RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2009-01747
            INDEX CODE:  136.00
            COUNSEL:  NONE
            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to reflect  he  was  retired  from  the  Air  Force
Reserves.

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APPLICANT CONTENDS THAT:

He should have been  considered  for  the  sanctuary  zone  for  retirement.
While serving in the Reserves, he was  informed  that  his  organization  no
longer had a  position  for  him.   At  the  time,  he  was  on  the  Weight
Management Program (WMP) and was unable to transfer to a different  unit  or
find a unit that would accept him due to his weight.  He was  reassigned  to
the Individual Ready Reserve (IRR) and then discharged from service.

The applicant did not submit any documentation in support  of  his  request.
His complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant was a master sergeant in the Air Force Reserves.

The remaining relevant facts pertaining to this application, extracted  from
the applicant’s military records, are contained in the  letter  prepared  by
the appropriate office of the Air Force at Exhibit B.

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AIR FORCE EVALUATION:

HQ ARPC/DPP recommends denial.  The applicant is not  eligible  for  Reserve
retired pay under the provision of Title 10,  United  States  Code  (U.S.C),
Section 12731.   To  be  eligible,  a  member  must  complete  20  years  of
satisfactory service with the last  8  years  of  qualifying  service  in  a
Reserve component.  The applicant  completed  19  years  and  10  months  of
satisfactory service as of 15 Apr 86, the  date  of  his  transfer  from  an
active status to a non-participating  status  due  to  overage  –  overgrade
status.  He was discharged on 16 May 88.

The applicant claims he should have been  placed  in  Sanctuary  instead  of
being transferred out of his unit in 1986.  However, there was no  sanctuary
provision available to Reserve enlisted members in 1986.  Reserve  Sanctuary
was not authorized until Public Law 102-484, 23 Oct 92,  added  section  (b)
to Title 10, U.S.C.,  Section  1176.   This  section  authorizes  a  Reserve
enlisted member serving in an active status, with  at  least  18,  but  less
than 20 years of satisfactory service, who is selected to  be  involuntarily
separated (other than for Physical Disability or for cause), an  opportunity
to complete 20 years of service.  Since there was no Reserve  Sanctuary  law
in place until 1992, the applicant could not have been placed  in  Sanctuary
when he was transferred to the IRR in 1986 or discharged in 1988.

On 22  Jun  88,  he  was  notified  by  the  Air  Reserve  Personnel  Center
Retirement Branch that he was not eligible  for  Reserve  retired  pay.   In
addition, a retirement technician further  explained  his  options  and  the
requirements of the law.

The complete DPP evaluation, with attachments, is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Although he did not serve “20 calendar years,” he more  than  “satisfied  20
years of service.”  He was discharged two months early after returning  from
Vietnam due to a military drawdown and reduction in force.  He was  a  young
man at the time and did not realize his early separation would be an  issue.
 If he had served two  additional  months,  his  satisfactory  service  time
would have been completed.  He far exceeded his yearly requirement  most  of
his  years  in  service  and  believes  that  two  months  of  service  (the
equivalent of two UTAs) could be obtained from his excess  volunteer  active
duty time.  He performed this service  while  employed  full-time  with  the
federal government in Aug 72 and while working part-time.

His  situation  is  perfect  for  the  Sanctuary  provision.   Although  his
progress on the WMP was satisfactory, he could not obtain a  new  assignment
due to being on the program.  He should not have been transferred  until  he
was retirement eligible.

The applicant’s complete submission is at Exhibit D.

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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.   The  applicant  asserts  that  based  on
having over 18 years of service at the time  of  his  discharge,  he  should
have been placed in sanctuary and  allowed  to  serve  the  time  needed  to
retire.  However, we note, as pointed out by  ARPC/DPP,  the  applicant  was
discharged in 1988 and the public law authorizing Reserve sanctuary was  not
enacted until 1992 with no provision for retroactive application.   Although
the fact  the  applicant  was  only  two  months  short  of  qualifying  for
retirement raises questions of why the applicant was not  allowed  to  serve
the additional  two  months,  the  applicant  has  not  provided  sufficient
evidence to show he has been the victim  of  an  error  or  injustice.   The
applicant opines that he should be  provided  a  Reserve  retirement  solely
because it is the right thing to do.  Unfortunately, based on  the  lack  of
evidence in support of his appeal, we are not persuaded that this should  be
the case.  In the absence of evidence which supports  that  the  applicant’s
discharge was improper or erroneous, based on the presumption of  regularity
in the conduct of governmental affairs and without  persuasive  evidence  to
the contrary, it is our opinion that his discharge was  proper.   Therefore,
based on the available evidence of record, we find no persuasive basis  upon
which to favorably consider this application.

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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.

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The following members  of  the  Board  considered  AFBCMR  BC-2009-01747  in
Executive Session on 1 December 2009, under the provisions of AFI 36-2603:

      Mr. Joseph D. Yount, Panel Chair
      Mr. Richard K. Hartley, Member
      Ms. Patricia R. Collins, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 8 May 09.
    Exhibit B.  Letter, HQ ARPC/DPP, dated 17 Jun 09, w/atchs.
    Exhibit C.  Letter, SAF/MRBR, dated 26 Jun 09.
    Exhibit D.  Letter, Applicant, dated 8 Jul 09.




                                   JOSEPH D. YOUNT
                                   Panel Chair