RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-01764
            INDEX CODE:  136.01
XXXXXXX     COUNSEL:  NONE
            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His retirement date be changed from 1 November 2006 to 1  June  2007  or
the first day of the month after the Board's decision.

2.  In the alternative, applicant request his records  be  changed  to  show
that on 1 November 2006 he was recalled from the retired Reserves to  active
status and served on extended active duty and then back to  inactive  status
in the retired Reserves.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He did not receive copies one and four  of  his  DD  Form  214  showing  his
release from active duty effective 31 October 2006, until 14 May  2007.   As
a result, he has not been able to file  his  disability  and  Montgomery  GI
Bill benefits claim with the  Department  of  Veterans  Affairs  (DVA).   In
addition, he has been unable to apply for dental treatment from the DVA.

In support of his request, the applicant provided a personal letter; a  copy
of his DD Form 214, Certificate of Release or Discharge  from  Active  Duty;
retirement orders; and excerpts from the United  States  Code  (U.S.C.)  and
AFI 36-3202, Separation Documents.

The complete submission, with attachment, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Air Force on 7 October 1986.

Data extracted from the personnel data  system  reflects  he  submitted  his
request for retirement on 1 November 2005 to be effective 1  November  2006.
On 9 January 2006 his request was approved and orders were issued.

During the time between his request for retirement and his retirement  date,
the Air Force retirement processing was transitioning from  the  base  level
to the Air Force Contact Center (AFCC).   As  a  result,  the  DD  Form  214
process transitioned to the AFCC for  members  with  a  projected  departure
date (PDD) after 1 October 2006.  The military personnel  flight  (MPF)  was
required to continue to out-process all members with a PDD  of  30 September
2006 or earlier.  Case files with a PDD of 1 October 2006  or  later  should
have been forwarded to the AFCC for processing.  The  MPF  accomplished  his
DD Form 214 prior to his PDD but  instead  of  holding  the  Unit  Personnel
Records Group (UPRG) until the applicant's  retirement  date  to  distribute
copies of the DD Form 214, the record was sent to the AFCC  sometime  before
1 November 2006.  The last copy should have been kept in the MPF  relocation
folder for one year.  Because his DD Form 214 was not present in  his  UPRG,
his record was held at the AFCC awaiting the required  copy  from  the  MPF.
On 14 May 2007 the MPF provided copies of the DD Form 214 to the applicant.

The applicant retired from active duty in the grade of master sergeant on  1
November 2006.  He served 20 years and 24 days on active duty.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPRRP recommends denial.  DPPRRP states the  applicant  was  certainly
inconvenienced by not having valid copies of his DD Form 214.  Because a  DD
Form  214  is  so  important,  DPPRRP  deemed  the  applicant  should   have
immediately elevated his concerns to the MPF commander, the AFCC,  or  other
higher level if he did not immediately receive his DD Form 214 after  his  1
November  2006  retirement.   As  a  senior  noncommissioned  officer,   the
applicant should have used the available chain of  command  to  resolve  his
problem, particularly since he clearly needed the DVA certification  to  pay
for  his  schooling.   Since  the  applicant's  retirement,  the  base-level
military members have  since  transitioned  and,  unfortunately,  historical
continuity  was  lost.  DPPRRP's  analysis  found  the   transition   to   a
centralized retirement process was a contributing factor  to  the  confusion
and disconnect with the applicant's DD Form 214.  However, if the  applicant
had elevated the problem soon after his retirement, either the  MPF  or  the
AFCC could have issued him a DD Form 214 in a timely manner.

The complete DPPRRP evaluation, with attachments, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded stating AFPC's  advisory  content  and  unapologetic
tone are disappointing.  AFPC's response blames  him;  however,  he  has  no
training in the  retirement  process.   The  31 October  2006  release  from
active duty violated federal law.  10 U.S.C.  forbids  release  from  active
duty without two things being ready for delivery  to  the  retiree,  the  DD
Form 214 and final pay.  10 U.S.C. forbids discharge prior to ETS except  as
provided by the secretary concerned, sentence of a general court or  special
court martial; or as otherwise provide by law.  In his  case,  the  DD  Form
214 did not exist until he went to the MPF and demanded it on 14  May  2007.
He watched MPF personnel prepare and issue the DD Form 214  to  him.   Since
the form did not exist, it was not ready  for  delivery  thus  violating  10
U.S.C.  Since AFI 36-3203 requires preparation of a DD Form 214,  10  U.S.C.
was violated.  Military courts have had no problems with using 10 U.S.C.  to
keep accused wrongdoers on active duty for trial.  If it is  fair  and  just
for the military to involuntarily retain personnel when these laws  are  not
followed, then it is fair and just to apply those laws in his case.   AFPC's
advisory opinion falsely states his UPRG  was  sent  to  the  AFCC  sometime
before 1 November 2006.  After requesting certified copies, AFPC sent him  a
letter dated 5 June 2007 indicating they did not have  his  UPRG.   The  MPF
had the record filed with active duty UPRGs.  The advisory  opinion  falsely
states the AFCC could have provided the DD Form  214  had  he  elevated  the
problem to them.  This evidently is not true considering the  AFCC  promised
him a DD Form 214 on 5 June 2007 and they still have not provided  it.   The
advisory opinion also falsely states he used government funds to  move  from
Bolling AFB to Jacksonville Florida, which he did not use.  As  far  as  the
applicant is concerned,  AFPC's  attention  to  detail  is  demonstrably  no
better than that of  the  Bolling  AFB,  MPF.   Confronted  with  the  MPF's
failure in its duty under law and regulation, the AFPC opinion  now  invents
a  nonexistent  duty  for  him  and  unapologetically  blames  him  for  not
following it.  Finally the applicant states the law requires a DD  Form  214
and the  Secretary  of  the  Air  Force  issued  regulations  requiring  its
issuance.  He called on multiple occasions to obtain it and the  MPF  failed
to issue one for 192 days.  This has caused him harm in the  form  of  delay
and  outright  loss  of  statutory  entitlements.  Since   the   Air   Force
malfeasance wrongfully blocked his receipt  of  veterans'  entitlements  for
192 days, he asks that his records be  changed  to  reflect  the  additional
active duty service.

_________________________________________________________________

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.   In  this  regard,  the  Air  Force  is
correct to some extent that the applicant must bear some of the  burden  for
the loss of his  benefits.   We  are  somewhat  troubled  however,  by  what
appears to be an insinuation  that  the  Air  Force  is  blameless  in  this
matter. The DD Form  214  is  an  extremely  important  document  to  former
service members and in cases where members depart on terminal  leave  it  is
the ultimate responsibility of the Air Force to ensure the DD  Form  214  is
made available to former members in a timely manner.  Clearly, this did  not
happen in this case.  Other than his assertions, we are unable to  ascertain
based on the evidence provided, exactly  which  entitlements  he  was  truly
denied and the impacts thereof.  Nevertheless,  considering  the  fact  that
the Air Force erred in not providing the applicant his  DD  Form  214  until
over six months after his date of separation, we believe that  in  order  to
resolve any injustices suffered his  records  should  be  corrected  to  the
extent indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT, be corrected to show that he was not discharged from  the  Air
Force on 31 October 2006 and retired for length of  service  on  1  November
2006, but was continued on active duty until  30  November  2007,  at  which
time he was discharged and retired on 1 December 2007.

_________________________________________________________________

The following members of the Board considered  Docket  Number  BC-2007-01764
in Executive Session on 2 October 2007 under the provisions of AFI 36-2603:

                 Ms. Cathlynn B. Novel, Panel Chair
            Ms.  Jan Mulligan, Member
            Mr. Mark J. Novitski, Member

All members voted to correct the records,  as  recommended.   The  following
documentary  evidence  pertaining  to  Docket   Number   BC-2007-01764   was
considered:

      Exhibit A. DD Form 149, dated 1 June 2007, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFPC/DPPRRP, dated 19 July 2007.
      Exhibit D. Letter, SAF/MRBR, dated 31 August 2007.
      Exhibit E. Letter, Applicant, dated 20 September 2007, w/atchs.





      CATHLYNN B. NOVEL
      Panel Chair

[pic]




Office of the Assistant Secretary

MEMORANDUM FOR   THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR CORRECTION OF
                   MILITARY RECORDS (AFBCMR)

FROM: SAF/MR

SUBJECT:    AFBCMR Case of XXXXXXX

      After carefully reviewing the circumstances of this case, I do not
agree with the recommendation of the Air Force Board for Correction of
Military Records panel to change the date of the applicant’s retirement
from the Air Force based on the applicant’s late receipt of his DD Form
214.

      The applicant contends that his discharge from active duty was
contrary to the provisions of Title 10, U.S.C., Section 1168(a) which
states a member of an armed force may not be released from active duty
until his certificate of release from active duty is ready for delivery to
him.  As pointed out in the applicant’s own submission, the DD Form 214 was
prepared on the date he was released to start permissive TDY and terminal
leave, but could not be delivered under Air Force policy because the
applicant’s actual retirement was at a future date.  Unfortunately, a
series of subsequent errors caused the form to be delayed beyond what was
reasonable.  Based upon this delay, and the impact the applicant claimed it
had, the Board concluded it was necessary to grant the applicant a full
year of extra active duty service to correct an injustice.

      The applicant asserts that the delay in the receipt of his DD Form
214 has caused a delay or loss of benefits he is entitled to, but has not
provided sufficient evidence detailing the benefits lost or his efforts to
satisfy the requirements for receipt of the benefits.  Absent such
evidence, the applicant has suffered what might best be described as
annoyance and inconvenience.  Thus, the recommended remedy would provide
the applicant an inappropriate windfall by granting additional active duty
service credit, pay and benefits and increased retirement pay for the rest
of his life.  The Board takes exception to the office of primary
responsibility placing blame on the applicant for the late delivery.  I
also find that shifting of the blame to the member is not appropriate.  The
system failed the applicant and should admit that it failed.  Nevertheless,
the purpose of the correction process is to correct errors and prevent
injustices, not to extract a penalty for administrative oversight or even
incompetence.

      Although legal analysis is not specifically addressed in the panel
rationale, I understand that non-receipt of the DD Form 214 does not
constitute a material error invalidating the applicant’s release from
active duty.  This is especially the case if one considers the applicant
was released to start permissive TDY and terminal leave based on his
requested voluntary retirement date.  Accordingly, I do not conclude the
applicant has a legal right to the proposed remedy.  If he did, it would be
appropriate to approve the Board’s recommendation on that basis.

      Having found the relief recommended by the Board not appropriate to
the circumstances of the case, I have decided to deny the application.




                                             CRAIG W. DUEHRING
                                             Assistant Secretary of the Air
Force
                                             (Manpower and Reserve Affairs)

Attachment:
Complete Case File