RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:	BC-2013-02600 	COUNSEL:	NONE
HEARING DESIRED:	NO



APPLICANT REQUESTS THAT:
1. His time retained in the Inactive Status List Reserve Section (ISLRS) from 19 Aug 96 to 30 Sep 02 be removed in order to adjust his mandatory separation date (MSD) of 1 Dec 14.

2. His mandatory separation date (MSD) be extended to allow him the ability to compete for qualified positions if selected for promotion.



APPLICANT CONTENDS THAT:
He should have been discharged from ISLRS after only three years. Because he was erroneously retained three years longer than he should have been, his MSD was established three years earlier than it should have been.  As a result, he does not have a fair opportunity to build a competitive record for promotion to the grade of Colonel before he will be forced to retire at his MSD.

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



STATEMENT OF FACTS:
On 19 Nov 86, the applicant was appointed in the grade of caption (O-3) in the Air Force Reserve with a reserve obligation term date of 18 Aug 94.

On 31 Dec 92, the applicant was released from active duty and transferred to the Air Force Reserve, accepted separation pay, and was credited with 6 years, 4 months, and 13 days of active service.

On 19 Aug 96, the applicant was transferred from the Non- obligated Non-participating Ready Personnel Section (NNRPS) to the Inactive Status List Reserve Section (ISLRS).

On 30 Oct 02, the applicant was voluntarily reassigned to the United States Southern Command (HQ USSOUTHCOM), effective 30 Sep 02.

On 1 Oct 13, the applicant was promoted to the grade of lieutenant colonel (0-5), thereby establishing his MSD as 1 Dec 14.

The remaining relevant facts pertaining to this application are described in the letter prepared by the Air Force office of primary responsibility, which is attached at Exhibit C.



AIR FORCE EVALUATION:
ARPC/DPTT recommends denial indicating there is no evidence of an error or an injustice. The applicant contends his current MSD does not afford him enough time in service as a Lt Col to be competitive for promotion to colonel. He would like for the time he spent in ISLRS be removed in order to adjust his MSD. However, if the applicant is discharged after three years in the ISLRS, it will create a break in service. The United States Attorney General has opined that authority to appoint reserve officers to the reserve active status list (RASL) can be delegated no lower than the Secretary of Defense (SecDEF). Accordingly, neither the Secretary of the Air Force (SecAF) nor the Air Force Board for Correction of Military Records (AFBCMR) has the authority to reappoint officers to the RASL. In accordance with AFI 36-2115, Assignments Within the Reserve Components, paragraph 4.4.2.7, reserve officers generally remain assigned to ISLRS for three years after which time they may be screened for discharge.   The applicant spent an excess of
3 years, 1 month, and 12 days in the ISLRS. In addition, the applicant was promoted to Lt Col, effective 1 Oct 13 and as a Lt Col, his MSD will be 1 Dec 14. He currently has 17 years of satisfactory service which will be updated to 18 years after his retirement/retention date. If he has a satisfactory year in 2013-2014, he will have 19 years of satisfactory service by his MSD. As a result, he would automatically be given reserve sanctuary under Title 10, United States Code, Section 12646, and his MSD adjusted to 1 Dec 16 to allow sufficient time to complete 20 years of satisfactory service to qualify for a reserve retirement. The applicant would be transferred to the retired reserve as soon as he completes 20 years of satisfactory service. As a Lt Col, he will need only six months in grade if he involuntarily separated from active status due to maximum service.

A complete copy of the ARPC/DPTT evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He fully understands his eligibility for retirement after 20 years of satisfactory service due to Sanctuary and that if the Board favorably considers his request it will create a break in service. However, he argues an adjustment in his MSD will enable him the opportunity to maximize his potential for promotion and other opportunities that he would not otherwise have the privilege of doing.



THE BOARD CONCLUDES THAT:
1. The	applicant	has	not	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	an	error	or	injustice.
The
applicant argues that his retention in the inactive status list reserve section (ISLRS) beyond the prescribed three years caused his total commissioned service to continue to toll, thereby causing his mandatory separation date (MSD) to be established three years earlier than it would have been. However, after a thorough review of the evidence of record and the applicant’s complete submission, including his rebuttal response, we are not convinced that corrective action is warranted. In this respect, we note that if we were to recommend correcting the applicant’s records to show he was discharged from ISLRS when he contends he should have been, we would be unable to make further corrections to his records necessary to ensure the service he has already performed is creditable toward qualification for a reserve retirement. In this respect, we note that we would have to recommend the applicant’s records be corrected to reflect that he was subsequently appointed to an active status with his Reserve unit on 30 Sep 02 to coincide with the date he transferred from ISLRS to an active status. However, this Board is without authority to effect such a correction. In this respect, we note that commissioned officers are appointed by virtue of the authority of the Secretary of Defense, which cannot be delegated. As such, neither the Secretary of the Air Force, nor this Board acting in the Secretary’s behalf, can adjust the appointment date of a commissioned officer. While the applicant alternatively requests that this Board grant him an extension of his MSD, we do not believe it appropriate to recommend granting this relief either. In this respect, the applicant’s MSD was established by operation of law when the applicant was promoted to lieutenant colonel (O-5). While Title 10, United State Code, Section 14701 provides that such an officer can be granted continuation beyond 28 years of
commissioned service, the applicant has not exhausted his available administrative remedies by applying for such an extension through his chain of command to the Secretary of the Air Force Personnel Counsel (SAFPC) for their consideration. Therefore, in view of the above and in light of the fact the applicant will ultimately qualify for a reserve retirement, provided he continues to serve satisfactorily, we find no basis to recommend granting the relief sought in this application.



THE BOARD DETERMINES THAT:
The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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 AFBCMR Docket Number BC-2013-02600 in Executive Session on 18 Mar 14, under the provisions of AFI 36-2603:

Panel Chair 
Member 
Member
The following documentary evidence was considered:
	Exhibit A.	DD Form 149, dated 19 May 13.
Exhibit B.	Applicant's Master Personnel Records 
Exhibit C.	Letter, ARPC/DPTT, dated 11 Sep 13. 
Exhibit D.	Letter, SAF/MRBR, dated 20 Sep 13.
Exhibit E.	Letter, Applicant, dated 18 Oct 13.





Panel Chair