RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-01285
                 INDEX CODE:  129

                 COUNSEL:  NONE

                 HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  He receive credit for four (4) months of active duty to allow  him
to retire  under  the  Temporary  Early  Retirement  Authority  (TERA)
program.

2.  He be allowed to retire with special circumstances under TERA with
his 14 years and 8 months of service; or, that he  receive  corrective
action to allow retirement under another provision.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The referenced sections of Title 10 (632, 637, 8911, and  1293)  offer
retirement provisions for officers twice passed over for promotion who
are within two years of being  retirement  eligible.   The  Air  Force
calls this two-year window “sanctuary.”   Normally,  sanctuary  allows
twice passed over officers who have at least 18 years  of  service  to
remain on active duty until  20  years  and  then  retire.   Applicant
contends that this two-year sanctuary is  also  to  be  in  place  for
officers such as himself when TERA is activated.

Applicant’s submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant was appointed a second lieutenant in the Reserve of the  Air
Force on 26 April 1985 and ordered to extended  active  duty.   On  12
September 1988, applicant received a Regular Air Force appointment  in
the grade of first lieutenant.

He was considered for promotion to the grade of major by the  Calendar
Year 1996A (CY96A - 4 Mar 96) and CY97C  (16  Jun  97)  Central  Major
Selection Boards and not selected.

Applicant’s Officer Performance Report (OPR) profile is as follows:

          PERIOD ENDING          OVERALL EVALUATION

            30 Aug 91            Meets Standards
            31 Dec 91            Meets Standards
            31 Dec 92            Meets Standards
            12 May 93            Meets Standards
            12 May 94            Meets Standards
         #  12 May 95            Meets Standards
            12 May 96            Meets Standards
         ## 12 May 97            Meets Standards
            16 Jan 98            Meets Standards

#   Top report at time of nonselection to the grade of major
    by the CY96A Central Major Selection Board
##  Top report at time of nonselection to the grade of major
    by the CY97C Central Major Selection Board

Applicant was honorably discharged  on  28  February  1998  under  the
provisions of AFI 36-3207 (Non-Selection,  Permanent  Promotion).   He
served 12 years,  10  months  and  3  days  of  Total  Active  Federal
Commissioned Service.  Applicant also served 1 year, 10 months  and  6
days Regular Air Force enlisted service.

_________________________________________________________________

AIR FORCE EVALUATION:

The  Chief,  retirements  Branch,  HQ  AFPC/DPPRR,  states  that   the
sanctuary issue was addressed in depth prior to  the  passage  of  the
National Defense Authorization Act (NDAA) that provided the  Temporary
Early Retirement Authority (TERA).  At that time, the legal  community
researched the historical notes and legislative intent associated with
both TERA and the sanctuary.  Prior to  Air  Force  implementation  of
TERA, official legal guidance was sought and received.  The  resultant
decision was that there is no sanctuary associated  with  a  temporary
program that is not actually an amendment to the retirement law itself
(10 USC 8911).  Further, the information provided to the  member  from
numerous agencies, local Military Personnel Flight  (MPF)  Retirements
and Reenlistments, HQ AFPC Retirements and Reenlistments, HQ USAF/DPX,
and SAF/LLI clearly show that sanctuary provisions  do  not  apply  to
early retirement.

In an Air Staff legal decision on  15-year  retirement  and  sanctuary
(jaj.15, 8 Dec 92), Question #4  asks;   “How  does  this  legislation
affect statutes which  protect  members  within  two  years  of  being
eligible to retire?  Does it impose a 13-15 year sanctuary or  is  the
18-20 year sanctuary still intact?”

    Answer:  The laws do not affect one another.  This  law  does  not
require a force  out,  it  is  a  law  which  provides  an  additional
mechanism for achieving voluntary force  reduction.   The  18-20  year
sanctuary is still intact; a member could pass up an early  retirement
and wait for the longer retirement.  No 13-15 year sanctuary is  found
in this law.  If the Congress had intended to provide such  sanctuary,
then presumably the current provisions which establish the 18-20  year
sanctuary would also have been amended.

In a 1992 HQ USAF/JAG memorandum to HQ  AF/DPXE,  JAG  addresses  some
concerns to DPXE  in  reference  to  forcing  members  to  take  early
retirement when they have 18-20 years of service.  In paragraph  4  of
this memorandum, JAG is very clear in stating, “If your interpretation
of Section 4403 were correct, the retirement  sanctuary  for  military
members would be reduced from 18 to 13 years of service, which  we  do
not believe was intended by Congress.”

A 5 Nov 1992 memorandum from the  Department  of  Defense,  Office  of
General Counsel, to Lt Gen R. M. A---, DASD, addresses  the  issue  of
selective use of authority embodied in Section 4403 of the Fiscal Year
1993 (FY93) NDAA.  Specifically, as an example, an offer can  be  made
within the  parameters  of  Section  4403  only  to  officers  in  the
applicable career window of eligibility who have been  twice  deferred
for promotion.  It is the Office of General Counsel’s conclusion  that
officers who have been  passed  over  twice  for  promotion  also  may
qualify as a category eligible for 15-year retirement if such a policy
decision advances a rational management objective related to the  draw
down of the armed forces.

The applicant alleges that he requested continuation and that  it  was
denied.  He believes  that  this  was  an  injustice  insofar  as  the
Secretary of  the  Air  Force  had  approved  “continuance”  only  for
“pilots, navigators, and air battle managers.”  Since he  was  not  in
one of these categories, his request was disapproved.  As a matter  of
information, 10 USC 637 allows for the provision to  continue  certain
officers on active duty past their involuntary separation date.   This
provision of law is specific in that  it  only  provides  continuation
consideration for officers subject to the  needs  of  the  Air  Force.
During a great portion of the Air Force draw down period,  there  were
no continuation boards convened due to the Air Force’s  need  to  draw
down the force.  However, at this point, the Air  Force  needs  to  be
selective in maintaining a balanced force and,  therefore,  needed  to
hold a continuation board  to  insure  enough  personnel  remained  in
critically manned fields.  For continuation  consideration  in  grades
below  lieutenant  colonel,  there  are   no   provisions   to   offer
continuation directly; rather, there are provisions to hold  selection
boards to consider personnel  through  a  board  process.   The  board
parameters, of course, must be approved by the Secretary  of  the  Air
Force  prior  to  convening  and,  historically,  have  been  held  in
conjunction with promotion boards.  Career fields that the  Air  Force
needs specifically to retain right now (past any involuntary  date  of
separation (DOS) include officers in other than the applicant’s career
field.

On page 9 of the applicant’s request, he  mentions  that  he  believes
“the Air Force is hesitant to acknowledge sanctuary  provisions  while
TERA is activated since it would mean up to several  hundred  officers
possibly becoming eligible for sanctuary provisions.”  Not  only  does
the Air Force not purposely ignore legal statutes in  effect,  but  it
works hard to ensure that all of its actions as well as  its  proposed
actions have met every provision  of  the  retirement  laws  prior  to
affecting them.  That is why the Air Force went  to  such  lengths  to
request every possible legal opinion associated with TERA prior to its
even being passed.  If the Air Force were negligent in its application
of the laws associated with retirement, they would open themselves  up
to a tremendous number of  lawsuits—especially  in  such  an  area  as
“sanctuary.”

There are no provisions of law that would allow for crediting unserved
service credit to an officer’s record.  There are no provisions of law
that would allow applicant to be retired with 14 years and 8 months of
active service.

Applicant is not eligible to retire under 10 USC 8911 nor TERA (20 and
15 year service retirements); other provisions of law that  allow  for
retirement consist of disability retirement provisions  under  Chapter
61 and non-regular service retirement under the provisions of  Chapter
1223 of Title 10.

The TERA program was established and designed to help the services  in
their draw down efforts.  Applicant’s  request  for  TERA  is  not  in
accordance with the intent of Congress in establishing the program  or
the guidelines provided in Section 4403 of  Public  Law  102-484,  the
FY93 NDAA, or each of the five NDAAs which  followed.   Applicant  has
experienced  no  errors  or  injustices   in   the   denial   of   his
TERA/sanctuary request.   There  were/are  no  provisions  of  law  to
accommodate him.  They recommend the application be denied.

A complete copy of the Air  Force  evaluation,  with  attachments,  is
attached at Exhibit C.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

Applicant states, in summary, that even back in 1994 he  was  eligible
for the early separation  incentive  programs  and  even  though  they
provided great opportunities, he chose to continue with the Air Force.
 He is not asking to have another shot at  promotion  or  continue  to
serve in the Air  Force  in  some  other  capacity,  his  request  for
retirement is really a request for
recognition more than one for some kind of financial compensation.

A copy of the applicant’s complete response is attached at Exhibit  E.


_________________________________________________________________

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.  After a thorough review
of the evidence of record  and  applicant’s  submission,  we  are  not
persuaded that he should receive credit for four months of active duty
to allow retirement under the  Temporary  Early  Retirement  Authority
(TERA)  program,  that  he  be  allowed   to   retire   with   special
circumstances under TERA with his 14 years and 8  months  of  service;
or, that he  receive  corrective  action  to  allow  retirement  under
another provision.  His contentions are duly noted; however, we do not
find these assertions, in and by themselves,  sufficiently  persuasive
to override the rationale provided by the Air Force.  In our  opinion,
the appropriate office of the Air Force has adequately addressed these
contentions and we are in agreement  with  their  recommendation.   We
therefore agree with the recommendations of the Air  Force  and  adopt
the rationale expressed  as  the  basis  for  our  decision  that  the
applicant has failed to sustain his burden that he has suffered either
an error or an injustice.  Therefore, we find no compelling  basis  to
recommend granting the relief sought.

4.  The documentation provided with this case was sufficient  to  give
the Board a clear understanding of the issues involved and a  personal
appearance, with or without counsel, would not have  materially  added
to that understanding.  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 6 April 1999, under the  provisions  of  AFI  36-
2603.

                  Ms. Charlene M. Bradley, Panel Chair
                  Dr. Gerald B. Kauvar, Member
                  Mr. Patrick R. Wheeler, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 22 May 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPRR, dated 22 Jun 98.
   Exhibit D.  Letter, AFBCMR, dated 6 Jul 98.
   Exhibit E.  Applicant’s Letter, dated 25 Jul 98.




                                   CHARLENE M. BRADLEY
                                   Panel Chair