RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2011-04660
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
His extended active duty (EAD) orders be amended to include the
statement The period of service under these orders is exempt
from the five-year limit as provided in 38 U.S.C.
4312(c)(4)(B).
_________________________________________________________________
APPLICANT CONTENDS THAT:
The Assistant Secretary of the Air Force, Manpower and Reserve
Affairs (SAF/MR) memorandum dated 31 Mar 08 authorizes
inclusion of the statement on his EAD orders.
In support of his request, the applicant provides copies of
special order AGA-300 and the SAF/MR memorandum.
The applicant's complete submission, with attachments, is at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant is currently serving in the Air Force in the grade
of lieutenant colonel.
The Uniformed Services Employment and Reemployment Rights Act of
1994 (USERRA), as codified in Chapter 43 of Title 38 U.S.C,
provides reemployment protections for members of the uniformed
services. Title 38 U.S.C. 4312(c) set a five-year limit for
retaining reemployment rights; however, certain duty is exempt
from the five-year limit.
Department of Defense Instruction (DoDI) 1205.12, Civilian
Employment and Reemployment Rights of Applicants for, and
Service Members and Former Service Members of the Uniformed
Services, implements USERRA. In accordance with (IAW) paragraph
6.6., the Secretary of the Air Force (SECAF) shall make an
exemption determination for periods of active duty when a member
is ordered to active duty because of war or national emergency
and, if the purpose of the order to active duty is for the
direct or indirect support of the war or national emergency, the
orders should be so annotated. The SECAF, in SAF/MR memo dated
31 Mar 08, has exempted service performed by a member ordered to
active duty tour under Title 10 U.S.C. 12301(d) on or after
September 14, 2001, for the purpose of providing direct or
indirect support of missions and operations associated with the
National Emergency By Reason of Certain Terrorist Attacks,
declared by Presidential Proclamation 7463, dated September 14,
2001. The exemption is specifically based on the authority of
Title 38 U.S.C. 4312(c)(4)(B), which exempts service of a member
ordered to active duty under any provision of law because of a
war or national emergency declared by the President or the
Congress.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPSIPR recommends denial. The applicant was ordered to EAD
under AFI 36-2008, Voluntary Extended Active Duty for Air
Reserve Commissioned Officers. The introductory paragraph
states it does not apply to officers volunteering for EAD in
support of contingencies or code-named operations and that
contingencies or war do not change the requirements in AFI 36-
2008. The statutory authority to order an Air Reserve Component
(ARC) officer to EAD under AFI 36-2008 is Title 10 U.S.C
12301(d).
The applicant applied for permanent recall under AFI 36-2008 via
AF Form 125, Application for EAD with the United States Air
Force.
DPSIPR states service under permanent recall does not fit the
SECAFs criteria for exemption under Title 38 U.S.C.
4312(c)(4)(B). The applicant was not ordered to EAD in support
(direct or indirect) of missions and operations associated with
the National Emergency. As such, his EAD orders are not linked
to the National Emergency. While his duties may support
contingency operations, as do the duties of many members on the
ADL, they do not affect the purpose of his EAD. Additionally,
the applicants service is not non-career service as it can
result in his eligibility for active duty retirement.
The complete DPSIPR evaluation, with attachments, is at Exhibit
B.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the
applicant on 23 Apr 12 for review and comment within 30 days
(Exhibit C). As of this date, this office has not received a
response.
_________________________________________________________________
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 error or injustice. We took notice
of the applicants complete submission in judging the merits of
the case; however, we agree with the opinion and recommendation
of the office of primary responsibility and adopt its rationale
as the basis for our conclusion the applicant has not been the
victim of an error or injustice. Therefore, in the absence of
evidence to the contrary, we find no basis to recommend granting
the relief sought in this application.
_________________________________________________________________
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.
_________________________________________________________________
The following members of the Board considered Docket Number
BC-2011-04660 in Executive Session on 18 Jul 12, under the
provisions of AFI 36-2603:
Panel Chair
Member
Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 18 Oct 11, w/atchs.
Exhibit B. Letter, AFPC/DPSIPR, dated 25 Apr 12, w/atchs
Exhibit C. Letter, SAF/MRBR, dated 25 Apr 12.
Panel Chair
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