RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2012-05927

		COUNSEL:  NONE

		HEARING DESIRED:  YES


________________________________________________________________

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). 

________________________________________________________________

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.
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).

In support of his appeal, the applicant provides a personal 
statement; copies of a Secretary of the Air Force (SECAF) 
memorandum, dated 6 Jan 09; his EAD recall order, dated 18 Mar 
10; and various other documents.

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

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STATEMENT OF FACTS:

On 1 Jul 09, the applicant, while serving as a lieutenant 
colonel with the Air Force Reserve, was transferred to the 
Retired Reserve to await retired pay at age 60.  

On 1 May 10, the applicant was recalled to EAD for a period of 
two years under the provisions of Title 10 USC §688a.  His EAD 
tour was subsequently extended for two years, resulting in a 
projected date of separation from EAD of 30 Apr 14.  

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).

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THE AIR FORCE EVALUATION:

AF/JAA recommends denial and provides a comprehensive review of 
the issues raised by the applicant.  While this evaluation was 
originally made in a separate case before the AFBCMR, it 
addresses each of the applicant’s contentions in the instant 
case.  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 argues 
that he was improperly ordered to EAD pursuant to 10 USC §688a 
instead of 10 USC § 12301(d).  He 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 (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.”

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.
AF/JAA readily acknowledges that the laws governing the Reserve 
personnel system, along with the implementing regulations, are 
complex and scattered among numerous authorities.  

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:

Copies of the Air Force evaluations were forwarded to the 
applicant on 18 Jul 13 for review and comment within 30 days.  
As of this date, no response has been received by this office 
(Exhibit E).

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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 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 Ready Reserve, when recalled 
to EAD.  Therefore, said recall was not inconsistent with the 
stated policy.  The majority does not accept the applicant’s 
argument that he is similarly situated with the more than 
“91,000” members of the Reserve called to active duty under 10 
USC § 12301(d).  Rather, the 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.  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.  

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.

________________________________________________________________

THE BOARD RECOMMENDS THAT:

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

________________________________________________________________

The following members of the Board considered AFBCMR Docket 
Number BC-2012-05927 in Executive Session on 11 Sep 13 and 
14 Nov 13, under the provisions of AFI 36-2603:

		, Panel Chair
		, Member
		, Member

By a majority vote, the Board voted to deny the application.  
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 19 Oct 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, SAF/MRBR, dated 18 Jul 13.
	 Exhibit F.  Minority Report, dated 17 Dec 13.




                                   
                                   Panel Chair