RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  02-01582
                       INDEX CODE:  108.00

      APPLICANT  COUNSEL:  None

      SSN        HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to change his involuntary  separation  to  an
early  retirement  under  the  Temporary  Early  Retirement  Authority
(TERA).
_________________________________________________________________

APPLICANT CONTENDS THAT:

He knew he could no longer get an age waiver to extend his active duty
service beyond age 67.  He contacted the personnel center  to  inquire
if they knew of any way that he could obtain the three years he needed
for retirement.  The personnel center told  him  that  law  prohibited
active service beyond age 67, but maybe he should contact the  Reserve
or Guard.  He contacted the Reserve and Guard and was  told  the  same
law applied to them prohibiting service beyond age 67.  He  was  never
informed about TERA, and if he had been, he would have applied  as  an
exception to policy under the 15-year program.

Applicant's complete  submission,  with  attachment,  is  attached  at
Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant was discharged 10 Apr 02  with  an  honorable  discharge
under the provision of AFI 36-3207.

The remaining 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.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPRRP states that in accordance with  Title  10,  United  States
Code (USC), Section 8911, an officer  must  have  20  years  of  total
active federal military service (TAFMS) to be eligible to  voluntarily
retire.  In reviewing the applicant's  records  at  the  time  of  his
discharge he did not have 20 years of active service.

TERA was established by Congress to give the Service  Secretaries  the
authority to offer early retirement as a tool to help manage the  size
of the armed forces.  Under TERA officers with a minimum of  15  years
of service were allowed to retire.  However, the Secretary  determined
that TERA targeted  specific  career  specialties  where  losses  were
required to meet Air Force standards.

The applicant did not meet the criteria to be eligible to retire under
TERA and the program expired on 30 Sep 01.

DPPRR further states that there were no injustices  or  irregularities
in the processing of the applicant's separation.   As  stated,  to  be
separated under TERA was not an  entitlement,  it  was  created  as  a
drawdown tool to shape the force and meet Congressionally mandated end
strengths. To provide the applicant an exception would  be  unfair  to
service members who also were not eligible to retire under TERA.  They
recommend the applicant's request be denied (Exhibit C).

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 2
Aug 02, for review and response.  As of this  date,  no  response  has
been received by this office.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.    The applicant has exhausted all remedies  provided  by  existing
law or regulations.

2.    The application was timely filed.

3.    Sufficient relevant evidence has been presented to  demonstrate
the existence of error or injustice  in  regard  to  the  applicant's
request to change his involuntary separation to an  early  retirement
under TERA.  After thoroughly reviewing the evidence of  record,  the
majority of the Board is persuaded that the applicant’s record should
be corrected in order to afford him a retirement under the provisions
of the TERA.  While the law prohibits the applicant from serving past
the age of 67 and qualifying for a length of service retirement,  the
majority believes it would be an injustice for the applicant  not  to
be allowed to retire.  In this respect, the majority notes  that  the
Air Force had a critical shortage of physicians  when  the  applicant
was appointed into the service and based upon  this  continuing  need
for his services, age waivers were approved until he reached 67 years
of  age.   Once  attaining  the  age  of  67,  he  was  involuntarily
discharged because the law does not allow him to serve past this age.
 The Board majority believes it is patently unjust that the Air Force
accepted the services of this physician, knowing full  well  that  he
would never be allowed to attain the years necessary to qualify for a
retirement.   It  is  true  that  the  applicant  was  never  briefed
regarding the provisions of TERA because his Air Force Specialty Code
(AFSC) was not targeted for  reduction.   If  he  had  been  briefed,
clearly he would have accepted the terms of this program.  Therefore,
in consideration of the totality of the circumstances of  this  case,
and his nearly 17 years  of  faithful  service,  the  Board  majority
recommends that his records be corrected to allow a retirement  under
the provisions of the TERA, as an exception to policy.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department  of  the  Air  Force
relating to APPLICANT be corrected to show that he applied for  early
retirement under the provisions of  the  Temporary  Early  Retirement
Authority with an effective date of retirement of  1 September  2001,
and his request was approved by competent authority.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number 02-
01582 in Executive Session on 17 September 2002, under the  provisions
of AFI 36-2603:

                      Ms. Olga M. Crerar, Panel Chair
                      Mr. Billy C. Baxter, Member
                      Mr. Clarence D. Long III, Member

By majority vote, the Board recommended granting the application.  Mr.
Baxter voted to deny  correcting  the  records  and  has  submitted  a
Minority Report.  The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 1 May 02, w/atch.
   Exhibit B.  Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPRR, dated 12 Jul 02.
   Exhibit D.  Letter, SAF/MRBR, dated 2 Aug 02.
   Exhibit E.  Minority Report.




                       OLGA M. CRERAR
                       Panel Chair





MEMORANDUM FOR   THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR CORRECTION OF
                   MILITARY RECORDS (AFBCMR)

FROM: SAF/MR

SUBJECT:    AFBCMR  Case on APPLICANT, SSN

      I have carefully considered all the circumstances of this case and
agree with the minority member of the AFBCMR panel that the applicant’s
request to change his involuntary separation to early retirement under the
Temporary Early Retirement Authority (TERA) should be denied.

      The applicant, a physician, was commissioned and entered on extended
active duty (EAD) at age 50 with no prior service.   He received several
age waivers allowing him to continue on active duty until he reached his
mandatory date of separation (DOS) because of maximum age.  On several
occasions, he acknowledged in his waiver requests that he would not be able
to qualify for length of service retirement.  Applicant was involuntarily
discharged on April 10, 2002, with 16 years, 8 months, and 19 days of
active military service with separation pay, 90 days of medical coverage,
and 2 years of base privileges.

      In his application to the AFBCMR, the applicant contends that he was
never informed about TERA and that, if he had been, he would have applied
for early retirement as an exception to policy.  The Air Force recommends
the application be denied.  It notes TERA was established to give the
Service Secretaries the authority to offer an early retirement option to
help manage the size of their respective forces.  Although the applicant
meets the minimum requirement of the law by completing over 16 years of
active service, his grade and Air Force Specialty Code (AFSC) made him
ineligible for this program that expired at the end of FY01.

      The majority of the AFBCMR panel notes that the Air Force had a
critical shortage of physicians when the applicant was commissioned and,
based upon the continuing need for his services, age waivers were approved
until he reached 67 years of age.  Thus, the majority concludes it’s
patently unjust that the Air Force accepted his services knowing full well
that he could never qualify for retirement.  I disagree.

      The applicant does not argue that he had an inherent right to remain
on active duty until he qualified for retirement.  Nor does he assert that
responsible Air Force officials miscounseled or otherwise misled him into
coming on EAD under circumstances that precluded his qualifying for
retirement.  He merely erroneously believes he was entitled to TERA
retirement as an exception to policy.  Upon being apprised of his
ineligibility for TERA retirement in the Air Force advisory opinion, he
declined further comment.

      It is not uncommon for physicians to come on active duty at such an
advanced age that they cannot qualify for retirement prior to reaching
their mandatory date of separation.  This may appear to be unfair to some.
However, these physicians (like the applicant) are fully aware of their
circumstances at the time they voluntarily elect to come on active duty and
are separated upon reaching their mandatory dates of separation with
entitlements predicated upon the number of years of active military
service.  Therefore, absent a showing that the applicant was miscounseled
by responsible Air Force personnel at the time he entered on active duty, I
find no compelling basis to treat him differently from other physicians
that are similarly situated.  Accordingly, it is my decision that the
application be denied.

                                       MICHAEL L. DOMINGUEZ
                                       Assistant Secretary
                                       (Manpower and Reserve Affairs)







MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR
                 CORRECTION OF MILITARY RECORDS (AFBCMR)


SUBJECT:  APPLICANT, SSN, AFBCMR Docket Number 02-01582

      In Executive Session on September 17, 2002, we considered the
applicant’s request for a retirement under the provisions of the
Temporary Early Retirement Authority (TERA).  A majority of the Board
voted to recommend that the applicant's request be granted.  I
disagree with their recommendation.  I cannot conclude that the
applicant was miscounseled when he entered extended active duty at the
age of 50 that he would ever qualify for a length of service
retirement.  The majority of the Board concluded that because there
was a critical shortage of doctors when the applicant entered active
duty, we should, in effect, reward him with a retirement for his
nearly 17 years of active service.

      I note that each time the applicant applied and was approved for
an age waiver, ultimately taking him to his 67th birthday, he clearly
acknowledged that these waivers did not guarantee him retention until
he was eligible for a paid retirement.  There is simply no injustice
in this case.  I am convinced the applicant voluntarily came on active
duty knowing full well that he would be unable to retire with 20 years
of active service.  Furthermore, he has been appropriately compensated
for his services as a physician.

      Lastly, the TERA was a force-shaping tool designed to assist the
services to manage the size of their respective forces.  It was not
intended as an entitlement; rather, it was to be implemented when
losses were required in a specific career field in order to meet Air
Force requirements.  In view of this criteria, I cannot recommend
allowing this officer to retire early when he was still in a critical
career field - to do so would fly in the face of this program and
would afford this applicant a benefit not offered to other similarly
situated individuals.




                                        BILLY C. BAXTER
                                        Panel Member