RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2006-01550
INDEX CODE: 135.00
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
He be allowed to retire in the grade of colonel.
_________________________________________________________________
APPLICANT CONTENDS THAT:
As an Air National Guard (ANG) officer serving in a Reserve status, he
successfully completed 20 years, 10 months, and 13 days of active duty
(AD) service thereby qualifying him for an AD retirement for length of
service under 10 United States Code (U.S.C.) section 8911. However, a
reduction in grade from colonel to lieutenant colonel (Lt Col) upon
his application for a voluntary active duty retirement came as a
complete surprise to him and his servicing Military Personnel Flight
(MPF). Discussions regarding the differences between Reserve
retirement at age 60 and an active duty retirement for length of
service led to reviews of the number of additional points (i.e. 1 day
= 1 point) needed to qualify for retirement, time in grade (TIG)
requirements, and how a retirement would include credit for time
served both for active duty (AD) and inactive duty for training (IADT)
status. Therefore, upon application for voluntary retirement from
active duty, he believed, (after numerous planning discussions) that
he had met all the necessary requirements for retirement in grade as a
colonel. However, he and his MPF discovered that Air Reserve
Personnel Center (ARPC) guidance as outlined in Air Force Instruction
(AFI) 36-3209, Separation and Retirement Procedures for Air National
Guard and Air Force Reserve Members, stipulates that in order to
retire as a colonel he would have had to serve on AD status in the
grade of colonel for at least three years in order to retire in the
grade of colonel. While he had been promoted to the grade of colonel
in July 1999 and had served in-grade for over five years, only one
year, eight months, and one day were served in an AD status. He was
therefore subjected to a downgrade to Lt Col prior to his retirement.
Neither he, nor his MPF were aware of how a voluntary retirement would
result in a reduction in grade. He believes the confusion came from
the fact that his retirement planning was being accomplished from a
non-AD perspective. At the time of his retirement, he had already
been released from AD and had been serving in a traditional guard
position. Had he been involuntarily retired however, the TIG
requirement to retire in the grade of colonel changes from three years
to only six months. AFI 36-3209 indicates the only basis for an
involuntary retirement is when a member either reaches the age of 60
or has reached their mandatory separation date (MSD). In August 2000,
he had been asked to take a minimum time retirement from the Federal
Civil Service Technician program by the Adjutant General (AG) for the
State of North Dakota (ND). The AG asked him to vacate his position
in order to make room for the appointment of a new commander. This
type of plan was part of a normal unit management process as he had
already been submitted for a certificate of eligibility (COE) for
promotion to the grade of brigadier general (BG). He accepted an
early active duty retirement based on the assumption he could either
compete for an AD BG position, or retain his ANG status as a colonel
or BG and find a suitable civilian job, or finally, to retire as a
colonel and find a fulltime civilian job. He applied for a BG
position with the US Deputy Commander Canadian NORAD Region (CANR).
Although he was told he was the most qualified applicant, he was
eventually passed over for the job because he had not yet been
selected for promotion to BG. He was told to expect significant
delays in the promotion process and the board was finally confirmed on
28 October 2005, over a year after his application had been submitted.
He was offered a civilian job with an Air Force defense contracting
firm, but the offer was contingent on a contract award that failed to
materialize. His third option was realized however, as he was offered
and he accepted a pilot position with a defense contractor working out
of Pacific Air Command (PACAF) however; he and his family would have
to move to Japan. After meeting with the AG (prior to accepting the
position) it was decided that because the job was located overseas,
remaining a member of the NDANG in any status or capacity was not a
viable option. He has been very disappointed in the reduction he
experienced from colonel to Lt Col and decided to find out if there
was a way to somehow correct what he felt was an injustice. During
his preparatory research for applying to the AFBCMR, he researched the
U.S.C. behind AFI 36-3209 and it is his most earnest belief that Title
10, U.S.C., 1370(a) (3) makes provision for retirement (in an
involuntary status) of a Reserve officer who has earned an AD
retirement for length of service and who has been subsequently
released from AD without their consent. All the duty he performed, he
performed with a willingness to continue indefinitely. Had he been
given the opportunity to continue to serve in an AD status, he would
have continued to do so and would have made efforts to procure an
extended AD assignment. However, the needs of the Air Force dictated
he be released from AD without his consent. He believes that a
reduced retirement in the grade of Lt Col was unreasonable and
demeaned his service and his family’s sacrifices over the years. He
understands why it happened this way, but he is convinced that an
injustice has occurred that needs to be corrected.
In support of his appeal, the applicant has provided a personal
statement and several attachments, including but not limited to,
letters of support from his chain-of-command and pertinent paperwork
from his personnel record.
Applicant’s complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
Applicant was commissioned in the Regular Air Force and entered pilot
training on 1 October 1981. He was progressively promoted to the
grade of major with an effective and date of rank (DOR) of 1 January
1988. He joined the Oregon Air National Guard (ORANG) in late 1993.
He was promoted to the grade of lieutenant colonel effective and with
a DOR of 27 January 1995. In 1996, he left the ORANG and joined the
North Dakota ANG (NDANG) where he was promoted to the grade of colonel
with an effective and DOR of 30 July 1999. He remained with the NDANG
until his retirement for length of service on 1 June 2005 with over
29 years of satisfactory service.
_________________________________________________________________
AIR FORCE EVALUATION:
NGB/A1P0F concurs with the NDANG AG and recommends applicant’s request
to retire in the grade of colonel be granted.
A1P0F’s complete evaluation, with attachment, is at Exhibit B.
ARPC/JA recommends denial. In determining whether or not an officer
was voluntarily or involuntarily retired, a general rule is laid out
in 10 U.S.C. 1370(a) wherein it is stated that officers who retire
voluntarily “…must have served on active duty in that grade for at
least three years.” An officer who retires involuntarily is “…retired
in the highest grade in which he served on active duty
satisfactorily…for not less than six months.” JA notes the applicant
claimed a provision that indicates a Reserve officer “…who is notified
that he will be released from active duty without his consent and
thereafter requests retirement under section … 8911 … is considered …
to have been retired involuntarily.” The statutory provision he cites
does not apply to his situation as he was in a traditional guardsman
status and was not on active duty when he retired.
ARPC/JA’s complete evaluation is at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Applicant contends the HQ ARPC/JA advisory (Exhibit C) is flawed in
two areas. First, the assertion that a member must be on active duty
at the time of retirement to qualify under the provisions of 10 U.S.C.
1370(a)(3) to retire in the higher grade and second, ARPC’s assertion
that he was not involuntarily released from active duty. Both these
assertions are in error and he provides an advisory of his own from
the NDANG’s Staff Judge Advocate further clarifying his argument.
Applicant’s complete response, with attachment, 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. While we find no error in the
determination that the applicant was to retire in the grade of
lieutenant colonel, we do believe an injustice exists within the
circumstances which led to his retirement that warrants corrective
action by this Board. Prior to his decision to apply for retirement,
the applicant’s name was submitted for promotion to brigadier general.
However, as part of the unit management process, he was required to
vacate his position as Wing Commander in order for the position to be
filled. Almost a year after his name was submitted to the National
Guard Bureau (NGB) for promotion consideration, and with no word about
how much longer the process would take, he was forced to consider
taking a position in Japan. Because the position was outside the
continental United States, it is our opinion he was unjustly placed
into a position in which he believed he had no other choice but to
retire. Upon considering an active duty retirement for length of
service, he was miscounseled and led to believe that he would be able
to retire in the grade of colonel. In view of his years of service
and taking into consideration the fact that he was under consideration
for promotion to brigadier general at the time, we do not find it
unreasonable to believe that had he been properly counseled he would
taken the appropriate actions to acquire sufficient service to retire
in that grade. The applicant requests his records be corrected to
reflect that he was involuntarily retired with the belief that the
provisions of 10 U.S.C. 1370(a)(3) would apply. Given the differing
legal opinions as to the interpretation of the law we do not believe
that is the appropriate corrective action to take. The applicant has
one year, eight months, and one day of active duty in the grade of
colonel. We note that the Title 10 U.S.C. Section 1370(2)(a) allows
one year of the required three years TIG to be waived for colonels
serving on active duty and otherwise eligible to retire. Since he is
only 3 months and 29 days shy of having two years TIG rendering him
eligible for retirement in the grade of colonel under that program, we
believe correcting his record in a manner showing he was retired under
this provision is the appropriate corrective action in this case.
Therefore, we recommend that the records be corrected as 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. On 15 March 2005, he was not released from active duty but
continued to serve on active duty with the North Dakota Air National
Guard in accordance with Title 10, United States Code, Section
12301(d).
b. On 30 July 2005, he requested a waiver to retire in the grade
of colonel with two years time in grade and his request was approved
by competent authority.
c. On 31 July 2005, he was relieved from his active duty
assignment with the North Dakota Air National Guard and retired for
length of service in the Reserve grade of Colonel, effective 1 August
2005, in accordance with Title 10 United States Code, Section
1370(2)(A).
______________________________________________________________
The following members of the Board considered AFBCMR Docket Number BC-
2006-01550 in Executive Session on 24 October 2007, under the
provisions of AFI 36-2603:
Mr. Michael V. Barbino, Panel Chair
Mr. James A. Wolffe, Member
Mrs. Lea Gallogly, Member
All members voted to correct the records, as recommended. The
following documentary evidence was considered:
Exhibit A. DD Form 149, dated 12 May 2006, w/atchs.
Exhibit B. Letter, NGB/A1P0F, dated 19 June 2007, w/atch.
Exhibit C. Letter, ARPC/JA, dated 19 September 2007.
Exhibit D. Letter, SAF/MRBR, dated 21 September 2007.
Exhibit E. Letter, Applicant, dated 11 October 2007, w/atch.
MICHAEL V. BARBINO
Panel Chair
DEPARTMENT OF THE AIR FORCE
WASHINGTON DC
[pic]
Office Of The Assistant Secretary
AFBCMR BC-2006-01550
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 APPLICANT, be corrected to show that:
a. On 15 March 2005, he was not released from active duty,
but continued to serve on active duty with the North Dakota Air
National Guard in accordance with Title 10, United States Code,
Section 12301(d).
b. On 30 July 2005, he requested a waiver to retire in the
grade of colonel with two years time in grade and his request was
approved by competent authority.
c. On 31 July 2005, he was relieved from his active duty
assignment with the North Dakota Air National Guard and retired for
length of service in the Reserve grade of Colonel, effective 1 August
2005, in accordance with Title 10 United States Code, Section
1370(2)(A).
JOE G. LINEBERGER
Director
Air Force Review Boards Agency
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