RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2012-03305
			COUNSEL:  NONE
			HEARING DESIRED:  NO

________________________________________________________________

APPLICANT REQUESTS THAT:

1.  He be given credit for the active duty he performed from 
29 Jan 08 through 27 Jan 11 under the provisions of Title 10, 
United States Code (U.S.C.) § 12301(d) and 12310, and his 
retirement age be reduced from age 60 to 57 under the provisions 
of Title 10 U.S.C. § 12731(f).

2.  In the applicant’s rebuttal dated 15 Oct 12, he requests his 
orders be amended to reflect that he was on voluntary active 
duty per 10 U.S.C. § 12301(d) and duty In Accordance With (IAW) 
10 U.S.C. § 10211 and it be ruled as qualifying under 10 U.S.C. 
§ 12731 as duty under 10 U.S.C. § 12301(d) further described by 
10 U.S.C. § 10211.

________________________________________________________________

APPLICANT CONTENDS THAT:

The Air Force Personnel Center (AFPC) stated that his active 
duty time does not qualify for the reduced age credit because it 
is defined as “extended active duty.”  He has never served on 
extended active duty and clearly applied for and was accepted 
for a Title 10 U.S.C. § 12301(d) position with the Air National 
Guard.

A 19 Sep 05 memorandum from the Assistant Secretary of the Air 
Force (Manpower and Reserve Affairs), states that “When an ARC 
member is ordered to active duty under section 12301(d) of Title 
10 on or after September 14, 2001, in 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, 
affected members are to have the following statement included in 
their orders: The period of service under these orders is exempt 
from the five-year limit as provided in Title 38 U.S.C. § 
4312(c)(4)(B).”  This statement is on his orders.

On 18 Mar 10, the Chief, NGB issued a Memorandum that provided 
in part, “It is NGB policy that all military members assigned to 
perform duty on behalf of the NGB will be ordered to active duty 
on a voluntary basis under the programmatic authorities of 
10 U.S.C. § 12310 or 12402 or pursuant to active duty for 
operational support in support of the reserve component (ADOS-
RC).  In each of these cases the order to active duty authority 
is 10 U.S.C. § 12301(d).” Emphasis added.

Department of Defense Instruction (DoDI) 1215.07, Paragraph 
6.5.2.2, states in part, that “A member ordered to active duty 
under section 12301(d) of reference (c) shall receive credit for 
all days served regardless of the nature of the duties performed 
(e.g., whether performing training or operational support 
duties.)”

He was clearly on an active duty tour (Statutory Tour) and not a 
National Guard AGR tour.  At best, the reference to duty IAW 
10 U.S.C. § 12310 is a description of the nature of the duties 
he performed.

In support of his request, the applicant provides a personal 
statement, copies of the Assistant Secretary of the Air Force 
(Manpower and Reserve Affairs) (SAF/MR) memorandum dated 19 Sep 
05, an excerpt from Section 647 of the 2008 NDAA and DoDI 
1215.07, the Chief, NGB memorandum dated 18 Mar 10, and various 
other documents in support of his request.

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

________________________________________________________________

STATEMENT OF FACTS:

On 23 Jan 07, Special Order AA 178, ordered the applicant to 
active duty (voluntary per 10 U.S.C. 12301(d) for duty IAW 
10 U.S.C § 12310) for 4 months.

The orders indicated that the period of service under these 
orders was exempt from the five-year limit as provided in 
38 U.S.C § 4312 (c)(4)(b).

On 31 Jan 07, Special Order AA-178 was amended to change the 
period from 4 months to 48 months.

38 U.S.C. § 4312. Reemployment rights of persons who serve in 
the uniformed services who are absent from a position of 
employment is necessitated by reason of service in the uniformed 
services shall be entitled to the reemployment rights and 
benefits.

On 21 Mar 11, the applicant was transferred to the Retired 
Reserve awaiting retired pay, at age 60.  On 22 Jul 13, he 
became eligible for Reserve retired pay.

Additional relevant facts pertaining to this application, 
extracted from the applicant’s military records, are contained 
in the letter prepared by the appropriate office of the Air 
Force at Exhibit C.

________________________________________________________________

AIR FORCE EVALUATION:

ARPC/DPTT recommends denial, and states in part, that the 
applicant does not meet the qualification for reduced retired 
pay age under Title 10, U.S.C., § 12731(f), since Title 10, 
U.S.C., § 12310, is clearly listed as service that does not 
qualify for reducing the retirement age.  Further, there is no 
direct correlation between the USERRA and reduced retired pay 
age eligibility.

DPTT states that on 28 Jan 07, the applicant was ordered to 
active duty (voluntary) under the provision of Title 10, U.S.C., 
Section 12301(d), for duty IAW Section 12310, for a period of 
48 months to be the Chief, Technician Personnel Division, ANG 
Readiness Center, Andrews AFB, MD.  On 27 Jan 11, he was 
released from active duty and was transferred back to the MN 
ANG.  He was eligible for Reserve retirement under the 
provisions of Title 10, U.S.C., § 12731, and was transferred to 
the Retired Reserve awaiting retired pay, effective 21 Mar 11, 
per his request.  He turns age 60 on 22 Jul 13 and will be 
eligible for Reserve retired pay on that date.

DPTT further states that they cannot comment on whether the 
wording of the explanation as to why the applicant was not 
eligible for the reduced retired pay age included “extended 
active duty.”  However, he was told that his orders included 
Title 10, U.S.C. § 12310 and that such service was not eligible 
to reduce his retired pay age.  The Fiscal Year 2008 National 
Defense Authorization Act, Section 647, reads: B(i) Service on 
active duty described in this subparagraph is service on active 
duty pursuant to a call or order to active duty under a 
provision of law referred to in section 101(a)(13)(B) or under 
section 12301(d) of this title.  Such service does not include 
service on active duty pursuant to a call or order to active 
duty under section 12310 of this title.

The complete DPTT evaluation, with attachments, is at Exhibit B.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The memorandum from ARPC/DPTT clearly states that he was ordered 
to active duty under the provision of Title 10, U.S.C., § 
12301(d), for duty IAW § 12310.  

The AF/JAA memorandum is important for many reasons:  First it 
shows that the type of active duty that most accurately 
describes his service at NGB was service under 10 U.S.C. § 
10211, “active duty (other than for training) at the seat of 
government, and at headquarters responsible for Reserve Affairs, 
to participate in preparing and administering the policies and 
regulations affecting those Reserve components.”  This is 
exactly the scope of his duties as the Chief of Air Technician 
Personnel while assigned to NGB.  Secondly, it clearly notes 
that service under 10 U.S.C. § 12310 is typically referred to as 
“AGR duty.”  If he were to have been in the Air Force Reserves 
this would have been true; however, in the National Guard, AGR 
duty is governed by Title 32 U.S.C., § 502(f).  Finally, it 
notes that under 10 U.S.C., § 12731 “[T]o qualify, the active 
duty must be pursuant to 10 U.S.C., § 12301(d) or to a 
contingency operation as defined in 10 U.S.C. § 101(a)(13)(B), 
emphasis added.

The type of duty he performed should have been characterized as 
active duty (voluntary) per 10 U.S.C. § 12301(d) and duty IAW 
10 U.S.C. § 10211 instead of active duty (voluntary) per 
10 U.S.C. § 12301(d) and duty IAW 10 U.S.C. § 12310.  This would 
accurately reflect the actual type and nature of the duties he 
performed.  

However, in either case, the term “and duty IAW” is a 
description of the type and nature of the duties performed and 
not the authority used to call him to active duty.  

The memorandum from JAA ignores completely the language 
contained in Department of Defense Instruction (DoDI) 1215.07, 
paragraph 6.5.2.2.

The exclusion of duty under 10 U.S.C. § 12310 was intended to 
exclude Air Force Reserve AGR duty to make such duty in the Air 
Force Reserve par with ANG AGR duty which was excluded because 
it is IAW 32 U.S.C., § 502(f) and does not qualify.  In the ANG, 
AGR members are under the control of The Adjutant General and 
the Governor for their State.  On his tour, he was under the 
control of the National Command Authority and the President.  
Therefore, his records should be corrected to reflect the type 
of duty he was on i.e., “active duty (voluntary) per 10 U.S.C. § 
12301(d) and duty IAW 10 U.S.C. § 10211.”  He also requests that 
this duty be ruled as qualifying under 10 U.S.C. § 12731 as duty 
under 10 U.S.C. § 12301(d) further described by 10 U.S.C. § 
10211.

The applicant's complete response is at Exhibit D.

________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

NGB-JA recommends denial.  JA states that the applicant’s active 
duty service occurred at NGB, and his orders properly cited 
10 U.S.C. Section 12301(d) IAW 10 U.S.C. Section 12310.  His 
service does not qualify for reducing the non-regular retirement 
age.  

The applicant’s 28 Jan 07 orders to active duty properly cited 
10 U.S.C. § 12301(d) IAW 10 U.S.C. § 12310.  Under 10 U.S.C. § 
12310, the Secretary concerned may order a member of a Reserve 
component under the Secretary’s jurisdiction to active duty 
pursuant to 10 U.S.C. § 12301(d) to perform Active Guard and 
Reserve duty organizing, administering, recruiting, instructing, 
or training the Reserve components.  These duties are consistent 
with the type of active duty that the applicant performed at the 
NGB.

JA states that they have consistently interpreted 10 U.S.C. § 
10211 to apply only to officers who are serving or assigned as 
National Guard advisors at a headquarters other than NGB.  Thus, 
if the applicant had been ordered to active duty to “participate 
in preparing and administering the policies and regulations 
affecting the Reserve components” at Headquarters, Department of 
the Air Force; the Office of the Secretary of Defense; the Joint 
Staff; a Combatant Command; or some headquarters other than NGB, 
his orders would have been characterized as under 10 U.S.C. § 
12301(d) IAW 10 U.S.C. Section 10211.

The complete JA evaluation is at Exhibit E.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant states that his orders do not state “10 U.S.C. 
§ 12301(d) IAW 10 U.S.C. § 12310” as stated in the legal 
advisory, rather, they state “10 U.S.C. § 12301(d) for duty IAW 
10 U.S.C. § 12310” emphasis added.  The “for duty” words clearly 
describe the type of duty to be performed, not the authority for 
the duty.  The advisory does not discuss DoDI 1251.07 paragraph 
6.5.2.2. which explicitly states, “A member ordered to active 
duty under section 12301(d) of reference (c) shall receive 
credit for all days served regardless of the nature of the 
duties performed (e.g. whether performing training or 
operational support duties).”  It is clear that his duty was 
under 10 U.S.C. § 12301(d) and that the description of the 
nature of these duties was as described in 10 U.S.C. § 12310.  
The nature of his duties performed does not disqualify him from 
receiving the credit.  If his orders were under 10 U.S.C. § 
12310, which they were not, then, he would be disqualified.  If 
Congress had intended for the type of duty under Section 12310 
to be disqualifying they would have so stated, instead, they 
disqualified duty under Section 12310 only.

The Legal advisory fails to take into account the effect of the 
2008 NDAA which established the NGB as a defense activity with a 
four star officer in command who is designated as the principle 
advisor on Guard issues to the Defense Secretary and to military 
leaders.  The Chief of the National Guard Bureau (CNGB) was 
promoted to a four star billet in the 2008 NDAA by increasing 
the number of Flag Officer billets in Combatant Commands to make 
room for promotion of the CNGB.  The NGB is now organizationally 
on par with HQ DAF, OSD, Joint Staff and Combatant Commands and 
therefore, should be accorded the same deference that is 
accorded to those commands.  Officers that serve in those 
commands serve under 12301(d) and qualify for the credit and 
have Section 10211 noted as their type of duty.  NGB officers 
should be afforded the same consideration.  Officers at NGB are 
there as active duty officers under 10 U.S.C. § 12301(d), not as 
AGR officers under 10 U.S.C. § 12310.

The applicant’s complete response is at Exhibit G.

________________________________________________________________

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 applicant’s complete submission in judging the merits of 
the case and do not find it supports a determination that his 
retirement age should be reduced to the age of 57 or that his 
orders should be amended as requested.  Therefore, we agree with 
the opinions and 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.  We note the applicant argues that DoDI 
1215.07 states that members ordered to active duty under section 
12301(d) of reference (c) shall receive credit for all days 
served regardless of the nature of the duties performed.  While 
this is true, we note that DoDI 1215.07 specifically excludes 
Active Guard/Reserve duty under section 12310.  As such, since 
the applicant's active duty service occurred at the National 
Guard Bureau and his orders properly cited 10 U.S.C § 12301(d) 
IAW 10 U.S.C § 12310, his service does not qualify for reducing 
the non-regular retirement age.  Additionally, the applicant 
requests his orders be amended to reflect that he was on 
voluntary active duty per 10 U.S.C. § 12301(d) and duty IAW 
10 U.S.C. § 10211 and it be ruled as qualifying under 10 U.S.C. 
§ 12731.  However, he has not provided any evidence that would 
warrant an exception to policy to the law.  Making corrections 
without sufficient evidence would be unfair to others similarly 
situated and establish a basis for circumventing the procedures 
in place.  Therefore, in the absence of substantial evidence to 
the contrary, we conclude the applicant has failed to sustain 
his burden of establishing that he has suffered either an error 
or an injustice.  Accordingly, in the absence of evidence 
showing the applicant was treated differently from others 
similarly situated, we find no basis to recommend granting the 
relief sought.

________________________________________________________________

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-2012-03305 in Executive Session on 3 Dec 13, under the 
provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence pertaining to Docket Number     
BC-2012-03305 was considered:

    Exhibit A.  DD Form 149, dated 16 Jul 12, w/atchs.
    Exhibit B.  Letter, ARPC/DPTT, dated 12 Sep 12, w/atchs.
    Exhibit C.  Letter, SAF/MRBR, dated 24 Sep 12.
    Exhibit D.  Letter, Applicant, dated 15 Oct 12.
    Exhibit E.  Letter, NGB-JA, dated 16 Oct 13.
    Exhibit F.  Letter, SAF/MRBC, dated 29 Oct 13.
    Exhibit G.  Electronic Mail, Applicant, dated 7 Nov 13.



				
				Panel Chair