U.S.C § 9311). 

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

According to the documentation provided by the applicant and analysis of the facts the following information is provided:  

The applicant is the spouse of the deceased member, a retired Air Force Reserve lieutenant colonel (O-5).   

On 31 Jan 84, according to DD Form 214, Certificate of Release or Discharge from active duty, the member entered the Regular Air Force.

On 29 Sep 92, according to DD Form 214, the member was released from active duty and appointed to the Air Force Reserve in the grade of captain (O-3).  He was credited with 8 years, 7 months, and 29 days of active service. 

On 9 Sep 01, according to DD Form 214, the applicant entered a period of active duty service and on 11 Apr 02, he was released from active duty and credited with 7 months and 3 days of active service for this period. 

On 28 Jul 11, according to Reserve Order XX-XXXX, dated 30 Aug 10, the member was relieved from current assignment, assigned to the Retired Reserve Section, and placed on the USAF Reserve Retired List, awaiting retired pay at attainment of eligibility age.

On 28 Apr 20, according a Certificate of Death, submitted by the applicant the member passed away. 

On 17 Jun 21, Reserve Order XX-XXXX, identified the applicant as the beneficiary of deceased member’s Reserve Component Survivor Benefit Plan (RCSBP).  The member was credited with: (1) Service per 10 U.S.C § 12732: 20 years, 7 months, 19 days; (2) Service for Basic Pay: 36 years, 4 months, 20 days.  

On 10 Aug 21, according to Defense Finance and Accounting Service (DFAS) memorandum dated 13 Sep 21, DFAS started the applicant’s RCSBP annuity, effective 28 Apr 20.  

On 13 Sep 21, DFAS responded to the applicant’s United States Representative’s inquiry on her behalf regarding her RCSBP annuity calculation.  They opined the applicant’s annuity calculation was established based on the member’s military retired pay record.  In order to make changes to the member’s pay record, they would need amended orders and point summary from the Air Force Reserve Command Center.  

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

APPLICABLE AUTHORITY/GUIDANCE

Air Force Instruction (AFI) 36-3203, Service Retirements, dated 18 Sept 15, Incorporating Change 1, 30 Aug 17.  Chapter 3, Voluntary Retirement in Officer or Enlisted Status.  To meet eligibility conditions for voluntary active component retirement, a member, active or Reserve Component, must have completed at least 20 years of active military service as of the effective date of the request. To retire in an officer grade, the active component member must serve at least 10 of the minimum 20 years of active service as active commissioned service.

10 U.S.C. § 9311. Twenty years or more: regular or reserve commissioned officers. 

(a) The Secretary of the Air Force may, upon the officer’s request, retire a regular or reserve commissioned officer of the Air Force or the Space Force who has at least 20 years of service computed under section 9326 of this title, at least 10 years of which have been active service as a commissioned officer.

(b)(1) The Secretary of Defense may authorize the Secretary of the Air Force, during the period specified in paragraph (2), to reduce the requirement under subsection (a) for at least 10 years of active service as a commissioned officer to a period (determined by the Secretary of the Air Force) of not less than eight years.

(2) The period specified in this paragraph is the period beginning on 7 Jan 11, and ending on 30 Sep 18.

AIR FORCE EVALUATION

ARPC/DPTT recommends denying the application.  The deceased member’s service history reflects he served 10 years, 7 months, and 20 days of Total Active Federal Military Service (TAFMS).  In accordance with AFI 36-3203, Service Retirements, dated 29 Jan 21, paragraph 3.1.1, officers of the Active or Air Reserve Component must complete 20 years of TAFMS, to be eligible for a non-disability active duty retirement.  While the deceased member does have two DD Forms 214, including a DD Form 214 for 8 years, 7 months, and 29 days as a member of the Regular Air Force, he did not serve enough TAFMS to qualify for an active duty retirement under 10 U.S.C § 9311.

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 14 Jul 22 for comment (Exhibit D), and the applicant replied on 25 Jul 22.  In her response, the applicant contends the deceased member’s retirement under Reserve Order XX-XXXX, dated 17 Jun 21, was incorrect, and the exhibits supporting ARPC/DPTT’s recommendation to deny the deceased member an active duty retirement under 10 U.S.C § 9311, are invalid.  AFI 36-3203 cited in the advisory was published in Jan 21, after the member passed away in Apr 20, and after he would have retired in Nov 20; therefore, is not applicable to his career.  She contends the advisory omits the last sentence of 10 U.S.C § 9311, “(determined by the Secretary of the Air Force) of not less than 8 years.”  The member’s first DD Form 214 notes 8 years, 7 months, and 29 days of active service.  With the applicant’s response supporting her request for the deceased member’s active duty retirement under 10 U.S.C § 9311, she submitted excerpts from AFI 36-3203 dated 18 Sep 15, 10 U.S.C § 9311, DD Form 214, a list of the deceased member’s awards and decorations, and his college transcripts.  

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 not the victim of an error or injustice.  The Board notes the applicant’s comments indicating the author of the ARPC/DPTT advisory used the 2021 version of AFI 36-3203, Service Retirements, when the applicable version was published in 2015.  However, after a thorough review of both the 2015 and 2021 versions of the AFI, the Board determined that although the numbering of chapters and paragraphs; and some verbiage, vary slightly, the meaning of both AFI’s are similar enough to extract the same intent.  Therefore, the Board concurs with the rationale and recommendation of ARPC/DPTT and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board also notes the applicant’s contention the member qualified for an active duty retirement with more than 8 years active duty, based on 10 U.S.C. § 9311, Twenty years or more: regular or reserve commissioned officers, paragraph b.  This statute addresses allowing a military member to retire as a commissioned officer rather than an enlisted member, giving the Secretary of the Air Force the authority to reduce at least 10 years of active service as a commissioned officer, to no less than 8 years as a commissioned officer, to retire a regular or reserve commissioned officer with 20 years of service computed under 10 U.S.C. §  9326, Computation of years of service: voluntary retirement; regular and reserve commissioned officers.  The member’s official records revealed he served 10 years, 7 months, and 20 days of active service, not the required 20 years for active duty retirement eligibility.  Therefore, the Board recommends against correcting the applicant’s records.

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 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-2021-03580 in Executive Session on 18 Aug 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 20 Oct 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, ARPC/DPTT w/atchs, dated 23 Jun 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 14 Jul 22.
Exhibit E:	Applicant’s Response, w/atchs, dated 25 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.