RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                 DOCKET NUMBER:  BC-2007-01269
            INDEX CODE:  110.02
      XXXXXXXXXXXXXX              COUNSEL: MR. WAYNE E. ANDERSON

                                        HEARING DESIRED:  YES


MANDATORY CASE COMPLETION DATE:  26 October 2008


_______________________________________________________________
APPLICANT REQUESTS THAT:

His retired grade be corrected to reflect the grade of colonel (O-6).
_______________________________________________________________

APPLICANT CONTENDS THAT:

He was  informed  that  due  to  restructuring  he  would  be  involuntarily
separated from active duty and forced to retire.  He served over six  months
in the grade of colonel which qualifies him under the  provisions  of  Title
10 United States Code (USC), Section 1370(a)2(A) and (a)(3), and  Air  Force
Instruction 36-3202, paragraph 7.2.4, to retire in the grade of colonel  (O-
6).

In support of his appeal, the applicant provided  a  personal  statement;  a
statement  from  his  counsel;  Notification  of   Involuntary   Separation;
Commander, Georgia Air National Guard (GA ANG) memorandum; GA  ANG  Adjutant
General  memorandum;  USAF/A4/7  memorandum;  and  Request  for   Retirement
Reconsideration, dated 15 July 2003, with attachments.

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

STATEMENT OF FACTS:

On 1 December 2002, the applicant retired from the GA  ANG  under  Title  10
USC Section 8911, after serving 21 years, 7 months, and 27  days  of  active
duty service.  During his last Active  Guard/Reserve  (AGR)  tour  scheduled
for 1 August 2001 through 31 July  2002,  the  applicant  was  selected  for
promotion to the grade of colonel effective 21 March 2002.

On 20 April 2002, the applicant was notified that his  AGR  tour  was  being
extended to 30 November 2002 and, due to force management reasons, he  would
be  involuntarily  separated  on  that  date.   The  notification  from  the
Commander, GA ANG, explained that the four-month extension was to allow  the
applicant sufficient  personal  time  to  prepare  for  his  separation  and
subsequent retirement effective 1 December 2002.

On 30 November 2002, the applicant was honorably discharged in the grade  of
colonel (O-6) for  the  purpose  of  retirement.   He  retired  effective  1
December 2002.  According to  the  applicant,  upon  receiving  his  initial
retirement pay, he discovered that he  was  retired  in  the  pay  grade  of
lieutenant colonel (O-5) because he had  not  served  three  years  time-in-
grade as a colonel.

_______________________________________________________________

AIR FORCE EVALUATION:

ARPC/DPP recommends the applicant’s request be denied.  DPP states in  order
to retire under the provisions of title 10 USC, Section  8911,  in  a  grade
above major, a member must complete  three  years  active  duty  service  in
grade per Title 10 USC, Section  1370(a)(2)(A).   The  three  year  time-in-
grade requirement is reduced to six months if the  member  is  involuntarily
released from active duty, without  his  consent.   The  applicant  did  not
complete three years active duty service in the grade of colonel  to  retire
voluntarily.  The applicant did complete over  six  months  of  active  duty
service in the grade of colonel; however, it is their opinion  that  he  was
not involuntarily released from active duty without his consent.

DPP states the applicant, like many others, consented  to  an  AGR  tour  of
defined length.  The conclusion of those tours  has  not  been  held  to  be
“involuntary”  because  the  member  was  fulfilling  a  limited   duty   he
voluntarily accepted.  To now conclude that failure to perform further  duty
is “involuntary” in the sense of Title  10  USC,  Section  1370(a)(3)  would
possibly affect numerous individuals and would not be within  the  intention
of the statue.

DPP states if the Board does not agree with their recommendation, it  should
be shown the applicant’s release from active duty on 30  November  2002  was
involuntary, without his consent.

The DPP advisory, with attachment, is at Exhibit D.
_______________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel responded that the Air Force advisory opinion  fails
to address critical  statutory  issues,  the  uncontradicted  statements  of
several general officers with first hand knowledge of the  issues,  and  the
applicant’s good-faith reliance on the representations made by the  National
Guard Bureau (NGB) and the GA ANG Human  Resources  Office.   The  applicant
acted to his detriment in good faith reliance on the advice given to him  by
the “experts.”  He would not have accepted the  involuntary  retirement  had
he known that his grade  would  not  be  determined  as  colonel  (O-6)  for
retirement.  It is clear that if the answer had  been  anything  other  than
the answer he received, he would not have been forced to retire.   There  is
no basis in law or equity for denying the  applicant’s  appeal.   Any  other
result would be a clear injustice.

The counsel’s rebuttal 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  error  or  injustice.   After  a  thorough  review  of  the
evidence of record, the Board has determined the evidence supports the  fact
that the applicant was involuntarily released  from  active  duty  effective
30 November 2002 and retired effective 1 December  2002.   The  Board  notes
his commander’s letter of notification to  the  applicant,  dated  20  April
2002, which states, “…my decision to  direct  you  to  involuntarily  retire
should in no way be construed as negatively reflecting on your  professional
or personal performance.”  The fact his commander extended  the  applicant’s
orders from 31 July  2002  to  30  November  2002  in  order  to  allow  the
applicant sufficient time to prepare for his  separation,  does  not  negate
the commander’s decision to involuntarily release him.   In  any  event,  we
feel he has suffered an error or injustice that should be rectified  in  his
favor.  In view of the foregoing, it is our  opinion  that  the  applicant’s
records should 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 he was  involuntarily  discharged  on
30 November 2002 under the provisions of Air Force Instruction 36-3209,  and
retired effective 1 December 2002 under the provisions of Title  10,  United
States Code, Section 8911, in the grade of colonel (0-6).

_______________________________________________________________

The following members of the Board considered this application in  Executive
Session on 9 August 2007, under the provisions of AFI 36-2603:

            Mr. Michael K. Gallogly, Panel Chair
            Ms. Terri G. Spoutz, Member
            Ms. Sharon B. Seymour, Member

All members voted to correct the records,  as  recommended.   The  following
documentary evidence for AFBCMR Docket Number BC-2007-01269 was considered:

      Exhibit A.  DD Form 149, dated 18 Apr 07, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, ARPC/DPP, dtd 29 May 07, w/atch.
      Exhibit D.  Letter, SAF/MRBR, dated 1 Jun 07.
      Exhibit E.  Counsel’s Rebuttal, dated 24 Jul 07.




                                                   MICHAEL K. GALLOGLY
                                                   Panel Chair


AFBCMR BC-2007-01269




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 XXXXXXXXXXXXXXXXXXXXXXXXXX, be corrected to show that he was
involuntarily released from active duty on 30 November 2002 under the
provisions of Air Force Instruction 36-3209, and retired effective 1
December 2002 under the provisions of Title 10, United States Code, Section
8911, in the grade of colonel (0-6).





  JOE G. LINEBERGER

  Director

  Air Force Review Boards Agency