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AF | BCMR | CY1999 | BC-1994-03164A
Original file (BC-1994-03164A.doc) Auto-classification: Denied


                           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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