RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-00063
            INDEX CODE:  110.03

            COUNSEL:  NONE

            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  10 JUL 07

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be reappointed as a Reserve Officer and placed  on  the  Retired  Reserve
List without pay or benefits in accordance with Air Force Instruction  (AFI)
36-3203.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He  was  medically  discharged  in  August   2002.    After   administrative
consultation with Air Reserve Personnel Center (ARPC), he was informed  that
the Honorary Retired Reserve no longer existed.   However,  after  reviewing
Army Regulation 140-10, dated 15 August 2005 pages 39 and 40 and the  Marine
Corps Separation and Retirement Manual (MCO P1900.16F), pages 3 through  21,
he found that both services not only acknowledge this class  of  reserve  to
exist, but still appoint people to it.  Since  the  law  and  Department  of
Defense (DOD) regulations/instructions did  not  specifically  abolish  this
category, it remains in existence.  Finally, a regulation or instruction  is
presumed valid until superseded, this has not happened in the  case  of  AFI
36-3203.

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

_________________________________________________________________

STATEMENT OF FACTS:

On 1 March 1993, the applicant entered active duty (EAD).

AF Form 618, Medical Board Report,  dated  25  October  2001  indicates  the
applicant was diagnosed with obstructive sleep  apnea,  obesity  (height  71
inches and weight 240 pounds), and myofascial pain.  The  board  recommended
the applicant’s case be referred to the Informal Physical  Evaluation  Board
(IPEB).

On 28  October  2001,  a  Medical  Evaluation  Board/Commander’s  Evaluation
indicates, the applicant had not been able to perform all  of  his  required
duties  while  assigned  to  the  67th  Information  Operations  Wing.    He
continued to periodically miss days of work or  had  to  leave  early  as  a
result of his condition(s).  His health prevented him  from  being  able  to
mobilize and deploy.  At times, he had been unable to  travel  on  temporary
duty (TDY) for  the  execution  of  his  duties.   He  believed  his  health
problems had contributed to  his  continued  increase  of  weight  that  had
resulted in a continued  deterioration  of  his  personal  appearance.   The
commander further indicated the applicant  is  an  intelligent,  resourceful
and motivated officer whose health made it impractical to expect him  to  be
able to meet Air Force expectations of duty for  his  continued  service  in
the Air Force.

AF Form 356, USAF Formal Physical Evaluation Board  (FPEB),  dated  4  April
2002 indicates the applicant was  diagnosed  with  Category  I  -  Unfitting
conditions which were compensable and ratable: fibromyalgia associated  with
migraine headaches,  irritable  bowel  syndrome,  obstructive  sleep  apnea,
gastroesophageal reflux disease.  Category II - Conditions that  could  have
been unfitting but  were  not  compensable  or  ratable:  seasonal  allergic
rhinitis.  Category III - Conditions that were not separately unfitting  and
not compensable or ratable:  obesity.   Additional  findings  indicated  the
applicant was unfit because of physical disability and that  the  disability
was incurred in the line of duty.  The degree of impairment  may  have  been
permanent and his compensable percentage rating  was  20  percent.   It  was
recommended the applicant be discharged with severance pay.

AF Form 1180,  Action  on  Physical  Evaluation  Board  (PEB)  Findings  and
Recommended Disposition, dated 4 April 2002 indicates the  applicant  agreed
with the findings and recommended disposition of the FPEB Hearing.

AF Form 356, Findings and Recommended Disposition of USAF PEB, dated 29  May
2002 indicates the applicant was  diagnosed  with  Category  I  -  Unfitting
conditions which were compensable and ratable: fibromyalgia.  Category II  -
Conditions that could have  been  unfitting  but  were  not  compensable  or
ratable: seasonal allergic rhinitis;  migraine  headaches;  irritable  bowel
syndrome; obstructive sleep  apnea;  and  gastroesophageal  reflux  disease.
Category III -  Conditions  that  were  not  separately  unfitting  and  not
compensable  or  ratable;  Obesity.   Additional  findings   indicated   the
applicant was unfit because of physical disability and that  the  disability
was incurred in the line of duty.  The degree of impairment  may  have  been
permanent and his compensable percentage rating  was  20  percent.   It  was
recommended he be discharged with severance pay.




On 29 May 2002, the Secretary of the Air Force  Personnel  Council  directed
the applicant be discharged and receive  severance  pay  with  a  disability
rating of 20 percent under the provisions of Title 10, USC, Section 1203.

On 6 August 2002, the applicant was honorably discharged  in  the  grade  of
captain under the provisions of AFI 36-3212 Disability, Severance  Pay.   He
served nine years, five months, and six days of total active duty service.

_________________________________________________________________

AIR FORCE EVALUATION:

ARPC/XP recommended denial.  They indicated the applicant bases his  request
under AFI 36-3203, Service Retirements, dated 12 September  2003,  paragraph
8.4.2.5.  He further offers that this category  of  retired  reserve  exists
because other services still recognize and use that specific terminology  in
their regulations when transferring reservists within that service.

There is no statutory authority in  Title  10  USC  or  in  DOD  Instruction
(DODI)  or  Directive  (DODD)  for  an  “Honorary  Retired  Reserve.”   DODD
1200.15, Assignment to and Transfer between  Reserve  Categories,  Discharge
from Reserve Status and Transfer to the Retired Reserve and Notification  of
Eligibility for Retired Pay dated 16 February 1973 established the  criteria
for transfer to the “Honorary Retired Reserve.”  This DODD was  revoked  and
replaced by DODI 1200.15, same  title,  effective  18 September  1997.   All
items regarding eligibility for transfer to the Retired Reserve for  members
meeting the “Honorary Retired” qualifications were  deliberately  absent  in
the new publication.

The Air Force Reserve made a conscious decision to  eliminate  this  program
effective 1 January 1998.  Headquarters Air Force Reserve notified HQ  AFRC,
the National Guard Bureau, and all subordinate  units  and  Field  Operating
Agencies  that  the  Honorary  Retired  Reserve  category  was   no   longer
authorized and the organizations were directed to “return any AF  Form  131,
Application  for  Transfer  to  the  Retired  Reserve,  submitted  after  31
December 1997,” and to notify  the  member  that  this  category  no  longer
existed.   All  organizations  were  directed  to   either   discharge   the
requesting member or  transfer  them  to  a  nonparticipating  category  (if
applicable).  They were also directed to eliminate  any  references  to  the
category from all correspondence.  All pertinent AFIs were to be updated  to
delete all references to the Honorary Retired Reserve.  Members assigned  to
this category prior to 31 December 1997 have been retained  in  this  former
category but no additional members have been assessed.

Although AFI 36-3203 is dated in 2003,  the  AFI  has  not  been  completely
rewritten since 10 August 1994.  The 2003 date is the result of  an  Interim
Change published in 2003 that only changed a  small  portion  of  that  AFI.
They have been advised by the office of primary  responsibility  (OPR)  that
the next rewrite will  not  include  any  provisions  for  transfer  to  the
Retired Reserve for these individuals.

The most recent DODI 1200.15 clearly eliminated  this  category  of  retired
reserve.  Furthermore, the obsolete information in AFI  36-3203  should  not
be used to recreate a Reserve  category  which  would  not  serve  a  useful
purpose (to benefit the individual  or  the  Air  Force).   The  applicant’s
references to other services procedures or terminology as a  basis  for  the
existence of this category is not binding on the Air Force.   If  the  Board
agrees with their recommendation, no further action is necessary.

If the  Board  disagrees  with  their  recommendation,  take  the  following
actions:  a. Have DODI 1200.15, amended to outline eligibility criteria  for
the  Honorary  Retired  Reserve,  effectively  reestablishing  the  Honorary
Retired Reserve category; b. Direct  the  applicant  be  reassigned  to  the
Honorary Retired Reserve.

The evaluation, with attachments, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the evaluation and indicated that while there  is  no
statutory authority in Title 10 USC or in DODI  or  DODD  for  an  “Honorary
Retired Reserve,” he has established in  his  DD  Form  149  that  precedent
within the DOD demonstrates otherwise.

If as stated in paragraph 3.e. of the advisory, there was intent  to  revoke
AFI 36-3203, this is irrelevant since this action was never taken  and  thus
it remains  valid  until  specifically  rescinded  by  competent  authority,
either in its entirety, or  specifically  by  line,  neither  of  which  are
unknown in the United States Air Force.  Therefore, he submits that the  Air
Force Reserve’s decision, referenced in paragraph  3.d.,  was  made  without
basis regardless of intention to change the AFI.

He has not argued, as stated in  paragraph  4  of  the  advisory,  that  the
actions of another service are  binding,  but  he  would  note  that  ARPC’s
emails (already submitted with the DD Form 149) tried  to  do  exactly  that
when  stating  that  the  other  services  did  deny  requests,  he   simply
demonstrated that those services would not do so in his case.

He would like to state that he never used the  term  “honorary  retired”  in
any of his correspondence, nor does the term exist in AFI  36-3203.   He  is
simply requesting to be placed on  the  retired  reserve  list  without  any
further distinction and, of course, without pay, in accordance with AFI  36-
3203.



The applicant’s response is at Exhibit E.

_________________________________________________________________

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 an error or injustice.  The applicant’s  contentions  are  duly
noted; however,  the  Board  agrees  with  the  opinion  and  recommendation
provided by the Air Force and adopts its rationale  as  the  basis  for  our
conclusions that the applicant has not been the victim of  either  an  error
or an injustice.  The Board notes  DODD  1200.15,  dated  16  February  1973
established the criteria for  transfer  to  the  Honorary  Retired  Reserve.
This DODD was revoked and replaced  by  DODI  1200.15,  dated  18  September
1997.  Effective 1 January  1998,  the  Air  Force  Reserve  eliminated  the
Honorary Retired Reserve category.  Members assigned to this category  prior
to 31 December 1997 have been  retained  in  this  former  category  but  no
additional members have been assessed.  Since the Honorary  Retired  Reserve
was eliminated prior to the date of the applicant’s discharge  in  2002,  he
could not have  been  placed  in  the  program.   Further,  the  applicant’s
references to other services’ procedures or terminology as a basis  for  the
existence of this category is not binding on the Air Force.   Therefore,  in
the absence of evidence to the contrary, we  find  no  compelling  basis  to
recommend granting the relief sought.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented  did  not  demonstrate  the
existence of an error or an injustice; the application was denied without  a
personal appearance; and 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  2006-
00063 in Executive Session on 23 May 2006, under the provisions of  AFI  36-
2603:


                 Ms. Cathlynn B. Sparks, Panel Chair
                 Mr. Jay H. Jordan , Member
                 Ms. Josephine L. Davis, Member

The following  documentary  evidence  pertaining  to  this  application  was
considered:

   Exhibit A.  DD Form 149, dated 24 February 2005, w/atchs.
   Exhibit B.  Applicant’s Master Personnel Records.
   Exhibit C.  Letter, ARPC/XP, 14 March 2006, w/atchs.
   Exhibit D.  Letter, SAF/MRBR, dated 17 March 2006, w/atch.
   Exhibit E.  Letter, Applicant, 23 March 2006.





                       CATHLYNN B. SPARKS
                       Panel Chair