RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  00-00777
            INDEX CODE:  113.00
            COUNSEL:  NONE

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

The 78 days of Active Duty Training (ADT) he spent as a legal intern  on  an
educational delay be credited towards  his  total  active  federal  military
service date (TAFMSD) and his 10 U.S.C. 1405 Service Date.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Air  Force  Instruction  (AFI)   51-101,   paragraph   5.5,   requires   all
commissioned AFROTC graduates who have been granted an educational delay  to
study law to be brought on active duty  for  training  to  perform  a  legal
internship.   All  normal  benefits  of  active  duty  apply   during   this
internship period, including pay and allowances, as well  as  per  diem  and
travel.  From 14 Jun 79 to 31 Aug 79 he performed ADT as a legal  intern  at
Rickenbacker AFB, OH.

AFI 36-3604, paragraph 4.11, states that "in  computing  the  TAFMSD…include
all periods of ADT."  10 U.S.C. Section  101(d)(1),  states  that  the  term
"active duty" means full-time duty in the active  military  service  of  the
United States.  Under 10 U.S.C. Section 1405,  periods  of  active  service,
including ADT, are used to compute retired pay.

The term "active duty" includes "full-time training duty."  Active  duty  is
statutorily included in the definition of active service, which  is  defined
to mean service on active duty.  Since ADT is included in the definition  of
active duty and  active  duty  is  included  in  the  definition  of  active
service, periods of ADT are to be included in  the  calculation  of  the  20
years of total active federal military service required for retirement.

In support of his request applicant has submitted a copy of his AF Form  77,
HQ USAF 26 Mar  79  memorandum,  copies  of  his  Single  Uniform  Retrieval
Formats (SURFs), and a printout  from  the  AFPC  web  site.   His  complete
submission is at Exhibit A.

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STATEMENT OF FACTS:

On 21 May 77, applicant was appointed a second lieutenant,  Reserve  of  the
Air Force and was voluntarily ordered to extended active duty  (EAD)  on  19
Jan 81.  Applicant is currently serving on EAD in the grade of  colonel  and
has a projected retirement date of 1 Feb 01.

The relevant 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.

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AIR FORCE EVALUATION:

The Chief, AF Retirements Branch, AFPC/DPPRR, reviewed  applicant's  request
and recommends denial.  DPPRR states that in  accordance  Air  Force  Manual
(AFM) 36-8001, Reserve  Personnel  Participation  and  Training  Procedures,
which replaced Air Force Regulation (AFR) 35-41, the Air Force Legal  Intern
Program is listed as an Active Duty School and  is  considered  active  duty
for pay only.  The Legal Intern Program would have to  include  "Points  and
Pay" for the 78 days to be creditable towards applicant's TAFMSD.   Although
the Legal Intern Program is considered ADT, it is only  creditable  for  pay
purposes (see Exhibit C).

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant responded that DPPRR failed to rebut the statutory and  regulatory
requirement that all periods of active duty are  creditable  service  toward
TAFMSD and 1405 service dates.  The advisory and  AFM  36-8001,  table  2.2,
and AFR 35-41, table 2.1, clearly state that the  Legal  Intern  Program  is
active duty.  The DPPRR advisory has ignored the statutory mandate that  all
periods of active duty must be credited towards a service  retirement.   The
advisory has ignored the regulatory mandate of AFI  36-3604,  which  directs
that in "computing the TAFMSD include all periods of ADT."

An active duty retirement does not rely upon the award  of  reserve  points.
If he were seeking a reserve retirement the issue  of  points  would  affect
the entitlement to reserve retired  pay.   Both  Active  and  Inactive  Duty
Training count towards the crediting of points  for  a  reserve  retirement.
The award of reserve points has no effect upon the  statutory  mandate  that
all periods of ADT are creditable toward an active duty retirement.

The "Pay Only" limitation in AFM  36-8001  is  applied  only  to  the  Legal
Intern Program  and  the  Health  Professions  Scholarship  Program  (HPSP).
However, Congress specifically provided that active duty service  "performed
while a member of the HPSP shall not be counted in  determining  eligibility
for retirement other than by reason of a  physical  disability  incurred  on
active duty as a member of the program."  While Congress created a  specific
exemption for active service retirement credit under the HPSP, the  military
services were not authorized to  deny  retirement  credit  for  active  duty
service under the Legal Intern Program.

Applicant reiterated  that  active  service  is  defined,  as  a  matter  of
statute, to include all periods of active duty, including  active  duty  for
training.  The Air Force and DoD's  implementing  regulations  require  that
all periods of active duty be credited towards retirement.

In further support of his application, applicant submitted  a  copy  of  his
ARPC Form 77; excerpts from 10 U.S.C; excerpts from AFIs  36-2604,  36-3203,
41-110, 51-101, AFM 36-8001, AFPD 36-80, AFR 35-41, and  DODI  1215.7.   His
rebuttal is appended at Exhibit D.

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ADDITIONAL AIR FORCE EVALUATION:

AFPC/JA reviewed applicant's request and recommends denial.  JA agrees  with
the DPPRR advisory  and  finds  the  opinion  firmly  grounded  in  law  and
regulatory authority and sufficiently supports their recommendation to  deny
applicant's request.

When applicant entered the Educational Delay Program he, in effect,  delayed
his entry onto  EAD  to  earn  his  law  degree.   Only  after  successfully
completing his legal education and earning  the  necessary  state  licensing
did he enter EAD.  Thus, he was not considered to be on  active  duty  until
his educational delay terminated and he received  orders  to  xxx  AFB,  xx.
Applicant's EAD Order, dated 31 Dec 80,  specified  his  effective  date  of
duty as 19 Jan 81, the date he came onto EAD.  Therefore, his  status  as  a
reserve officer in educational delay ended       18  Jan  81,  and  his  new
active duty status was in effect the following day.

Applicant considers the period of ADT as satisfying the requirement  of  AFI
36-2604, table 1, to support his contention that the  internship  should  be
counted towards retirement.  However, the provision goes further  to  direct
those computing the TAFMSD that "when there is  no  break  in  AD  from  the
original entry on such duty, TAFMSD is the date of original entry onto AD."

While AFR 35-41, table 2-1, classifies the legal  intern  status  as  active
duty, it is clearly limited by the unique code attached to  this  provision.
Legal interns are in active duty status under code "C."  The "C" is  clearly
interpreted on the accompanying legend as being for PAY ONLY.  If the  legal
internship was meant to count toward retirement, then  it  would  have  been
code "B," PAY AND POINTS.

Therefore, in light of the date on applicant's EAD  order  as  well  as  the
rules applicable both at the time applicant agreed to accept  the  terms  of
the Educational Delay Program  and  the  retirement  regulations  in  effect
today, JA recommends that the applicant's  TAFMSD  stand.   Since  the  1405
service date is derived from the TAFMSD, JA  believes  it  should  stand  as
well (see Exhibit E).

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant  responded  to  the  additional  advisory,  reiterated  his  prior
arguments and further states that JA is incorrect in stating that  the  1405
service date is derived  from  the  TAFMSD,  in  fact  it  is  derived  from
separate statutory and  regulatory  bases  and  serves  different  purposes.
JA’s analysis of the TAFMSD does not warrant denial of the  application  for
correction to his 1405 service date.  JA’s incorrect interpretation  of  the
TAFMSD is inapplicable to an analysis of the 1405 service  date.   In  fact,
his correct 1405 Service date of  19  Nov  80  as  established  by  AFPC  is
earlier than the TAFMSD of 19 Jan 81.

JA failed to rebut the statutory requirements that  all  periods  of  active
duty are creditable service towards his TAFMSD.  As stated by  JA,  AFI  36-
2604 does address the issue of computing the TAFMSD when there  is  a  break
in service.  In his case there was a  break  in  active  duty  service.   He
served on ADT orders from 14 Jun 79 to 31 Aug 79.  He was  again  placed  on
active duty status when he entered EAD on 19 Jan  81.   Since  there  was  a
break in service, his TAFMSD is not the date he entered  EAD.   Instead  the
78 days of ADT are required to be computed in establishing his  TAFMSD  (see
Exhibit G).

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ADDITIONAL AIR FORCE EVALUATION:

AFPC/JA reviewed applicant's rebuttal to  their  advisory  and  in  lieu  of
repeating their previous advisory and DPPRR's advisory, JA pointed out  that
the statutory provisions the applicant cites as authority for  his  position
are general in nature and do not address the specific issue at hand  nor  do
they provide authority for the proposition he has put forth.  As  previously
pointed out, the specific authority that does address  this  issue  is  that
AFI 36-2604, table 2-1, classifies the legal intern status under  code  "C,"
as for "Pay Only" (see Exhibit H).

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant responded to the additional JA review and  states  that  JA  again
ignores the thrust of his rebuttal and relies upon a  table  in  an  AFI  to
recommend denying the statutory mandates of 10 U.S.C. 1405, 8911  and  8926.
JA's contention that "the statutory provisions applicant cites as  authority
for his position are general in nature  and  do  not  address  the  specific
issue at hand" is wrong as a matter of law.  The Congressional  entitlements
set forth in the retirement statutes basically state that TAFMSD credit  and
1405 service credit shall be  given  for  all  periods  of  active  service,
including ADT, with the only exception being for the HPSP.

The fact that AFI 36-2604, table 2-1, classifies  the  legal  intern  status
under code "C" meaning for "Pay Only,"  does  not  and  cannot  deprive  Air
Force officers who served on active duty during their legal  internship,  of
their statutory entitlements to retirement credit.

In its second advisory, JA abandoned its argument  in  the  first  advisory,
which states that 10 U.S.C. 8013 gives the Secretary of the  Air  Force  the
authority to "take any actions necessary  to  conduct  all  affairs  of  the
Department of the Air Force."  As previously stated,  such  a  statement  is
factually and legally incorrect.  JA's position would  allow  the  Secretary
to interpret the retirement statutes  in  a  manner  inconsistent  with  the
Congressional intent of these statutes.  In a prior court  case,  Timex  vs.
United  States,  the  Federal  Circuit  refused  to  defer  to  an  agency's
interpretation of a statute which was at odds to the  Congressional  intent.
In his conclusion, applicant reiterated his contentions  and  cited  several
previous court cases in which the Supreme Court has consistently  held  that
when  a  statute  directs  a  particular  action,  any   other   action   is
impermissible (see Exhibit J).

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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.   We  took  notice   of   the
applicant's complete submission in judging the merits of the case;  however,
we agree with the opinion and recommendation of  the  Office  of  the  Judge
Advocate General and adopt their rationale as the basis for  our  conclusion
that the applicant has not  been  the  victim  of  an  error  or  injustice.
Therefore,  in  the  absence  of  evidence  to  the  contrary,  we  find  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 issue  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 6 Dec 00, under the provisions of AFI 36-2603:

      Mr. Teddy L. Houston, Panel Chair
      Mr. Laurence M. Groner, Member
      Ms. Diana Arnold, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 16 Mar 00, w/Atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRR, dated 12 Jun 00, w/Atchs.
    Exhibit D.  Letter, Applicant, dated 10 Jul 00, w/Atchs.
    Exhibit E.  Letter, AFPC/JA, dated 22 Aug 00.
    Exhibit F.  Letter, SAF/MIBR, dated 1 Sep 00.
    Exhibit G.  Letter, Applicant, dated 29 Sep 00, w/Atchs.
    Exhibit H.  Letter, AFPC/JA, dated 10 Oct 00.
    Exhibit I.  Letter, SAF/MIBR, dated 12 Oct 00.
    Exhibit J.  Letter, Applicant, dated 1 Nov 00.




                                   TEDDY L. HOUSTON
                                   Panel Chair