RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2001-01833
                                        INDEX CODE:  136.00
                                        COUNSEL:  NONE

                                        HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be granted a 15-year retirement  under  the  Temporary  Early  Retirement
Authority (TERA) Program.
_________________________________________________________________

APPLICANT CONTENDS THAT:

In October 1992, Congress enacted  the  TERA  Program  authorizing  15  year
retirements providing the Secretary of Defense a tool with which  to  affect
the drawdown of military forces.  During the  time  he  was  assigned  as  a
Missile  Launch  Officer.   His  wing  was  deactivated,  resulting  in  the
elimination of his position.

The Air Force  offered  financial  incentives  in  order  to  meet  mandated
drawdown  requirement.   He  was   considered   for   possible   involuntary
separation by the Reduction In Force (RIF) Board but  he  was  not  selected
for involuntary separation.   In 1993, the Air Force campaign to reduce  the
number of active  duty  personnel,  coupled  with  a  decreasing  number  of
officer billets in his  career  field,  caused  a  requirement  to  reassign
Missile Launch Officers at his wing.  He applied to  retrain  with  the  Air
Force Office of Special Investigations (OSI), but  his  request  to  retrain
was denied.  He  then  sought  retraining  as  an  officer  into  his  prior
enlisted career field of Security Police.  This was  also  denied  based  on
the then current needs of the Air Force.  He  applied  for  a  Special  Duty
Assignment as the United States Air Force Liaison Officer to the  Department
of Military Instruction at the United  States  Military  Academy  (USMA)  at
West Point.  In 1993, he was selected and served as an  Assistant  Professor
at the USMA (1993-1996).

During  this  time,  his  primary  career  field  continued  to  be  reduced
significantly.  Air Force publications indicated  that  the  Air  Force  was
unable to meet reduction goals in the officer corps and continued  to  offer
incentives for officers to resign or retire early under  the  TERA  program.
In January of 1995, it was suggested  to  him  that  given  his  background,
coupled with the current reductions in the Air  Force,  he  should  seek  an
appointment to a  position  with  a  federal  law  enforcement  agency.   He
applied with the United States Secret Service for the  position  of  Special
Agent.  He was advised that the Secret Service hiring  process  for  Special
Agents lasted up to 24 months.  As he  would  have  completed  15  years  of
active duty service in August of 1996, it was his  intention  to  stay  with
the Air Force until that date, and retire under the TERA program upon  being
offered a commission with the Secret Service.  He notified his commander  of
his application for a Secret Service position.  His  commander  stated  that
in light of his prior enlisted service, which made him eligible  for  a  20-
year retirement in less than five  years,  it  would  not  be  practical  to
retrain into a new Air Force Specialty Code.  It  was  also  suggested  that
the most logical decision would be to obtain an early retirement  under  the
TERA program and begin a new career in federal law enforcement.  This  would
allow him to continue to serve his country in an accepted  profession  under
the TERA program, and be rewarded in his retirement for his past service  in
the USAF.

In April of 1996, he received an offer of an appointment to the position  of
Special Agent in the Secret Service.  He  accepted  an  appointment  in  the
Secret Service and began his application for a 15-year retirement under  the
TERA program, which would be effective on November 8, 1996.  At the time  of
his application to  retire  under  the  TERA  program,  the  Air  Force  was
experiencing difficulty meeting  its  drawdown  goals  and  was  authorizing
officers to retire under the program.  The Air Force continued  to  use  the
TERA program as a drawdown tool to reduce  the  number  of  officer  billets
through the end of fiscal year  1999.   On  6  May  1996,  AFPC  denied  his
request for retirement under the TERA program,  stating  that  he  was  over
seven months short of the eight years active commissioned  service  required
to retire as an officer.  The letter went on  to  state  that  he  would  be
authorized, however, to retire at an enlisted grade  under  TERA.   However,
the letter further stated that he was not entitled to  such  retirement,  as
the goal for enlisted drawdowns  had  been  met.   That  statement  was  not
entirely accurate.  In fact, exceptions were  being  granted,  and  enlisted
personnel were being authorized to retire under TERA.  He contends that  his
retirement, at any pay grade, effectively drew down the  officer  corps,  in
compliance  with  the  goals,  and  therefore,  the  decision  to  deny  his
retirement under TERA was in error.

In 1996, the Air Force  failed  to  meet  the  mandated  reductions  in  the
officer corps and continued to offer early retirements to personnel with  15
years of service in fiscal years 1997 - 1999.  He had accumulated more  than
15 years of active duty service at the time he separated from the Air  Force
to accept a position with the U.S. Secret Service.  This length  of  service
qualified him for retirement under the  TERA  program.   Unfortunate  timing
left me several months short of fulfilling  the  eight-year  officer  active
duty service requirement needed to retire  as  an  officer  under  the  TERA
program,  and  he  accepts  the  fact  that  his  retirement  annuity  would
therefore be  calculated  on  the  basis  of  his  highest  enlisted  grade.
However, he disputes the unsupported assertion of AFPC that  his  separation
as an officer with immediate reenlistment at an enlisted grade prior to  the
acceptance of his retirement application "would be  counted  as  a  drawdown
loss toward the enlisted goal for FY96, not the  officer  goal".   The  USAF
Academy Commander at USMA points out in a letter dated 1 May 1996, that  his
retirement "could be counted as one  of  the  voluntary  reductions  of  the
officer corps.  Capt L--- would not be filling an enlisted billet. He  would
be on active duty in his enlisted  grade  for  less  than  24  hours."   His
decision to retire in 1996 was clearly in  the  best  interest  of  the  Air
Force, as it helped the Department of Defense  comply  with  congressionally
mandated end strengths by drawing down the officer corps.

Denial of his request to retire  under  TERA  violated  the  intent  of  the
program.  His request to retire at an enlisted grade under the TERA  program
should have been granted  as  an  exception  to  policy.  He  believes  AFPC
applied the wrong standard when it  denied  his  request  for  exception  to
policy on  the  basis  of  his  failure  to  state  an  "extreme  hardship."
Evidence exists to show exceptions to policy were liberally granted  through
1998.  In a May 1998 article in the Air Force News,  the  Air  Force  Deputy
Chief of Staff for Personnel, refers to the many non-hardship exceptions  to
policy  authorizing  early  retirement  that  had  been  granted  over   the
preceding years.  In another news article, the  Retirement  and  Separations
Chief, stated that the Air Force did not meet reduction in force  goals  for
officers.  It was stated that any retirement request  in  fiscal  year  1996
meeting the proper criteria and in the best interest of the Air Force  would
be approved.  Therefore, his request for early retirement should  have  been
approved.  He  was  never  advised  of  the  need  to  demonstrate  "extreme
hardship" when requesting an exception to policy.  The first time  he  heard
of the need to  prove  "extreme  hardship"  was  when  his  request  for  an
exception to policy was denied, incorrectly  characterizing  his  intent  as
merely a decision to seek external employment.  It is  fundamentally  unfair
to hold a person to an unadvertised standard.

In  support  of  his  request,  applicant  provided  a  personal  statement,
documentation associated with his request  for  retirement  under  the  TERA
program, an extract form AFI 36-3203;  and  a  copy  of  his  DD  Form  214,
Certificate  of  Release  or  Discharge  from  Active  Duty.   His  complete
submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant,  a  prior  service  enlisted  member,  was  appointed  a   second
lieutenant, Reserve of the Air Force, on 3 Jun  89.   He  was  progressively
promoted to the grade of captain, having assumed that  grade  effective  and
with a date of rank of 7 Jun 93 and voluntarily ordered to  extended  active
duty on that same date.

On 24 May 96,  applicant  prepared  an  AF  Form  780,  Officer's  Voluntary
Application  for  Separation,  requesting  separation  from  the  Air  Force
effective 8 Nov 96.  His request was approved and  he  was  discharged  from
the Air Force on that date.  He served 7 years 2 months and  27  days  as  a
commissioned officer; and, 8 years 1  month  and  13  days  as  an  enlisted
member.
_________________________________________________________________

AIR FORCE EVALUATION:

The AFPC/DPPRR recommends denial.  DPPRR states that applicant  applied  for
retirement under the TERA in May 1996.   Although  he  had  15  years  total
active duty, he did not have the minimum 8 years commissioned  service  time
required by law to be eligible for the TERA program.   He  opted  to  resign
his commission  and  retire  as  an  enlisted  member.   However,  the  FY96
Enlisted TERA program closed for applications on 30 Oct  95.   He  submitted
an Exception to Policy  request,  which  required  HQ  USAF  approval.   His
request  was  disapproved   because   he   did   not   provide   significant
justification to warrant approval from HQ USAF.   His  vice  wing  commander
sent a letter to AFPC in response to his  disapproval  and  a  response  was
sent  back  explaining  why  the  applicant  did  not  qualify   for   early
retirement.  He has not provided any additional documentation  to  prove  an
injustice occurred.  The DPPPR evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 24  Aug
01 for review and response within 30 days.  Applicant subsequently  withdrew
his application.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

Applicant resubmitted his  application  on  14  Apr  03  and  an  additional
advisory was requested.   AFPC/DPPRR  again  reviewed  his  application  and
recommends denial.  DPPRR states that although he had 15 years total  active
duty (of  which  6  years  and  9  months  were  total  active  commissioned
service), he did not have 8 years of commissioned service time  required  by
law to be eligible for the TERA program.  The provisions established by  law
are not subject to  waivers.   He  submitted  an  exception  to  policy  for
temporary early retirement, requesting to resign his commission  and  retire
as an enlisted member.  Again, provisions of law are not subject to  waivers
or exception  to  policy.   Therefore,  his  request  was  denied  with  the
suggestion that he wait for the Fiscal Year 1997 (FY97)  TERA  to  determine
if he would be eligible for that option.

He did not meet the eligibility  requirements  to  retire  as  enlisted.  In
accordance with AFI 36-3203"...officers with 20 years of  total  active  who
wish to retire before completing 10 years of active commissioned service  (8
years if retired before 30 Sep 95...)...must first be separated...They  must
also be accepted for, and enlisted in the Regular Air Force for the  purpose
of retirement."  The only option was to apply for separation  from  the  Air
Force, which he opted to do since he was not eligible for the TERA  program.
 The DPPPR evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 24  Jun
03 for review and response within 30 days.  As of  this  date,  this  office
has received no response.

_________________________________________________________________

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.   We  took  notice  of  the  applicant's
complete submission in judging the merits of the  case;  however,  we  agree
with the opinions and recommendation of the Air  Force  offices  of  primary
responsibility and adopt their rationale as the  basis  for  our  conclusion
that the applicant has not been the victim of an error or injustice.   After
thorough review of the evidence presented in support of his appeal,  we  are
not persuaded that the standards of Air Force policy,  which  implement  the
law, were inappropriately applied in this case.  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 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 AFBCMR Docket Number  BC-2003-
01833 in Executive Session on 13 Aug 03, under the  provisions  of  AFI  36-
2603:

      Ms. Brenda L. Romine, Panel Chair
      Ms. Barbara J. White-Olson, Member
      Ms. Marcia J. Bachman, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 14 Apr 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRR, dated 16 Aug 01.
    Exhibit D.  Letter, SAF/MRBR, dated 24 Aug 01.
    Exhibit E.  Letter, AFPC/DPPRR, dated 24 Jun 03, w/atchs.
    Exhibit F.  Letter, SAF/MRBR, dated 24 Jun 03.




                                   BRENDA L. ROMINE
                                   Panel Chair