RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2002-03422
            INDEX CODE:  113.00
            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to show that he met the service requirements to  be
eligible to receive retired pay at age 60.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The law has changed to allow members with 15 to  20  years  of  satisfactory
service to be treated as having met the  requirements  for  eligibility  for
retired  pay  at  age  60   if   they   are   separated   due   to   medical
disqualification.  At the  time  of  his  separation  he  had  17  years  of
satisfactory service and over 21  years  of  total  service  for  pay.   His
commander requested a waiver to allow him to remain in the  Guard  with  his
medical condition, but the request was denied.

In support of his request, applicant provided a copy of  his  NGB  Form  22,
Report of Separation and Record of Service; his DD Form 214N,  Armed  Forces
of the United States Report of Transfer or Discharge; Special Order  AB----,
documents  associated  with  his  commander's  waiver   request,   documents
associated with his Medical  Evaluation  Board;  and,  AF  Form  526,  Point
Credit Summary.  His complete submission, with attachments,  is  at  Exhibit
A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant served a variety of Reserve and  Guard  assignments  in  the  Navy
Reserve, Coast Guard Reserve, and the Air National Guard (ANG).  On  19  Aug
94, he was discharged from the ANG and the Reserve  of  the  Air  Force  for
medical disqualification reasons, in the grade of  technical  sergeant.   He
completed 21 years, 8 months, and 4 days of Federal service and 17 years  of
satisfactory Federal service.

_________________________________________________________________

AIR FORCE EVALUATION:

ARPC/DPP recommends denial.  DPP states that the Fiscal Year  1995  National
Defense Authorization Act, which allowed medically disqualified  members  to
retire with less than 20 years of service, was signed into law on 5 Oct  94.
 To establish eligibility for Reserve retired pay a member must complete  at
least 15 but less than 20 years of satisfactory Federal  service,  with  the
last 6 years of qualifying service in a  Reserve  component.   In  addition,
the member must be medically disqualified and involuntarily  separated  from
the Selected Reserve on or after 5 Oct  94.   The  applicant  completed  the
service requirement; however, he was discharged prior to the effective  date
of the law.  The DPP 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 20  Dec
02 for review and comment 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.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of an injustice.  We believe that the applicant's  request  for  a
correction of his record in such a manner as to  establish  his  entitlement
to receive retired pay at age 60 is supported by  the  evidence  of  record.
After reviewing the evidence of record  and  in  light  of  the  applicant's
history of participation throughout his  career  of  military  service,  and
that he was discharged less than 2 months before the effective date  of  the
law, we are inclined to believe that favorable consideration of his  request
is warranted.  Further, it appears that his superiors made every  reasonable
attempt to retain him in the Air National Guard, but  through  no  fault  of
the applicants, they were unable to  do  so.   In  view  of  the  above,  we
believe that to deprive him of retired pay at age 60 would be  an  injustice
to the applicant  and  would  circumvent  the  intent  of  the  legislation.
Accordingly we recommend  that  his  records  be  corrected  to  the  extent
indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT be corrected to show that:

      a. He was not relieved from his assignment  and  discharged  from  the
Air Force Reserve on 19 August  1994,  but  was  continued  in  his  Reserve
assignment.

      b.  He was found unfit for  duty  due  to  physical  disqualification,
applied  for  transfer  to  the  Retired  Reserve  Section,  was   honorably
discharged from the Tennessee Air National Guard on 6 October 1994, and  was
transferred to the Air  Reserve  Personnel  Center,  Non-Affiliated  Reserve
Section (NARS), effective 7 October 1994.

      c.  On 8 October 1994, he  was  transferred  to  the  Retired  Reserve
Section, Awaiting Pay, per Title 10, United States Code, Section 12731b.

_________________________________________________________________

The following members of the Board considered  Docket  Number  BC-2002-03422
in Executive Session on 9 Apr 03, under the provisions of AFI 36-2603:

      Mr. Michael K. Gallogly, Panel Chair
      Ms. Martha Maust, Member
      Mr. Billy C. Baxter, Member

All members voted to correct the records,  as  recommended.   The  following
documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 18 Oct 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPP, dated 10 Dec 02, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 20 Dec 02.




                             MICHAEL K. GALLOGLY
                                             Panel Chair

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


FROM:  SAF/MR

SUBJECT:  AFBCMR Case on

      I have carefully reviewed the circumstances of this case and do not
agree with the AFBCMR panel’s decision to grant the applicant's request for
a correction of records to render him eligible for Reserve retired pay at
age 60.

      Subsequent to the applicant's medical disqualification and separation
from the Air National Guard (ANG), the Fiscal Year 1995 National Defense
Authorization Act rendered medically disqualified members with at least 15
years of satisfactory Federal service eligible to receive Reserve retired
pay at age 60.  Applicant contends that since he had completed 17 years of
satisfactory Federal service and his commander requested that he be allowed
to remain in the ANG in spite of his medical conditions, he should be
entitled to receive retired pay.

      In light of the applicant’s history of participation, the fact that
his superiors attempted to retain him in the ANG, and the fact that he was
discharged less than two months before the effective date of the law, the
Board believes denial would circumvent the intent of the legislation.  I
disagree.  To the contrary, I believe that to grant the applicant’s request
would be circumventing the intent of the law.

      As indicated earlier, the law that permits active Reservists who
become medically disqualified to retire with eligibility for retired pay at
age 60 if they have at least 15 years of satisfactory Federal service was
effective October 5, 1994, and was not retroactive.  The applicant was
discharged prior to the effective date of the law.  Thus, he was not
eligible for retirement under this provision of the law.

      I am not unsympathetic to the applicant’s dilemma.  Nonetheless, to
grant the applicant’s request in the absence of clear-cut evidence that the
Congress intended that the applicable law be applied retroactively, would
be grossly unfair to the hundreds of active Reservists who did not qualify
for retired pay because of becoming physically disqualified short of
retirement eligibility.  Accordingly, it is my decision that the
application be denied in its entirety.




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