RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-03724
		INDEX CODE:  136.00

		COUNSEL:  XXXXXXXXX

		HEARING DESIRED: YES

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APPLICANT REQUESTS THAT:

His record be changed to show he was retired from extended 
active duty (EAD) for length of service in accordance with (IAW) 
10 United States Code (U.S.C.) 8914, rather than retirement 
under 10 USC 12731 awaiting Reserve retired pay at age 60.

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APPLICANT CONTENDS THAT:

He has served faithfully for over 22 years in both the US Marine 
Corps and the Air National Guard (ANG).  He tested positive for 
marijuana use and received a General, Under Honorable Conditions 
(UHC) discharge after appearing before an Administrative 
Discharge Board (ADB).  However, while the Board intended that 
he be discharged from active duty, the Board also intended for 
him to receive active duty retired pay IAW Title 10, 8914.  As 
it stands, the Air Force has denied him active duty retired pay 
noting that he is qualified for and will receive Reserve retired 
pay at age 60 IAW 10 USC 12731.  Denying him active duty retired 
pay (as opposed to Reserve retired pay) imposes not only a 13-
year delay for eligibility to receive any retired pay (time 
between his discharge and age 60), but assigning a dollar value 
to those 13 years indicates he will lose over $320,000 during 
the 13-year wait.  The punishment then, for using marijuana 
once, is a General discharge and a $320,000 fine – an outcome 
that is both grossly unfair and a consequence unintended by the 
ADB.

In support of his appeal, the applicant has provided a statement 
from counsel with 13 attachments.

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

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STATEMENT OF FACTS:

Applicant began his military career on 24 July 1974.  He was 
progressively promoted to the grade of master sergeant effective 
and with a date of rank of 1 May 2000.  On 27 June 2002, the 
applicant submitted a urine specimen that later tested positive 
for a metabolite of marijuana.  He subsequently admitted smoking 
marijuana on only one occasion that led to his positive test, 
but at no other time.  On 25 October 2003 an ADB was convened.  
The Board’s decision was to discharge the applicant with a 
general, under honorable conditions (UHC) discharge.  The 
Board’s recommendation was accepted by the commander and found 
legally sufficient by the Staff Judge Advocate (SJA) on 20 
November 2003.  He was, therefore, involuntarily discharged, 
effective 18 October 2003, with a general discharge for 
misconduct after having served over 22 years.  He is currently 
awaiting Reserve retired pay at age 60.

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AIR FORCE EVALUATION:

The AFRBA legal consultant provided a legal review of this case 
file without a recommendation.  He contends that the member has 
unquestionably demonstrated an error since he never got an 
answer on his request for an active duty retirement.  The error 
could only be considered a harmless error if the AFBCMR is 
convinced that the active duty retirement would not have been 
approved, something very difficult to determine.  

The Legal Advisor’s complete review is at Exhibit B.  

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the 
applicant on 27 March 2009 for review and comment within 30 
days.  As of this date, no response has been received by this 
office.

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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.  We took notice 
of the applicant's complete submission in judging the merits of 
the case; however, we find the applicant has not sustained his 
burden of showing that he has suffered an error or is the victim 
of an injustice in not being accorded a length of service 
retirement.  The applicant was an Active Guard Reserve (AGR) 
member on extended active duty (EAD) when he committed the 
offense leading to his discharge.  At the time of his offense, 
he had the requisite service for a Reserve retirement with pay 
at age 60, but not a length of service retirement.  However, by 
the time the actions related to his case were completed, the 
applicant had served over 20 years of active service and was 
entitled to request an active duty length of service retirement. 

Although the applicant was eligible to request either a length 
of service retirement or transfer to the Retired Reserve, the 
evidence of record indicates he applied for transfer to the 
Retired Reserve to await Reserve retired pay at age 60, in lieu 
of an administrative discharge.  The Secretary of the Air Force 
Personnel Council (SAFPC) considered his request and denied it, 
in part, on the fact that to approve his transfer to the RRL in 
lieu of an ADB the applicant’s character of service would either 
have to be honorable or not listed at all.  The egregiousness of 
the applicant’s offense with regard to his standing as a senior 
enlisted military member also played a role in the denial.  
SAFPC also noted that the decision to deny his transfer to the 
RRL at that time in no way interfered with the applicant’s 
eventual receipt of Reserve retired pay at age 60.  

The AFRBA Legal Advisor opines that SAFPC should have considered 
whether to grant the applicant an active duty length of service 
retirement and that the failure to provide the applicant an 
answer on this issue was an error.  Even conceding this point, 
we are not convinced that the failure to consider this issue has 
caused the applicant to be the victim of an injustice.  We find 
the rationale offered by SAFPC in denying the applicant’s 
transfer to the RRL equally applicable when applied to the issue 
of a length of service retirement.  Additionally, given the 
applicant’s eligibility to collect retired pay at age 60, we do 
not believe the denial of an active duty length of service 
retirement to be inappropriate or excessively harsh.  Therefore, 
based on the available evidence of record, we find no basis upon 
which to recommend favorable consideration of 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 issue involved.  
Therefore, the request for a hearing is not favorably 
considered.

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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.

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The following members of the Board considered AFBCMR Docket 
Number BC-2007-03724 in Executive Session on 23 April 2009, 
under the provisions of AFI 36-2603:

	Ms. XXXXXXXXXXXXX, Panel Chair
	Ms. XXXXXXXXXXXXX, Member
	Mr. XXXXXXXXXXXXX, Member

The following documentary evidence with regard to AFBCMR Docket 
Number BC-2007-03724 was considered:

    Exhibit A. DD Form 149, dated 18 Oct 06, w/atchs.
    Exhibit B. Letter, AFRBA Legal Advisor, dated 26 Mar 09,
               w/atch.
    Exhibit C. Letter, AFBCMR, dated 27 Mar 09.




                                   XXXXXXXXXXXXX
                                   Panel Chair