RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-00024 

 COUNSEL: 

 HEARING DESIRED: YES 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

His record be corrected to reflect a retirement effective date of 
1 June 2011 and he be returned from a 179-day deployment to Iraq. 

 

_______________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

In a legal brief with attachments, the applicant’s counsel makes 
a variety of assertions why the applicant is serving an unjust, 
179-day deployment in Iraq since 7 November 2010. Upon 
notification of the 179-day deployment, he informed his previous 
commander that he would submit his request for retirement if 
selected. The previous commander informed him on several 
occasions that he would be removed him from the tasking and, 
thus, not have to submit a retirement application. Among his 
assertions are the following major points: 

 

1. His retirement application was valid and should have 
precluded him from being deployed on a 179-day deployment to 
Iraq. The Air Force retirement eligibility requirements for non-
disability retirement states officers and enlisted members must 
complete 20 years of total active federal military service 
(TAFMS). In accordance with AFI 36-3203, Service Retirements, he 
would have had the required years of active service to be 
eligible for retirement on 1 June 2011. His retirement 
application was not subject to any restrictions or prohibitions. 


 

He received two notifications that his retirement had been 
approved, with no restrictions. Neither the new commander nor the 
Secretary of the Air Force Personnel Counsel (SAFPC) cited any 
prohibitions or restrictions as justification to deny his 
retirement request. 

 

According to AFI 36-2110, Assignments, an airman will not be 
selected for temporary duty (TDY) if the person is assigned in 
the continental United States, has had time on station (TOS) or 
more than forty-five days and the TDY return date falls within 
thirty calendars days of the date of separation (DOS). The 
commander violated Air Force instructions by failing to review 
all available options prior to disapproving his retirement. 

 


2. The SAFPC decision to deny his retirement application 
is erroneous because it was premised upon incorrect and 
misleading information from his commander and AFPC. The crux of 
the commander’s argument is that a manpower shortage necessitated 
his retirement be denied to fill a “need billet” in order to 
remain fully mission capable. The evidence indicates there was 
no manpower shortage and the commander was eligible for the 
deployment tasking. In fact, the applicant’s Air Force Specialty 
Code (AFSC) was overmanned at 122 percent. The commander 
submitted erroneous information to AFPC Retirements and SAFPC to 
substantiate a disapproval, which is clearly in error and must be 
corrected in the interest of justice. 


 

3. The treatment by his commander, in addition to 
amounting to legal error, shocks the sense of justice. The 
commander abused his authority by forcing upon the applicant a de 
facto stop-loss based upon a fallacious lack of manpower 
argument. It would be a clear injustice for the applicant to 
remain on an unjust deployment. 


 

In support of his appeal, the applicant’s counsel provides a 
legal brief. 

 

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

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant is presently serving in the Regular Air Force in 
the grade of major. He has an indefinite DOS from the Air Force. 
The applicant’s Total Active Federal Military Service Date is 
28 May 1991 (TAFMSD) and his Total Active Federal Commissioned 
Service (TAFCS) date is 1 June 1999, making him eligible for 
retirement effective 1 June 2011. 

 

On 26 March 2010, the applicant was notified of a 179-day 
deployment to Iraq. 

 

On 16 September 2010, the applicant informed the new commander of 
his intent to proceed with his original plan to retire. 

 

On 17 September 2010, the applicant submitted a letter to 
AFPC/DPSOR and SAFPC, requesting retirement, with an effective 
date of 1 June 2011. 

 

On 17 September 2010, the commander recommended disapproval of 
the applicant’s 1 June 2011 retirement and approved his 
retirement effective 15 September 2011. The commander stated 
although the applicant knew his plan was to set his retirement 
date at 1 June 2011; he waited until 16 September 2010 to file 


his application for retirement, which created a situation 
detrimental to both the mission and morale. 

 

On 29 September 2010, AFPC/DPSOR recommended disapproval on the 
applicant’s retirement request to SAFPC. DPSOR states AFPC/DPAO 
recommended approval of the applicant’s retirement request based 
upon manning in KC-135 operational units. DPSOR stated that while 
the applicant had no active duty service commitment (ADSC) and 
DPOA stated the manning supported his request, it was imperative 
to support the commander and give credence to his position. The 
applicant stated his previous commander would remove him from the 
deployment; however, the previous commander did not submit a 
reclama. Once his commander told him he had to deploy, the 
applicant submitted his retirement papers. 

 

On 20 October 2010, SAFPC disapproved the applicant’s request for 
retirement effective 1 June 2011. 

 

On 22 October 2010, the applicant requested redress of grievance 
under the provisions of AFI 51-904, Complaint of Wrongs, Under 
Article 138 Uniform Code of Military Justice (UMCJ) regarding the 
commander’s decision to deploy him on the 179-day AEF tasking. 

 

On 27 October 2010, the commander reviewed and denied the 
applicant’s request for redress under Article 138, UCMJ as 
unwarranted. The commander stated if he desired to continue the 
Article 138 process, he could submit his package to the Air 
Mobility Command Commander (AMC/CC), General Court-Martial 
Convening Authority (GCMCA), within 90 days. 

 

On 1 November 2010, the applicant submitted an Article 138 
Complaint to AMC/CC. On 7 December 2010, USAF/JAA concluded the 
denial rendered by AMC/CC was appropriate. 

 

On 8 November 2010, the applicant deployed to Iraq. 

 

The remaining relevant facts, extracted from the decedent’s 
available military service records, are contained in the Air 
Force evaluations at Exhibit C and D. 

 

_________________________________________________________________ 

 

 

AIR FORCE EVALUATION: 

 

AFPC/DPSOR recommends denial. DPSOR states the applicant 
submitted a retirement application to his commander less than two 
months prior to his deployment date. To honor his request would 
place another member in the position of being deployed on short 
notice. When submitting his application, he claimed neither 
extreme hardship uncommon to other members nor why it would be in 
the best interest of the Air Force to allow him to retire in lieu 


of deploying. The applicant was not relieved of the deployment 
tasking because he had an indefinite DOS and no approved 
retirement. The commander recommended denial for a 1 June 2011 
retirement date so the applicant would have sufficient time to 
out-process after his deployment. 

 

DPSOR states under Title 10, USC, Section 8911, the Secretary of 
the Air Force (SecAF) may upon an officer’s request, retire a 
Regular officer of the Air Force who has at least 20 years of 
active service, at least 10 years, which have been active service 
as a commissioned officer. The law does not state the SecAF is 
obligated to retire an officer if the officer has at least 
20 years TAFMS and 10 years TAFCS unless the officer has a 
mandatory retirement date under Title 10, USC, Chapter 36, Promotion, Separation, and Involuntary Retirement of Officers on 
the Active-Duty List. 

 

AFI 36-3203, allows a member to submit an application for 
retirement up to 12 months in advance of a requested retirement 
date. The applicant was eligible to submit an application on 
1 June 2010. 

 

The complete DPSOR evaluation is at Exhibit C. 

 

AFPC/JA recommends denial. JA states there is no evidence that 
his commander or SAFPC violated any directive or otherwise abused 
their discretion in denying the applicant’s retirement request. 
The applicant argues that all available options to deployment 
were not considered, thereby constituting a cognizable error. 
There is no evidence to support a conclusion that the commander 
failed to consider other options. Certainly, his having 
recommended the result least favored by the applicant does not 
establish such proof. Nor does the fact that the applicant’s AFSC 
may have been over manned. Deployment tasks are specific to 
individual commands and the availability of qualified personnel. 
This is no evidence the commander violated any directive or 
otherwise abused his discretion in recommending the applicant’s 
deployment. In addition, there is no evidence SAFPC abused its 
discretion in denying the applicant’s retirement request. 

 

The applicant argues the principles of equity should compel the 
Board to grant relief; however, DPSOR has adequately addressed 
his contentions. The federal courts have defined injustice 
within the meaning of Title 10, USC, Section 1552 as that 
behavior or action that rises to a level that shocks the 
conscience. The fact the applicant had the opportunity to retire 
only a month after his requested date cannot be characterized as 
shocking the conscience. 

 

The complete JA evaluation is at Exhibit D. 

 

_________________________________________________________________ 


 

 

 

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS: 

 

The applicant’s counsel states both advisory opinions ignore the 
crucial fact that SAFPC’s denial to the applicant’s retirement 
request was based on erroneous file information. The SAFPC vote 
sheet erroneously indicated the applicant had an ADSC when he did 
not. If true, an outstanding ADSC requirement would require a 
wavier and would likely have resulted in a denial of his 
retirement request on ADSC grounds; however, the applicant did 
not have an outstanding ADSC. 

 

Both advisory opinions contained inaccurate and misleading 
factual information. DPSOR fails to accurately convey that DPAO 
recommended approval of the applicant’s retirement because his 
AFSC was overmanned at 122 percent. This directly contradicts 
his commander’s rationale to deny the request. The Chief of 
Staff of the Air Force has acknowledged the Air Force is 
overmanned and has implemented system-wide force management 
measures to downsize by encouraging active duty officers to 
retire or separate. 

 

The JA opinion contradicts the evidence by suggesting the AFSC 
may have been overmanned when there are no reasonable grounds for 
disputing or otherwise diminishing the fact the AFSC was 
overmanned by 122 percent. Neither opinion addresses in any 
meaningful manner the questionable nature of the commander’s 
articulated, “over manning” rationale. 

 

Counsel states the DPSOR opinion incorrectly states the previous 
commander informed the applicant he would relieve him from the 
deployment because he intended to apply for retirement effective 
1 June 2011. In fact the previous commander had intended to 
reclama the applicant from the deployment altogether and informed 
him not to submit a retirement application. While DPSOR 
incorrectly states his current commander’s compromise date was 
1 September 2011, it was actually 15 September 2011. While not 
necessarily a material oversight, this factual error, when 
considered in combination with additional errors and omissions 
further suggests DPSOR did not sufficiently review the 
applicant’s case. 

 

The applicant violated no Air Force instruction and committed no 
wrongdoing in submitting his retirement application. His 
intentions to retire were made clearly, immediately after he was 
notified of the 179-day deployment in April 2010. The previous 
commander informed him he would reclama him from the deployment. 
The applicant did not silently wait months only to suddenly 
reveal his retirement intentions to the detriment of his command. 
But, the facts of this case do not support a negative implication 


as evidenced as early as 29 April 2010 with his DD Form 2648, Preseparation Counseling Checklist stating an anticipated date of 
separation of 1 June 2011. 

Throughout the process, the applicant has conducted himself 
professionally and openly despite being subjected to questionable 
command judgment and clear procedural error. Instead of 
objectively assessing the matter, the advisory opinions presented 
numerous factual errors, questionable omissions and baseless 
negative mischaracterization that do little more than obfuscate 
what is supposed to be a non-adversarial process designed to 
correct errors and injustices as a matter of fairness. The Board 
continues to have sufficient grounds to approve the applicant’s 
request relief. 

 

The counsel’s complete rebuttals, with attachments, are 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. Insufficient relevant evidence has been presented to 
demonstrate the existence of an injustice. After thoroughly 
reviewing the documentation provided in support of his appeal, we 
do not believe the applicant has suffered an injustice. Although 
the applicant asserts that his previous commander ensured him he 
would not be deployed, he has not provided any evidence from the 
former commander to support this contention. While erroneous 
information was used by the Air Force Personnel Board (AFPB) in 
making its recommendations, the evidence of record reflects the 
Air Force Personnel Board unanimously disapproved the applicant’s 
request to retire based on his chain-of-command’s recommendation. 
In this respect, we note that on 26 March 2010, the applicant was 
notified of a deployment tasking with a 6 November 2010 in place 
date. On 1 Jun 2010, the applicant was eligible to submit his 
retirement request; however, he waited until 17 September 2010. 
Consequently, his commander recommended denial of his retirement 
application and stated the applicant’s delay created a situation 
detrimental to both the mission and morale and we agree. If the 
applicant did not want to deploy he could have easily submitted 
his retirement request in June 2010 rather than waiting less than 
two months prior to the deployment start date. As such, we 
believe to honor his request would have placed another Air Force 
member in the position of being deployed on short notice. 
Therefore, we find the denial of the applicant’s retirement 
request was within the commander’s discretionary authority, and 
the rationale he provided formed a sound basis to deny his 


retirement application. Therefore, we agree with the opinions 
and recommendations of the Air Force office of primary 
responsibility and adopt their rationale, as the basis for our 
conclusion the applicant has not been the victim of an injustice. 
Accordingly, in the absence of evidence to the contrary, we find 
no 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 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 AFBCMR Docket 
Number BC-2011-00024 in Executive Session on 5 April 2011, under 
the provisions of AFI 36-2603: 

 

, Panel Chair 

, Member 

, Member 

 

The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2011-00024 was considered: 

 

Exhibit A. DD Form 149, dated 7 Dec 2010, w/atchs. 

Exhibit B. Applicant's Master Personnel Records. 

Exhibit C. Letter, AFPC/DPSOR, dated 20 Jan 11. 

Exhibit D. Letter, AFPC/JA, dated 2 Feb 11. 

Exhibit E. Letter, SAF/MRBR, dated 11 Feb 11. 

Exhibit F. Letter, Applicant, dated 24 Feb 11, w/atchs. 

 

 

 

 

 

 Panel Chair