RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-04061

		COUNSEL:  NONE

		HEARING DESIRED:  NO 


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APPLICANT REQUESTS THAT:

His active duty retired grade of Major (Maj) be changed to Lieutenant Colonel (Lt Col). 

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APPLICANT CONTENDS THAT:

He was unjustly denied the opportunity to retire in the active duty grade of Lt Col after serving over five years as a Lt Col.   As a Reserve officer, he returned to active duty during the period Dec 96 through Aug 99, and then retired in the grade of Major.  However, he reentered the Reserve in Jun 02, was promoted to the grade of Lt Col in Sep 04, and retired a second time in Feb 07 in the grade of Maj.  Again, he reentered active duty in Jul 10 in the grade of Lt Col, this time under the Retired Rated Officer Recall Program (RRORP), and served through Apr 13.  Prior to returning to active duty in Jul 10, he repeatedly asked about his eventual retired rank, and was always told he would qualify to retire in the grade of Lt Col.  However, in Aug 12, just prior to his final retirement in Apr 13, he was notified his retired grade would be Maj instead of Lt Col, although he had served over five years on active duty in the grade of Lt Col and deserved Lt Col in retirement.  When he checked with AFPC, the Accession Branch told him that it had been a mistake to allow him to return to active duty in Jul 10 in the grade of Lt Col rather than in the grade of Maj, and his only recourse was a BCMR application. 

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

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STATEMENT OF FACTS:

On 1 Aug 99, the applicant retired from the Regular Air Force in grade of Maj.  

On 26 Jun 02, the applicant reentered the Reserve in the grade of Maj.  

On 30 Sep 04, under Reserve Order BA-063, dated 21 Oct 04, the applicant was promoted to the grade of Reserve Lt Col.  

On 1 Mar 07, the applicant was relieved from active duty and reverted to the retired list in the grade of Maj.  

On 24 Jul 10, under Special Order AGA-111, dated 18 Nov 09, the applicant was recalled to active duty under the voluntary RRORP in the grade of Lt Col.  

On 23 Apr 13, under Special Order AG-010223, dated 7 Aug 12, the applicant was relieved from active duty and reverted to the retired list in the grade of Maj, and was credited with 24 years, 11 months, and 17 days of active service.   

On 5 May 13, having obtained the age of 60 years old, the applicant was transferred to the active duty retired list in the grade of Lt Col.  

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

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AIR FORCE EVALUATION:

AFPC/DPSIPR recommends denial indicating there is no evidence of an injustice.  The Voluntary Retired Rated Officer Recall Program (RRORP) was a temporary program that allowed retired rated officers to apply for recall to active duty to minimize the critical shortage or rated officers.  Implementation guidance for the RRORP directed that retired officer be recalled IAW Title 10, United States Code (USC), §688a.  The general rule for determining the grade in which a retired member is ordered to active duty is provided for in Title 10 USC §689(a) and states that a retired member ordered to active duty under §688a shall be ordered to active duty in their retired grade.  Title 10 USC §689(c)(1) provides an exception to the general rule in that a retired member who has previously served on active duty satisfactorily, as determined by the Secretary, in a grade higher than that member’s retired grade may be ordered to active duty in the higher grade.  However, the SECAF implementation guidance did not provide the authority to recall in a higher grade held and as such retired officers recalled under RRORP were recalled in their retired grade as provided for in Title 10 USC §689(a).  Accordingly, the applicant should have been recalled to active duty in the grade of Maj.  The error in his recall grade did not provide authority to revert him to the USAF retired list in the higher grade in which he was recalled.  Title 10 USC 689(d) provides the entitlement for placement on the retired list in a higher grade provided that a member ordered to active duty under §688a is promoted while on active duty under §688a.  Because the applicant was not promoted to Lt Col during the period of recall, this provision does not apply.  The applicant did not retire from the Reserve in Feb 07 as he stated, he was discharged effective 1 Mar 07.  When he applied for recall under RRORP in Jul 09 he did not hold the status of a Lt Col.  However, upon reaching the age of 60 on 5 May 13, the applicant became eligible for a Reserve retirement in the grade of Lt Col and elected to convert his active duty retired pay in the grade of Maj in the Reserve to the grade of Lt Col.  Recommend denial because the error in the applicant’s recall grade and his subsequently serving in the erroneous grade did not provide authority to retire in that higher grade.  

A complete copy of the AFPC/DPSIPR evaluation, with attachments, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 28 Jul 14 for review and comment within 30 days.  As of this date, no response has been received by this office (Exhibit D).

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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.  We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility (OPR) and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

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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.

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The following members of the Board considered AFBCMR Docket Number BC-2013-04061 in Executive Session on 21 Aug 14, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 14 Aug 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFPC/DPSIPR, dated 1 Jul 14, w/atchs. 
Exhibit D.  Letter, SAF/MRBR, dated 28 Jul 14.