RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-01310
            INDEX CODE:

            COUNSEL:  NONE

            HEARING DESIRED: NO


MANDATORY CASE COMPLETION DATE:  9 Nov 2006



_________________________________________________________________

APPLICANT REQUESTS THAT:

His record be changed to show 18 satisfactory years of service  rather
than 17 years, 11 months, and 26 days of satisfactory service.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Under the computations mandated by the United States Code (U.S.C.) and
in Department of Defense Instruction  (DoDI)  1215.7,  any  retirement
year in which a service member receives at least 50 retirement points,
and 15 membership points, and in which the service member  serves  for
more than 358 days, that retirement year shall be  considered  a  full
retirement year.  Therefore, his final year in  the  Army,  which  has
been credited as 11 months and 26 days, should be credited as  a  full
year for purposes of retirement.

In support of his  appeal,  the  applicant  has  provided  a  personal
statement, and point summaries from the  Army  and  the  Air  National
Guard (ANG).

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant entered the United States Navy Reserve (USNR) on  24 October
1972 where he served until he began a break in service on 30  November
1982.  His break in service ended on 27 February 1991, when he entered
the US Army Reserve (USAR).  He  was  discharged  from  the  USAR  and
joined the California Air National Guard (CAANG) on 4  November  2004,
where he is currently serving.  His first five years in the USNR  were
considered satisfactory years of service.  His  next  seven  years  of
service were not considered satisfactory years of service and did  not
count towards a Reserve retirement.  After entering the USAR, he added
12 satisfactory years of service to his career from 1991 through 2003,
for a total of 17 years of the 20 years required for eligibility for a
Reserve retirement.  However, it is important to note that  his  final
year in  the  USAR  from  February  2003  to  February  2004  was  not
considered a  satisfactory  year  for  retirement.   Although  he  had
accumulated  95  points  for  the  reserve/retirement  (R/R)  year  in
question, he left the USAR four days short of completing the R/R year:
28 February 2003 to 27 February 2004.  He separated from the  USAR  on
23 February 2004.  Therefore, even with the  95  points,  he  had  not
technically served an entire year with the USAR and therefore was  not
credited with what would have  been  his  18th  satisfactory  year  of
service towards a Reserve retirement.

_________________________________________________________________

AIR FORCE EVALUATION:

ARPC/DPP  recommends  denial.   DPP  notes  the  applicant  originally
applied to have his R/R years of 18 October 1972 to 23 March  1976  be
counted as one year of satisfactory service.  DPP notes the  applicant
submitted an addendum to that application changing his request to make
his R/R year of  28  February  2003  to  27  February  2004  his  18th
satisfactory year of service towards a Reserve retirement.  DPP  cites
OpJAGAF 1981/9, 3 February 1981, wherein a Reservist  had  argued  all
that was required for him to obtain a satisfactory year of service was
to earn 50 participation points, without regard to whether or  not  he
spent a full 365 days in a participating status.  DPP contends he  has
failed to establish that the Air Force has incorrectly interpreted the
law by requiring a Reserve member to remain in  active  status  for  a
full 12 months in order to claim credit for  a  satisfactory  year  of
service for retirement purposes.

DPP’s complete evaluation, with attachments, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Applicant agrees the only issue to resolve is that of whether  or  not
352 days of satisfactory service constitutes a  satisfactory  year  of
service or not.  He contends the OpJAGAF opinion  is  inapplicable  to
his case because the Reservist cited in the OpJAGAF  case  had  earned
only 45 points through 216 days of his  final  year  of  service.   He
cites  10  U.S.C.  Section  12732  and  Department  of  Defense  (DoD)
Regulation 1215.7 where it is stated that a persons years  of  service
are computed by adding points at the rate of 15 a year for  membership
alone.  He contends because he was granted 15 membership points at his
352nd day of service during  the  R/R  year  in  question,  and  since
membership points can only be credited for  “a  year  of  membership”,
that the law supports 353 days of service as a good year.  He contends
the fact DoD 1215.7 assigns reservists 15 memberships  points  at  the
353-day of service mark means, since he served 362 days, the Air Force
is required to award him a full  year  of  service  as  per  10 U.S.C.
12732.

Applicant’s compete response is at Exhibit E.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

HQ USAF/JAA recommends denial.  JAA contends the  applicant’s  use  of
DoD 1215.7 to justify his qualification for  a  satisfactory  year  of
service is not correct.  It is only  used  to  calculate  proportional
points when a member does not have a full year of  service  –  not  to
create a full year of service.  Further, the law does  not  offer  him
any  relief.   He  cites  10  U.S.C.  Section  12732(2)c(i)  for   the
proposition that earning 15 membership points  constitutes  a  “valid,
full retirement year.”  The statute begins, “[T]he person’s  years  of
service are computed by adding the following:  Each  one-year  period,
after July 1, 1949, in which the person  has  been  credited  with  at
least 50 points on the following basis: “…points at the rate of  15  a
year for membership.”  Again, a Reservist has  to  serve  for  a  full
year, and with that year, earn sufficient points.  The points  do  not
create the year; the year is a separate prerequisite  and  establishes
the time frame in which the points must  be  earned.   Based  on  both
regulation and statute, he has failed to demonstrate the existence  of
any error or to present any facts or  circumstances  that  support  an
injustice.

JAA’s complete evaluation is at Exhibit F.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant reiterates the only contention between he and the government
is the definition of  service  for  a  full  year.   The  government’s
position is that a full year requires 365 days of service in the  last
year of service.  His contention is that a full final year of  service
can be satisfied with 353 days of service. Since  he  served  for  362
days, he should be qualified to receive a full year of service.

He offers an alternative to the government’s position and asks that he
be granted a partial year  of  service  from  4  November  2004  to  7
November 2004.  Since  he  participated  with  his  unit  on  5 and  6
November 2004, he received 4 retirement points.   For  this  three-day
partial year, he would have 4 retirement points that would qualify him
for a three-day partial  year.   He  contends  the  Board  could  then
combine this partial year with his previous R/R year  of  28  February
2003 to 27 February 2004 to create a whole year.   This  action  would
make his 18th year of service complete on 7 November  2004  and  after
establishing his new Air Force Service date as 7  November  2004,  his
19th and 20th years of service would then be 7  November  2005  and  7
November 2006, respectively.

Applicant’s compete response is at Exhibit H.

_________________________________________________________________

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.  We agree with  the  HQ  USAF/JAA
opinion that the applicant has failed to establish the Air  Force  has
incorrectly interpreted the law  by  requiring  a  Reserve  member  to
remain in active status for a full 12 months in order to claim  credit
for a satisfactory year for retirement purposes.  However,  the  Board
may base their decision on matters of equity and clemency rather  than
simply on whether rules and regulations which existed at the time were
followed. Therefore, since the applicant had earned 95  points  during
the R/R year in question and served all but four days of the 2004 leap
year prior to joining the Air National Guard the  following  November,
we recommend that the applicant’s records be  corrected  as  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 enlisted in the California  Air  National  Guard  on
24 February 2004 for a period of two years.

            b. On 1 March 2004, he was honorably discharged  from  the
California Air National Guard, and the  retention/retirement  year  28
February 2003 to 27 February 2004 was a satisfactory year of service.

______________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 1 December 2005, under the provisions of AFI  36-
2603:


      Mr. Richard A. Peterson, Panel Chair
      Mr. James W. Russell, III, Member
      Mr. Joseph D. Yount, Member

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

     Exhibit A.  DD Form 149, dated 5 May 05, w/atchs.
     Exhibit B.  Applicant’s Military Personnel Records
     Exhibit C.  Letter, HQ ARPC/DPP, dated 17 May 05, w/atchs.
     Exhibit D.  Letter, SAF/MIBR, dated 20 May 05.
     Exhibit E.  Letter, Applicant’s Response, undated.
     Exhibit F.  Letter, HQ USAF/JAA, dated 4 Aug 05.
     Exhibit G.  Letter, AFBCMR, dated 22 Jun 05.
     Exhibit H.  Letter, Applicant’s Response, undated.




                                   RICHARD A. PETERSON
                                   Panel Chair



                         DEPARTMENT OF THE AIR FORCE
                                WASHINGTON DC

[pic]
Office Of The Assistant Secretary



AFBCMR
1535 Command Drive
EE Wing, 3rd Floor
Andrews AFB MD 20762-7002




Dear Sergeant

      Your application to the Air Force Board for Correction of
Military Records, AFBCMR BC-2005-01310, has been finalized.

      The Board determined that the military records should be
corrected as set forth in the attached copy of a Memorandum for the
Chief of Staff, United States Air Force.  The office responsible for
making the correction will inform you when your records have been
changed.

      After correction, the records will be reviewed to determine if
you are entitled to any monetary benefits as a result of the
correction of records.  This determination is made by the Defense
Finance and Accounting Service (DFAS-DE), Denver, Colorado, and
involves the assembly and careful checking of finance records.  It may
also be necessary for the DFAS-DE to communicate directly with you to
obtain additional information to ensure the proper settlement of your
claim.  Because of the number and complexity of claims workload, you
should expect some delay.  We assure you, however, that every effort
will be made to conclude this matter at the earliest practical date.

                                   Sincerely



                                   RALPH J. PRETE
                                   Chief Examiner
                                   Air Force Board for Correction
                                   of Military Records

Attachment:
Record of Board Proceedings
                         DEPARTMENT OF THE AIR FORCE
                                WASHINGTON DC

[pic]
Office Of The Assistant Secretary



AFBCMR BC-2005-01310




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:

            a. He enlisted in the California  Air  National  Guard  on
24 February 2004 for a period of two years.

            b. On 1 March 2004, he was honorably discharged  from  the
California Air National Guard, and the  retention/retirement  year  28
February 2003 to 27 February 2004 was a satisfactory year of service.





     JOE G. LINEBERGER

     Director

     Air Force Review Boards Agency