RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2012-04220

		COUNSEL:  NONE

		HEARING DESIRED:  YES


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THE APPLICANT REQUESTS THAT:

His records be corrected to reflect that he was recalled to extended active duty (EAD) pursuant to 10 USC § 12301(d), instead of 10 USC § 688a, so he may qualify for accelerated reserve retired pay pursuant to Title 10 USC § 12731(f). 

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THE APPLICANT CONTENDS THAT:

1.  His recall to EAD under 10 USC § 688a was illegal because said statute applies to “retired” members.  Because he was awaiting retired pay at age 60, he was not technically “retired” and, thus, should have been ordered to EAD under 10 USC § 12301(d).

2.  He should have been ordered to EAD under 10 USC § 12301(d), instead of 10 USC § 688a.  Had he been ordered to EAD under the former, he would have qualified for early reserve retired pay under 10 USC § 12731(f); however, because he was recalled under the latter, he must wait until he attains the age of 60 before he can begin to collect his retired pay.  This constitutes an error as the Secretary of the Air Force (SecAF), through replies to Congressional inquiries, has consistently stated the Air Force has a policy to activate members of an Air Force Reserve Component in a manner that allows them to be eligible for the accelerated reserve retired pay entitlement.

3.  He is the victim of an injustice as his inability to qualify for the accelerated reserve retired pay entitlement constitutes disparate treatment.  In 2009, the Air Force solicited skilled aviation experts to fill critical shortages.  About 490 officers were recalled to EAD using 10 USC § 688a.  Over 400 of these were retired and already drawing retired pay.  The remaining officers were reservists, 51 of which were either drawing retired pay, or would qualify for retired pay at the end of their tour as they qualified to be retained until qualifying for said pay under the “sanctuary” (10 USC § 12686).  That left 31 reserve officers, including the applicant, who were excluded from reduced retirement age or any other equitable consideration for volunteering for recall despite having been originally told they would receive it only to have it taken away later.
4.  It is unfair that the applicant is not eligible for the accelerated retired pay entitlement when he is similarly situated to the more than 91,000 other reservists who are eligible for said entitlement because they were ordered to EAD under 10 USC § 12301(d).

5.  Regardless of the authority utilized to effect his transition to EAD, because he was erroneously led to believe that his EAD tour was creditable toward the accelerated retired pay entitlement, he made irrevocable financial commitments that he would not have otherwise made.  As a result of this hardship, he should be entitled to the accelerated retired pay entitlement or a commensurate bonus under existing statutory authorities that authorize the Secretary of Defense to pay an incentive bonus to a reserve officer performing a tour of EAD.  

In support of his appeal, the applicant provides a voluminous submission, which includes an expanded statement and copies of numerous excerpts from various Titles of the United States Code (USC); a 6 Jan 09 SecAF memorandum; his EAD order with amendment; pertinent DoD and Air Force instructions; various pieces of Congressional correspondence; and other correspondence and e-mail traffic related to the matter under review.

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

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STATEMENT OF FACTS:

On 30 Jun 06, the applicant was relieved of his assignment as a member of the Air Force Reserve and, on 1 Jul 06, was transferred to the Retired Reserve in the grade of lieutenant colonel (O-5) to await retired pay at age 60.  

On 11 Sep 09, the applicant was recalled to EAD from the Retired Reserve for a period of two years, later extended to two years and six months, under the provisions of 10 USC § 688a.  

Under 10 USC § 12731(f), a member of the Ready Reserve who performs active duty for 90 or more days can have that period credited towards qualifying for reserve retired pay prior to attaining the age of 60 in increments of 90 days.  In other words, if prior to receiving retired pay at age 60, a reserve member is credited with 90 days of qualifying active duty, that 90 days can be subtracted from his or her age 60 retirement, thereby allowing receipt of reserve retired pay 90 days earlier.  Active duty performed under 10 USC §688a is not creditable service for the purpose of accelerating the receipt of retired pay under 10 USC § 12731(f).

On 10 Mar 12, the applicant was released from EAD.

On 12 Mar 12, the applicant was once again transferred to the Retired Reserve to await retired pay upon attaining age 60 (2 Jul 14).

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THE AIR FORCE EVALUATION:

AF/JAA recommends denial and provides a comprehensive review of the issues raised by the applicant.  AF/JAA does not agree with the applicant’s analysis and conclusions and finds that he is not eligible for early age retirement credit under 10 USC § 12731(f).  The applicant makes two main arguments: 1) that he was improperly ordered to EAD, pursuant to 10 USC §688a instead of 10 USC § 12301(d), and 2) regardless of what provision effected his transition to EAD, the Air Force induced him to volunteer for EAD by promising said duty would qualify for early receipt of reserve retired pay.  

To support his first argument, the applicant asserts there is a fundamental statutory distinction between Airmen who are “retired” and those who are in the Retired Reserve.  The difference between the two groups is that the members of the former are receiving retired pay, while those in the latter are waiting until they are eligible for retired pay (i.e., old enough to begin receiving it).  The crux of the applicant's argument is that Congress has used the terms “retired” and “Retired Reserve” in different places, and therefore the two terms must have distinct meanings.  Since the applicant was in the Retired Reserve and not yet receiving retirement pay, he argues that he was not “retired,” and therefore is not eligible to be recalled to EAD under 10 USC § 688a, which pertains to the recall of "retired members."  This argument is without merit because the applicant was clearly a member of the Retired Reserve, regardless of whether or not he had begun to collect his retired pay.  There are three categories of Reserves in each branch of the service: the Ready Reserve, the Standby Reserve, and the Retired Reserve.  Each reservist is assigned to one of those three exclusive categories.  The Retired Reserve consists of reservists who "are or have been retired" under 10 USC § 3911, 6323, or 8911, or 14 USC § 291.10 (reservists who are officers that have voluntarily retired after completing 20 years of service and are eligible for retirement pay immediately upon retirement).  The Retired Reserve also consists of all other reservists who, like the applicant, have transferred to the Retired Reserve, voluntarily or otherwise, and have accumulated enough service to earn retirement pay, but may be too young to actually start drawing it.  All members of the Retired Reserve are considered “retired,” and those who are still too young to receive retirement pay have been colloquially referred to as “gray area retirees.”  In the applicant’s case, he was removed from the Reserve Active-Status List by operation of law after completing 28 years of commissioned service.  He was then automatically transferred to the Retired Reserve, effective 1 June 2006.  

It should be noted that 10 U.S.C. § 12731(f) expressly creates eligibility to receive retirement pay at a reduced age for members of the Ready Reserve, but not for members of the Retired Reserve.  10 USC § 12731(f) provides these early retirement pay opportunities to members called up under statutes cited in 10 USC § 101(a)(13)(B), one of which is 10 USC § 688.  Therefore, retirees called up to active duty under 10 USC § 688 may be eligible for early retirement pay if they meet the other criteria in 10 USC § 1273l(f).  This is based on the plain reading of the Code and the applicant's contrary reading is simply unsupported. The applicant makes a valid point when he suggests that a reduction in the eligible age does not seem to provide much of a benefit to a retiree already receiving retired pay.  This may be the result of Congress simply incorporating the list of provisions in the definition of “contingency operation” in 10 USC § 10l(a)(13)(B) rather than specifying the qualifying provisions within l0 USC § 12731 itself.  Had Congress intended to include 10 USC § 688a as service entitling a member to early retirement pay eligibility, it certainly could have done so.  Instead, the amendment that would have brought l0 USC § 688a under the umbrella of 10 USC § 12731(f) was withdrawn and never enacted into law.  There is nothing legally deficient in the applicant’s recall to EAD under 10 USC § 688a and his service pursuant to 10 USC § 688a is not creditable toward eligibility to receive retirement pay at a reduced age.

The applicant’s third argument is that the SecAF entered into a contractual obligation with him to grant him early retirement credit under 10 USC § 12731(f).  However, despite repeated references to “contractual obligations” to award him early retirement credit, the applicant has not produced a written contract or alleged an oral contract of any sort.  It appears that he is essentially arguing that he was induced to consent to recall to EAD under false pretenses and that the Government should be required to reimburse him based upon the erroneous advice he received from a Government employee.  Unfortunately for the applicant, the Government cannot be bound by mistaken representations of its agents, unless the representation was within the scope of the agent’s authority.  Even if this principle were set aside, the evidence presented by the applicant is not helpful to his case.  He points to a DoD instruction and PowerPoint presentation, apparently given by the Air Force Reserve, which list the applicable authorities for reduced eligibility age credit, but 10 USC § 688a is not among them.  Neither document would have led him to believe that his service under 10 USC § 688a would provide him the credit he is seeking.  Moreover, the applicant does not assert that he saw either the DoDI or PowerPoint presentation prior to volunteering for EAD.  

AF/JAA readily acknowledges that the laws governing the Reserve personnel system, along with the implementing regulations, are complex and scattered among numerous authorities.  Nonetheless, if the applicant is going to allege he was deceived into coming onto active duty, he needs to support that allegation with much greater evidence than by pointing to two documents that he may or may not have reviewed and which, in any event, do not support his position.  The applicant did attempt to clarify whether his service would count towards early retirement shortly after coming on EAD.  The conclusion drawn from this is not that he was misled before he came onto EAD, but that he was unsure whether his service would qualify or not when he signed on, and actively set about trying to figure that out after he signed on.    Had he been told prior to volunteering that he would receive early retirement pay credit, he would have a stronger argument that he was misled.  Instead, it appears he started his service without a good understanding of whether his time would qualify or not.

A complete copy of the AF/JAA evaluation is at Exhibit C.

SAF/GCI did not make a recommendation.  However, they found no evidence that the distinction between 10 USC § 688a and 10 USC § 12301(d) service as qualifying for early receipt of retirement pay was raised or discussed during the coordination of the authorizing package approved by SecAF in Jan 09.  Had SAF/GCI anticipated this issue at the time, they are confident they would have recommended the SecAF recall Retired Reserve officers not yet receiving retired pay to EAD pursuant to 10 USC § 12301(d), rather than pursuant to 10 USC § 688a.  SAF/GCI states that they will not speculate whether the SecAF would have accepted their recommendation, but if he had, the affected officers would have been recalled under 10 USC § 12301(d) and their resulting service would have qualified for early age retirement credit under 10 USC § 12731.

A complete copy of the SAF/GCI evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:

The applicant reiterates his legal and procedural arguments.  He takes extreme exception to almost every statement made in the AF/JAA advisory and contends the author’s objectivity is questionable and, as such, the Board should disregard the AF/JAA opinion in its entirety on the basis of fallacies and deceit.  In support of his response, the applicant provides a lengthy expanded statement and a copy of correspondence from the U.S. Senate Majority Leader to the SecAF requesting the Board correct the records of a similarly situated applicant and her colleagues, which presumably include the applicant, to reflect the service they performed and provide them the benefits [to accelerated retired pay] they have earned (Exhibit F).

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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 timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  The applicant contends the Secretary illegally ordered him to extended active duty (EAD) from the Retired Reserve under 10 USC § 688a.  He essentially argues that because he had yet to receive retired pay, he was technically not "retired" and, as such, the noted statute was an ineffective means to recall him to EAD because it pertains exclusively to "retired" members.  Because of this, he argues he should have instead been ordered to EAD under 10 USC § 12301(d), which, he states, would make his EAD service creditable for accelerated reserve retired pay under the provisions of 10 USC § 12731(f).  After a thorough review of the evidence of record and the applicant's complete submission, to include his rebuttal response, the majority of the panel does not find the applicant's legal arguments or the evidence presented sufficient to conclude that his recall to EAD under 10 USC § 688a was an error on the part of the Air Force.  In this respect, the majority agrees with the comprehensive legal analysis provided by AF/JAA indicating that the applicant's arguments are without merit.  According to a number of governing statutes and departmental instructions, members of the retired reserve are in a retired status, regardless of whether or not they are in receipt of retired pay.  The majority finds nothing in the applicant's arguments that would establish that 10 USC § 688a was an ineffective, erroneous, or illegal means to order him to EAD.  Furthermore, while the applicant claims he should have been ordered to EAD under 10 USC § 12301(d), and SAF/GCI indicates they would have recommended the Secretary do so had they anticipated this issue, the majority declines to speculate as to whether or not the Secretary would have accepted this recommendation.  Moreover, it would appear that the benefits of 10 USC § 12371 do not extend to members of the Retired Reserve in any event.  The burden of proof of an error or injustice rests with the applicant, and the majority does not find that he has made his case  that he should have been ordered to EAD under 10 USC § 12301(d) when the use of 10 USC § 688a was a perfectly legitimate exercise of the Secretary’s discretionary authority.

In this respect, we note the applicant’s argument that his recall to EAD under 10 USC § 688a must be an error as it is inconsistent with Air Force policy, as articulated by the Secretary to Members of Congress, to activate members of an Air Force Reserve Component in a manner that allows them to be eligible for the accelerated reserve retired pay entitlement.  However, for the reasons cited by AF/JAA, the applicant was a retired member, not a member of the reserve, when recalled to EAD.  Therefore, said recall was not inconsistent with the stated policy.  The majority does not accept applicant’s argument that he is similarly situated the more than “91,000” members of the reserve called to active duty under 10 USC § 12301(d).  Rather, applicant is a retired officer, and he has presented no evidence of disparate treatment vis-à-vis other retired officers recalled to EAD.  Many other retired officers, some receiving retired pay and others like the applicant waiting to attain age 60 to do so, volunteered for EAD under this recall.  While the applicant argues that he should be entitled to accelerated reserve retired pay or an in lieu of bonus as recompense for his service, he admits that the vast majority of the officers under this recall, those retired Regular and Reserve officers who were already collecting retired pay, will receive no such benefit for performing the same service.  They, like the applicant, will have their retired pay recomputed to account for the additional EAD service they performed, but will not be entitled to any additional benefit.  

Finally, the applicant claims that he is the victim of an injustice because he was erroneously led to believe that his EAD service was creditable toward accelerated reserve retired pay and that he made irrevocable financial decisions as a result.  However, we do not find the applicant has made his case that an injustice exists.  Other than his own uncorroborated assertions, the applicant has provided no evidence whatsoever to indicate that he was misled into volunteering for EAD.  While the record indicates some confusion within the Air Force about eligibility for accelerated retired pay in response to applicant’s inquiries after he started on EAD, there is no evidence that he was induced to enter on EAD with a promise of accelerated retired pay.  Therefore, after a careful and thorough review of the evidence of record and the applicant’s complete submission, the majority finds no basis to recommend granting the relief sought in this application. 

4.  The applicant's case is well documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is denied.

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THE BOARD RECOMMENDS THAT:

A majority of the panel finds insufficient evidence of error or injustice and recommends the application be denied.

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The following members of the Board considered AFBCMR Docket Number BC-2012-04220 in Executive Session on 11 Sep 13, under the provisions of AFI 36-2603:

		Panel Chair
		Member
 		Member
By a majority vote, the Board voted to deny the application.  XXXXX voted to correct the records and has submitted a minority report, which is attached at Exhibit G.  The following documentary evidence was considered:

	 Exhibit A.  DD Form 149, dated 31 Aug 12, w/atchs.
	 Exhibit B.  Applicant's Master Personnel Records.
	 Exhibit C.  Letter, AF/JAA, dated 28 Mar 13, w/atch.
	 Exhibit D.  Letter, SAF/GCI, dated 11 Jun 13.
	 Exhibit E.  Letters, AFBCMR, dated 11 Jun 13 and 13 Jun 13.
	 Exhibit F.  Letter, Applicant, dated 28 Jul 13, w/atch.
	 Exhibit G.  Minority Report, dated 10 Dec 13.



                                  Panel Chair