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