RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-00283
            INDEX CODE:  110.02, 135.00

      XXXXXXX    COUNSEL:  NONE

      XXXXXXX    HEARING DESIRED: NO

___________________________________________________________________

APPLICANT REQUESTS THAT:

His retirement orders and his records be corrected to show that  he
was entitled to Retired Reserve pay at age 60.

___________________________________________________________________

APPLICANT CONTENDS THAT:

He was transferred to the Reserve Retired List in Sep 94,  but  was
not eligible for retired pay at age 60 under Title 10  USC  Section
1331, which was amended by the FY95 National Defense  Authorization
Act.  He meets the criteria of the law based on service requirement
and being involuntarily  separated  from  a  Reserve  unit  due  to
medical disqualification during the period of 12 Mar 93  -  31  Dec
01.

In support of his appeal, applicant provided a  copy  of  a  letter
from HQ AFRES/DPAA, dated 2 Jun 94, a copy of a letter  from  DPAA,
dated 26 May 94, and a copy  of  Retirement  Order  EK-5700,  dated
20 Jul 94.

Applicant’s complete response is at Exhibit A.

___________________________________________________________________

STATEMENT OF FACTS:

Based on available records, applicant enlisted in the  Regular  Air
Force  on  5  Feb  64.   He  was  released  from  active  duty  and
transferred to the Air Force Reserve on 30 Aug 65.   His  grade  at
the time of his release from active duty was  airman  second  class
(A2C/E-3).  He was credited with 1 year, 6 months, and 26  days  of
active duty service.  He was in the inactive Reserve from 31 Aug 65
to 4 Feb 70.  From 5 Feb 70 to 12 Dec 78, applicant was in civilian
status.

He served in the  Selective  Reserve  from  13  Dec  78  until  his
discharge on 1 Sep 94 due  to  medical  disqualification.   He  was
transferred to the Honorary Retired Reserve on 2  Sep  94  and  was
credited with 16 years, 6  months,  and  26  days  of  satisfactory
Federal service.  His Retirement Order, RO  EK-5700,  reflects  the
reason as “age 37, complete 8 yrs of sat svc, not elig for  retired
pay at age 60 under 10 USC 1331.”

___________________________________________________________________

AIR FORCE EVALUATION:

HQ ARPC/DPP considered this  application  and  recommended  denial.
They  provided  the  following  analysis   of   the   circumstances
surrounding the applicant’s case:

     a.  In order to establish eligibility for Reserve retired  pay
under the provisions of Title 10, USC, Section 12731, a member must
complete at least 20 years of satisfactory service, with the last 6-
8 years of qualifying service in a Reserve component.  A review  of
the  applicant’s  records  indicates  he   was   found   physically
disqualified by the Administrative Physical Disqualification Review
Board on 26 May 94.  He was advised he was eligible for transfer to
the Honorary Retired Reserve and he elected this option in lieu  of
further discharge processing.  He had completed 16 years, 6 months,
and 26 days of satisfactory service creditable toward  retired  pay
eligibility at the time of his transfer  to  the  Honorary  Retired
Reserve, 2 Sep 94.

     b.  There was no  provision  of  law  that  allowed  medically
disqualified members to retire with less than 20 years  of  service
until the Fiscal Year (FY) 1995 National Defense Authorization  Act
was signed into law on 5 Oct  94.   To  establish  eligibility  for
Reserve retired pay under this provision, a member must complete at
least 15 years, but less than 20  years  of  satisfactory  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  Selective  Reserve  on  or  after
5 Oct 94.  The applicant completed the service requirements and was
medically disqualified; however, he was transferred to the Honorary
Retired Reserve prior to the effective date of the law.

The applicant did not complete 20 years  of  satisfactory  service;
therefore, he is not eligible for retirement under  the  provisions
of Title 10, USC, Section 12731.  In addition, he is  not  eligible
for retirement under the provisions  of  10  USC,  Section  12731a,
since he  was  transferred  to  the  Honorary  Retired  Reserve  on
2 Sep 94, prior to the enactment of the law.

A complete copy of the evaluation is at Exhibit C.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant provided a personal  statement  to  further  explain  the
circumstances surrounding the options made available to  him  after
learning he was medically disqualified to continue in the Reserve.

He poses the following question to the Board, “What does  the  date
of Mar 12, 93 - Dec 31, 01 for enlisted mean in Title 10 USC  1331,
if not for the people who lost all their years of  service  through
no fault of their own?”

Applicant’s complete response is at Exhibit E.

___________________________________________________________________

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  error  or  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
warranted.  After careful review of the evidence of record  and  in
light of the applicant’s history of  participation  throughout  his
career, and that his transfer to the Honorary Retired Reserve  took
place 33 days before the effective date of the law, we are inclined
to  believe  that  favorable  consideration  of  his   request   is
warranted.  While  we  cannot  determine  with  any  certainty,  it
appears there may have been  mitigating  circumstances  surrounding
the applicant’s transfer to the Honorary Retired Reserve in lieu of
continued discharge processing and his continued  employment  in  a
civilian capacity.  Had the applicant been aware  of  the  new  law
governing medically disqualified reserve members with over 15 years
but less than 20 years of service, it is reasonable  to  assume  he
would have requested an effective date in order to transfer to  the
Retired Reserve under this law.  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
transferred to the Honorary Retired Reserve on 2 Sep  94,  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, and on 6 Oct 94, 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 AFBCMR Docket  Number
BC-2003-00283 in  Executive  Session  on  7  May  2003,  under  the
provisions of AFI 36-2603:

                 Mr. Joseph G. Diamond, Panel Chair
                 Ms. Kathleen F. Graham, Member
                 Ms. Dorothy P. Loeb, Member

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

     Exhibit A.  DD Form 149, dated 23 Jan 03, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, HQ ARPC/DPP, dated 25 Feb 03, w/atchs.
     Exhibit D.  Letter, SAF/MRBR, dated 7 Mar 03.
     Exhibit E.  Letter, Applicant, dated 17 Mar 03.




                                   JOSEPH G. DIAMOND
                                   Panel Chair

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

FROM: SAF/MR

SUBJECT:    AFBCMR Application of XXXXXXX, XXXXXXX

      I have carefully reviewed the circumstances of this case and do not
agree with the AFBCMR panel’s recommendation 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 Force Reserve on September 1, 1994, 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 he meets the criteria of
the law based on “service requirement and being involuntarily separated
from a Reserve unit due to medical disqualification during the period March
12, 1993 through December 31, 2001.”

      In light of the applicant’s history of participation, the Board
believes, in effect, had the applicant been aware of the new law governing
medically disqualified Reserve members with at least 15 years of service,
he would have requested a separation date to coincide with the change in
the law.  Hence, it concludes that depriving the applicant of retired pay
at age 60 would be unjust and also would circumvent the intent of the
legislation.  I disagree.  To the contrary, I believe granting the
applicant’s request would be circumventing the intent of the law.  The
applicant was found physically disqualified for further military duty on
May 26, 1994.  He was notified of the discharge action on June 2, 1994, and
elected transfer to the Honorary Retired Reserve in lieu of further
discharge processing.  In accordance with the governing regulation in
effect at the time, once discharge action was initiated, it was usually
processed in 60 calendar days.

      As indicated earlier, the early retirement law that permits disabled
active reservists to retire with eligibility for retired pay at age 60 if
they have at least 15 years of satisfactory service was effective October
5, 1994, and was not retroactive.  Since the applicant was discharged prior
to that date, 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, or that
he had a regulatory right to delay his discharge processing until the new
early retirement law became effective would be grossly unfair to the
hundreds of active reservists who do 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 & Reserve Affairs)