RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2012-04467

	XX	COUNSEL:  NONE

		HEARING DESIRED:  NO


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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:

His inability to qualify for the accelerated Reserve retired pay entitlement constitutes discrimination against members of a specific class of reservists (members of the Retired Reserve awaiting retired pay at age 60) by the SECAF.  The denial of this entitlement is an injustice as there is no referenced documentation that excludes his 10 USC 688a service from being creditable under the accelerated Reserve Retired pay provisions of 10 USC 12731(f).  Because of this, his records should be corrected to reflect he was ordered to EAD under 10 USC § 12301(d).

In support of his appeal, the applicant provides copies of a series of e-mails between himself and the Air Reserve Personnel Center (ARPC) concerning the matter under review and his EAD orders, dated 28 Aug 09. 

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

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STATEMENT OF FACTS:

On 2 Feb 03, the applicant was relieved of his assignment as a member of the Air Force Reserve and transferred to the Retired Reserve in the grade of major (O-4) to await retired pay at age 60.  

On 24 Aug 08, the applicant was recalled to EAD for the period 16 Oct 09 through 26 Mar 13 under the provisions of Title 10 USC 688a, with guidance to revert to retired status on 27 Mar 13, unless sooner relieved.
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 27 Mar 13, the applicant was released from EAD and once again transferred to the Retired Reserve to await retired pay upon attaining age 60 (3 Oct 15).

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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 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).  

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.  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:

He is in full agreement with the SAF/GCI opinion and also believes the SecAF would have recalled the affected members under 10 USC §12731(d) and not 10 USC §688a had SAF/GC so advised.  If members recalled under 10 USC §688a were to be excluded from consideration for reduced retirement age via Congressional intent, Congress would have specifically excluded such active duty orders with such specific language, but they did not.  In addition 10 USC §688(d) states “Relationship to Other Authority.—The Authority to order a retired member to active duty under this section is in addition to the authority under section 688 of this title or any other provision of law authorizing the Secretary concerned to order a retired member to active duty.”  Therefore, if 10 USC §688a is bound by “addition to authority under section 688” as 10 USC §688(d) states, then §688a and §688 are not separate and apart, and reduced retirement age should be granted for service under 10 USC §688a (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 that his inability to qualify for the accelerated retired pay provisions of 10 USC 12731(f) is an injustice as it constitutes discriminatory treatment of a specific segment of the Retired Reserve (those awaiting retired pay at age 60).  Because of this, he argues his records should be corrected to reflect he was 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 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 or resulted in disparate treatment of the applicant or other Retired Reserve offices subjected to this recall.  In this respect, the majority agrees with the comprehensive legal analysis provided by AF/JAA indicating that the applicant's arguments are without merit.  The majority finds nothing in his 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.

We note the applicant’s argument that his recall to EAD under 10 USC § 688a was discriminatory, or 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 and the majority does not accept applicant’s argument his recall to EAD under 10 USC 688a represents discriminatory or disparate treatment when compared to 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 as recompense for his service, 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.  
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-2012-04467 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.  XXX 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 22 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, AFBCMR, dated 11 Jun 13 and 13 Jun 13.
	 Exhibit F.  Letter, Applicant, dated 24 Jun 13.
	 Exhibit G.  Minority Report, dated 10 Dec 13.




                                   
                                   Panel Chair