RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2012-05412

			COUNSEL:  NONE

			HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

He be awarded retroactive stop-loss special pay compensation for 
the period from 11 September 2001 through 31 October 2002.  

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APPLICANT CONTENDS THAT:

1.  His claim for retroactive stop-loss special pay compensation 
pursuant to Public Law (PL) 111-32, § 310, submitted originally 
on 22 September 2010, was denied.  That denial was timely 
appealed on 20 June 2011, and the appeal was finally denied by 
way of a letter from AFPC/DPSO on 12 August 2011.  The denial 
letter stated, in part, “at no time were you held beyond an 
approved retirement date due to stop-loss”  However, PL 111-32, 
§ 310, in addition to covering circumstances extending service 
beyond an approved retirement date, states “…or whose 
eligibility for retirement was suspended pursuant to 10 U.S.C. § 
12305, or any other provision of “stop-loss authority.” 

2.  On 11 September 2001, he was eligible to retire but 
subjected to stop-loss, and while in that status he was ordered 
to make a permanent change of station (PCS) in October 2001.  As 
a result of this PCS, he incurred a 12-month active duty service 
commitment (ADSC) and thus, had his eligibility to retire 
suspended until at least October 2002 as a direct result of the 
stop-loss provision.  Although he could have thereafter retired 
in October 2002, assuming the stop-loss rules were no longer in 
effect, he continued to serve until his mandatory retirement 
date (MSD) of 31 December 2002.  After retiring on his MSD he 
was immediately voluntarily recalled to active duty and served 
until he reverted to retired status effective 1 June 2003.  

3.  He is not claiming that he should be compensated for the 
period of time between 1 January 2003 through 1 June 2003.  He 
is only claiming retroactive stop-loss special pay compensation 
for the time between 11 September 2001, when the stop-loss rules 
went into effect, and the 12-month period of active duty service 
commitment he incurred between October 2001 and October 2002 by 
virtue of being ordered to PCS at a time when he was subject to 
stop-loss rules, during which time his eligibility for 
retirement was suspended within the meaning of (PL) 111-32, § 
310.   

In support of his request, the applicant provides copies of his 
February 2011 military retiree account statement, his DD Form 
214, Certificate of Release or Discharge from Active Duty, and 
letters from the Air Force personnel services directorate, his 
congressional representative, and the Department of Veterans 
Affairs (DVA).  

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

________________________________________________________________

STATEMENT OF FACTS:

The applicant is a former commissioned officer of the Regular 
Air Force. 

The remaining relevant facts pertaining to this application are 
contained in the letter prepared by the appropriate offices of 
the Air Force at Exhibits C and D.  

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AIR FORCE EVALUATION:

1.  HQ AFPC/DPSOR recommends denial.  DPSOR states the applicant 
was not involuntarily held on active duty due to stop-loss.  
Based on the documentation on file in his master personnel 
records, he was subject to a 12-month active duty service 
commitment (ADSC) due to his PCS assignment, not stop-loss.  The 
applicant acknowledged and accepted his ADSC voluntarily.  His 
military records show he was not affected by stop-loss and was 
not involuntarily held on active duty.  The applicant's military 
records also show his Air Force specialty code (AFSC), 51J4, was 
affected by stop-loss, but he did not have an approved or 
requested retirement or separation at the time stop-loss was in 
effect.  The effective stop-loss date for the Air Force judge 
advocates began on 2 October 2001, not 11 September 2001.  

2.  The applicant incurred the 12-month ADSC on 24 October 2001 
for his PCS to Hurlburt Field, FL.  On the AF Form 63, Active 
Duty Service Commitment (ADSC) Acknowledgment Statement, the 
applicant acknowledged and agreed to accept and serve the ADSC.  
If he wanted to decline the ADSC associated with his PCS 
assignment, he could have applied for retirement or separation 
within 7 calendar days following receipt of the PCS assignment 
notification.  The applicant did not decline the ADSC associated 
with his PCS assignment and signed the AF Form 63 on 
24 October 2001.

3.  The applicant was retired from the Air Force 31 Dec 2002 
under the provisions of AFI 36-3203, Service Retirements, due to 
maximum service for time in grade.  He served on active duty for 
a period of 27 years and 10 months.  Based upon the guidance of 
AFI36-3203, dated 8 Sep 2006, the applicant was retired 
correctly.  

4.  The applicant submitted a claim for Retroactive Stop-Loss 
Special Pay Compensation to HQ AFPC/DPSOS on 22 September 2010 
and was disapproved on 5 November 2010.  On 10 June 2011, 
AFPC/DPSOS received the applicant's appeal for Retroactive Stop 
Loss compensation.  His claim was re-adjudicated on 
12 August 2011 and the appeal was disapproved.  

The complete AFPC/DPSOR evaluation is at Exhibit C.  

1.  AFPC/JA recommends denial.  JA states that at the time stop-
loss went into effect, the applicant had not submitted a 
retirement application.  Nor did he submit a retirement 
application during the September through October 2001 time 
frame.  In fact, very soon after stop-loss went into effect, the 
applicant voluntarily accepted a PCS assignment where he 
reported for duty in mid-October 2001.  The applicant’s Air 
Force Form 63, dated 24 October 2001, reflects that he 
acknowledged and agreed to accept and serve the ADSC associated 
with the PCS assignment, and that he did not apply for 
retirement or separation within seven days following receipt of 
the PCS notification as he could have done.  

2.  The Applicant is requesting that his record be changed to 
require payment under the Retroactive Stop Loss Compensation 
program pursuant to P.L. 111-32, Section 310.  In the 
Supplemental  Appropriations Act of 2009, P.L. 111-32, 123 STAT. 
1859 (2009), Section 310, Congress provided an appropriation to 
the Department of Defense in addition to the normal 
appropriation for a program entitled Retroactive Stop-Loss 
Special Pay Compensation to Eligible Claimants.  Eligibility for 
payment was extended under the program to members of the Armed 
Forces, including members of the reserve components, and former 
and retired members under the jurisdiction of the Secretary who, 
at any time during the period beginning on 11 September 2001, 
and ending on 30 September 2009, served on active duty while the 
member's enlistment or period of obligated service was extended, 
“or whose eligibility for retirement was suspended,” pursuant to 
section 123 or 12305 of Title 10, United States Code, or any 
other provision of law (commonly referred to as a “stop-loss 
authority”) authorizing the President to extend an enlistment or 
period of obligated service, or suspend an eligibility for 
retirement, of a member of the uniformed services in time of war 
or national emergency declared by Congress or the President.  
Relying on the language in Section 310 of P.L.111-32, “or whose 
eligibility for retirement was suspended.”  

3.  The applicant claimed, in his initial 2010 retroactive stop-
loss compensation claim, as he does now, that he intended to 
retire in or about the time frame that stop-loss in the Air 
Force was invoked, but that he did not do so because such an 
application would not have been approved (eligibility for 
retirement having been “suspended”).  In response, they note 
first that the record contains no objective evidence that would 
corroborate the applicant's claim that he intended to retire at 
that time.  On the contrary, the applicant had no retirement 
application on file at the time stop-loss went into effect.  He 
voluntarily accepted a staff judge advocate position and PCS in 
that time frame and he never chose to request retirement in lieu 
of the PCS assignment.  Under these circumstances, it does not 
seem likely that the applicant actually intended to retire at 
the onset of stop-loss, nor that he was held involuntarily in 
the Air Force as the guidance required.  

4.  In order to implement the retroactive stop-loss compensation 
claims program in the Air Force, Air Force Active Duty Personnel 
Service Delivery Memorandum (PSDM) 09-60, dated 21 October 2009, 
was promulgated.  It defined eligibility for payment as follows:  
This benefit is payable to current and former Armed Forces 
members, including reserve component members, who at any time  
from 11 September 2001 to 30 September 2009, had an approved 
separation or retirement date and were involuntarily held in 
service beyond this date as a direct result of stop-loss.

5.  In this case, the applicant did not have an approved 
application for retirement on file at the time stop-loss went 
into effect, and he never applied for retirement during that 
initial period.  Consequently, he was never held involuntarily, 
and an approved retirement was never “suspended” pending the 
termination of stop-loss.  The applicant was eligible for 
retirement during the stop-loss period; the Air Force took no 
action during the stop-loss period to suspend eligibility for 
retirement.  They confirmed that exceptions and waivers to stop-
loss were approved in appropriate cases to permit separation or 
retirement of Air Force JAG members during that time.  The 
applicant never applied for retirement prior to, or during the 
period of stop-loss.  Therefore, he never had an approved 
retirement date extended, or a new application denied, nor was 
he ever held involuntarily.  Simply stated, the applicant was 
not eligible for retroactive stop-loss compensation, and the 
decisions by the Air Force in 2010 and 2011 to deny his claims 
were proper.  The same holds true now.  

The complete AFPC/JA evaluation is at Exhibit D.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the 
applicant on 17 February 2013 for review and comment within 30 
days (Exhibit E).  To date, a response has not been received.  

________________________________________________________________

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.  We took 
careful notice of the applicant's complete submission in judging 
the merits of the case; however, we do not find the evidence 
provided sufficient to override the rationale provided by the 
Air Force offices of primary responsibility.  We have noted the 
applicant’s contention that he was ordered to make a permanent 
change of station (PCS) at a time when he was subject to stop-
loss rules, during which time his eligibility for retirement was 
suspended within the meaning of (PL) 111-32, § 310.  However, we 
find no evidence substantiating that the applicant was 
involuntarily held in service beyond an approved separation or 
retirement date as a direct result of stop-loss.  Thus, we agree 
with the opinions and the recommendations of the Air Force 
offices of primary responsibility and adopt their rationale as 
the basis for our conclusion that the applicant has not been the 
victim of an error or injustice.  In view of the above and in 
the absence of evidence to the contrary, we find no compelling 
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 this application 
in Executive Session on 4 September 2013, under the provisions 
of AFI 36-2603:

		, Panel Chair
		, Member
		, Member

The following documentary evidence was considered in AFBCMR 
Docket Number BC-2012-05412:

    Exhibit A.  DD Form 149, dated 1 Nov 2012, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPSOR, dated 19 Dec 2012, w/atchs.
    Exhibit D.  Letter, AFPC/JA, dated 11 Feb 2013.
    Exhibit E.  Letter, SAF/MRBR, dated 17 Feb 2013.




                                   
                                   Panel Chair