AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 
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DOCKET NUMBER:  97-h39 4 5  1938 

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COUNSEL:  NONE 

HEARING DESIRED:  YES 

APPLICANT REOUESTS THAT: 

His  separation, under  the  Voluntary  Separation Incentive  (VSI) 
program, be reversed and he be allowed to return to active duty. 

APPLICANT CONTENDS THAT: 

Due to legislation prohibiting separating military members  from 
receiving VSI/SSB  benefits if  rehired as civilian DoD employees 
within 180 days of separation, he was prevented from accepting a 
civilian  j ob. 
Thus,  he  requested  withdrawal  of  his  pending 
separation.  The Military Personnel Flight  (MPF) miscounseled him 
by  informing him  that  loss of  employment  was  not  a  sufficient 
reason  to withdraw his  separation request and  therefore should 
not  be  included  in  his  withdrawal  request. 
His  separation 
withdrawal request was disapproved on 18 November 1994 and he was 
ultimately separated. 

Subsequent  to his  separation, he  was  notified of  the Air  Force 
policy  concerning-  the  FY95 Appropriations  Act.  Based  on  this 
policy, his  date  of  separation  (DOS)  withdrawal  request  should 
have been approved. 

In support of his request, applicant submits a personal statement 
and additional documents associated with the issues cited in his 
contentions (Exhibit A). 

STATEMENT OF FACTS: 

Information  extracted  from  the  Personnel  Data  System  (PDS) 
reveals the applicant's Total Active Federal Commissioned Service 
Date  (TAFCSD) as 1 July 1983.  While serving on active duty, he 
was promoted to the grade of captain, with an effective date and 
date of rank of 1 July 1987. 
The  following  information  was  extracted  from  documents  the 
applicant provided. 

The  applicant’s  15  August  1994  application  for  voluntary 
separation (VSI) was approved on 17 August 1994 by his commander. 
He  received  orders,  dated  29  September  1994,  reflecting  his 
release from active duty and  transfer to the Air Force Reserve, 
effective  18 November  1994.  On  24 October  1994,  the  applicant 
requested withdrawal of his separation and his squadron commander 
recommended approval of the request on 24 October 1994.  The Air 
Force  off ice  of  primary  responsibility  indicated  that  the 
applicant‘s request  was  disapproved  on  14  November  1994  by  HQ 
AFPC. 
On 18 November 1994, the applicant was released from active duty 
in the grade of captain and transferred to the Air Force Reserve 
under the provisions of AFR  36-12 (Resign:  Early Release Program 
-  Voluntary  Separation Incentive).  He had completed a total of 
11 years, 7 months and 15 days of active duty service. 
Through  further  research  with  the  Officer  Promotions  Section, 
HQ AFPC/DPPPOO, it  was  revealed  that, based  on  the  applicant‘s 
date  of  rank,  the  first  time  the  applicant  would  have  been 
eligible for promotion to major in-the-promotion zone  ( I P Z )   would 
have been by  the CY94A Major Board, which convened on 22 August 
1994. 
Information  extracted  from  the  Personnel  Data  System  (PDS) 
reveals that, on 19 November 1994, the applicant was assigned to 
the Nonobligated Nonparticipating Ready Reserve Section.  He was 
promoted  to the grade  of  major, Reserve of  the Air  Force, with 
the  effective  date  of  1 July  1997.  On  19  November  1997, the 
applicant  was  assigned  to  the  Inactive  Status  List  Reserve 
Section (ISLRS) . 

AIR FORCE EVALUATION: 
The Retirements Branch, HQ AFPC/DPPRR, reviewed this application 
and recommended denial.  DPPRR stated that the Air Force position 
has  never  been  one  to  approve/disapprove  withdrawal  requests 
based on projected or loss of civilian employment.  The Air Force 
bases  its decisions  for withdrawal  of applications on the best 
interests of the Air  Force or hardships not common to other Air 
Force members.  The applicant did not  provide any documentation 
of verbal  notification by  the MPF  about  the FY95 Appropriations 
Act  in October.  DPPRR  indicated that  the applicant  falls under 
Rule  1 of the Options  f o r   Members Separating Under FY95 VSI/SSB 
Program.  After  a telephone  conversation between DPPRR  and  the 
applicant, 
applicant‘s 
misinterpretation  resulted  from  confusion  over  receipt  of  the 
personal  notification  letter  versus  being  verbally  informed  by 
the  MPF  about  the  legislation.  Rule  4  applies  only  to  those 
“members  whose  DOS  is  within  a  90-day  period  after  personal 
notification.”  DPPRR  stated  that  the  information  on  the  FY95 
Appropriations  Act,  sent  on  30  January  1995, is  clear  on  the 
member’s options.  Based  on  Rule  1, since  applicant‘s date  of 

determined 

that 

it 

was 

the 

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97- 03395 

separation (DOS) was before he received personal notification and 
he has not provided any confirmed employment documentation during 
that time frame, there were no options afforded to him other than 
to  separate  on  his  previously  approved  DOS. 
Affording  the 
applicant  the  opportunity  to  be  reinstated  into the Air  Force 
would  not  be  fair  to  other members  in  similar  situations.  A 
complete copy of'this evaluation is appended at Exhibit C. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

The applicant  reviewed  the  advisory opinion and  indicated  that 
from the evidence he  presented with his original appeal, it  is 
obvious  that  he  was  miscounseled,  that  he  received  personal 
notification of the FY95 legislation, and that this notification 
date  was  prior  to  his  date  of  separation.  Therefore, Rule  4 
should  apply  to  his  case. 
Rule  4  also  has  an  additional 
criterion,  that  of  a  formal  application  for  DoD  civilian 
employment.  He  provided  this  documentation  with  his  original 
application.  He applied for a civilian job  at Fort Meade as soon 
as  his  separation was  approved,  but  withdrew  it  when  he  was 
informed of the FY95 legislation.  He provided  evidence that he 
was  hired  as  a  civilian  contractor  (within six  weeks  of  his 
separation)  to  fill  the  same  position  that  he  had  originally 
applied for within DoD.  He provided evidence that he was hired 
by DoD in the job that he had originally applied for as soon as 
the six-month time limit had expired.  He also offered to provide 
written statements from Fort Meade personnel  that he had made  a 
formal job application prior to his separation, but was informed 
by HQ AFPC/DPPRR that this was unnecessary. 
In  support  of  his  request,  he  has  provided  a  letter,  dated 
12 September  1994,  documenting  his  formal  application  for 
employment with the National Security Agency  (NSA) prior to his 
date of separation of 18 November 1994.  Since the HQ AFMPC/DPMAR 
policy  letter of  30 January 1995 clearly stated that  "confirmed 
employment  or  formal  application  pending  prior  to  date  of 
notification" is grounds for withdrawal of a separation request, 
the evidence shows that  his  formal application was  in place  by 
12 September 1994.  The Air Force did not  contact members until 
after  1 October  1994  concerning  the  new  law  affecting  VSI/SSB 
recipients.  Based on the evidence he  submitted, he believes he 
should be allowed to reverse his separation and return to active 
duty. 
His complete response to the Air Force evaluation is appended at 
Exhibit E. 

THE BOARD CONCLUDES THAT: 

The applicant has exhausted all remedies provided by existing 

1. 
law or regulations. 

3 

97- 03395 

. 

2.  The application was timely filed. 
3.  Sufficient  relevant  evidence  has  been  presented  -to 
demonstrate the existence of probable error or injustice.  Having 
carefully  reviewed  this  application,  the  Board  majority  is 
persuaded by  the evidence submitted that the applicant may have 
been the victim of an injustice.  The Board majority noted that 
the legislative provision in question became effective 1 October 
1994; the  applicant's  request  for withdrawal of  his  separation 
was  denied  on  14  November  1994; and,  the  applicant's  date  of 
separation  (DOS) was  18 November  1994.  In addition, the Board 
majority  noted  the  letter  from  the  National  Security  Agency, 
dated  12  September  1994, which  confirms  that  the  applicant's 
formal employment application was on file prior to notification 
of the change to public law.  In view of the foregoing, it is the 
Board majority's opinion that the Military Personnel Flight (MPF) 
was aware of the new legislation concerning restrictions to the 
provisions of 10 U . S . C . ,   Sections 1174A  (SSB) and 1175  (VSI), but 
may  not  have  been  knowledgeable  on  the  specific  requirements 
since written notification was not issued until 3 0   January 1995. 
It  is  therefore  conceivable  that  the  applicant  may  have  been 
miscounseled at the time he submitted his DOS withdrawal request 
on  24  October  1994.  Hence,  it  is  the  opinion  of  the  Board 
majority that the applicant did fall under the Rule 4 option and 
should have  been  retained on active duty.  Further, the Board 
majority  noted  that, had  the  applicant  not  been  separated, he 
would have been eligible for promotion consideration to the grade 
of major by  the CY94A Major Board.  The Board majority believes 
that proper and fitting relief dictates that the applicant also 
be provided with promotion consideration to the grade of major by 
the  aforementioned selection board.  In view of  the  foregoing, 
the  Board  majority  recommends  that  the  applicant's  records  be 
corrected as indicated below. 

THE BOARD RECOMMENDS THAT: 

The pertinent military records of the Department of the Air Force 
relating to APPLICANT be corrected to show that: 

a.  He was not released from active duty on 18 November 1994, 
but was continued on active duty and was ordered PCS to his home 
of selection pending further orders. 

b.  An AF Form 77, Supplemental Evaluation Sheet, be prepared 
and inserted in the record in its proper sequence indicating that 
no performance report is available for the period when member was 
not serving on active duty and containing the statement ,  "Report 
for this period  not  available  for administrative  reasons which 
were not the fault of the member." 

9 7 - 0 3 3 9 5  

c.  It  is  further  recommended  that  he  be  considered  for 
promotion to the grade of major by a Special Selection Board for 
Calendar  Year  1994A  ( 2 2   August  1994)  and  Calendar  Year  1995A 
(5 June 1995) Major Selection Boards. 

The following members of the Board considered this application in 
Executive  Session on  9 July  1998, under  the  provisions of  AFI 
3 6 - 2 6 0 3  : 

Mr. Thomas S. Markiewicz, Panel Chair 
Mr. Jackson A. Hauslein, Member 
Mr. Michael P. Higgins, Member 

By  a  majority  vote,  the  Board  recommended  granting  the  relief 
sought  in  this  application.  Mr.  Higgins  voted  to  deny  the 
applicant's  request  but  did  not  desire  to  submit  a  minority 
report.  The following documentary evidence was considered: 
Exhibit A .   DD Form 149, dated 10 N o v   97, w/atchs. 

Applicant's Master Personnel Records. 

Exhibit B. 
Exhibit C.  Letter, HQ AFPC/DPPRR, dated 2 7   Feb 98. 
Exhibit D.  Letter, SAF/MIBR, dated 18 Mar 98. 
Exhibit E.  Letters from applicant, dated 2 0   Apr 98 and 

2 3   May 98, w/atch. 

e 

Panel Chair 

5 

9 7 - 0 3 3 9 5  

DEPARTMENT OF THE AIR FORCE 

WASHINGTON, DC 

Office of the Assistant Secretary 

AFBCMR 97-03395 

MEMORANDUM FOR THE CHIEF OF STAFF 

Having received and considered the recommendation of the Air Force Board for Correction 

of Military Records and under the authority of Section 1552, Title .lo, United States Code (70A 
Stat 116), it is directed that: 

itary records of the Department of the Air Force relating t d l l l l l ; * .  
e corrected to show that: 

a.  He was not released from active duty on 18 November 1994, but was continued on 

active duty and was ordered PCS to his home of selection pending further orders. 

b.  An AF Form 77, Supplemental Evaluation Sheet, be prepared and inserted in the 
record in its proper sequence indicating that no performance report is available for the period 
when member was not serving on active duty and containing the statement, “Report for this 
period not available for administrative reasons which were not the fault of the member.” 

c.  It is further directed that he be considered for promotion to the grade of major by a 
Special Selection Board for Calendar Year 1994A (22 August 1994) and Calendar Year 1995A 
(5 June 1995) Major Selection Boards. 

Director 
Air Force Review Boards Agency 

U