RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 98-01370
INDEX CODE: 135.03
COUNSEL: None
HEARING DESIRED: Yes
_________________________________________________________________
APPLICANT REQUESTS THAT:
1. Reserve Order (RO) EK-4694, 24 May 94, be amended to read
“Physically disqualified for active duty, not as a result of
misconduct, eligible for retired pay at age 60 under Public Law (PL)
103-337, Section 517, 5 Oct 94.
2. He be granted full retirement with pay as a result of PL 103-
337, 5 Oct 94, Section 517, being grandfathered to cover him since he
was separated due to physical disqualification only three months prior
to the enactment of the law change.
_________________________________________________________________
APPLICANT CONTENDS THAT:
Applicant makes no contentions on his DD Form 149 other than
indicating he served 23 years of honorable service, 17 years of good
service years for retirement in 23 years, and having served in
“Operation New Life,” the Evacuation of Saigon in 1975, and having
served in both “Desert Shield/Storm” in 1990 - 1991.
Applicant’s complete submission is attached at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The available facts pertaining to this application, extracted from the
applicant’s military records, are contained in the letter prepared by
the appropriate office of the Air Force. Accordingly, there is no
need to recite these facts in this Record of Proceedings.
_________________________________________________________________
AIR FORCE EVALUATION:
The Director of Personnel Program Management, ARPC/DPAR, reviewed this
application and indicated that the National Defense Authorization Act
(NDAA) for Fiscal Year 1995 (FY95), PL 103-337, Section 517, 5 Oct 94,
authorized physically disqualified members who completed at least 15
years of satisfactory Federal service with the last six qualifying
years in a Reserve component, entitlement to Reserve retired pay under
the provision of Section 12731a (age 60 retirement), Title 10, United
States Code (USC). At the time the applicant separated, he completed
17 years of satisfactory Federal service with over six qualifying
years in a Reserve component. However, at the time he was found
physically disqualified and transferred to the Honorary Retired
Reserve, there was no provision of the law which allowed Reserve
members with less than 20 years of satisfactory service to retire and
be eligible for retired pay and benefits under the provisions of
Section 12731a, Title 10, USC. DPAR recommends denial of the
application since the law change was not enacted until after the
applicant was transferred to the Honorary Retired Reserve.
A complete copy of the Air Force evaluation is attached at Exhibit B.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to applicant on
23 Sep 98 for review and response. As of this date, no response has
been received by this office.
_________________________________________________________________
THE BOARD CONCLUDES THAT:
1. The applicant has exhausted all remedies provided by existing
law or regulations.
2. The application was timely filed.
3. Sufficient relevant evidence has been presented to demonstrate
the existence of probable error or injustice. After thoroughly
reviewing the evidence of record, we are persuaded that based on the
applicant’s years of service, he should be made eligible to receive
retired pay at the age of 60 under the FY95 NDAA amendment to Title
10, USC. The Board notes that applicant served over 17 years in the
Air Force Reserve and with the exception of the discharge date, he
meets all of the other requirements of the FY95 amendment. After
reviewing the intent of the FY95 amendment to allow medically unfit
Reservists, with over 15 years of service, to be eligible to receive
retired pay at age 60, we believe that the relief sought is warranted.
It is apparent that applicant’s unit was not aware of the impending
change to the FY95 NDAA; however, we believe that had they known about
this change, they would have calculated his release to coincide with
the change in the law. In view of the above and in the interest of
equity, we recommend that applicant’s records be corrected to the
extent 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 relieved from his current assignment and
assigned to the Retired Reserve Section and placed on the USAF Reserve
Retired List effective 25 Jun 94, but on that date, he remained
assigned to the 0039th AMP SQ, McChord AFB, Washington.
c. On 6 Oct 94, he was found medically unfit for continued
military service and was relieved from the Air Force Reserve and on
7 Oct 94, under provisions of Section 517, Title 10, USC, FY95 NDAA,
he was retired in the grade of staff sergeant with entitlement to pay
at age 60.
_________________________________________________________________
The following members of the Board considered this application in
Executive Session on 3 June 1999, under the provisions of AFI 36-2603:
Ms. Martha Maust, Panel Chair
Mr. Clarence D. Long, III, Member
Ms. Barbara J. White-Olson, Member
Mrs. Joyce Earley, Examiner (without vote)
All members voted to correct the records, as recommended. The
following documentary evidence was considered:
Exhibit A. DD Form 149, dated 5 Aug 98, w/atchs.
Exhibit B. Letter, ARPC/DPAR, dated 27 Aug 98.
Exhibit C. Letter, AFBCMR, dated 23 Sep 98.
MARTHA MAUST
Panel Chair
INDEX CODE: 135.03
AFBCMR 98-01370
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 10, United States Code (70A Stat 116), it is
directed that:
The pertinent military records of the Department of the Air
Force relating to , be corrected to show that:
a. He was not relieved from his current assignment and
assigned to the Retired Reserve Section and placed on the USAF Reserve
Retired List effective 25 June 1994, but on that date, he remained
assigned to the 0039th AMP SQ, McChord AFB, Washington.
b. On 6 October 1994, he was found medically unfit for
continued military service and was relieved from the Air Force Reserve
and on 7 October 1994, under provisions of Section 517, Title 10, USC,
Fiscal Year 1995 National Defense Authorization Act (NDAA), he was
retired in the grade of staff sergeant with entitlement to pay at age
60.
JOE G.
LINEBERGER
Director
Air Force
Review Boards Agency
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