ADDENDUM TO
                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  94-02547
                             INDEX CODE: 136.00

                             COUNSEL:  None

                             HEARING DESIRED:  No


_________________________________________________________________

RESUME OF CASE

On 7 December 1994, the Board considered and denied the applicant's  28  May
1994 application requesting  his  voluntary  separation  under  the  Special
Separation Benefit (SSB) Program be changed to  retirement  under  the  FY93
Voluntary Early Retirement Program, IAW Public Law (PL)  102-484,  dated  23
October 1992.  A complete copy of the Record of Proceedings is  attached  at
Exhibit G.

On 22 December 1998, applicant submitted  additional  documentation  through
his Congressional office and his case was reopened.  The  Senator’s  letter,
with attachments, is at Exhibit H.

_________________________________________________________________

AIR FORCE EVALUATION:

The Retirement Policies  and  Programs,  Directorate  of  Personnel  Program
Management, AFPC/DPPRR, reviewed this application and states  that  although
the  applicant  is  quoting  10  U.S.C.  Sections  1174,  1174a,  and   1175
correctly, he is misinterpreting the purpose of such  laws.   All  of  these
laws are forms of separation pay and  all  include  language  that  prevents
members who later become qualified for retirement pay based in part  on  the
same service already paid for, to be paid  again.   It  does  not,  however,
pertain to separatees that may or may not have been eligible  for  Temporary
Early Retirement Authority (TERA) at the time of  their  separation  in  any
way other than serving normal additional active duty.  The intent  of  these
sections is for those members who  attain  sufficient  service  through  the
reserves, after separating from active duty, to  qualify  for  any  type  of
military  retirement.   These  sections  are  not  for  members   previously
separated who believe they are eligible  for  TERA.   In  reference  to  the
applicant’s contention that he received ineffective counseling and that  the
Air Force delayed notification of eligible members, as stated  in  their  12
July 1994 advisory, it wasn’t until 12 March 1993 that  the  Office  of  the
Assistant Secretary of Defense (OASD) provided active duty early  retirement
policy guidance to all of the services.  Based  on  this  guidance  the  Air
Force  first  used  this  program  in  fiscal  year  1994.   All  the  known
information on current/proposed drawdown programs  had  been  publicized  at
the time the applicant separated from the Air Force.  As stated earlier,  it
wasn’t until March 1993 that the OASD  provided  guidance  to  the  services
about early retirement.  At the time the applicant separated  from  the  Air
Force, the  Department  of  Defense  was  not  using  the  early  retirement
program, and due to establishing policies and procedures  for  the  program,
it wasn’t until nearly a year later  that  the  Air  Force  first  used  it.
Their original recommendation to deny applicant’s request remains the  same.
 The applicant voluntarily applied for and was  approved  to  separate  from
the Air Force on 31 December 1992.  This was not an involuntary  separation.
 At the time he had the option of either: (1) Applying for separation  under
the  VSI  program  (which  would  result  in  yearly  payments  that   would
approximate a total of $266,583).  (2) Applying  for  separation  under  the
SSB program (which would result in approximately $59,240).   (3)  Continuing
to serve on active duty an additional 18 months to reach  normal  retirement
eligibility  and  receiving  approximately  $418,248  during  his  remaining
lifespan.  (4) Continuing to serve on active duty  until  the  TERA  program
was announced and if meeting eligibility, applying for it then  (TERA  would
have resulted in approximately a lifetime earnings of $368,904).   Applicant
voluntarily chose to apply for separation for the SSB  in  spite  of  having
the above options (any one of them resulting in a much higher total  earning
capacity than the one chosen).  Once again,  this  was  not  an  involuntary
separation  as  applicant  stated.   First  of  all,  only  volunteers  were
eligible to participate in the SSB.  Additionally, P.L.  102-484  (the  same
law that passed the law authorizing the Secretary  of  Defense  to  use  the
provisions of TERA as he saw fit) passed an  “enlisted  sanctuary”  law  for
enlisted members.  This law (10 U.S.C. 1176) prevents enlisted members  from
involuntary separation (other than for cause) when they are within  2  years
of meeting retirement eligibility which the applicant was.

A complete copy of the evaluation is attached at Exhibit I.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluation and states that  it  appears
that someone within the Department of Defense (DOD) or the  Air  Force  knew
about the Public Law but he was never given the opportunity to  continue  to
serve on active duty until the TERA program was announced.  This was not  an
option provided to him even though he was on active  duty  (terminal  leave)
when the law was enacted.   He  was  never  counseled  concerning  the  TERA
program or changes in the law as to whether he may or may  not  be  entitled
or eligible to retire under the new program based  on  forthcoming  guidance
from the Secretary of the Air Force.  If  he  would  have  been  allowed  to
retire on 31 December 1992, his retirement pay would have been  $845.00  per
month.  Based on that amount, the recoupment of SSB payments  in  accordance
with PL 102484 or Section 1174 would have ended September 1998.   Therefore,
based on lack of coordination of other  separation  provisions,  ineffective
counseling, no counseling, not applying law,  and  not  providing  him  same
equal opportunity given other military personnel, he requests to be  retired
effective 31 December 1992, with retirement pay starting 1 October  1998  in
accordance with PL 102-484.  Finally, Public Law is a legislative  enactment
affecting the  public  at  large  with  the  law  concerned  regulating  the
relations of individuals  with  the  government  and  the  organization  and
conduct of the government itself.  If the law would have been enacted  after
he separated, he fully  understands  he  would  not  be  eligible  for  this
program.  He does not see how the DOD and Armed  Services  can  just  ignore
the law and its intent.  The date of the enactment and the fact that he  was
on active duty cannot be changed, he  was  eligible  to  be  considered  for
early retirement but the Air Force never gave  him  the  opportunity  to  be
considered.

Applicant's complete response is attached at Exhibit K.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.    Insufficient relevant evidence has been presented to  demonstrate  the
existence of probable error or injustice.   We  note  the  previous  Board’s
decision concerning the applicant’s request and we are of the  opinion  that
he again has failed to provide sufficient evidence to warrant  a  change  in
his records.   Applicant’s contentions are  duly  noted;  however,  we  note
that at the time the applicant separated from the  Air  Force,  and  due  to
establishing policies and procedures for the program,  the  Voluntary  Early
Retirement Program was not used by the Air Force  until  Fiscal  Year  1993.
We, therefore, agree with the opinion and recommendation of  the  Air  Force
and adopt  their  rationale  as  the  basis  for  our  conclusion  that  the
applicant has not been  the  victim  of  an  error  or  injustice.   Absenct
substantive evidence to  the  contrary,  we  find  no  compelling  basis  to
recommend granting the relief sought in this application.

_________________________________________________________________

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 29 June 1999, under the provisions of AFI 36-2603:

            Mr. Robert W. Zook, Panel Chair
            Mr. Philip Sheuerman, Member
            Ms. Olga M. Crerar, Member
            Ms. Gloria J. Williams, Examiner (without vote)

The following documentary evidence was considered:

      Exhibit G. ROP, dated 7 Dec 1994, w/atchs.
      Exhibit H. Applicant’s Response, dated 22 Dec 1998, w/atchs.
      Exhibit I. Letter, AFPC/DPPRR, dated 9 Mar 1999.
      Exhibit J. Letter, AFBCMR, dated 22 Mar 1999.
      Exhibit K. Applicant’s Response, dated 16 May 1999.






                             ROBERT W. ZOOK
                             Panel Chair