RECORD OF PROCEEDINGS


             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  01-03025

            COUNSEL:  NONE

            HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His Date of Initial Entry Military  Service  (DIEMS)/Date  of  Initial
Entry Uniformed Services (DIEUS) be changed  from  17 July 1986  to  5
January 1987.

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APPLICANT CONTENDS THAT:

His initial enlistment agreement AF Form  3007  [Enlistment  Agreement
(Non-Prior Service) United States Air Force], dated 17 July 1986,  was
a voided contract.  The new superseded  AF  Form  3007  date  reads  5
January 1987, and the original contract was voided on 5 January 1987.

In support of his appeal, applicant provided copies  of  two  AF Forms
3007, one dated 17 July 1986 and the other dated 5 January 1987.

Applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

Applicant enlisted in the Reserve of the Air  Force  on  17 July 1986,
for entry into the  Delayed  Entry/Enlistment  Program  (DEP),  for  a
period of eight years, with the understanding that he would be ordered
to active duty as a Reservist unless he reported for  enlistment  into
the Regular component of the Air Force by 5 May 1987.   Applicant  was
discharged from the DEP on 4 January 1987,  for  immediate  enlistment
into the Regular component of the Air Force on 5 January 1987,  for  a
period of six years.

His total active federal military service date (TAFMSD) and Paydate is
5 January 1987.  His DIEMS/DIEUS is 17 July 1986.  He  has  served  on
continuous active  duty  and  entered  his  current  enlistment  on  4
February 2002.

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AIR FORCE EVALUATION:

HQ AFPC/DPPAOR reviewed the applicant’s request and states  that  upon
entry to active  duty,  applicant’s  DIEUS  date  was  established  in
accordance with AFI 36-2604, Service Dates and Dates of Rank, Table 1,
Rule 13, giving the applicant a DIEUS of 17 July 1986, IAW his DD Form
4, date 17 July 1986 (Exhibit C).

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states that after consulting with the Base Legal Office,  he
learned that when the AF Form 3007 (Annex A to DD Form  4),  dated  17
July 1986, was voided, the entire DD Form 4 became void as  well.   He
further states that when the Air Force offered him a new  contract  by
adding two  more  years,  which  made  it  a  six-year  enlistment  on
5 January 1987, they withdrew all obligations made on the 17 July 1986
contract with the 4-year enlistment.

Upon signing the new DD Form 4 and Annex A (AF Form 3007) on 5 January
1987, all other forms signed on 17 July 1986  were  voided,  rescinded
and should no longer exist.  He says in accordance with  contract  law
once a portion of the contract is voided the entire contract  is  null
and void.  Finally, he  says,  the  AF  Form  3007,  Annex  B,  is  an
Enlistment Agreement to the United States which is referenced  in  AFI
36-2604, Rule 13, as a requirement for the DIEUS date (Exhibit E).

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ADDITIONAL AIR FORCE EVALUATION:

HQ AFPC/DPPRR reviewed the applicant’s request and recommended denial.
 They addressed the applicant’s  eligibility  for  the  Career  Status
Bonus (CSB).  Prior to 1 August 1986, there were only  two  retirement
plans: “final basic pay” for those who entered  prior  to  8 September
1980 and the “high-3” for those who entered  after  8 September  1980.
In 1986, the Military Retirement Reform Act (MRRA), commonly  referred
to as “REDUX,” was enacted for those who entered service after 31 July
1986.  The term “date entered service” means the date  the  person  is
enlisted, inducted or appointed…not TAFMSD.  This includes  cadets  at
service academies…, and persons in the Delayed Entry Program.

When those affected by  the  MRRA  challenged  Congress  that  it  was
reducing retirement benefits to 40% at 20 years,  unless  they  stayed
for 30 years, Congress realized that the program needed to be revised.
 Instead of repealing the law, in Oct 99, they created the CSB program
giving those affected by the MRRA a choice of retirement plans: 50% at
20 years or a bonus of $30,000 at the 15-year point and only 40% at 20
years (unless you complete 30 years, then you would receive 50%).

By signing the contract  prior  to  1  August  1986,  the  applicant’s
retirement pay plan was, is and always will be “High-3”…the  MRRA  did
not affect the applicant (Exhibit F).

HQ AFPC/JA also  reviewed  the  applicant’s  request  and  recommended
denial, stating the applicant  failed  to  present  relevant  evidence
warranting relief.  They state that applicant signed the DD Form 4  on
17 July 1986, certifying that he had carefully read the form, that all
of his questions had been answered and that no promise or  guarantees,
other than those recorded on the DD Form 4 or attached annex (Annex A)
would be honored by the Air Force.  (Annex A to the  form  is  the  AF
Form 3007 which applicant signed on 17 July 1986.)  It  also  reflects
that he took the requisite oath on 17 July 1986.

The same DD Form 4 shows  that,  on  5  January  1987,  the  applicant
requested to be discharged from the DEP and enlisted  in  the  Regular
component of the Air Force for a period of six years.  It also  states
that “No changes have been  made  to  my  enlistment  options  OR,  if
changes were made, they are recorded on Annex B which  replaces  Annex
A.”  (Annex B is the AF Form 3007 which applicant signed on 5  January
1987, and which superseded Annex  A).   The  form  reflects  that  the
applicant took the oath again on 5 January 1987.

They further addressed applicant’s eligibility for the  “REDUX”  plan.
The National Defense Authorization Act for Fiscal  Year  2000  (FY2000
NDAA) reformed the retirement system for those individuals  who  first
became military members on or after 1 August 1986.  The MRRA  provided
such members a retirement system with a reduced multiplier  until  age
62 and a reduced lifetime Cost-of-Living Adjustment (COLA) with a one-
time catch up at age 62.  The FY2000 NDAA places these  members  under
the prior retirement provisions (High-3 Retirement) unless they  elect
to receive a $30,000 Career Status Bonus (CSB) at  the  15th  year  of
active duty service.  An election to  receive  the  CSB  requires  the
member to agree to remain in the service until completion of  20 years
of active duty  service  and  be  subject,  upon  retirement,  to  the
retirement provisions of REDUX.

Clearly his eligibility for the CSB hinges on the date he first became
a member (DIEMS/DIEUS).  If his DIEMS/DIEUS is 17 July 86, he  is  not
eligible for the CSB.  If his DIEMS/DIEUS  is  5 January 1987,  he  is
eligible.

The MRRA, P.L 99-348, Section 105, provides,  “For  purposes  of  this
chapter and other provisions  of  law  providing  for  computation  of
retired or retainer pay of members of the uniformed services, a person
shall be considered to first become a member of a uniformed service on
the date the person is first enlisted, inducted,  or  appointed  in  a
uniformed service.”  There is no requirement that  the  member  be  in
continuous service after he first becomes a  member.   Once  a  member
enlists in a Regular or Reserve component of an armed  force  for  the
first time, he “first becomes a member of  a  uniformed  service”  and
establishes his retirement eligibility under  REDUX.   Therefore,  the
date a person first enlists or is appointed as a member of a uniformed
service controls his entitlement under REDUX no matter  whether  there
is a break in service or status before 1 August 1986.

Lastly, they addressed the applicant’s assertions that his base  legal
office advised him that when his initial AF Form 3007, dated  17  July
1986 was voided, his entire Air Force contract became void.  It is not
clear to AFPC/JA whether applicant’s  recruiter  miscounseled  him  or
some judge advocate miscounseled him or both.  Even if the  assumption
is made that a recruiter  and/or  judge  advocate  misrepresented  the
significance  of  the  superseded  AF  Form  3007  (i.e.,  misinformed
applicant that  his  DIEUS  would  change),  this  is  clearly  not  a
misrepresentation upon which the applicant relied  to  his  detriment.
Applicant signed the AF Form 3007 on 5 January 1987, almost  13  years
before enactment of the FY2000 NDAA, which created the CSB.  Applicant
cannot claim that he enlisted in the  Regular  component  of  the  Air
Force in 1987 in reliance upon a promise that he would be eligible for
a CSB.

A complete copy of the Air Force evaluation is at Exhibit G.

_________________________________________________________________

APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION:

A copy of the additional Air Force evaluation  was  forwarded  to  the
applicant on 5 April 2002 for review and comment within 30  days.   As
of this date, no response has been received by  this  office  (Exhibit
H).

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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 error or injustice.  After a thorough review  of  the
evidence of record and applicant's submission, we  are  not  persuaded
that  his  uncorroborated  assertions,  in  and  by  themselves,   are
sufficiently persuasive to override the rationale provided by the  Air
Force.  We note the detailed comments  provided  by  the  Staff  Judge
Advocate in which he concludes that the applicant signed the DD Form 4
on 17 July 1986, certifying that he had carefully read the form,  that
all of his questions  had  been  answered  and  that  no  promises  or
guarantees, other than those recorded on the DD  Form  4  or  attached
annex (Annex A) would be honored by the Air Force.  In regards to  the
miscounseling, the applicant provided no evidence to substantiate  his
contention.  Therefore, we agree with the opinions and recommendations
of the Air Force offices  of  primary  responsibility  and  adopt  the
rationale expressed as the basis for our decision that  the  applicant
has failed to sustain his burden of having suffered either an error or
injustice.  There being insufficient 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 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  AFBCMR
Docket Number 01-03025 in Executive Session on 29 May 2002, under  the
provisions of AFI 36-2603:

      Mr. Philip Sheuerman, Panel Chair
      Mr. Billy C. Baxter, Member
      Mr. James W. Russell III, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 18 Oct 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ AFPC/DPPAOR, dated 22 Nov 01, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 14 Dec 01, w/atchs.
    Exhibit E.  Letter, Applicant, dated 8 Jan 02, w/atchs.
    Exhibit F.  Letter, HQ AFPC/DPPRR, dated 5 Mar 02, w/atchs.
    Exhibit G.  Letter, HQ AFPC/JA, dated 29 Mar 02, w/atchs.
    Exhibit H.  Letter, SAF/MRBR, dated 5 Apr 02, w/atchs.




                                   PHILIP SHEUERMAN
                                   Panel Chair