RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-03238


		COUNSEL:  NONE

		HEARING DESIRED:  NO


________________________________________________________________

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:

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 a copy of his 
EAD order, dated 15 Apr 10. 

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

________________________________________________________________

STATEMENT OF FACTS:

On 2 Jan 05, the applicant was relieved of his assignment as a 
member of the Air Force Reserve and was transferred to the 
Retired Reserve in the grade of lieutenant colonel (O-5) to 
await retired pay at age 60.

On 28 Apr 10, the applicant was recalled to EAD for the period 
28 Apr 10 to 12 Sep 13 under the provisions of 10 USC § 688a, 
with guidance to revert to retired status on 13 Sep 13.

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 12 Sep 13, the applicant was released from EAD and again 
transferred to the Retired Reserve to await retired pay upon 
attaining age 60 (26 Jun 20).

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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.

________________________________________________________________

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).
________________________________________________________________

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.  

________________________________________________________________

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-2012-04467 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.  
Ms. Nolta voted to correct the records and has submitted a 
minority report, which is attached at Exhibit F.  The following 
documentary evidence was considered:

	 Exhibit A.  DD Form 149, dated 26 Jun 13, 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 Ju1 13, w/atch.
	 Exhibit F.  Minority Report, dated 17 Dec 13.




                                   
                                   Panel Chair