RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2004-01847
INDEX CODE: 136.00
COUNSEL: NONE
HEARING DESIRED: YES
_________________________________________________________________
APPLICANT REQUESTS THAT:
She be returned to active duty on an Active Guard Reserve (AGR) tour
to Lackland AFB or Randolph AFB in San Antonio, TX, and that she be
allowed to complete 20 years of Total Active Federal Military Service
(TAFMS) and retire.
She be paid all back pay and allowances from 22 Feb 00 to the present.
_________________________________________________________________
APPLICANT CONTENDS THAT:
She was in the sanctuary zone when she entered the Air Force Reserve
on 3 Dec 99. She completed Active Duty for Special Work (ADSW) tours
over a period of 14 months and never had an approved waiver on file at
HQ ARPC. She was utilized as an active duty asset and was paid for
those active duty days but was never briefed that she had the right to
invoke sanctuary protection and to stay on active duty until she
reached 20 years of TAFMS. She believes the Air Force Reserve should
correct this situation now that they are aware of the problem.
In support of her appeal, the applicant provided copies of her pay
calendar, point credit summary, active duty orders, leave and earning
statements, and other documents associated with the matter under
review, to include personal statements, and letters from the Assistant
Vice Commander, Air Force Reserve Command (AFRC/ACV) and the Inspector
General, Air Force Reserve Command (AFRC/IGQ).
Applicant’s complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
Applicant’s available military personnel records indicate she enlisted
in the Regular Air Force on 24 Nov 75. She was released from active
duty on 18 Jan 94 under the provisions of AFR 39-10 (Early Release
Program - Special Separation Benefit (SSB)), with entitlement to
$60,043.88 in separation pay. She was credited with 18 years,
1 month, and 25 days of active service.
She was assigned to the Air Force Reserve on 3 Dec 99 in Information
Management.
AF Forms 938, Request and Authorization for Active Duty
Training/Active Duty Tour, indicate that from 24 Feb 00 to 13 Apr 01,
she performed Special Active Duty for Support (ADS) tours in support
of the 433d Logistics Group.
In May 03, the applicant submitted a claim for sanctuary protection.
On 13 Jan 04, the applicant’s claim for sanctuary protection was
denied by AFRC/ACV. The applicant filed an IG complaint and, on 21
May 04, AFRC/IGQ determined that there was no violation of law,
regulation, or procedure regarding the denial of her claim for
sanctuary protection.
Information extracted from the Personnel Data System indicates the
applicant is currently serving in the Air Force Reserve in the grade
of master sergeant, having been promoted to that grade on 1 Apr 02.
She was credited with 23 years of satisfactory Federal Service for
retirement.
_________________________________________________________________
AIR FORCE EVALUATION:
AFRC/DPX recommended denial indicating the applicant made no claim for
sanctuary protection while serving on active duty (other than for
training). Therefore, she did not meet the eligibility criteria to
invoke a claim to sanctuary proctection. Her claim for sanctuary
protection was denied on 13 Jan 04 in accordance with the governing
law and Air Force instruction.
A complete copy of the AFRC/DPX evaluation is at Exhibit B.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to applicant on 16
Jul 04 for review and response. As of this date, no response has been
received by this office (Exhibit C).
_________________________________________________________________
ADDITIONAL AIR FORCE EVALUATION:
AFPC/DPPRRP provided an advisory opinion concerning the implications
connected with accepting an SSB. They indicated the law requires
recoupment of the applicant’s SSB payment of $60,043.88 if she
receives an active duty retirement, a Reserve retirement, or
disability compensation based on service for which she received the
SSB. According to AFPC/DPPRRP, the applicant did not indicate she
understood the implications of having signed the SSB agreement; one of
them being that she agreed not to request or apply for reenlistment in
a Regular component of a military service; the other that SSB
recoupment would occur if and when she received retired pay.
A complete copy of the AFPC/DPPRRP evaluation is at Exhibit D.
_________________________________________________________________
APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:
Applicant reviewed the additional advisory opinion and provided a
response indicating she is not disputing the fact she accepted the
SSB, and understands she will have to repay the money. However, her
dispute is the fact she was placed on active duty orders, without an
approved waiver, over a period of 15 months and that the procedures
stated in the Air Force instruction were not followed. Because the
policy pertaining to her as a sanctuary candidate was not followed,
she was not permitted to claim sanctuary protection after she had been
identified “after the fact.” If the procedures had been followed, she
would have claimed sanctuary protection and would still be on active
duty. Although she would have to repay the SSB, she would be eligible
for an active duty retirement.
Applicant’s complete response is at Exhibit F.
_________________________________________________________________
THE BOARD CONCLUDES THAT:
1. The applicant has exhausted all remedies provided by existing law
or regulations.
2. The application was timely filed.
3. Insufficient relevant evidence has been presented to demonstrate
the existence of error or injustice. The applicant's complete
submission was thoroughly reviewed and her contentions were duly
noted. However, we do not find the applicant’s assertions and the
documentation provided in support of her appeal sufficiently
persuasive to override the rationale provided by AFRC/DPX. We note
the applicant elected to separate from active duty under the SSB
program after having served for over 18 years. She was subsequently
assigned to the Air Force Reserve where it appears she served on
Special ADS tours for many months. She believed she was entitled to
sanctuary protection, and eventually made such a claim. However, it
appears her claim for sanctuary protection was not submitted until
more than two years after she last served on her ADS tours. Her claim
was eventually denied by ARPC/ACV because she did not make an
affirmative request for sanctuary protection while serving on active
duty (other than for training). Furthermore, notwithstanding the
applicant’s allegations, an IG investigation of the denial of her
claim determined there was no violation of law, regulation, or
procedure. In view of the foregoing, and in the absence of sufficient
evidence to the contrary, we agree with the recommendation of ARPC/DPX
and adopt their rationale as the basis for our decision that the
applicant has failed to sustain her burden of establishing she has
suffered either an error or an injustice. Accordingly, we find no
compelling basis to recommend granting the relief sought in this
application.
4. The applicant's case is adequately documented and it has not been
shown that a personal appearance with or without counsel will
materially add to our understanding of the issues involved.
Therefore, the request for a hearing is not favorably considered.
_________________________________________________________________
THE BOARD DETERMINES THAT:
The applicant be notified that the evidence presented did not
demonstrate the existence of material error or injustice; that the
application was denied without a personal appearance; and that the
application will only be reconsidered upon the submission of newly
discovered relevant evidence not considered with this application.
_________________________________________________________________
The following members of the Board considered this application in
Executive Session on 18 November 2004, under the provisions of AFI 36-
2603:
Mr. Richard A. Peterson, Panel Chair
Ms. Dorothy P. Loeb, Member
Ms. Jan Mulligan, Member
The following documentary evidence pertaining to AFBCMR Docket Number
BC-2004-01847 was considered:
Exhibit A. DD Form 149, dated 7 Jun 04, w/atchs.
Exhibit B. Letter, AFRC/DPX, dated 6 Jul 04.
Exhibit C. Letter, SAF/MRBR, dated 16 Jul 04.
Exhibit D. Letter, AFPC/DPPRP, dated 16 Sep 04.
Exhibit E. Letter, SAF/MRBR, dated 24 Sep 04.
Exhibit F. Letter, applicant, undated.
RICHARD A. PETERSON
Panel Chair
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