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