RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                     DOCKET NUMBER:  BC-2006-00213
            INDEX CODE:  110.02
      XXXXXXXXXXXXXX                  COUNSEL: NONE

                                             HEARING DESIRED:  YES


MANDATORY CASE COMPLETION DATE:  24 July 2007


_______________________________________________________________

APPLICANT REQUESTS THAT:

His discharge effective 1 June 1987 be changed to a retirement.

_______________________________________________________________

APPLICANT CONTENDS THAT:

He was on active duty for 20 years and 7 days.

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

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 19 December 1966  at  the
age of 20 for a period of four years in the grade  of  Airman  Basic  (E-1).
He was progressively  promoted  to  the  grade  of  master  sergeant  (E-7),
effective and with a date of rank of  1  January  1986  incurring  a  2-year
active duty service  commitment  (ADSC).   On  1  May  1987,  the  applicant
requested voluntary separation from active duty under Air  Force  Regulation
(AFR) 39-10, paragraph 3-19, for  hardship.   He  was  honorably  discharged
effective 1 June 1987 in the rank of master sergeant.  He  served  20  years
and 7 days on active duty.

_______________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPRRP recommends denial.  DPPRRP  states  the  applicant  entered  his
last enlistment on 15 October  1981  for  six  years,  making  his  Date  of
Separation (DOS) and Expiration Term of Service (ETS) effective  14  October
1987.  The applicant was promoted to the  grade  of  master  sergeant  on  1
January 1986.  On October 30 1985, the applicant extended his enlistment  by
three months to a DOS/ETS of 14 January 1988 because a promotion  to  master
sergeant required the applicant acquire contract retainability of two  years
from the promotion date in order to be promoted.

Even though the applicant  had  sufficient  Total  Active  Federal  Military
Service (TAFMS) to request retirement on 1 June 1987,  he  had  insufficient
time–in-grade to request a voluntary retirement.  The applicant,  by  virtue
of having over 20 years TAFMS on 1 June 1987, could have requested a  waiver
(for hardship reasons) of his promotion ADSC in accordance  with  AFR  35-7,
Service Retirements, in order to retire rather than separate on  that  date.
There is no evidence in his military  record  to  indicate  he  requested  a
waiver to the time-in-grade requirements in order to retire on 1 June  1987.
 In addition, AFR 35-7 required that an enlisted member be  on  active  duty
to request retirement.  The applicant requested separation, not  retirement,
while he was on active duty.

The applicant  indicates  his  reasons  for  requesting  separation  due  to
hardship were driven by his financial situation,  divorce  decree,  and  his
desire to enter federal civil  service.   However,  the  applicant  has  not
submitted any evidence showing that working in federal civil  service  would
not have been possible if he had requested to retire on 1 June 1987 with  an
approved ADSC waiver or retire at the end of his commitment on  31  December
1987 instead of requesting discharge on 1 June 1987.  If the  applicant  had
been on terminal  leave  prior  to  the  date  he  fulfilled  his  ADSC  for
promotion, he could have begun working as a federal civil servant  while  on
terminal leave.  In fact, Department  of  Defense  Directive  (DoDD)  1402.1
does not prohibit a military service  retiree  from  being  appointed  to  a
position in the federal service; it requires prior approval  from  the  head
of the Department of Defense (DoD) component or  no  lower  than  one  level
above  the  appointing  authority.   It  is  DPPRRP’s   opinion   that   the
applicant’s choice to separate on 1 June 1987 rather than retire  1  January
1988 had nothing to do with whether or not he  could  be  appointed  into  a
federal civil service position.

The DPPRRP evaluation, with attachments, is at Exhibit B.

AF/JAA recommends denial of the applicant’s request for  correction  of  his
military records.  JAA states on 2 January  1987,  the  applicant  requested
voluntary separation from active duty for reasons  of  “financial  hardship”
under AFR 39-10, paragraph 3-19.  He requested a separation date of 1  March
1987.  The request was  not  granted.   On  12  March  1987,  the  applicant
renewed his request for voluntary separation with a separation  date  of  15
April 1987.  His second request was granted, but  voluntary  separation  did
not occur until 1 June 1987.  If the  applicant  had  voluntarily  separated
according to his preferred time table, he would never have reached 20  years
of creditable service.  By virtue of processing time;  however,  he  reached
20 years and 7 days TAFMS.  As pointed out  by  AFPC/DPPRRP,  the  applicant
never met his time-in-grade requirement  for  voluntary  retirement  and  no
evidence exists in the applicant’s  military  record  to  indicate  he  ever
submitted a waiver to that requirement for retirement  purposes.   Based  on
the applicant’s perception of his best interests, he sought not  to  fulfill
that commitment.  Now the applicant believes the Board  should  correct  his
military records, in the interest  of  justice,  because  he  chose  not  to
retire initially  to  accept  a  federal  civil  service  position.   Having
maximized civil service benefits available to  him  through  non-retirement,
the applicant is now attempting to turn back  the  clock  to  capitalize  on
another government  benefit,  military  retirement,  which  he  never  fully
earned.

In the applicant’s requests in January and March 1987,  he  highlighted  his
ongoing  financial  difficulties,  ruled  out  bankruptcy,  and  skeptically
dismissed the value of retirement.  In January 1987, he requested  voluntary
separation stating “Retiring will not do  anything…because  this  was  taken
away from me in divorce.”  In March 1987, after rejecting the advice of  his
military legal counsel to restructure his loans  or  go  back  to  court  to
contest his wife’s limited liability for past debts, he writes,  “Retirement
[also] does not appear to be the answer.  This would raise my income,  i.e.,
retirement plus potential salary, thereby [sic] forcing me to pay  out  $800
to $1000 per month.  I can not afford to pay out this  money.”   It  appears
the applicant may have rejected military retirement as  means  of  punishing
his former wife who, in his view, was not sharing equally in past  financial
burdens.  Whatever the cryptic financial rationale for rejecting the  option
of retirement - as 50% of  retirement  pay  is  more  advantageous  than  no
retirement pay – this much is clear:  the  applicant  bears  the  burden  of
showing error or injustice on the government’s part and has failed  to  meet
his burden in this case.  Simply stated, the  applicant  long  ago  made  an
important personal decision with ample time to consider  all  repercussions,
and he now regrets the decision made.  This is not  a  prudent  or  powerful
rationale for amending originally correct military records.

The JAA advisory is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

If he had accepted retirement, 45% of his retired pay  would  have  gone  to
his former spouse, but the total retirement amount would  be  accredited  to
him as income.  With child support added to this, he would have been $50  to
$100 dollars short of paying everything.  In addition, if and when he got  a
civilian job, the Arizona court could pull him back into court to raise  the
allotted child support payments because his total  income  would  have  been
increased in their eyes.  He sought  military  counsel’s  advice  concerning
his  divorce  and  financial  situation;  however,  their  only   suggestion
concerning his financial situation  was  to  file  bankruptcy.   A  civilian
lawyer told him of an alternative to bankruptcy; however, he would  have  to
stop all income.  Once his income had ceased, he was able to put all of  his
debts on hold or reduce them to a reasonable amount that he could pay  until
he could find employment and complete his divorce.  He was able to keep  his
credit rating without filing bankruptcy and was able to pay off all  of  his
creditors in full.  If he had followed  the  military  lawyer’s  advice,  he
could have been reduced in rank for mishandling his finances.

He was never told he could have requested  a  waiver  to  his  time-in-grade
requirements in order to retire on 1 June 1987  even  though  it  would  not
have helped his situation.  He would have had to file bankruptcy because  of
the Arizona courts.  However, what’s the problem  with  him  retiring  as  a
technical sergeant?  Not only does he have enough TAFMS for  retirement,  he
has sufficient time-in-grade to retire as a technical sergeant to  meet  all
regulation requirements.

There was a 180-day waiting period before military retirees could  be  hired
in a federal civil service job.  However, if he accepted a  discharge,  this
rule would not apply.  Had he waited until 1  January  1988,  federal  civil
service would have been in a hiring freeze.

As far as punishing his former spouse by rejecting his  military  retirement
goes, if the Board checked with the Defense Finance and  Accounting  Service
(DFAS), they would discover  his  ex-wife  has  re-submitted  her  paperwork
again for her part of his retirement.  He had informed her to make sure  her
paperwork was still valid and in place because  he  told  her  he  would  be
filing for his retirement and he would be receiving it in 2006/2007.

The applicant’s rebuttals dated  20  March  2006  and  8  May  2006  are  at
Exhibits E and F respectively.

_______________________________________________________________

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.  After a thorough review of  the  available
records, we found no evidence that the applicant's  records  are  in  error.
We note the applicant's request at the time he requested  separation  versus
retirement was deliberate and that the Air Force complied with  his  wishes.
Regardless of the reasons or motivation  the  applicant  used  to  make  his
decision to separate versus retire, the Air Force made no error in  honoring
his wishes.  In addition, on the facts of this  case,  the  Board  does  not
find  that  to  give  effect  to  the  applicant's  deliberate  acts   would
constitute an injustice.  Finally, to grant the  applicant's  request  would
be contrary to the governing regulations since the applicant is no longer  a
member of the military.  Therefore, we agree with  the  assessments  by  the
Air Force offices of primary responsibility and adopt their  conclusions  as
our findings in this case.  Accordingly,  the  applicant's  request  is  not
favorably considered.

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 20 July 2006, under the provisions of AFI 36-2603:

                 Mr. Laurence M. Groner, Panel Chair
                 Mr. James A. Wolffe, Member
                 Ms. LeLoy W. Cottrell, Member

The following documentary evidence was considered in connection with  AFBCMR
Docket Number BC-2006-00213:

    Exhibit A.  DD Form 149, dated 17 Jan 06, w/atchs.
    Exhibit B.  Letter, AFPC/DPPRRP, dated 7 Feb 06, w/atchs.
    Exhibit C.  Letter, AF/JAA, dated 30 Mar 06.
    Exhibit D.  Letter, SAF/MRBR, dated 17 Feb 06.
    Exhibit E.  Applicant’s Rebuttal, dated 20 Mar 06.
    Exhibit F.  Applicant’s Rebuttal, dated 8 May 06.




                                   LAURENCE M. GRONER
                                   Panel Chair