RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2022-00836

XXXXXXXXXXXX	COUNSEL:  NONE
	
	HEARING REQUESTED:  NO

APPLICANT’S REQUEST

Correct his official military record to reflect he retired under Title 10, United States Code, Section 1223 (10 U.S.C. § 123) vice 10 U.S.C. § 8911.

APPLICANT’S CONTENTIONS

He retired as a Title 32 reservist on military points from the Air National Guard while assigned in an Active Guard Reserve (AGR) status.  He trusted his retirement orders were correct when he applied for an annuity as a Title 5 civil servant, and was unable to receive military credit on six years’ repayment for active duty credit from the Department of State and Department of the Air Force.  The Office of Personnel Management (OPM) notified him he was not able to receive credit for active duty years he had “bought back” due to incorrect coding on his retirement orders.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air National Guard colonel (O-6).

On 31 Jul 10, according to Special Order Number XXXX, dated 14 Apr 10, the applicant was relieved from his reserve assignment and retired in accordance with AFI 36-3203, Service Retirements, and 10 U.S.C. § 8911.

On 31 Jul 10, according to Special Order XXXX, dated 15 Apr 10, the applicant was honorably discharged from the Air National Guard and transferred to the USAF Retired List, effective 1 Aug 10.

On 31 Jul 10, the applicant was furnished an honorable discharge, with Narrative Reason for Separation:  Vol Retirement:  Sufficient Service for Retirement, and credited with 20 years and 13 days active service.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C and D.
	
APPLICABLE AUTHORITY/GUIDANCE

Department of the Air Force Instruction (DAFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 4.2.3.3. Regardless of the recommendation provided (e.g., grant or deny), the advisory opinion shall include instructions on specific corrective action to be taken if the Board recommends relief be granted.

10 U.S.C.  Chapter 1223, § 12731, Age and Service Requirements:

(a) Except as provided in subsection (c), a person is entitled, upon application, to retired pay computed under § 12739 of this title, if the person 
(1) has attained the eligibility age applicable under subsection (f) to that person;
(2) has performed at least 20 years of service computed under § 12732 of this title;
(3) in the case of a person who completed the service requirements of paragraph (2) before 25 Apr 05, performed the last six years of qualifying service while a member of any category named in § 12732(a)(1) of this title, but not while a member of a regular component, the Fleet Reserve, or the Fleet Marine Corps Reserve, except that in the case of a person who completed the service requirements of paragraph (2) before 5 Oct 94, the number of years of such qualifying service under this paragraph shall be eight; and
(4) is not entitled, under any other provision of law, to retired pay from an armed force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve.
 
(f)(1) Subject to paragraph (2), the eligibility age for purposes of subsection (a)(1) is 60 years of age.
   (2)(A) In the case of a person who as a member of the Ready Reserve serves on active duty or performs active service described in subparagraph (B) after 28 Jan 08, the eligibility age for purposes of subsection (a)(1) shall be reduced, subject to subparagraph (C), below 60 years of age by three months for each aggregate of 90 days on which such person serves on such active duty or performs such active service in any fiscal year after 28 Jan 08,  or in any two consecutive fiscal years after 30 Sep 14. A day of duty may be included in only one aggregate of 90 days for purposes of this subparagraph.
        (B)(i) Service on active duty described in this subparagraph is service on active duty pursuant to a call or order to active duty under §§ 12301(d) or 12304b of this title, or under a provision of law referred to in § 101(a)(13)(B) of this title. Such service does not include service on active duty pursuant to a call or order to active duty under § 12310 of this title.

10 U.S.C. § 8911, 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 who has at least 20 years of service computed under § 8926 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 January 7, 2011, and ending on September 30, 2018.

Title 5, Government Organization and Employees, Chapter 84, Federal Employees’ Retirement System; 5 USC § 8411, Creditable Service.

(2) If an employee or Member is awarded retired pay based on any period of military service, the service of the employee or Member may not include credit for such period of military service unless the retired pay is awarded-
(A) based on a service-connected disability-
(i) incurred in combat with an enemy of the United States; or
(ii) caused by an instrumentality of war and incurred in line of duty during a period of war as defined by § 1101 of title 38; or
(B) under chapter 1223 of title 10 (or under chapter 67 of that title as in effect before the effective date of the Reserve Officer Personnel Management Act).

AIR FORCE EVALUATION 

NGB/A1PP recommends denying the application.  Based on the documentation provided by the applicant and analysis of the facts, there is no evidence of an error or injustice.  In accordance with AFI 36-3203, dated 8 Sep 06, paragraph 3.5.1.2, “Air National Guard (ANG) and Air Force Reserve officers must have at least 20 years of active military service and also have 10 years active commissioned service.  They retire under 10 USC § 8911.” There is no authority to change the law since the applicant retired with a regular retirement under 10 U.S.C. § 8911.

The complete advisory opinion is at Exhibit C.

ARPC/DPTT recommends denying the application.  Based on the documentation provided by the applicant and analysis of the facts, there is no evidence of an error or injustice.  The applicant did not qualify to retire under 10 U.S.C. § 1223. 

The applicant’s military personnel record has been reviewed by Headquarters Air Reserve Personnel Center (ARPC) Retirement Eligibility section. He received a regular retirement as a member of the United States Air National Guard on 1 Aug 10,  with 20 years and 13 days Total Active Federal Military Service.  Since the applicant retired with a regular retirement there is no authority to change the law governing the order.  In accordance with AFI 36-3203, dated 8 Sep 06, paragraph 3.5.1.2.,  “Air National Guard (ANG) and Air Force Reserve officers must have at least 20 years of active military service and also have 10 years active commissioned service. They retire under 10 U.S.C. § 8911.” 

To qualify to retire under Title 10 U.S.C. §1223, the applicant would have to have served in an active status in a reserve component after his active duty retirement.  According to AFI 36-3203, paragraph 8.11, “Retirement from Active Reserve Service Performed after Regular Retirement, members who retired under 10 U.S.C. §8911/8914 may, under 10 U.S.C. §12741, elect to change their active duty retirement to a Reserve retirement under 10 U.S.C. chapter 1223 at age 60 if, after their active duty retirement, they serve in an active status in a reserve component.” However, after a review of the applicant’s service history, he did not serve in an active status in a reserve component after his active duty retirement. 

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant on 1 Aug 22 for comment (Exhibit E), and the applicant replied on 31 Aug 22.  In his response, the applicant offered four points as reason and rationale that his retirement authority should reference 10 U.S.C. § 1223 as a retired reservist and not 10 U.S.C. § 8911.  Per his contentions: (1) Congress, when writing an amendment for 10 U.S.C. §1223 (Non-Regular Service), was to allow AGR program members to remain retired reservists versus active duty regular military; (2) Both ARPC and National Guard Bureau advisories propose directive language that would change his retirement to 10 U.S.C. §1223, per his request; (3) United States government agencies (Department of State and Department of the Air Force) allowed military credit for time served as a Title 5 and Title 10 employee; and  (4) There is neither cost nor change in policy required to allow his retirement order change to 10 U.S.C. §1223.   

In the ARPC and NGB advisories’ proposed directive language, both concur that if the Board grants his request, his orders should be changed.  This is a result of other reservists who were grandfathered and able to retire under 10 U.S.C. § 1223, and went on to work civil service under Title 5 and Title 10, and retire.  The current rules and regulations do not address those who were grandfathered or served prior to current guidance. 

He is a member of the Retired Reserve (10 U.S.C. §12307), who performed duty as a Title 32 AGR with the Air National Guard, with a reserve commission (10 U.S.C. §12320).  The correct authority for his retirement is 10 U.S.C. § 1223.  As part of the retirement process, he retired with greater than 7200 points as a member of the ANG.   He received an NGB Form 22, Report of Separation and Record of Service, crediting his military service, as well as a DD Form 214, Certificate of Release or Discharge from Active Duty. 

With the establishment of the AGR program, it was not Congress’s intent to make a program for a full active retirement based on current 10 U.S.C. § 8911 active duty retirement authority.  The AGR program was an off-shoot to 10 U.S.C. §10216(a) and 32  U.S.C. § 709, Military Technician Program, as a way to provide additional full-time personnel to the reserve component due to the congressional hiring threshold of military technicians. 

Recently, Department of Defense Instruction (DoDI) 1205.18, Full-Time Support (FTS) to the Reserve Components, provided that after a six-year period, an AGR member would be considered in a career program that may lead to a regular retirement after serving the required 7200 points. He entered the ANG in Sep 82, when the AGR program was in its infancy.  The guidance at that time was a military member would retire on points at age 60.  The AGR program was never designed as a career program.  An individual went on AGR tours, or Title 10/Title 32 workday orders to increase annuity at age 60, when eligible to retire (10 U.S.C. § 12731(a)(2)). 

After completing 7200 points and being a retired reservist in Aug 10, he returned to work first with the Department of State as a Title 5 employee, then with the Department of the Air Force as a Title 10 employee.  Both agencies allowed him to receive civil service retirement credit for his Title 10 active duty time performed over the course of 33 years, 7 months, and 16 days.

He voluntarily retired from civil service on 1 Apr 19, based on ARPC, Department of State Personnel Office, and OPM advice that he could receive credit for his Title 10 active duty time as a retired reservist.  His years of credit were not allowed in final adjudication by OPM, after initially being allowed, due to his retirement orders referencing § 8911 and not §1223 as the authority.  Federal personnel agencies are treating all retired reservists under 10 U.S.C. §1223, resulting in poor outcomes to the member, at no fault to them.  

This has been a financial burden to him and his family, resulting in a 61 percent monthly pay decrease, an indefinite 12.5 percent monthly pay reduction due to retiring before age 62, and a considerable overpayment debt that he is repaying monthly.  This can be reversed by changing his military retirement orders to 10 U.S.C. §1223.  The total cost to change the orders is less than one work hour.  By favorable consideration, the Board will remove an error on his initial retirement order and provide him, who gave over 42 years dedicated service as a military member and civil servant in support of our nation, relief. 

The applicant’s complete response is at Exhibit F.

FINDINGS AND CONCLUSION

1.  The application was not 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 NGB/A1PP and ARPC/DPTT and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  In addition, the applicant believes the advisory writers support his request since they provided proposed directive language; however, according to DAFI 36-2603, regardless of the recommendation provided, the advisory opinion must include instructions on specific corrective actions taken if the Board recommends relief required.  In this case, the Board does not recommend relief. The applicant was retired under the appropriate section of law in accordance with AFI 36-3203.  Finally, at the time of his retirement, he did not qualify for retirement under 10 U.S.C. §1223.  Therefore, the Board recommends against correcting the applicant’s records.

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-2022-00836 in Executive Session on 18 Nov 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 28 Feb 22.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, NGB/A1PP, w/atch, dated 20 May 22.
Exhibit D:	Advisory Opinion, ARPC/DPTT, w/atchs, dated 25 Jul 22.
Exhibit E:	Notification of Advisory, SAF/MRBC to Applicant, dated 1 Aug 22.
Exhibit F:	Applicant’s Response, w/atchs, dated 31 Aug 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.