RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  01-02513
            INDEX CODE:  110.00

      APPLICANT  COUNSEL:  None

      SSN   HEARING DESIRED: No

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APPLICANT REQUESTS THAT:

His records be corrected to reflect that he  is  eligible  to  receive
Reserve retired pay, retirement benefits  and  be  paid  retroactively
under the 1995 National Defense Authorization Act.

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APPLICANT CONTENDS THAT:

He was not properly advised of  any  eligible  benefits  he  may  have
qualified for when he became disabled  from  his  civilian  employment
(Exhibit A).

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STATEMENT OF FACTS:

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.

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AIR FORCE EVALUATION:

ARPC/DPP states that under the provisions of Title 10,  United  States
Code (U.S.C), Section 12731, a retired reserve member is eligible  for
retired pay upon completion of  at  least  20  years  of  satisfactory
service with the last 6 years  of  qualifying  service  in  a  Reserve
component.  As of Sep 90, the applicant completed 33 years,  7  months
and 7 days of honorable federal service, however,  only  18  years,  9
months and 26 days of service is creditable for retired pay.

Under 10 U.S.C, Section 12371a, a reserve member may be  eligible  for
retired pay based on physical disqualification, providing the
member completed 15-20 years of satisfactory service on or after 5 Oct
94.  Unfortunately, there is no provision in the  law  that  allows  a
member to retire with less than 20 years of service prior to 5 Oct  94
for physical disqualification.  The applicant's records do not reflect
that he was physically unfit for worldwide duty.

Title 10 U.S.C, Section  1176(b)  allows  for  sanctuary  of  enlisted
reservists  who  have  at  least  18,  but  less  than  20  years   of
satisfactory service, as computed under Title 10 U.S.C, Section 12371,
to remain in active  status.   Due  to  the  force  drawdown,  it  was
realized some members would not  always  be  able  to  stay  in  their
current positions.  In October 1994, procedures  were  established  to
assign displaced reservists into the active Standby Reserve  in  order
for them to complete  their  20  years  of  satisfactory  service  for
retirement.  The law was retroactive to 23 Oct 92,  thus  leaving  the
applicant ineligible for sanctuary since his last discharge was  on  9
Sep 90.

In summary, ARPC/DPS states that the applicant  did  not  complete  20
years of satisfactory and is not eligible  for  retirement  under  the
provisions of 10 U.S.C, Section 12371 or 12371A.  The applicant is not
eligible for retirement under 10 U.S.C., Section 1176(b),  because  he
was discharged in 1990 before the enactment of the law.   In  view  of
the above, they recommend denying the applicant’s request.

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant states he requested a change in his discharge because he
was medically disabled and did not pass a reenlistment physical at  Ft
Hamilton.  Since  he  did  not  pass  the  reenlistment  physical,  he
completed  CDC  courses,  as  advised  for  points  only.   His  prior
reenlistment physicals were done at his reserve unit and although they
were aware of his disability he was always found fit  for  duty.   The
applicant further states he was never advised of any benefits,  rights
or that he still could have served to attain 20  years  or  more.   He
feels that if he had not been hospitalized  at  the  End  of  Term  of
Service (ETS) he would have reenlisted and would not  be  experiencing
this problem.  He states he has satisfactory  creditable  service  for
almost 19 years and feels he should have received a medical discharge.


The applicant feels he should have been discharged in  accordance  AFR
35-41. He states the Reserves have conveniently changed the
necessary regulations and rules that would  aid  him  in  receiving  a
medical discharge.

As stated, he informed  his  unit  he  was  disabled.  When  he  began
receiving Social Security he completed the Form 40A  for  points  only
and returned the check.

He states he should conveniently receive a medical discharge and  back
pay since the Reserves conveniently changed rules and regulations.

Applicant's complete response is attached at Exhibit E.

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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.    After   careful
consideration of the circumstances  of  this  case  and  the  evidence
provided by the  applicant,  it  appears  that  he  has  not  met  the
eligibility criteria in accordance with Title 10 U.S. C. Section 12731
or 12731a, to  receive  a  reserve  retirement  or  pay.   Applicant’s
contentions are duly noted; however, we 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.  Therefore, in the  absence  of  evidence  to  the
contrary, we find no compelling basis to recommend granting the relief
sought in this application.

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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.

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The following members of the Board considered Docket Number  01-02513
in Executive Session on April 11, 2002, under the provisions  of  AFI
36-2603:

                 Ms. Peggy E. Gordon, Panel Chair
                 Mr. E. David Hoard, Member
                 Ms. Ann-Cecile McDermott, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 28 Aug 01, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, ARPC/DPP, dated 29 Jan 02.
   Exhibit D.  Letter, SAF/MRBR, dated 8 Feb 02.
   Exhibit E.  Applicant's response, dated 25 Feb 02.




                                  PEGGY E. GORDON
                                  Panel Chair