RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2007-00675
                                             INDEX CODE:  136.00
      XXXXXXXXXXXXX                     COUNSEL:  NONE

                                             HEARING DESIRED:  YES


MANDATORY CASE COMPLETION DATE:  1 August 2008


________________________________________________________________

APPLICANT REQUESTS THAT:

A terrible injustice be corrected by either re-instating him to active  duty
to complete 20 years Total  Active  Federal  Military  Service  (TAFMS)  for
retirement, pro-rating an active duty retirement based  upon  18  years  and
two months of TAFMS, or granting him a permanent disability retirement.

________________________________________________________________

APPLICANT CONTENDS THAT:

During his base level force reduction briefings  in  January  1992,  he  was
never advised that after completing 18 years  of  TAFMS,  he  could  not  be
forced out or be subject to force reductions.  This was also  not  addressed
by his first sergeant or  the  Consolidated  Base  Personnel  Office  (CBPO)
during his separation briefings.

He was briefed that if involuntarily discharged, he would receive  half  the
separation pay amount than if he volunteered.  The sequence  of  involuntary
separations would be medical profile changes,  non-critical  career  fields,
etc.

He had just been  through  back  surgery  and  was  cross-trained  into  the
Morale, Welfare, and Recreation field since he could no  longer  be  an  Air
Force Law Enforcement Specialist.  He believed he was a prime candidate  for
involuntary separation since he  was  in  a  career  field  considered  non-
essential, had a medical profile, and  was  already  being  turned  over  to
heavy civilian staffing.

The VA awarded him a 10% disability rating after  performing  back  surgery,
and advised him that he  would  not  receive  a  monthly  check  unless  the
Special Separation Benefit (SSB) payment he received when he  separated  was
recouped.

He was unaware of the injustice until 24 November 2006 when, while  visiting
Dover AFB, DE, a service member informed  him  that  members  with  over  18
years of service could not be separated when there is a reduction in force.

In support of his appeal, he has  submitted  copies  of  his  correspondence
with the office of Senator Judd Gregg, and a letter of response  to  Senator
Gregg from SECAF Office of Legislative Liaison.

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

________________________________________________________________

STATEMENT OF FACTS:

Applicant initially entered the active Air Force on 5 October 1973.   On  12
March  1992,  he  signed  an  Enlisted  Special  Separation  Benefit   (SSB)
Agreement pursuant to Title 10, United States  Code  (USC),  Section  1174a,
Special Separation Benefits Programs.  The SSB Agreement  stated,  in  part,
that in consideration for receiving special separation pay in the amount  of
$50,722.56, he agreed to separate from active duty.  He  was  released  from
active duty on 5 June 1992, after completing  18 years,  eight  months,  and
one day of TAFMS.

On 5 December 1991,  Public  Law  (PL)  102-190  amended  10  USC  with  the
addition  of  Section  1174a,  which   described   the   basic   eligibility
requirements for an SSB application.   Section  1174a(a)  stated,  in  part,
that an eligible member of the armed forces could request  separation  under
the program, subject to the approval of  the  Secretary.   Section  1174a(c)
stated, in part, that a member of an armed force was eligible for  voluntary
separation under a  program  established  for  that  armed  force.   Section
1174a(f) stated, in part, that in order to be eligible for separation  under
the program, a regular enlisted member, eligible for  separation  under  the
program, shall submit a request for separation under the program before  the
expiration of the member’s  term  of  enlistment,  and  Section  1174a(f)(2)
further stated, in part, that for purposes of this section, the entry  of  a
member into an agreement  under  a  program  established  pursuant  to  this
section shall be considered a request for separation under the program.

The so-called “enlisted sanctuary” was enacted by PL 102-484  on  23 October
1992.  Section 1176, Enlisted Members:  Retention After Completion of 18  or
More, but Less than 20 Years of Service, 10 USC, stated,  in  part,  that  a
regular enlisted member who is selected to be  involuntarily  separated,  or
whose term of enlistment expires and who is denied reenlistment, and who  on
the date on which the member is to be discharged  is  within  two  years  of
qualifying for retirement, shall  be  retained  on  active  duty  until  the
member is qualified for retirement, unless the member is sooner  retired  or
discharged under any other provision of law.

Section 8914, Twenty to Thirty Years:  Enlisted Members, 10 USC, states,  in
part, that an enlisted member of the Air Force who  has  at  least  20,  but
less than 30 years of service  may,  upon  his  request,  be  retired.   The
Temporary Early Retirement Authority (TERA) which amended this  section  and
stated that the Secretary could apply this section to enlisted members  with
at least 15 but less than 20  years  of  service,  was  effective  beginning
23 October 1992 and ending 1 October 1995.

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AIR FORCE EVALUATION:

AFPC/DPPRRP  recommends  denial  of  applicant’s  request  for  relief   for
reinstatement to active duty to complete  20  years  TAFMS  for  retirement.
There is no evidence in his record to show he was coerced into  accepting  a
voluntary SSB payment,  and  he  voluntarily  signed  an  SSB  agreement  to
separate on 5 June 1992.  At the time, he was serving  under  an  enlistment
contract for four years with a (DOS)  of  23  April  1993.   They  recommend
denial of his request to prorate an active duty  retirement  based  upon  18
years and two months of TAFMS.  TERA requirements were not in effect on  his
DOS, and 10 USC, Section 8914, requires a member to have 20 years  TAFMS  to
qualify for an  active  duty  retirement.   They  recommend  denial  of  his
request for a retroactive disability retirement  as  his  physical  problems
were not severe enough to prevent him from being returned to duty.

The AFPC/DPPRRP evaluation is at Exhibit C.

AFPC/JA recommends denial.  To obtain the requested relief,  applicant  must
show by  a  preponderance  of  the  evidence  there  exists  some  error  or
injustice.  The enlisted “sanctuary” statute was not enacted  while  he  was
on active duty and, therefore, its protection was not available  to  him  at
the time he elected to take the SSB  and  voluntarily  separate.   The  fact
that it subsequently became law presents no issue of injustice,  as  service
members must be briefed on existing laws and policy, not on what may or  may
not happen in the future.

The AFPC/JA evaluation is at Exhibit D.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the evaluation was  forwarded  to  the  applicant  on  30
March 2007, for review and comment, within 30 days.   However,  as  of  this
date, no response has been received by this office.

________________________________________________________________

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  agree
with the opinions and recommendations 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.   The
enlisted “sanctuary” statute was not enacted while he was  on  active  duty,
and its protection was not available to him at the time he elected  to  take
the SSB and voluntarily separate.  Likewise, TERA provisions were  also  not
in effect while he was on active duty  and  Title  10,  USC,  Section  8914,
requires a member to have 20 years TAFMS  to  qualify  for  an  active  duty
retirement.  There is no evidence in his record to show he was coerced  into
accepting a  voluntary  SSB  payment,  and  he  voluntarily  signed  an  SSB
agreement to separate.  There is also no evidence in his record to show  his
physical problems were severe enough to warrant a disability  retirement  as
he was returned to duty.  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 issue(s) 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-2007-00675
in Executive Session on 15 May 2007, under the provisions of AFI 36-2603:


                       Mr. Michael V. Barbino, Panel Chair
                       Mr. Don H. Kendrick, Member
                       Mr. John B. Hennessey, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 1 Feb 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRRP, dated 9 Mar 07, w/atchs.
    Exhibit D.  Letter, AFPC/JA, dated 26 Mar 07, w/atch.
    Exhibit E.  Letter, SAF/MRBR, dated 30 Mar 07.




                                   MICHAEL V. BARBINO
                                   Panel Chair