RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
INDEX CODE 113.00 131.04 131.05
IN THE MATTER OF: DOCKET NUMBERS: BC-2004-01089
COUNSEL: None
XXXXXXX HEARING DESIRED: No
_________________________________________________________________
APPLICANT REQUESTS THAT:
1. His active duty (AD) service from 18 Jan 01 until 31 May 02, be
credited as the highest grade held of lieutenant colonel.
Or
2. Consider six months time-in-service (TIS) from the period Jun 02
until Apr 04 as equivalent service for lieutenant colonel due to
satisfying the “intent” of Title 10, USC, Section 1370.
Or
3. His Reserve retired grade of major be upgraded to lieutenant
colonel when he reaches age 60 [and is eligible for Reserve retired
pay.]
Or
4. Grant him a Presidential waiver for time-in-grade (TIG)
requirements based on exceptional or unusual circumstances under the
provisions of Title 10, USC, Section 1370(a)(2)(D) [extreme hardship
or exceptional/unusual circumstances].
Or
5. Grant retroactive AD retirement in the grade of major effective on
1 Jun 02.
_________________________________________________________________
APPLICANT CONTENDS THAT:
The issue is satisfactory service performed in the highest grade. He
was selected for promotion in Sep 00, with an “effective date of 18
Jan 01.” His promotion was delayed until he completed his AD service
commitment as an Active Guard Reservist in the grade of major. As a
lieutenant colonel in the Reserves, he served satisfactorily for 22
months until his mandatory separation date (MSD) of 1 Apr 04. The Air
Reserve Personnel Center (ARPC) determined that over six months of
this time was creditable service for retirement. To say he has not
satisfactorily served at the highest grade held for at least six
months deserves reconsideration. His decision not to retire in Jun 02
as a major was based on incorrect guidance provided.
The applicant’s complete submission, with attachments, is at Exhibit
A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant, a Reserve major, entered AD on 3 Nov 97. While on an
Active Guard Reserve (AGR) tour, the applicant was notified on 6 Dec
00, by Reserve Order (RO)-BA-2021, that he was promoted to the Reserve
grade of lieutenant colonel effective and with a date of rank (DOR) of
18 Jan 01. However, the order also advised the applicant that, until
he reverted to an Individual Mobilization Augmentee (IMA) status and
was placed in a higher graded position, he would not be authorized to
pin-on the new grade. Further, separate orders would be issued when
the pin-on was authorized.
On 31 May 02, after 21 years and 18 days of active service, the
applicant was released in the grade of major from AD and converted to
a traditional Reserve status (IMA) on 1 Jun 02.
Reserve Order BA-475, dated 4 Jun 02, ordered the applicant’s
promotion to the Reserve grade of lieutenant colonel with a date of
rank (DOR) of 18 Jan 01 and an effective date of 1 Jun 02, when he
converted to a traditional Reserve status (IMA).
According to HQ ARPC/DPP, the Military Personnel Data System (MILPDS)
shows two different dates for DOR to lieutenant colonel for the
applicant: (1) the 18 Jan 01 date of his selection to lieutenant
colonel, and (2) the 1 Jun 02 Grade Current Effective date, which is
the actual effective date of his promotion to lieutenant colonel.
On 27 Jun 02, the applicant emailed HQ ARPC/DPPR, asking whether he
could retire “active-duty wise” as a lieutenant colonel if his MSD of
Apr 04 were not extended. He advised ARPC the effective date of his
promotion was 1 Jun 02. In a 11 Jul 02 email, ARPC advised him that,
based on his 18 Jan 01 DOR, which was the date listed in “the system,”
his retired pay grade would be lieutenant colonel if he was separated
on his MSD because he would have one year of AD, “well over the six
months required.”
The applicant applied for retired pay under the provision of Title 10,
USC, Section 8911, to be effective 1 Apr 04, his Mandatory Separation
date (MSD).
To retire under the provision of Title 10, USC, Section 8911, an
officer in a grade above major must complete three years AD in grade
(Title 10, USC, Section 1370). This requirement is reduced to six
months active duty if the officer has to separate under a mandatory
provision of law. The applicant’s promotion to lieutenant colonel on
18 Jan 01 was not effective until after he had been released from AD
and reassigned to the Reserves on 1 Jun 02. After his return to the
Reserves, he earned 16 AD days for the Retirement/Retention (R/R) year
ending 17 Jan 03, 39 AD days for R/R year ending 17 Jan 04, and 7 AD
days for the current R/R year. When the applicant was transferred to
the Retired Reserves on his MSD of 1 Apr 04, he had earned only 62
days of AD in the grade of lieutenant colonel.
_________________________________________________________________
AIR FORCE EVALUATION:
HQ ARPC/DPP advises since the applicant retired due to his MSD, he
needed to complete at least six months (180 days) AD as a lieutenant
colonel. However, he only completed 58 [since updated to 62] days.
The 11 Jul 02 email verifies that someone at ARPC told him his AD time
would count from his DOR of 18 Jan 01. The confusion arises from the
MILPDS, which shows two different dates for DOR. The retirement
technician must have looked at the wrong date [18 Jan 01 rather than
the effective date of 1 Jun 02] when he advised the applicant his TIG
would be computed from the 18 Jan 02 date. The applicant believes the
six months additional time he was credited with for 1405 service
should count towards the six-month TIG requirement. Title 10, USC,
Section 1405, is the Reserve time a member can be credited with when
not on full time AD. Once the member qualifies for retirement with 20
years of Total Active Federal Military Service (TAFMS), the Section
1405 service is added to the TAFMS to determine the retired pay
percentage multiplier used when computing retired pay. Since Section
1405 service is actually Reserve time, this time cannot be credited
towards the AD TIG required under Title 10, USC, Section 1370. The AD
time the applicant completed between 18 Jan 01 and 31 May 02 was
served as a major. He apparently received erroneous information
regarding his DOR but this does not change the requirement of law.
Since he did not meet the TIG required by law, the applicant cannot
retire in the grade of lieutenant colonel. Also, there is no
provision of law that allows Section 1405 service to be credited
toward an AD TIG requirement. Under Title 10, USC, Section
1370(a)(2)(B), only the President may waive the TIG requirement for an
individual case involving extreme hardship or exception or unusual
circumstances. This authority may not be delegated. The request
should be disapproved.
A complete copy of the evaluation, with attachments, is at Exhibit B.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant advises that, in Mar 03, he volunteered for and received
Reserve Order OEF-03019, dated 8 Apr 03, for 139 days of active duty
in support of Operation Enduring Freedom. The requesting command
revoked these orders two days before his activation due to the high
success of the Iraqi War. Had this order not been cancelled, he would
have exceeded the active duty service requirement. He fulfilled the
“expectation” of Section 1370 by serving in the grade of lieutenant
colonel for nearly two years. He accrued 65 active duty points, which
far exceeds the minimum point annual participation as a reservist. He
presents alternative remedies for the Board to consider.
A complete copy of applicant’s response, with attachments, is at
Exhibit D.
_________________________________________________________________
ADDITIONAL AIR FORCE EVALUATION:
HQ USAF/JAA addresses the applicant’s request and his alterative forms
of relief. The inaccurate information he received from the ARPC
technician does not change the requirement that he could not pin on
lieutenant colonel until he reverted from serving on an AGR tour to
IMA status. Consequently, there does not appear to be an error or
injustice permitting the applicant to count the 18 Jan 01 to 31 May 02
period toward the time required to retire in the higher grade. Also,
while his point accrual as in IMA in the grade of lieutenant colonel
may not have been minimal from a Reserve standpoint, it does not meet
the statutory requirement for serving six months TIG (where retirement
is due to a MSD). Further, he was correctly advised that active
participation in the Reserves would not meet the TIG requirement for
active duty retirement. The applicant argues that over six months of
his satisfactory service from Jun 02 until Apr 04 were determined by
ARPC as creditable service for retirement. This time is computed
under Title 10, USC, Section 1405, which is Reserve time. His attempt
to use this section to bolster his TIG fails because, once he was
qualified for retirement with 20 years Total Active Federal Military
Service (TAFMS), Section 1405 service is added to the TAFMS when
computing retired pay. Because Section 1405 is actually Reserve time
(not including AD), it cannot be credited toward the AD TIG
requirements. His request for a Presidential waiver under Section
1370(a)(2)(D) because he could not be promoted while on AGR status
even though selected for promotion does not rise to the level of
exceptional or unusual circumstances as this result obtains in all
cases where officers are serving in an AGR status. His final
alternative request is to be allowed to retire as a major effective 1
Jun 02, ostensibly because it would have been more financially
beneficial to do so. While the email exchange between the retirement
technician and the applicant does not expressly indicate he would have
retired in Jun 02 had he been provided accurate advice concerning TIG
requirements, it is for the Board to determine whether the erroneous
information constituted an error or injustice that it would be
appropriate to retroactively retire him as a major effective Jun 02.
A complete copy of the additional evaluation is at Exhibit E.
_____________________________________________________________
APPLICANT’S REVIEW OF ADDITIONAL EVALUATION:
The applicant asserts the advisory opinions clearly admit the Reserve
technician rendered erroneous information concerning his qualification
to retire as a lieutenant colonel. The 11 Jul 03 email from ARPC
repeated he would retire as a lieutenant colonel. Based on this
advice, he had total confidence he could retire at his highest grade
held and had no reason to apply for retirement earlier as a major. He
was eligible for immediate “voluntary retirement” as a major as early
as Jun 01 but was committed to his AGR tour until Jun 02. He demands
his date of retirement be retroactive to 1 Jun 02 as a major. He
provides reasons for seeking a waiver of the TIG requirements to
retire as a lieutenant colonel. He relied heavily on ARPC advice to
postpone retirement. To retire two years later in the same grade that
he previously qualified for is a great injustice to him and his
family.
The applicant’s complete submission, with attachments, is at Exhibit
G.
______________________________________________________________
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 to warrant retiring the applicant
from AD in the grade of major effective 1 Jun 02. The applicant’s
promotion to lieutenant colonel could not be effective while he was on
his AGR tour. After he was released from AD and reverted to IMA
status, he was promoted to the grade of lieutenant colonel effective 1
Jun 02. While his service as an IMA may not have been minimal, it
does not meet the statutory requirement for serving six months TIG,
where retirement is due to a MSD. Active participation in the
Reserves does not meet the TIG requirement for AD retirement. The
applicant argues that six months of his service from Jun 02 to Apr 04
should be considered as equivalent service for higher grade purposes.
However, because Section 1405 service is actually Reserve time (not
including AD), this period cannot be credited toward the AD TIG
requirement. The applicant only earned 62 days of AD in the grade of
lieutenant colonel. As for a Presidential waiver, his situation does
not rise to the level of exceptional or unusual circumstances as all
officers serving in an AGR status are similarly affected. While the
information the applicant received in Jul 02 from the retirement
technician was incorrect, we note he did not request it until nearly a
month after he had been released from AD. However, in the interests
of fairness, we assume the applicant would have opted to retire from
active duty in Jun 02 in the grade of major had he been provided
accurate advice concerning TIG requirements. We believe granting the
applicant an active duty retirement on 1 Jun 02 in the grade of major
is a reasonable compromise that also remains in compliance with the
applicable statutes, and this we so recommend.
_________________________________________________________________
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force
relating to APPLICANT, be corrected to show that, on 31 May 2002, he
was not released from active duty and transferred to the Air Force
Reserves, but on that date he was relieved from active duty and
retired under the provisions of Section 8911, Title 10, United States
Code, effective 1 June 2002, in the grade of major.
_________________________________________________________________
The following members of the Board considered this application in
Executive Session on 9 September 2004 under the provisions of AFI 36-
2603:
Mr. Edward H. Parker, Panel Chair
Mr. Albert C. Ellett, Member
Ms. B. J. White-Olson, Member
All members voted to correct the records, as recommended. The
following documentary evidence relating to AFBCMR Docket Number BC-
2004-01089 was considered:
Exhibit A. DD Form 149, dated 30 Mar 04, w/atchs.
Exhibit B. Letter, HQ ARPC/DPP, dated 28 Apr 04, w/atchs.
Exhibit C. Letter, SAF/MRBR, dated 30 Apr 04.
Exhibit D. Letter, Applicant, dated 14 May 04, w/atchs.
Exhibit E. Letter, HQ USAF/JAA, dated 8 Jul 04.
Exhibit F. Letter, AFBCMR, dated 14 Jul 04.
Exhibit G. Letter, Applicant, dated 4 Aug 04, w/atchs.
EDWARD H. PARKER
Panel Chair
AFBCMR BC-2004-01089
MEMORANDUM FOR THE CHIEF OF STAFF
Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat 116), it is
directed that:
The pertinent military records of the Department of the Air
Force relating to , be corrected to show that, on 31 May 2002, he
was not released from active duty and transferred to the Air Force
Reserves, but on that date he was relieved from active duty and
retired under the provisions of Section 8911, Title 10, United States
Code, effective 1 June 2002, in the grade of major.
JOE G. LINEBERGER
Director
Air Force Review Boards Agency
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