ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 94-03164
INDEX CODE: 111.01
COUNSEL: NONE
HEARING DESIRED: YES
____________________________________________________________
RESUME OF CASE
On 3 April 1995, the Board considered and denied the applicant's 20 July
1994 application requesting the administrative discharge be revoked and he
be reinstated in the Air Force Reserves. A complete copy of the Record of
Proceedings is attached at Exhibit F.
On 14 April 1995, applicant submitted a letter to the Assistant Secretary
of the Air Force (Manpower, Reserve Affairs, Installations and
Environment), requesting reconsideration. He also indicated that, as
alternative relief, he believed an early retirement with no medical
benefits for himself but for his family would be a fair solution to this
matter. A complete copy of his letter, with attachments, is attached at
Exhibit G.
On 4 May 1995, applicant was advised that the evidence he provided did not
meet the criteria for reconsideration of his requests that his discharge be
set aside and he be reinstated in the Air Force Reserve and, therefore,
that further Board action on these issues was not possible. He was further
advised that, since his request for amended relief in the form of an early
retirement had not been previously considered by the Board, his request
would be staffed for review by the appropriate Office of Primary
Responsibility (OPR). A complete copy of the 4 May 1995 letter is attached
at Exhibit H.
____________________________________________________________
AIR FORCE EVALUATION:
The Chief, Military Personnel Division, HQ AFRES/DPM, reviewed the
applicant’s request and states that the FY95 National Defense Authorization
Act amending Title 10, USC Section 12731 provides guidance for
implementation of the Early Reserve Retirement Program. To be eligible for
the early retirement program a reservist must have at least 15 years of
satisfactory service but less than 20 years by the effective date of
retirement. The implementation date of the early retirement program was 5
October 1994 and was not grandfathered for prior medical case files
completed before 5 October 1994.
They further state that applicant was transferred to the Honorary Retired
Reserve effective 7 March 1994. The Early Reserve Retirement Program was
not effective until 5 October 1994 and not grandfathered as stated above.
Therefore, administrative relief in this case is not considered
appropriate.
A complete copy of the evaluation is attached at Exhibit I.
____________________________________________________________
APPLICANT’S REVIEW OF AIR FORCE EVALUATION:
On 20 March 1996, applicant submitted a letter stating that he reviewed the
advisory opinion from the Directorate of Personnel at Air Force Reserve
Headquarters which recommends disapproval of his appeal and cites Title 10,
USC Section 12731 as their only basis for the recommendation. He states
neither he nor two legal offices were able to find this citation. He
further states that if this forms the only basis for the advisory opinion,
he respectfully request his appeal be granted. Also, if the stated USC
section is indeed wrong, he would like an opportunity for rebuttal before
the case is settled. He points out that if the wrong citation was cited,
maybe other mistakes were made in the original process of his
disqualification from the Reserve. A complete copy of the response is
attached at Exhibit K.
____________________________________________________________
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. After reviewing the evidence of
record, we are not persuaded that the applicant has been the victim of
either an error or an injustice. Title 10, USC, Section 12731 is the
correct law for Retired Pay for Non-Regular Service. Section 12731 was
amended by the FY95 Defense Authorization Act to provide for Early Reserve
Retirement which became effective on 5 October 1994. The applicant was
transferred to the Honorary Retired Reserve in March 1994; therefore, he
was not eligible to apply for early retirement. Since the implementation
of the Early Reserve Retirement was not effective until 5 October 1994,
over six months after the applicant was separated from the active Reserves,
we find no basis upon which to recommend favorable action on 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 issue(s) involved. 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 11 May 1999, under the provisions of AFI 36-2603:
Ms. Charlene M. Bradley, Panel Chair
Mr. Edward C. Koenig III, Member
Mr. Michael V. Barbino, Member
The following documentary evidence was considered:
Exhibit F. Record of Proceedings, dated 3 Apr 95, w/atchs.
Exhibit G. Applicant's Letter to Assistant Secretary.
Exhibit H. AFBCMR Letter to Applicant, dated 4 May 95.
Exhibit I. Letter, AFRES.DPM, dated 14 Dec 95.
Exhibit J. Letter, AFBCMR, dated 21 Dec 95.
Exhibit K. Applicant’s Response, dated 20 Mar 96.
CHARLENE M. BRADLEY
Panel Chair
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