RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2006-01235
                                        INDEX CODE:  128.02
  XXXXXXXXXXXXXXXX                      COUNSEL:  NONE

                                        HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His retirement order AA 430, dated 10 June 2005, be corrected  in  paragraph
3 to reflect  “AUTHORIZED  HOME  OF  SELECTION  TRAVEL”  versus  “NO  TRAVEL
AUTHORIZED.”

_________________________________________________________________

APPLICANT CONTENDS THAT:

He is entitled to Home of Selection (HOS)  travel  benefits  per  the  Joint
Federal Travel Regulation (JFTR) because he has  fulfilled  the  requirement
of his last eight years of continuous active duty with no  single  break  of
more than 90 days.

In support of his application, the applicant submits a  personal  statement,
an excerpt from the JFTR, several Reserve Point Credit summaries, a copy  of
his active duty  order,  A-024,  Air  Reserve  Personnel  Center  Office  of
Inspector General’s (ARPC/IG) response to his IG complaint,  his  retirement
order, and notification from the  Defense  Finance  and  Accounting  Service
(DFAS) addressing his entitlement to HOS move benefits.

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

_________________________________________________________________

STATEMENT OF FACTS:

According to the military personnel data system (MilPDS), the applicant  has
a total active federal military service date (TAFMSD) of  20  January  1985.
He was progressively promoted to the grade of lieutenant  colonel  (Lt  Col)
effective and with a date of rank of 18 October 2001.  On  31  August  2005,
he  was  relieved  from  his  Reserve  assignment  and   retired   effective
1 September 2005 in the grade of Lt Col, with 21 years,  4  months,  and  11
days of active service.

Special Order AA-0430, dated 24 10 June 2005, indicates in paragraph 3,  “NO
TRAVEL AUTHORIZED.”

The remaining relevant facts pertaining to this application, extracted  from
the applicant’s military records, are contained in the  letter  prepared  by
the appropriate office of the Air Force at Exhibits B and C.

_________________________________________________________________

AIR FORCE EVALUATION:

ARPC/DPP  recommends  the  applicant’s  request  be  denied.    DPP   states
according to the JFTR, members are entitled  to  travel  and  transportation
allowances to a HOS if they are retiring for length of  service  immediately
following at least eight years of continuous  active  duty  with  no  single
break in service of  more  than  90  days.   An  audit  of  the  applicant’s
military record verifies that he completed  five  years  and  one  month  of
continuous active duty.  He was placed  on  an  Active  Guard/Reserve  (AGR)
tour on 1 August 2000 and remained on the  tour  until  the  day  before  he
retired on 1 September 2005.  However, for the  three  years  prior  to  the
start of the AGR tour on 1 August 2000, the applicant was a traditional  Air
National Guard (ANG) member performing Inactive Duty  Training  (IDT),  with
an occasional active duty.

The Air Reserve Personnel  Center  Staff  Judge  Advocate  office  (ARPC/JA)
reviewed this case to determine what  “continuous”  means  as  used  in  the
JFTR.  They concluded that while the applicant had periods  of  active  duty
service while performing traditional Reserve duty, these periods  cannot  be
considered “continuous;” they are best characterized as “intermittent.”   To
interpret the intent of these words otherwise, could  result  in  unintended
consequences.

The ARPC Policy and Plans Division (ARPC/XPX) also reviewed this case.   XPX
searched for policies issued on the subject of HOS  and  “continuous  active
duty,” and did not find any policy clarifying what  constitutes  “continuous
active duty” for HOS entitlements.  They concluded that traditional  Reserve
duties which require separate shorter duration tours do not meet the  intent
of Title 37, United States Code (USC), the JFTR, or  Air  Force  Instruction
(AFI) 36-3209, Separation and Retirement Procedures for Air  National  Guard
and Air Force Reserve Members.

The ARPC Financial Management office (ARPC/FM) also reviewed this case.   FM
determined the applicant did not have a single break in active duty of  more
than 90 days during his last eight years of service; however, they  did  not
interpret the word “continuous.”

All of the offices (DPPR, XP, FM, and JA) that reviewed this case agree  the
applicant did not have a single break of more than 90 days during  his  last
eight years of service.  However, the question  remains:  Is  the  duty  the
applicant performed from August 1997  to  August  2000  “continuous”  active
duty?

DPPR stands by their decision that the applicant  is  not  entitled  to  HOS
since traditional Reserve  duty,  which  requires  occasional  and  separate
active duty days, does not meet the intent of the JFTR or AFI  36-3209.   To
conclude that the applicant  would  be  entitled  to  HOS  under  the  facts
presented would provide precedence for many other  reservists  with  similar
circumstances, and be inconsistent with ARPC’s long standing  interpretation
of HOS determination.

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

SAF/MRB Legal Advisor recommends granting the applicant’s  request  for  HOS
travel benefits.  It is the MRB Legal Advisor’s opinion that  the  applicant
meets the literal criteria of this entitlement and  there  is  no  objective
information to establish he is not an intended beneficiary.  The  MRB  Legal
Advisor states the applicant unquestionably has eight years of  active  duty
service immediately prior to his retirement without more than a break of  90
days.  Nevertheless, the ARPC advisory has opined that he does not meet  the
continuous service requirement.  It is the MRB Legal Advisor’s opinion  that
the ARPC advisory is incorrect.  The ARPC  advisory  concedes  there  is  no
statutory or regulatory definition of the  term  continuous,  nor  is  there
additional explanation or guidance  provided  in  the  JFTR.   Nevertheless,
ARPC opines that the applicant’s  service  is  not  continuous  because  the
applicant’s active duty was a series of active  duty  assignments,  some  of
which  were  relatively  short.   The  ARPC  advisory  ascribes   the   term
“intermittent” to this situation and thereby concludes that the  applicant’s
active duty service is not continuous.

The MRB Legal Advisor states in construing a  statute,  the  first  rule  of
statutory construction is that the words  are  given  their  plain  meaning.
Here, if there were no qualification, the term  continuous  would  have  its
dictionary meaning which is “without interruption.”  In this case, there  is
a qualification that specifies as long as no  break  exceeds  90  days,  the
service will be (meet the definition  of)  continuous.   The  ARPC  advisory
opines that at some non-specified point, there is a number  of  (not  length
of) interruptions that  renders  the  service  intermittent.   It  gives  no
specific support for this conclusion, nor does it volunteer  how  many  such
interruptions there are before the service is  rendered  intermittent.   The
only support offered is the explanation that if interpreted  otherwise,  the
JFTR will lead to individuals getting HOS entitlement that are not  intended
to  receive  it.   The  advisory  offers  no  support  for  how  the  author
determined who was intended to get the entitlement.  On  the  contrary,  the
best evidence of who is intended to  get  an  entitlement  is  normally  the
plain language of the stated criteria.

The MRB Legal Advisor evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant states the ARPC/DPP advisory focuses on  the  meaning  of  the
word “continuous,” completely ignoring  the  words  “with  no  single  break
therein of more than 90 days.”  They claim to interpret the “intent” of  the
law and regulations.  The problem is that  their  “interpretation”  directly
violates the explicit wording thereof.  A member’s pay  and  allowances  may
not   be   based   upon   arbitrary   opinion,   subjective   judgment,   or
“interpretation.”  Pay and allowances must be, and are  established  in  the
explicit language of statute and regulation.

The applicant’s rebuttal, with attachments, 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.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of  an  injustice  warranting  corrective  action.   We  note  the
recommendation of ARPC/DPP that  the  applicant’s  request  be  denied.   In
support of their recommendation, ARPC/DPP notes that  both  the  ARPC  Judge
Advocate and Policy and  Plans  Division  do  not  believe  the  applicant’s
active duty service was “continuous” within the meaning  of  the  applicable
JFTR or statute.  However, they also note  that  there  is  broad  agreement
among several ARPC offices that the applicant did not have  a  single  break
in active duty service of more than 90 days.  After thoroughly weighing  the
arguments put forth by ARPC/DPP as to why the applicant’s request should  be
denied, the Board did not find  the  rationale  provided  to  be  especially
compelling.  As such, we sought a review of the issues in this case  by  the
SAF/MRB Legal Advisor.  After his review, the SAF/MRB Legal Advisor  advises
he believes the ARPC/DPPP advisory is incorrect  in  its  determination  the
applicant  does  not  meet  the  continuous  service  requirement   and   he
recommends the requested relief be  granted.   We  find  the  rationale  put
forth by the SAF/MRB Legal Advisor in support of his  recommendation  to  be
compelling.  We especially agree with his opinion that the  applicant  meets
the literal criteria of the Home of Selection entitlement and that there  is
no objective  information  to  establish  that  the  applicant  was  not  an
intended beneficiary.  Therefore, we adopt his rationale in support  of  our
recommendation  that  the  applicant  be  granted  the  requested  Home   of
Selection entitlement.  Additionally, since the applicant’s entitlement  had
to be used within one year of  his  retirement  effective  date,  which  has
already expired, we feel the record should be further corrected  to  reflect
that the applicant requested and competent  authority  approved  a  one-year
extension of his entitlement.  Based on  the  foregoing,  we  recommend  the
applicant’s records be corrected to the extent 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.  Special  Order  AA-430,  dated  10  June  2005,  be  amended  in
paragraph  three  (3)  to  reflect  “Travel  Authorized”  vice  “No   Travel
Authorized.”

        b.  He requested an extension  of  his  entitlement,  and  competent
authority approved his request not to exceed one year from the date  of  the
amendment.

________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 24 October 2006, under the provisions of AFI 36-2603:

                  Mr. Michael V. Barbino, Panel Chair
                  Mr. James L. Sommer, Member
                 Mr. Vance E. Lineberger, Member

The following documentary evidence for AFBCMR Docket  Number  BC-2006-01235
was considered:

    Exhibit A.  DD Form 149, dtd 26 Apr 06, w/atchs.
    Exhibit B.  Letter, ARPC/DPP, dtd 3 Jul 06, w/atchs.
    Exhibit C.  Letter, SAF/MRB Legal Advisor, dtd 11 Sep 06.
    Exhibit D.  Letter, SAF/MRBR, dtd 14 Jul 06.
    Exhibit E.  Applicant’s Rebuttal, dtd 28 Jul 06, w/atchs.




                                                   MICHAEL V. BARBINO
                                                   Panel Chair



AFBCMR BC-2006-01235




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 CHARLES M. KELLY, 558-98-1660, be corrected to show that:

           a.  Special Order AA-430, dated 10 June 2005, be amended in
paragraph three (3) to reflect “Travel Authorized” vice “No Travel
Authorized.”


           b.  He requested an extension of his entitlement, and competent
authority approved his request not to exceed one year from the date of the
amendment.





JOE G. LINEBERGER

Director

Air Force Review Boards Agency