RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  99-00444
            INDEX NUMBER:  136.01

       .    COUNSEL:

            HEARING DESIRED:  YES

APPLICANT REQUESTS THAT:

His date of retirement be changed from 1 March 1988 to 17 May 1988.

APPLICANT CONTENDS THAT:

His retirement date should be equitably adjusted  by  approximately
11 weeks to  avoid  a  terrible  hardship  on  his  former  spouse.
Because he retired on 1 March 1988, rather than on 17 May 1988,  he
and his former spouse were not married for 20 years concurrent with
20 years of military service.  As a result, his former spouse  does
not have her own entitlement to  the  Air  Force  medical  benefits
which she desperately needs.  They were never told about the 20-20-
20 provisions of the Uniformed Services Former Spouses’  Protection
Act.

Applicant’s complete statement and documentary  evidence  submitted
in support of his application are at Exhibit A.

STATEMENT OF FACTS:

On 13 May 1968, the applicant was appointed  a  second  lieutenant,
Reserve of the Air Force, and ordered to extended active duty.   He
served on continuous active duty until 29 February 1988,  at  which
time he was relieved from active duty and retired effective 1 March
1988.  He was credited with 20 years and 12 days of active  service
for retirement.

Information provided by the applicant indicates  that  he  and  his
former spouse were married on 17 May 1968.  They were  divorced  on
18 March 1998.

AIR FORCE EVALUATION:

The Customer Assistance Branch,  AFPC/DPS,  recommended  denial  of
applicant’s request.  DPS  stated,  in  part,  that  the  applicant
retired mandatorily on 1 March 1988, with 20 years and 12  days  of
active service.  At the time of  the  applicant’s  retirement,  the
overlap of their marriage and his creditable service in determining
eligibility for retired pay was 19 years, 9 months,  and  14  days.
The overlap period begins on the date of  marriage,  in  this  case
17 May 1968, and stops on the applicant's’ last day of active duty,
29 February 1988.  The applicant’s former spouse met the first  two
requirements of the Uniformed Services Former  Spouses’  Protection
Act.  She had been married to applicant for at least 20  years  and
he had performed 20 years of service.  However, she  did  not  meet
the third requirement  of  having  completed  at  least  a  20-year
requirement of overlap of marriage  and  the  sponsor’s  creditable
service in determining eligibility for retired pay.

The complete evaluation is at Exhibit C.

The Special Programs Section, AFPC/DPPRRP, reviewed this  case  and
recommended  denial,  stating  while  applicant’s  retirement   was
considered a voluntary retirement, the effective date  of  1  March
1988 was established based on Air Force policy under the Indefinite
Reserve Status  (IRS)  program.   Under  this  program,  a  reserve
commissioned officer, such as the applicant, was only permitted  to
stay on active duty until reaching initial  retirement  eligibility
(20 years of active service).   Therefore,  the  applicant  had  no
option.  He was required  to  either  separate  or  retire  on  the
involuntary date of separation (DOS) of 1  March  1988,  which  was
established for him.

DPPRRP stated there is no error or injustice in the process of  the
applicant’s retirement.  There is no  provision  for  applicant  to
request an extension of his approved retirement date at  this  time
for the sole purpose of providing medical benefits for  his  former
wife.

The complete evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel stated that each of  the  arguments  in  the  advisory  are
wrong.  First, there are reasons to believe  applicant  could  have
delayed his retirement had he known about the 20-20-20  rule.   His
commanding officers swear  [statements  attached]  that,  had  they
known, they would have done everything within their power to retain
him the additional 78  days.   And  if  that  proved  unsuccessful,
applicant could  have  petitioned  the  Board,  which  has  granted
similar relief on numerous  other  occasions.   Thus,  the  staff’s
contention that applicant “had no option” but to retire when he did
is speculative at best.

The point in the application that the staff completely  ignored  is
that applicant was miscounseled by not being informed about the 20-
20-20 rule, and was, therefore, denied the opportunity to try to do
anything about it.  Instead, he was repeatedly assured by Air Force
personnel and medical staff that his wife’s  future  medical  needs
would be covered by the Air Force for the  rest  of  her  life;  he
reasonably relied on those promises; and those promises were wrong.

Counsel’s complete statement, with attachments, is at Exhibit F.



THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing
law or regulations.

2.  The application was not timely filed; however,  it  is  in  the
interest of justice to excuse the failure to timely file.

3.  Insufficient  relevant   evidence   has   been   presented   to
demonstrate  the  existence  of  probable   error   or   injustice.
Applicant’s contentions that, when he was  making  arrangements  to
retire from the Air Force, he was miscounseled about his now-former
spouse’s future entitlements to health and other military  benefits
are duly noted.  However, after  careful  review  of  the  evidence
provided, the majority of the Board finds that  the  applicant  has
failed to substantiate his  allegations  that  he  was  erroneously
counseled at the time of his retirement.  Therefore, in the absence
of evidence to the contrary, the majority of  the  Board  finds  no
compelling basis to recommend granting the relief  sought  in  this
application.

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.

RECOMMENDATION OF THE BOARD:

A majority of the panel finds insufficient  evidence  of  error  or
injustice and recommends the application be denied.

The following members of the Board considered this  application  in
Executive Session on 2 December 1999, under the provisions  of  AFI
36-2603:

      Mr. Richard A. Peterson, Panel Chair
      Mr. Clarence D. Long III, Member
      Mr. Patrick R. Wheeler, Member

By a  majority  vote,  the  members  voted  to  deny  the  request.
Mr. Long voted to correct  the  record  and  submitted  a  minority
report.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 15 Feb 99, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPS, dated 22 Mar 99.
    Exhibit D.  Letter, AFPC/DPPRRP, dated 19 Apr 99.
    Exhibit E.  Letter, SAF/MIBR, dated 3 May 99.
    Exhibit F.  Counsel’s Response, dated 2 Jul 99, w/atchs.
    Exhibit G.  Minority Report, dated 7 Jan 00.




                                   RICHARD A. PETERSON
                                   Panel Chair