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AF | BCMR | CY1999 | 9801370
Original file (9801370.doc) Auto-classification: Approved

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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