RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-00015
            INDEX CODES:  128.00, 136.00

            COUNSEL:  NONE

            HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  7 Jul 06

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected  to  reflect  he  retired  from  active  duty
effective the date of his  separation,  with  back  pay;  or,  in  the
alternative, the monthly recoupment of his Special Separation  Benefit
(SSB) payments from his monthly Reserve retirement pay be reduced from
its current level of 87 percent.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was denied an opportunity to retire  from  active  duty,  and  that
ineffective counseling, misleading and vague information, and  failure
to follow the guidelines established by 10 USC 1174a resulted  in  the
recoupment of over 87 percent of his monthly military retirement pay.

He believes he was a victim of circumstances.  He  is  not  contesting
the law that governs his separation; however,  he  is  contesting  the
inadequate process of implementation, where ineffective counseling and
failure to follow the law has led to his hardship.

In support of his appeal, the applicant provided an expanded statement
and other documents associated with the matter under review.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant had prior enlisted service in the  Air  National  Guard,  as
well as active duty enlisted service in the  Regular  Air  Force  from
31 May 62 to 27 May 66.  He  was  commissioned  and  received  Federal
recognition as a captain, Air National Guard, on 10 May 79.  Applicant
entered extended active duty on 15 Jul 80  in  the  grade  of  captain
after being discharged from the Air National  Guard  to  enter  active
duty.

An Officer SSB Agreement, signed  by  the  applicant  on  16  Mar  92,
indicated that pursuant to 10 USC 1174a in consideration of  receiving
special separation pay in the amount  of  $101,896.78,  he  agreed  to
separate from active duty and  accept  an  appointment  in  the  Ready
Reserve for a period  of  three  years  beyond  any  existing  service
obligation.  He was released from active duty and transferred  to  the
Reserve of the Air Force on 5 Jun 92 in the  grade  of  captain,  with
17 years, 3 months, and  1  day  of  active  service,  and  12  years,
9 months, and 4 days of inactive service.  He received separation  pay
in the amount of $101,896.78.

Per Reserve Orders BA-2915,  dated  5  May  1993,  the  applicant  was
promoted to the Reserve grade of major, with  an  effective  date  and
promotion service date of 10 May 1986.

He was assigned to the Nonobligated Nonparticipating  Ready  Personnel
Section (NNRPS) on 6 June 1992. He was subsequently  assigned  to  the
Inactive Status List Reserve Section (ISLRS) on 6 June 1995.

Applicant was relieved from his Reserve  assignment  and  assigned  to
Retired Reserve Section and his name was placed on the Reserve Retired
List effective 8 Jun 00, in the grade major.

The remaining  relevant  facts  pertaining  to  this  application  are
contained in the letters prepared by the appropriate  offices  of  the
Air Force.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPRRP recommended denial stating  that  although  the  applicant
believes that 10 USC 1174a(c)(3) excluded him from eligibility for the
SSB, this law did not exclude him from payment under the  SSB  because
he did not have 20 years of  Total  Active  Federal  Military  Service
(TAFMS) earned on extended active duty and/or full-time National Guard
duty between 31 May 62 and his separation date of 5 Jun 92.

The letter notifying him of his eligibility for retired pay at age  60
indicated that he had 20 "good" years for a Reserve  retirement  under
10 USC 1331 (now 10 USC 12731), not an active duty retirement under 10
USC 8911.  If he had 20 years TAFMS when  he  separated  in  1992,  he
would have qualified for an active duty retirement.  The law  did  not
exclude him from participation in the SSB program as he  did  not  yet
qualify for a 20-year active duty retirement because he had less  than
20 years TAFMS earned on active duty and the National Guard.

According to AFPC/DPPRRP, a statement in the applicant’s SSB agreement
was clear on what amount would  be  deducted  from  his  retired  pay.
Although the applicant believed the recoupment to be not more than  15
percent, there was no  percentage  mentioned  in  the  statement.   By
signing the statement, the applicant acknowledged the ramifications of
accepting the SSB and, later, being eligible for retired pay at age 60
since that retired pay  was  based  upon  active  duty  for  which  he
received an SSB payment.

AFPC/DPPRRP indicated that a great portion of the applicant’s  Reserve
retired pay was based upon the service for which he received  his  SSB
payment.   The  percentage  that  is  now  being  recouped  from   the
applicant's retired pay is the same percentage  that  constitutes  the
service that led to his SSB payment.  The amount he  is  receiving  in
retired pay, after recoupment, is for service for  which  he  did  not
receive SSB payment.  Recoupment  will  continue  at  that  percentage
until the entire amount of SSB payment is recouped.  The SSB agreement
met the letter of the law and clearly referenced 10  USC  1174a.   The
agreement also addressed that recoupment would occur if, and when, the
applicant became eligible for retired pay, so the claims made  by  the
applicant are clearly unfounded when he states that he  did  not  know
that his Reserve retired pay would be recouped for  the  SSB  payment.
His signature appears on this document.

AFPC/DPPRRP  noted  the  applicant  has  requested  an   active   duty
retirement effective on his date of separation  on  5  Jun  92.   They
stated the applicant did not have sufficient active service to request
an active duty retirement at the time of his separation.  The law that
governs retirement eligibility for an officer is  10 USC  8911,  which
requires that an officer have at least 20 years  of  service  computed
under 10 USC 8926  that  defines  the  20  years  be  active  service.
Although the applicant had considerable Reserve service to qualify him
for a Reserve retirement  in  1985,  the  applicant  had  insufficient
service to qualify  for  an  active  duty  retirement  in  1992.   The
applicant was  also  not  eligible  for  early  retirement  under  the
National Defense Authorization Act for the Fiscal  Year  1992,  Public
Law 102-484, 23 Oct 92, Temporary Early Retirement Act (TERA)  because
the law was enacted after the applicant separated and the Secretary of
the Air Force did not exercise TERA authority for officers until 1 May
95.

A complete copy of the AFPC/DPPRRP evaluation, with attachments, is at
Exhibit C.

DFAS-RPB-TQAL/CL noted the applicant was released from active  service
in 1992 with an SSB in accordance with the provisions of 10 USC 1174a.
 They indicated that 1174a(c) provided the  eligibility  requirements.
If the Air Force determines the applicant was eligible to receive  the
SSB, payment must be recouped  from  any  retired  pay  based  on  the
formula in 10 USC 1174.

A complete copy of the DFAS-RPB-TQAL/CL evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the  advisory  opinions  and  provided  a  detailed
response indicating, in summary, that he truly feels like he has  been
done  an  injustice.   He  would  not  be  submitting  a  request  for
correction of records if it were  not  for  the  excessive  87 percent
recoupment of his retired pay, although he  feels  he  was  improperly
separated.  Whether it was caused by a lack of proper execution on the
Air Force part  or  from  a  lack  of  knowledge  due  to  ineffective
counseling resulting in poor judgment on his part, he is the  one  who
has and is still suffering.  His actions (separation in 1992), has not
cost the Air Force anything.  It has cost  him  everything.   The  Air
Force has profited considerably. The bottom line is that he has served
over 40 years for pay purposes.  He has an excellent  record  and  has
committed no criminal infractions to cause this situation.  He gave up
two years and nine months of active duty pay, and ten years of  active
duty retirement pay, totaling in the neighborhood of approximately one-
half million dollars savings for the Air Force, just for the  loan  of
approximately $70,000 net after  taxes.   He  said  loan  because  the
$70,000 is being recouped, including the money that was  withheld  for
federal and state taxes.  In addition, the money is being recouped  at
87 percent a  month  before  withholding  taxes,  putting  him  in  an
impossible livelihood and tax situation.  He would not  have  accepted
this deal had he been properly counseled.

Applicant’s complete response, with attachments, is at Exhibit F.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

HQ USAF/JAA  recommended  denial  indicating  that  they  believe  the
applicant is not entitled to receive active duty retired pay and  back
pay, and that the monthly offset percentage of recoupment could not be
reduced.

According to HQ USAF/JAA, the SSB agreement signed  by  the  applicant
specifically informed him that if he became eligible for retired  pay,
based in part on active duty for which he received the  SSB,  that  an
amount would be deducted from each payment of that retired  pay  until
the amount deducted equaled the total amount of the SSB received.   In
accordance with the statutory  law  governing  the  SSB  program,  the
applicant is having deducted from each payment  of  retired  pay  that
portion of the retired pay that is based on the service for  which  he
received separation pay until the total amount deducted  is  equal  to
the total amount of the separation pay.  Contrary to  the  applicant's
assertions,  the  law  is  clear  on  this   administrative   process.
A procedure was established by the governing statute, as  amended,  to
review for ineffective counseling those cases  where  an  officer  was
separated pursuant to a Reduction in Force (RIF), after  electing  not
to utilize, among others, the SSB program.  The  applicant's  case  is
not covered by this procedure since he elected to separate  under  the
SSB program.

In HQ USAF/JAA’s opinion, the applicant has failed to demonstrate  the
existence of any error or present facts and  circumstances  supporting
an injustice.

A complete copy of the HQ USAF/JAA evaluation is at Exhibit G.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant reviewed  the  advisory  opinion  and  provided  a  detailed
response indicating, in summary, that after reviewing the advisory, he
realizes even more than before that he has a legitimate case.  He  has
made an honest attempt to show where he  is  sure  the  law  has  been
violated.  The advisory opinion sought to discredit many of the things
he has listed as adverse affects of the violation of the law,  instead
of properly looking into his primary  claim.   He  is  in  a  hardship
situation, and it is unjust to violate the law and say it is all right
because he signed an agreement.  He  believes  that  if  the  law  was
broken, then the agreement should be scrutinized for its validity.

Applicant’s complete response, with attachments, is at Exhibit I.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

HQ USAF/JAA again recommended denial.   They  believed  the  heart  of
applicant's request is his claim that he was not eligible for the SSB,
and never should have been separated under its authority.  However, in
their view, the applicant  misinterprets  the  statute  governing  SSB
eligibility.  10 USC 1174a established eligibility for  the  SSB,  and
the applicant met all of the requirements.  Moreover, he did not serve
on active duty or in the full-time Guard or any combination of the two
for more than 20 years.  The  fact  that  the  applicant  had  already
qualified for a Reserve retirement is not relevant to his  eligibility
for payment of the SSB.  Also, the fact that he could qualify for both
a Reserve retirement and the SSB was explicit on the form in which  he
agreed to repay his SSB in the event he received Reserve retired  pay.
Since applicant knew in 1985 that he was entitled to  receive  Reserve
retired pay, this requirement should have held special significance to
him.  Nonetheless, he met each of the  eligibility  criteria  for  the
SSB, and was therefore properly separated under its authority.

HQ USAF/JAA noted the applicant  contention  he  received  ineffective
counseling, and that the statute, as amended  in  1994,  provides  him
relief.  They stated the statute only provides relief for officers who
were separated by a RIF who later claimed that they were ineffectively
counseled and thus receive Voluntary Separation Incentive (VSI) or SSB
retroactively.  This statute does not apply  to  applicant.   However,
even if it did, it would not help his claim.  The  applicant  received
effective  and  accurate  counseling.   As  described  above,  he  was
eligible for the SSB, he knew that he would  receive  Reserve  retired
pay at age 60, and he acknowledged that he understood he would have to
repay his SSB payments.  The fact that specific calculations were  not
provided on the amount of retired pay he would receive 13 years in the
future and how much of that money would go to repaying  the  SSB  does
not make his counse1ing ineffective.  Although the applicant states he
is willing to repay the SSB, he claims he has not  been  provided  the
legal authority which requires such reimbursement.  That authority  is
found in 10 USC 1174, subparagraph (h).

Regarding the applicant’s contention that the formula  being  used  to
recoup his SSB is patently unreasonable and requests the  Board  amend
the amount to 15 percent of his retirement pay, HQ USAF/JAA  indicated
the repayment formula is established by statute and is neither  unfair
nor unjust.

HQ USAF/JAA noted the applicant requests that his records  be  amended
to show he fulfilled the requirements for an active  duty  retirement,
he be awarded back pay, his back pay be used to  liquidate  his  debt,
and that any remaining debt be recouped from  his  pay  in  a  smaller
relative amount.  According to HQ USAF/JAA, there is no basis  in  law
or equity to support this request.  The applicant  did  not  serve  20
years active duty.  Despite an AFBCMR decision and  the  Secretary  of
the Air Force (SECAF) order retaining applicant on active  duty  until
such  time  as  he  qualified  for  an  active-duty   retirement,   he
nonetheless voluntarily pursued separation under the SSB program.

In HQ USAF/JAA’s view, the applicant has  failed  to  demonstrate  the
existence of any error  or  to  present  any  facts  or  circumstances
supporting an injustice.

A complete copy of the HQ USAF/JAA evaluation is at Exhibit J.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant reviewed  the  advisory  opinion  and  provided  a  detailed
response.  He noted the advisory erroneously stated  that  his  appeal
had been denied by the AFBCMR.  In summary, he again stated his belief
that he has a legitimate case.

Applicant’s complete response, with attachments, is at Exhibit L.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

HQ USAF/JAA again recommended  denial  indicating  that  upon  further
review of the case, they  agree  the  AFBCMR  had  not  acted  on  the
applicant’s appeal, and that their comments was in error.   With  that
sole exception, their  previous  advisory  opinions  are  an  accurate
statement of the law.  The applicant has provided no  new  information
in his reclama that causes them to revise their  opinions.   In  their
view, the applicant has failed to demonstrate  the  existence  of  any
error  or  to  present  any  facts  or  circumstances  supporting   an
injustice.

A complete copy of the HQ USAF/JAA evaluation is at Exhibit M.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant reviewed the advisory opinion and provided another  detailed
response indicating, in summary, that he is in total disagreement with
the advisory.  He cited what he believes are errors in  the  advisory.
He also believes he has presented the necessary facts and evidence  to
demonstrate a direct violation of the very law the opinions has  often
referenced.  Failure to acknowledge his  military  service  is  within
itself an error, and borders on a denial of his equal rights under the
law.

He believes all recommendations  have  been  offered  as  options  for
relief.  He trusts the AFBCMR will make the fairest and most equitable
decision possible.  If the  AFBCMR  determines  the  National  Defense
Authorization Act for Fiscal Year 1993  does  not  apply  to  him,  he
suggests he be provided an active duty retirement as  of  30  Mar  95,
with back pay and recoupment of the SSB from the  back  pay.   In  his
view, this option is fair and would put things in order  where  nobody
suffers.

Applicant’s complete response is at Exhibit O.

(Examiner’s Note:  A copy of the HQ USAF/JAA advisory  opinion,  dated
13 Dec 05, was forwarded to applicant by the AFBCMR on 20 Dec  05  for
review and response.  However, prior to this,  SAF/MRBR  had  provided
the applicant a copy by electronic mail (e-mail).  As  a  result,  the
applicant provided a rebuttal response on 18 Dec 05, which  was  prior
to being provided a  formal  copy  of  the  advisory  opinion  by  the
AFBCMR).

_________________________________________________________________

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.  Insufficient relevant evidence has been presented  to  demonstrate
the  existence  of  error  or  injustice.   The  applicant's  complete
submission was thoroughly  reviewed  and  his  contentions  were  duly
noted.  However, we do not find the  applicant’s  assertions  and  the
documentation  presented  in  support  of  his   appeal   sufficiently
persuasive to override the rationale provided by the Air Force offices
of primary responsibility (OPRs).  In our view, the issues  raised  by
the applicant were more than adequately addressed by  the  OPRs.   The
evidence of  record  indicates  that  on  16  Mar  92,  the  applicant
voluntarily signed an agreement to receive SSB pay in  the  amount  of
$101,896.78, with a date of separation of 5 Jun 92.  Further, the  SSB
agreement specified that if he became eligible for retired pay,  based
in part on active duty for which he received the SSB, that  an  amount
would be deducted from each payment of  that  retired  pay  until  the
amount deducted equaled the total  amount  of  the  SSB  he  received.
Notwithstanding his assertions to the contrary, no evidence  has  been
presented which has shown to our satisfaction  he  did  not  meet  the
eligibility criteria for separation under the SSB program, he was  not
properly separated under the governing statute, or  that  he  was  the
victim of ineffective counseling.  In view of the  foregoing,  and  in
the absence of sufficient evidence to the contrary,  we  conclude  the
applicant has failed to sustain his burden of establishing that he 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 AFBCMR Docket Number BC-
2005-00015 in Executive Session on 7 Feb 06, under the  provisions  of
AFI 36-2603:

      Mr. James W. Russell III, Panel Chair
      Ms. Janet I. Hassan, Member
      Mr. James A. Wolffe, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 2 Nov 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRRP, dated 26 Jan 05, w/atchs.
    Exhibit D.  Letter, DFAS-RPB-TQAL/CL, dtd 28 Feb 05.
    Exhibit E.  Letter, SAF/MRBR, dated 4 Mar 05.
    Exhibit F.  Letter, applicant, dated 12 Mar 05, w/atchs.
    Exhibit G.  Letter, HQ USAF/JAA, dated 5 May 05.
    Exhibit H.  Letter, AFBCMR, dated 16 May 05.
    Exhibit I.  Letter, applicant, dated 21 May 05, w/atchs.
    Exhibit J.  Letter, HQ USAF/JAA, dated 9 Aug 05.
    Exhibit K.  Letter, AFBCMR, dated 12 Aug 05.
    Exhibit L.  Letter, applicant, dated 21 Aug 05, w/atchs.
    Exhibit M.  Letter, HQ USAF/JAA, dated 13 Dec 05.
    Exhibit N.  Letter, AFBCMR, dated 20 Dec 05.
    Exhibit O.  Letter, applicant, dated 18 Dec 05.




                                   JAMES W. RUSSELL III
                                   Panel Chair