. 

, 

8 

JUL  2 2  1998 
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER:  98-00641 
COUNSEL:  None 
HEARING DESIRED:  Yes 

APPLICANT REOUESTS THAT: 
His records be  corrected to show that he was retired in the grade 
of colonel, rather than lieutenant colonel. 

- 

APPLICANT CONTENDS THAT: 
Last summer, he decided to retire from the Air Force after over 24 
years of  service to pursue  a  career  in commercial aviation.  He 
planned  to  retire  as  a  colonel  under  the  provision  of  the 
Congressional  drawdown program  that  allows  an  officer  to  retire 
with less than three years in grade.  Based on his date of rank to 
colonel  (1 January 1996) ,  he would have been eligible to retire in 
that grade on 1 March 1998, with two years and two months in grade. 
Events  beyond  his  control  forced  him  to  submit  his  retirement 
application  and  to  retire  as  a  lieutenant  colonel.  He  believes 
that  the  circumstances  of  his  case  and  another precedent  make  a 
case for his retirement in the higher grade. 
Because  of  the  timing  of  the  passage  of  the  FY  1998  National 
Defense Authorization Act  (NDAA) , which was signed by the President 
in  November,  and  the  fact  that  he  had  received  an  offer  by  a 
commercial airline company for a final training date of 2 December, 
he was forced to choose between waiting  for the legislation to be 
enacted so that he could retire as a colonel and the post  service 
employment  opportunity.  He  ran  out  of  time  and  submitted  his 
retirement application on 12 November 1997.  Congress passed the FY 
1998  NDAA  one week  later with  the drawdown provision which would 
have allowed him to retire in grade.  He believes that this is an 
injustice  because  Congress  has  given  the  Air  Force  multiyear 
authority  through FY  1999  to manage  the  personnel  drawdown.  He 
does  not  know  why  but  the  Air  Staff  awaited  the  NDAA  before 
initiating the early retirement option. 
Given  the  congressional  delay, he  requested  that  his  retirement 
His  request  was 
action  be  considered  under  the  FY  1998  NDAA. 
denied.  He then requested an exception to policy from the Deputy 
Chief of Stag$.  This appeal was also denied.  He was informed that 
a  waiver  which  has  not  been  available  to  many  other  similarly 
situated officers could not  be  granted to him.  He believes  that 
this statement was  in error and  that  a precedent  exists to allow 

him to retire in the grade of colonel.  He has provided evidence of 
a  general  officer  who  applied  for  retirement  to  be  effective 
1 April  1998, two months before the officer had accrued 3  years of 
service in grade.  This clearly shows that an exception to policy 
or  a  waiver  was  available  to  this  officer  which  was  not  made 
available to him. 
In support of his application, he provided a personal statement and 
copies of  documents and  correspondence associated with  the events 
cited in his  contentions.  The applicant’s complete submission is 
at Exhibit A. 

I 

STATEMENT OF FACTS: 
The  applicant  was  a  rated  officer  with  a  Total  Active  Federal 
Commissioned Service Date  (TAFCSD) of  10  September  1973.  During 
his  commissioned  service,  he  was  progressively  promoted  to  the 
grade of  colonel, effective and with  a date  of  rank of  1 January 
1996.  Information extracted  from the  Personnel Data System  (PDS) 
indicates that, on  12  November  1997,  he  submitted  an application 
for retirement.  Retirement orders pertaining to the applicant were 
issued on 14 November  1997.  On 28  February 1998, he was relieved 
from active duty  and  retired  in the grade of  lieutenant colonel, 
effective  1 March  1998.  He was  credited with  24 years, 5 months 
and 21 days of total active service for retirement. 

AIR FORCE EVALUATION: 
The  Chief,  Colonel  Matters  Office,  AF/DPOB,  reviewed  this 
application and recommended denial.  DPOB provided a chronology of 
the  processing  of  the  applicant’s application for retirement  and 
stated  that, by  law,  an  officer  must  have  three  years’ time  in 
grade  (TIG)  to  retire  in  the  current  grade. 
The  service 
secretaries have been granted authority towaive up to one year of 
that time through FY 1999.  The purpose of  the TIG waiver program 
is  to  generate  additional  voluntary  losses  above  those  already 
projected. 
Announcement  of  the  FY  1998  TIG waiver program  for  colonels and 
below  was  delayed  this  year  pending  approval  of  the  new  end- 
strength floor authorized in the FY 1998 NDAA.  Unfortunately, this 
delay may have created difficulties for some individuals in making 
career  choices.  The  President  signed  the  NDAA  authorizing  the 
lower end-strength floor on  17  November  1997.  DPOB  stated  that 
they announced on 20 November 1997 that they would begin accepting 
applications  for  the  colonel  TIG  waiver  program  on  15  December 
1997.  This date was  established  to  allow time  to advertise the 
program  and  give  everyone  an  equal  opportunity  to  apply.  Each 
waiver request is evaluated on a case-by-case basis.  In the past, 
these programs have not been retroactive. 

2 

AFBCMR 98-00641 

. 

DPOB  stated that  every  year many  officers decide  to  retire  in a 
lower grade for various reasons.  DPOB summarized the applications 
received in 1997  and  1998 and stated that, in comparison with the 
other  requests  for  waiver  submitted  this  year,  the  applicant's 
request fits the profile of those requests that were approved. 
As  additional  information, DPOB stated that  there are fundamental 
differences  between  the  authorities  that  allow  T I G   waivers  for 
general officers and  those that  apply  to  the  rest  of  the  force. 
First, they are not connected to force reduction programs used for 
colonels and below.  Second, the authority was not tied to the FY 
1998 Authorization Act; therefore, they were  available for use-on 
1 October 1998.  Finally, waivers for general officers are approved 
by  the  Secretary  of  the  Air  Force  on  a  case-by-case  basis  in 
conjunction with the processing of the retirement application. 
A complete copy of the DPOB advisory opinion, with attachments, is 
at Exhibit C. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 
The applicant reviewed the advisory opinion and expressed a desire 
to be present when the Board decides his case. 
Upon review of  the advisory opinion, the applicant reiterated his 
initial contentions and  stated that he was  forced to retire as a 
lieutenant colonel because the Congress of the United States failed 
to execute  its constitutional responsibilities in not passing  the 
FY 1998 NDAA  by 1 October 1997.  Had the Congress done its job, the 
drawdown program could have proceeded as in previous years.  While 
some might argue that he could have waited to submit his retirement 
application until after Congress passed the FY 1998 NDAA,  it is his 
opinion  that  this  position  ignores  the  realities  of  securing 
employment in the private sector as well as the uncertainty of when 
the Congress would  resolve their partisan-political bickering  and 
get around to passing the legislation. 
The  applicant  once  again noted  that  the  Service  Secretaries were 
authorized  to  waive  up  to  one year of  time  in grade  through FY 
1999.  Despite  the  delays  in passing  the  FY  1998  NDAA,  the  Air 
Force had  the authority to implement the program.  Yet, for some 
reason,  the  Air  Force  chose  not  to  act  upon  it.  Left  unsaid 
however,  is  the  fact  that  the  Appropriations  Committees  of  both 
Houses  of  Congress  appropriated  funds  to  continue  personnel 
drawdown programs and  fund personnel end-strengths.  This clearly 
established  the  "sense of  congress"  that  should have  allowed  the 
Air Force drawdown programs to continue while awaiting the Congress 
In  short,  the  Air  Force  had  the 
to  pass  the  FY  1998  NDAA. 
authority and the funding to allow the program to proceed. 

3 

AFBCMR 98-00641 

Finally, the Congressional authorization committees were stalemated 
over an issue totally unrelated  to personnel end-strengths.  This 
resulted  in not passing the authorization bill  in a timely manner 
thus denying him the opportunity to retire in grade and forcing him 
to make a decision to submit his retirement application in order to 
get on with his post-Air Force career. 
The applicant's review of the Air Force evaluation is at Exhibit E. 

I  THE BOARD CONCLUDES THAT: 

- 

1.  The applicant has exhausted all  remedies provided by  existing 
law or regulations. 
2.  The application was timely filed. 
3.  Insufficient  relevant  evidence  has  been  presented  to 
demonstrate  the  existence  of  probable  error  or  injustice.  The 
applicant contends that because the passage of the FY 1998 NDAA was 
delayed, he had to make a decision whether to apply for retirement 
in  early  November  1997,  and  the  date  applications were  accepted 
occurred  so  soon  thereafter,  his  retirement  in  the  qrade  of 
lieutenant colonel was an injustice.  After reviewing the evidence 
provided, we do not agree. 

- 

a.  In November  1997,  the  applicant  was  faced  with  making  a 
decision  to  either  continue  on  active  duty  or  to  retire.  The 
applicant  chose  to  retire  so  that  he  could  accept  civilian 
employment and enter the training required to accept the position. 
It  is important to remember that his retirement was not mandated; 
his decision, as excruciating as it may have been, was a personal 
one. 

b.  We no evidence that it was not reasonable and prudent  that 
the  Air  Force  delayed  announcing  the  Colonel  TIG  waiver  program 
until the legislation had been enacted s i n e  it apppears the scope 
of  the  program  was  affected  by  the  end-strength  floor  actually 
approved. 
We  note  that,  in  hindsight,  it  appears  that  the 
applicant's  situation is similar to those of  officers who applied 
after 15 December 1997 and whose requests were approved.  It would 
appear that the profile of requests which are approved changes from 
year  to  year. 
Each  individual  case  is  evaluated  against  the 
criteria established  for the  year  in which  it  is  submitted  and, 
ultimately,  whether  or  not  the  application is  approved  is  based 
primarily  on the needs of  the Air  Force rather than those of  the 
individual applying for retirement.  We do not  find the fact that 
the  applicant's  case met  the profile  of  approved applications is 
relevant  to his  case  since he voluntarily  applied  for retirement 
before the legislation was enacted and the criteria for the waiver 
program established. 

4 

AFBCMR 98-00641 

c.  Accordingly, in the absence of  evidence by  the showing he 
was treated differently than similarly situated officers serving in 
the  grade  of  colonel  or  below  at  the  time  he  submitted  his 
retirement application or  that  his  retirement was  processed  in  a 
manner  contrary  to  the  provisions  of  the  pertinent  Air  Force 
policies and instructions then in effect, which implement the law, 
we  agree  with  the  opinion  and  recommendation  of  the  Air  Force 
office of primary responsibility and adopt  their rationale as the 
basis for our conclusion that the applicant has not been the victim 
of  an error or  injustice.  Therefore, the  applicant's  request  is 
i  not favorably considered. 
4.  The  applicant's case  is adequately documented  and  it  has  not 
been shown that a personal appearance with or without counsel will 
materially  add  to  our  understanding  of  the  issues  involved. 
Therefore, the request for a hearing is not favorably considered. 

THE BOARD DETERMINES THAT: 
The  applicant  be  notified  that  the  evidence  presented  did  not 
demonstrate the existence of probable material error or injustice; 
that the application was denied without a personal appearance; and 
that the application will only be reconsidered upon the submission 
of  newly  discovered  relevant  evidence  not  considered  with  this 
application. 

The following members of the Board considered this application in 
Executive  Session  on  9  July  1998  under  the  provisions 
of  AFI 
36-2603: 

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

The following documentary evidence was considered: 

-%.9 

Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 

A. 
B. 
C. 

D. 
E. 

DD Form 149, dated 28 February 1998, with 
attachments. 
Applicant's Master Personnel Records. 
Staff Summary Sheet, AF/DPOB, dated 8 April 
with attachment. 
Letter, SAF/MIBR, dated 11 May 1998. 
Letters  (2) from the applicant, dated 29 May 1998. 

1998 , 

p/--Y 

THOMAS S. MARKIEWICZ 
Panel Chair 

5 

AFBCMR 98-00641