RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-04052
		COUNSEL:  
		HEARING DESIRED:  YES


APPLICANT REQUESTS THAT:

1.  His official records be corrected to show that he was 
afforded sanctuary protection in Jan 12.

2.  He be reinstated to active duty effective the date of the 
Board’s final decision.

3.  He receive service credit with back pay, allowances and 
benefits from the date of his removal from active duty orders.

4.  He be credited with the time remaining to secure 20 years of 
active duty service and a Regular Air Force retirement, or he be 
recalled to active duty status to allow him to receive a Regular 
Air Force retirement.


APPLICANT CONTENDS THAT:

On 11 Apr 11, he was ordered to perform a Military Personnel 
Appropriation (MPA) tour for 215 days, which was subsequently 
amended to 315 days.  He secured over 18 years of active federal 
service prior to the end of those orders.  Federal law does not 
permit the Air Force to require a waiver of sanctuary for airmen 
performing MPA tours in excess of 179 days.  As a result, he 
attained sanctuary while on active duty and, therefore, his 
separation from active duty was unlawful, as was his Reserve 
retirement.  In Docket Number BC-2011-05004, the AFBCMR 
considered the law applicable and resolved the matter for that 
applicant and should do the same in this case.  

He should receive sanctuary protection based on the AFBCMR’s 
decision in BC-2012-03639 to correct his record to reflect that 
he was placed on medical continuation orders until 26 Jul 
12 without a waiver.

In support of the applicant’s appeal, the applicant provides a 
seven page brief from counsel; copies of AFBCMR Docket No. BC-
2011-05004, orders and various other documents associated with 
his requests.

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


STATEMENT OF FACTS:

The applicant, while serving as a colonel with the Air Force 
Reserve, was recalled to Extended Active Duty (EAD) to support 
operations at US CENTCOM from 2 Apr 10 to 1 Sep 10.  

On 13 Mar 11, the applicant was recalled to EAD in support of 
Operation ENDURING FREEDOM/NEW DAWN.  He continued supporting 
contingency operations until his demobilization on 2 Mar 12.

On 1 Jun 12, the applicant was transferred to the Retired 
Reserve and placed on the USAF Reserve Retired List, awaiting 
pay at age 60.  He was credited with 30 years of satisfactory 
Federal service.

On 18 Jun 12, the Vice Commander, Air Force Reserve Command 
(AFRC/CV) approved the applicant’s LOD determination for a 
finding of Existed Prior to Service – Service Aggravated (EPTS-
SA.)  

On 6 Jul 12, the applicant was notified of AFRC/CV’s decision.

On 14 Jun 13, the Board granted the applicant’s request for 
medical continuation for the period 3 Mar 12 to 26 Jul 12.  

IAW 10 U.S. Code § 12686 and under regulations to be prescribed 
by the Secretary concerned, which shall be as uniform as 
practicable, a member of a reserve component who is on active 
duty (other than for training) and is within two years of 
becoming eligible for retired pay or retainer pay under a purely 
military retirement system (other than the retirement system 
under chapter 1223 of this title), may not be involuntarily 
released from that duty before he becomes eligible for that pay, 
unless the release is approved by the Secretary. 


AIR FORCE EVALUATION:

AFRC/A1K recommends approval.  A1K notes that the Command's 
review of the applicant's claim has resulted in support of the 
applicant's stated assertion on this matter as being correct. 
Thus, the basis for the command's position is established.

The complete A1K evaluation, with attachments, is at Exhibit B.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel notes that the applicant concurs with the recommendation 
to grant the requested relief and reaffirms the appropriate 
relief is to grant the applicant constructive service credit 
from the date of removal from active duty to the date the 
applicant would have accrued 20 years of eligibility for Regular 
Air Force retirement.  According to the service history, the 
applicant has 18 years, 8 months and 3 days of active federal 
service.

In addition, the advisory opinion acknowledges that the 
applicant’s orders and consecutive sanctuary waivers were 
unlawful and that he was entitled to continue to serve on active 
duty until he secured 20 years of active service.

The applicant’s complete response, with attachments, is at 
Exhibit E.


ADDITIONAL AIR FORCE EVALUATION:

AFRC/A1K noted that their position remains the same and 
recommends approval.  A1K notes the Command's review of the 
applicant's claim found that the applicant should have been 
afforded an opportunity to remain on active duty In Accordance 
With (IAW) the provisions of AFI 36-2131, Administration of 
Sanctuary in the Air Reserve Component.  Specifically, the 
applicant had 18 but less than 20 years of active duty service.  
Thus, based on the applicant’s years of service he should not 
have been released from active duty unless he voluntarily agreed 
to be released from such service, or was being involuntarily 
separated, or was medically disqualified or was separated or 
discharged for cause.  Since none of these circumstances were 
the cause of the applicant’s separation, he should not have been 
involuntarily released from active duty before he became 
eligible for active duty retired pay, unless his release was 
approved by the Secretary of the Air Force.

The complete A1K evaluation is at Exhibit F.


APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION:

On 28 Jul 14, additional advisory was forwarded to counsel; 
however, counsel’s address had changed. (Exhibit G).

On 17 Nov 14, counsel notes that the applicant concurs with the 
advisory opinion’s recommendation that the Board grant the 
requested relief.

The applicant’s counsel complete response, with attachments, is 
at Exhibit I.


THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by 
existing law or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice.  After a 
thorough review of the evidence of record and the applicant’s 
complete submission we believe relief is warranted.  In this 
respect, we note the applicant was recalled to EAD in support of 
contingency operations in Southwest Asia.  Subsequently, his 
orders were extended and the applicant secured over 18 years of 
active federal service prior to the end of those orders.  IAW 
Title 10 USC § 12686, the applicant should not have been 
involuntarily released from active duty before he became 
eligible for active duty retired pay.  In view of this, we agree 
with the opinion and recommendation of the Air Force office of 
primary responsibility and adopt its rationale as the basis for 
our conclusion the applicant has been the victim of an error and 
injustice.  As such, we recommend the applicant’s record be 
corrected to show that on 24 Nov 11, he was granted sanctuary 
protection.  Additionally, we recommend his record be corrected 
to show that on 26 Jul 12, he was not released from active duty, 
but was continued on active duty until 30 Nov 13, at which time 
he qualified for an active duty retirement.  Accordingly, we 
recommend the applicant's record be corrected as indicated 
below.

4.  The applicant’s case is adequately 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 not favorably 
considered.


THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air 
Force relating to the APPLICANT be corrected to show that:

	a.  He was granted sanctuary protection on 24 Nov 11.

	b.  He was not released from active duty, on 26 Jul 12, but 
on that date, he was continued on active duty until 30 Nov 13, 
at which time he qualified for active duty retirement.

	c.  His election of Survivor Benefit Plan option will be 
corrected in accordance with his expressed preferences and/or as 
otherwise provided for by law or the Code of Federal 
Regulations.


The following members of the Board considered AFBCMR Docket 
Number BC-2013-04052 in Executive Session on 7 Aug 14 and 
3 Dec 14 under the provisions of AFI 36-2603:
	, Panel Chair
	, Member
	, Member

All members voted to correct the records as recommended.  The 
following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 26 Jun 13, w/atchs.
	Exhibit B.  Pertinent Excerpts from Personnel Records.
	Exhibit C.  Memorandum, AFRC/A1K, dated 9 Jan 14, w/atch.
	Exhibit D.  Letter, SAF/MRBR, dated 17 Jan 14.
	Exhibit E.  Letter, Applicant’s counsel, dated 14 Feb 14,
	            w/atchs.
	Exhibit F.  Letter, AFRC/A1K, dated 28 Jul 14.
	Exhibit G.  Email, AFBCMR, dated 28 Jul 14.
	Exhibit H.  Email, AFBCMR, dated 17 Nov 14.
	Exhibit I.  Email, Applicant’s Counsel, dated 17 Nov 14,
	            w/atchs