RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-03387
            INDEX NUMBER:  110.03; 136.01
      XXXXXXXXXXXXX    COUNSEL:  Eugene R. Fidell;
                 Brent C. Harvey
            HEARING DESIRED:  Yes


MANDATORY CASE COMPLETION DATE:  1 May 2008


_________________________________________________________________

APPLICANT REQUESTS THAT:

His resignation of his commission  and  his  retirement  in  the  grade  of
technical sergeant be declared void and all references thereto  be  removed
from his records.

He be reinstated to active duty in his former  position  in  the  grade  of
captain (O-3E) with all associated privileges retroactive to  the  date  of
his retirement in the grade of technical sergeant.

He be retired in the grade of captain (O3-E) effective 8 Jan 07,  the  date
he will have eight years of commissioned service.

He be granted such other relief as may be proper given the circumstances of
his case.

_________________________________________________________________

APPLICANT CONTENDS THAT:

In an eight page brief of counsel with eight attachments, counsel makes the
following arguments:

        a.  The applicant’s retirement was involuntary and  unjust  because
it was the direct result  of  erroneous  advice  from  the  retirement  and
benefits office at Davis-Monthan  (DM) Air Force Base (AFB) and the Defense
Finance and Accounting Service (DFAS).

        b.  The applicant went to the retirement and benefits office at  DM
AFB after being notified of an assignment to see if he  could  retire.   He
was advised he would have to resign his commission and reenlist three  days
prior to his retirement.  He was told in response to his  question  on  how
this would affect his retirement pay that his retirement pay would  not  be
affected because he was under the “high three” system.  He was assured that
although he would retire as a technical sergeant, his pay would be computed
using the high 36-month average of his pay at the captain (O-3E) rate.   He
was even provided with a calculation of his pay at that rate.

        c.  The applicant contacted DFAS to make sure he  was  getting  the
correct information regarding his pay.  A DFAS representative responded  by
e-mail that he was unaware of anything that would affect his retirement pay
at the O-3E rate.

        d.  The facts of the court case Scharf establish as a matter of law
that the applicant’s  decision  to  retire  was  involuntary  and  must  be
disregarded.  Resignations are presumed, in general, to be  voluntary,  but
that presumption is rebuttable in certain circumstances.  For example,  the
element of voluntariness is vitiated when the  resignation  is  induced  by
erroneous legal advice or misinformation on  which  the  moving  party  has
detrimentally relied.  The  applicant  was  not  an  expert  on  retirement
provisions.  His understanding of his resignation and  retirement  depended
upon being informed by personnel responsible  for  being  knowledgeable  in
this area.  The applicant did not receive  correct  information  about  his
retirement until after his retirement date.  Counsel provides  an  overview
of the Scharf case, a case where a government employee was  misinformed  by
an agency counselor that there would be no disadvantage if  the  employee’s
application for optional retirement preceded his application for disability
retirement.  The court held that  it  was  reasonable  for  the  government
employee to rely on the counselor’s erroneous advice and  that  the  advice
was misleading and materially affected the employee’s decision  to  retire.
Because the employee relied in good  faith  on  misleading  advice  to  his
detriment, his retirement was deemed involuntary.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Air Force on 30 Aug 85 and was promoted up to
the grade of technical sergeant (E-6) effective   1 Feb 97.  Applicant  was
commissioned as an officer on 8 Jan 99 and was promoted up to the grade  of
captain effective 8 Jan 03.  The applicant was assigned to DM AFB on 2  May
03.  His squadron commander received notice on 11 Oct 05 that the applicant
had been selected for an assignment with a report not later than date of 31
May 06.  On 20 Oct 05, the applicant exercised his option  to  decline  the
assignment and request retirement.  On 21 Oct 05, the applicant executed AF
Form 1160, Military Retirement Actions, requesting a voluntary  retirement.
On 24 Oct 05,  the  applicant  signed  AF  Form  780,  Officer  Separations
Actions, resigning his commission.  The applicant retired in the  grade  of
technical sergeant effective 1 Mar 06.

_________________________________________________________________



AIR FORCE EVALUATION:

AFPC/DPPRRP recommends denial of the applicant’s requests.  The applicant’s
decision to decline his reassignment was voluntary as was his  decision  to
retire.  The Air Force drawdown under Force Shaping requires we have active
duty members who are  willing  to  go  where  the  Air  Force  needs  them.
Reinstatement of the applicant after he willingly  declined  an  assignment
“defies common sense.”

According to AFI 36-2110, paragraph 2.37.2.1, “Officers who have 19 or more
years total active  federal  military  service  (TAFMS)  as  of  the  event
notification date or establishment of  an  assignment  selection  date  may
apply for retirement.”  The applicant had 19 or more years TAFMS as of  the
event notification date.  If the officer does not  voluntarily  request  to
retire in accordance with the seven-day option  policy,  the  officer  will
separate  on  the  first  day  of  the  seventh   month   following   event
notification.

The applicant had insufficient total active  federal  commissioned  service
(TAFCS) to retire as an officer on 1 Mar 06 under 10 USC, Section 8911.  As
of his assignment notification, the applicant had six years and nine months
TAFCS.  The applicant is requesting  to  correct  his  records  to  reflect
retirement on 8 Jan 07 when he would have had eight years  TAFCS.   Current
Secretary of the Air Force Force Shaping policy allows an officer to retire
not later than 1 Sep 07 with eight years commissioned service.

In accordance  with  DoD  7000-14-R,  Volume  7B,  paragraph  030102(A)(1),
regarding the voluntary retirement of an enlisted member, “A post-September
7, 1980 member with less than 30 years of service who is retired  under  10
USC, Section 3914 or Section 8914 will have the retired pay  base  computed
using only the rates of basic pay for months of active duty as an  enlisted
member.”

The complete evaluation is at Exhibit C.

AFPC/JA also recommends denial of the applicant’s requests.   To  determine
if the applicant’s retirement was voluntary or involuntary, the Board  must
determine  whether  the  applicant  made  a  free  choice  to  retire.    A
resignation from the military is  presumed  to  be  voluntary,  Tippett  v.
United States; Moyer v. United States.  However,  “an  otherwise  voluntary
resignation  ...  is  rendered  involuntary  if   it   ...   results   from
misrepresentation or deception on the part of government  officers.”   “The
misinformation must be such  that  a  reasonable  person  would  have  been
misled.”  “If the employee materially relies on the misinformation  to  his
detriment, his retirement is considered involuntary.”

The applicant has not presented sufficient evidence in his  application  to
prove, by a preponderance of the evidence that he materially relied on  the
alleged “misinformation” he received from the DM  retirement  and  benefits
office  or  DFAS  before  he  voluntarily  submitted  his  application  for
retirement on 21  Oct  05.   First,  the  applicant’s  stated  reasons  for
declining his reassignment to the Pentagon, as contained in the 20 Oct 05 e-
mail from his commander to AFPC, clearly demonstrate that his  decision  to
retire was motivated by his desire to keep his family  in  Arizona  and  to
further his career goals  as  a  civilian  in  Arizona  or  elsewhere.   In
defending his decision to retire, rather than accept  the  assignment,  the
applicant proclaimed that he “will do everything possible  to  maintain  my
quality relationship with current wife and son” and  that  staying  in  the
Arizona area would provide a more suitable locale  for  raising  a  family.
Second, the timing of these statements are fatal to applicant’s claim  that
he relied on the alleged erroneous retirement pay advice he  received  from
DFAS on 28 Oct 05, and from the DM retirement and benefits office on 4  Jan
06.  The applicant could not have materially relied on this  misinformation
to his detriment because he received this information after he had  already
made the decision to retire on 20  Oct  05.   Regarding  applicant’s  vague
assertion that he went to the DM retirement and benefits  officer  sometime
in Oct  05  after  receiving  notification  of  his  reassignment  and  was
“assured” that his retirement pay would be computed at his  O3E  pay  rate,
this evidence is insufficient  because  existing  case  law  dictates  that
absent specific misinformation, deception or improper advice offered  by  a
government  agency,  a  resignation  will  not  be  found  to   have   been
involuntary.   Thus,  applicant’s  general,  self–serving  and   conclusory
allegations he was misled by an unnamed person at  the  DM  retirement  and
benefits office is insufficient evidence to overcome  the  presumption  his
retirement was voluntary.

Finally, the facts in the applicant’s case  are  distinguishable  from  the
Scharf case principally relied upon by applicant’s counsel  in  his  appeal
brief.  In Scharf, there was evidence that the counselor made a  misleading
statement to scharf, stating that if  he  did  not  withdraw  his  optional
retirement and later “got” disability retirement, the  optional  retirement
would be set  aside  and  he  would  receive  disability  retirement.   The
applicant has not presented any specific evidence that he was misled  by  a
government agent prior  to  making  his  decision  to  voluntarily  retire.
Rather, applicant clearly understood the ramifications of his  decision  to
decline the assignment and to retire, but made the decision  to  do  so  in
order to keep his family intact and to  pursue  his  career  goals  in  the
private sector.

The complete evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant, through counsel, claims he received the  erroneous  advice  from
the retirements and benefits office at DM AFB and DFAS prior  to  declining
his assignment and applying for retirement, and that he understood he would
not retire as an officer, but was satisfied that his retirement  pay  would
not be affected.  Had he known his retirement  pay  was  not  going  to  be
computed as he had been told  or  expected,  he  would  have  requested  to
withdraw his request.

He only needed 10 months to acquire the time needed to retire as a Captain.
 He unfortunately  relied  on  incorrect  advice  before  he  declined  his
assignment  and  applied  for  retirement.   This  incorrect   advice   was
reinforced by DFAS, so he did not seek to withdraw his retirement request.

While  his  situation  was  unique,  the  application  of  retirement   pay
provisions should be well within the knowledge base of the retirements  and
benefits office at any Air Force Base.  The fact that he could call to  the
Air Force Personnel Center for information is immaterial.  He was not  told
that  there  was  uncertainty  as  to  how  his  retirement  pay  would  be
calculated.  Rather, he was assured that it would be  calculated  based  on
the high 36-month average of his 0-3E pay rate.

He was aware of the repercussions of his decision--he  had  to  resign  his
commission and enlist before he could proceed with his retirement.  At  the
same time, he understood that his retirement pay would  be  computed  using
the high 36-month average of his 0-3E pay rate.  With that  information  he
decided to retire.  The  dictum  that  was  included  with  his  retirement
paperwork is not indicative of his understanding of his retirement pay.  He
stated that he understood that his retired rank would not reflect  that  he
was an officer, not that he understood that his pay would suffer  from  his
decision.

His actions show that he relied on erroneous  advice  when  he  decided  to
decline his assignment and retire.  As such, his decision was  involuntary.
Even if the erroneous advice did not  come  until  after  he  declined  his
assignment on 21 Oct 05, which is not his  contention,  he  still  had  the
opportunity to request to withdraw his retirement application.

_______________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by  existing  law  or
regulations.

2.  The application was timely filed.

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  agree
with the opinion and recommendation of the  Air  Force  offices  of  primary
responsibility and adopt their rationale as the  basis  for  our  conclusion
that the applicant has not  been  the  victim  of  an  error  or  injustice.
Therefore,  in  the  absence  of  evidence  to  the  contrary,  we  find  no
compelling  basis  to  recommend  granting  the  relief   sought   in   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 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  Docket  Number     BC-2006-
03387 in Executive Session on 15 March 2007, under the provisions of AFI 36-
2603:

      Ms. Charlene M. Bradley, Panel Chair
      Mr. Gregory A. Parker, Member
      Ms. Maureen B. Higgins, Member

The following documentary evidence pertaining  to  Docket  Number  BC-2006-
03387 was considered:

    Exhibit A.  DD Form 149, dated 30 Oct 06, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRRP, dated 23 Jan 07, w/atchs.
      Exhibit D.  Letter, AFPC/JA, dated 5 Feb 07, w/atchs.
    Exhibit E.  Letter, SAF/MRBR, dated 9 Feb 07.
    Exhibit F.  Letter, Counsel, dated 27 Feb 07.




                                             CHARLENE M. BRADLEY
                                             Panel Chair