RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-02739
            INDEX CODE:   136.00
      XXXXXXX    COUNSEL:  NONE

            HEARING DESIRED: NO

___________________________________________________________________

APPLICANT REQUESTS THAT:

Her records be corrected to show  that  she  will  be  eligible  to
receive Reserve retired pay and benefits  at  age  60  rather  than
being separated with Disability Severance Pay;  and  the  severance
pay be set side.

___________________________________________________________________

APPLICANT CONTENDS THAT:

Upon separation, she was not  given  a  choice  between  a  Reserve
retirement and separation  with  disability  severance  pay.  After
receiving information regarding SBP, she was under  the  impression
she would receive her retirement at age 60.

In support of her application, applicant  submits  emails,  Special
Order #AD-528, Special Order #AD-668, letters  from  SAF/MRBP,  and
ARPC/DPPRB.

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

___________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Air National Guard on 7 March 1980 for  a
period of four years.

The applicant served in the Air National Guard from  7  March  1980
until her discharge on 4 August 2005  due  to  physical  disability
with entitlement to severance pay.  She was progressively  promoted
to the grade of master sergeant with an effective date and date  of
rank of 13 June 2003.  Applicant’s  NGB  Form  22,  National  Guard
Bureau Report of Separation and Record of Service, reflects she was
credited with 25 years, 4  months  and  26 months  of  satisfactory
Federal service.

The applicant was medically disqualified for  military  service  in
2005. By law, Title 10, USC,  Section  1209,  the  applicant  could
either be discharged with entitlement to disability  severance,  or
if eligible, request transfer to the Inactive Status  List  Reserve
Section (ISLRS) and apply for Reserve retired pay at age 60.  Since
the applicant had over 20 years of satisfactory  service,  she  was
eligible to transfer to ISLRS and apply for retired pay at age  60.
She elected to be discharged with disability severance pay  instead
of requesting transfer to ISLRS. The applicant  was  discharged  on
4 August 2005

___________________________________________________________________

AIR FORCE EVALUATION:

HQ ARPC/DPP recommends denial and  states  the  applicant’s  record
indicates  she  completed  the  service  requirements  for  Reserve
retired pay under the provision of Title 10, USC, Section 1231,  on
1 March 2000. The applicant was issued the official Notification of
Eligibility for Retired Pay at age 60 information letter on 1  July
2000. According to Title 10, USC, Section 12738, once a person  has
completed the years of service required for eligibility for retired
pay, the person’s eligibility for retired pay may not be denied  or
revoked on the basis of an error,  miscalculation,  misinformation,
or administrative determination of the years of  service  performed
unless it resulted directly from the fraud or misrepresentation  of
the person.  However,  Title  10,  USC,  Section  12738,  does  not
guarantee the member will receive retired pay at age  60;  it  only
says the pay cannot be denied based  on  an  administrative  error,
misinformation, or miscalculation.

The applicant’s claim that she was never given a choice of electing
transfer to ISLRS, so she could  apply  for  Reserve  retired  pay,
instead of accepting disability severance pay cannot be verified or
denied by ARPC. The two options are given to the member by the  Air
Force Personnel Center Disability  Operations  Branch  at  Randolph
AFB, Texas at the time the disability is processed. ARPC  contacted
AFPC and they confirmed that  their  procedures  are  to  give  the
options to the member before a case  is  processed  for  disability
severance pay; however, they can provide no  verification  in  this
case since the documents are only kept on file for 90 days.

The applicant had the option of electing disability  severance  pay
or transferring to ISLRS in order to apply for Reserve retired  pay
at age 60. Since the  applicant  elected  and  received  disability
severance pay under the provisions of Title 10, USC  Section  1212,
she is not eligible to apply for and receive retired pay under  the
provision of Title 10, USC, Section 12731 at age 60.  There  is  no
provision of law that allows a member  to  accept  both  disability
severance pay and Reserve retired pay.

ARPC/DPP’s complete evaluation is at Exhibit C.

___________________________________________________________________




APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviews the Air Force evaluation and states the  Informal
Physical Evaluation Board and the Formal Physical Evaluation  Board
both recommended a 10 percent disability rating and discharge  with
severance pay. She appealed both findings to the Secretary  of  the
Air Force. Again her unit or anyone else never gave  her  a  choice
after receiving the call informing her that she will be  discharged
in three weeks.

Applicant’s complete response 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 not timely filed; however,  it  is  in  the
interest of justice to excuse the failure to timely file.

3.  Sufficient relevant evidence has been presented to  demonstrate
the existence of error or injustice warranting a partial  grant  of
the requested relief.  The applicant contends she was not  properly
briefed that when she accepted severance pay in 2005, she forfeited
her  eligibility  to  receive  retired  pay.  After  reviewing  the
circumstances surrounding this case, we believe it  is  likely  the
applicant did not receive proper counseling at the time.   In  this
respect,  we  find  it  inconceivable  the  applicant  would   have
forfeited her  retirement  pay  after  serving  over  25  years  of
satisfactory federal service.  The applicant, once she reached  the
age of 60, applied for her retired pay.  We believe, based  on  all
evidence, her records should be corrected to entitle her to retired
pay and the opportunity to  make  an  election  under  the  Reserve
Component Survivor Benefit Plan (RCSBP). In regards to her  request
for the severance pay she received to be set aside, the Board notes
that there is no provision of law  that  allows  the  applicant  to
accept both disability severance pay and Reserve retired  pay.  The
severance pay will have to  be  recouped.  Accordingly,  the  Board
recommends that  her  records  be  corrected  only  to  the  extent
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.  She was not discharged from the Air Force  Reserve,
but was transferred to the Retired Reserve Section on 4 August 2005
to await pay at age 60 rather than being discharged due to physical
disability with entitlement to severance pay.

            b.  She be provided the opportunity to make an election
under the Reserve Component Survivor Benefit Plan (RCSBP).

___________________________________________________________________

The following members of the Board considered AFBCMR Docket  Number
BC-2007-02739 in Executive Session on 29 November 2007,  under  the
provisions of AFI 36-2603:

       Mr. Michael K. Gallogly, Panel Chair
       Ms. Janet I. Hassan, Member
     Mr. Mark J. Novitski, Member

All members voted to correct  the  records,  as  recommended.   The
following documentary evidence pertaining to AFBCMR  Docket  Number
BC-2007-02739 was considered:

     Exhibit A.  DD Form 149, dated 21 Aug 07, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, HQ ARPC/DPP, dated 12 Oct 07.
     Exhibit D.  Letter, SAF/MRBR, dated 26 Oct 07.
     Exhibit E.  Applicant’ Response, dated 5 Nov 07, w/atchs.




                                   MICHAEL K. GALLOGLY
                                   Panel Chair



AFBCMR BC-2007-02739




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 XXXXXXX, XXXXXXX, be corrected to show that:

            a. She was not discharged from the Air Force Reserve,  but
was transferred to the Retired Reserve Section on  4  August  2005  to
await pay at age 60 rather  than  being  discharged  due  to  physical
disability with entitlement to severance pay.

            c. She be provided the opportunity  to  make  an  election
under the Reserve Component Survivor Benefit Plan (RCSBP).






            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency