RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2011-05059
COUNSEL:
HEARING DESIRED: YES
________________________________________________________________
APPLICANT REQUESTS THAT:
Her records be corrected to show she was continued on active
duty for the period 1 Oct 10 to 11 Dec 11, she receive all back
pay, allowances, and benefits to which she would have been
entitled.
________________________________________________________________
APPLICANT CONTENDS THAT:
On 20 Sep 10, she invoked sanctuary pursuant to Title 10 U.S.C,
§12686 and should have been entitled to remain on active duty
until she was eligible for retirement; however, her request was
wrongfully ignored and denied a year later. At the time she
invoked sanctuary she had been on continuous orders since 2003.
She initially signed a sanctuary waiver on 5 Oct 09 that was
voided because it exceeded 179 days and did not contain the
required waiver statement.
However, due to the initial confusion as to whether her National
Guard unit or the gaining agency was responsible to process the
request, there were inordinate delays. On 23 Nov 10, she
submitted a request for resolution to the state National Guard,
only to be notified on 16 Dec 10 that that the agency who
afforded her the tour that took her into sanctuary was
responsible for resolving the situation.
In Sep 11, the Colonels Group determined that she was indeed
entitled to be retained on active duty under the provisions of
sanctuary until she was eligible for retirement and offered her
an active duty deployment. However, at the same time, the Judge
Advocate General (JAG) requested resolution to this matter
directly from the Secretary of the Air Force (SECAF). On
4 Oct 11, the SECAF determined she had obtained sanctuary status
as a result of error and directed her release from active duty.
Such action was inappropriate and erroneous and resulted in her
release from active duty without due process. As the action
resulted in her being without active orders for over a year,
causing her an extreme financial hardship, she is also the
victim of an injustice.
The applicants complete submission, with attachments, is at
Exhibit A.
________________________________________________________________
STATEMENT OF FACTS:
The applicant was a member of the Arizona Air National Guard
(ANG) and was ordered to active duty on 31 Mar 03. She served
on a variety of consecutive tours of active duty, which resulted
in her serving on active duty continuously until the matter
under review.
Title 10 U.S.C, §12686(a), also known as Sanctuary, provides
that under regulations to be prescribed by the Secretary
concerned, 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, may not be involuntarily released from that
duty before he/she becomes eligible for that pay, unless release
is approved by the Secretary.
Title 10 U.S.C, §12686(b), provides that the Secretary concerned
may require a member to waive their right to invoke the
provisions above when performing a period of duty of less than
180 days as a condition of such order to active duty.
On 5 Oct 09, the applicant initiated a waiver of her rights to
invoke the provisions of sanctuary for the period 1 Oct 09
through 30 Sep 10, a period of one year.
On 20 Sep 10, the applicant invoked her right to retention under
the provisions of sanctuary, indicating, in part, that the
waiver she signed on 5 Oct 09 was legally ineffective as the law
precluded such a waiver from being executed on periods of active
duty of 180 days or more.
On 30 Sep 10, the applicant was released from active duty and,
according to information extracted from the Military Personnel
Data System (MilPDS), she was credited with 18 years, 8 months,
and 23 days of active service as of the date of her release from
active duty."
On 23 Nov 10, the applicant requested resolution to her
sanctuary issue through Arizona National Guard officials.
On 2 Dec 10, the Adjutant General, Arizona National Guard,
responded to the applicants request for sanctuary indicating
that such a request fell under the purview of the agency that
afforded the applicant the active duty tour in question.
On 5 Oct 11, SAF/JAR notified the applicant of the Secretarys
determination that she should be released from active duty,
indicating the applicant obtained retention under the provisions
of sanctuary as the result of an error and therefore approved
her release from active duty. Notwithstanding this decision,
the Secretary directed that the applicant be afforded
opportunities for future Title 10 service.
On 1 Mar 13, the applicant was retired and credited with
20 years and 17 days of active service.
The remaining relevant facts pertaining to this application are
contained in the letters prepared by the appropriate offices of
the Air Force, which are attached at Exhibits C and D.
________________________________________________________________
AIR FORCE EVALUATION:
NGB/A1P recommends denial of the applicants request for back
pay and entitlements. While there was confusion and delay
regarding the applicants claiming sanctuary, she was eventually
able to obtain the days needed to qualify for active duty
retirement.
A complete copy of the NGB/A1P evaluation is at Exhibit C.
SAF/GCI notes on 20 Sep 10, the applicant invoked sanctuary
under Title 10 U.S.C, §12686(a). At the time of her request for
sanctuary, she was on active duty orders for 365 days. Prior to
being issued said orders, the applicant signed a waiver waiving
her rights to claim sanctuary. She was released from active
duty upon the expiration of her orders. However, her waiver was
deemed invalid due to her orders exceeding 179 days. On
4 Oct 11, the SECAF approved the applicants release from active
duty. On 12 Dec 11, the applicant once again began serving on
active duty until she obtained 20 years of service for an active
duty retirement. She retired on 1 Mar 13.
The applicant was properly released from active duty on 4 Oct 11
and is not entitled to back and entitlements for the time period
between that release and her return to active duty on 11 Dec 11.
However, an error occurred when the applicant was released from
active duty on 1 Oct 10, and because she invoked sanctuary, her
records should be corrected to reflect she remained on active
duty from 1 Oct 10 through 4 Oct 11.
A complete copy of the SAF/GCI evaluation, with attachment, is
at Exhibit D.
________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Counsel indicates that it has been acknowledged that the
applicant was on active duty in sanctuary from 1 Oct 10 to
4 Oct 11 with entitlement to pay and allowances for that period.
Therefore, the issue of whether the Secretary acted within the
law by releasing the applicant from active duty involuntarily
three months prior to her becoming eligible for retirement needs
to be resolved.
The advisory writer is correct that under the provisions of
10 U.S.C. §12686(a) a service member who has invoked sanctuary
may not be involuntarily released from active duty before they
become eligible for retired pay unless the Secretary approves
the release. The statute also states the Secretary is to
prescribe the regulations under which he has authority to act
pursuant to the law. Under the provisions of AFI 36-2131,
Administration of Sanctuary in the Air Reserve Components, a
service member on active duty that asserts sanctuary must be
retained on active duty unless they are voluntarily separated,
medically disqualified for continued service, or is
separated/discharged for cause. In effect, the Secretary
determined he can only involuntarily release a service member
who has invoked sanctuary, is medically qualified and wants to
continue to serve for cause.
The Secretary cited error as the basis for the applicants
release from active duty, however; under AFI 36-2131 error is
not a basis for release from active duty. The Secretary was not
acting under the regulation he prescribed when he released the
applicant involuntarily without cause in Oct 11. Furthermore,
the applicant was not afforded any due process in relation with
her involuntary release from active duty. The Secretary acted
outside the purview of his authority when he involuntarily
released the applicant from active duty on 4 Oct 11.
While SAF/GC recommends the applicant be credited with active
duty service, with pay and entitlements for the period 1 Oct 10
through 4 Oct 11, Counsel states the applicant should also
receive credit for active duty with full pay allowances for the
period 5 Oct 11 to 11 Dec 11.
Counsels complete response is at Exhibit F.
________________________________________________________________
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 warranting
partial relief. The applicant contends that she was erroneously
released from active duty on 1 Oct 10, despite properly invoking
her right to retention on active duty under the provisions of
the law commonly known as Sanctuary when it was determined
that the waiver of her right to retention was legally
ineffective. After a thorough review of the evidence of record
and the applicants complete submission, we agree. In this
respect, we note the comments of SAF/GC indicating that an error
occurred when the applicant was released from active duty on
30 Sep 10, despite invoking her right to retention under
Sanctuary on 20 Sep 10. Instead, she should have been retained
on active duty until she qualified for retirement under the
provisions of 10 USC 12686(a), unless said release was approved
by the Secretary concerned. However, in our view, once the
Secretary determined that she should be released from active
duty on 1 Oct 11, she was no longer entitled to be retained on
active duty until qualifying for retirement. While Counsel
argues the Secretary acted outside his authority as prescribed
in AFI 36-2131, Administration of Sanctuary in the Air Reserve
Components, because the applicant was not released from active
duty voluntarily, medically disqualified for continued service,
or separated/discharged for cause, we are not convinced the
Secretary acted outside his authority when he directed the
applicant be released from active duty on 1 Oct 11. In this
respect, we note that while the applicant was not released from
active duty for these three noted exceptions to the protections
provided by 10 USC §12686(a), the governing instruction in no
way limits the Secretarys authority to release a member from
active duty who has attained sanctuary for another reason. In
this respect, we note that that AFI 36-2131, paragraph 1.1,
indicates that in general (emphasis added), Active Duty
sanctuary means any Air National Guard (ANG)/United States Air
Force Reserve (USAFR) officer/enlisted member who attains 18
(but less than 20) years of AD must be retained on active duty
unless he/she: voluntarily separates; is medically disqualified
for continued service; or is separated or discharged for cause.
Therefore, while Counsels arguments on this point are duly
noted, we are not convinced that the Secretary acted outside his
authority when he directed the applicant be released from active
duty on 1 Oct 11. We note the applicant was able to
subsequently qualify for an active duty retirement shortly after
the events in question and therefore are not convinced that
granting relief beyond that being recommended is in the interest
of justice. Therefore, we recommend the applicants records be
corrected to the extent indicated below.
4. The applicants 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 she
was not released from active duty on 30 September 2010, but on
that date, she continued to serve on active duty until 4 October
2011, when her release from active duty was approved by the
Secretary of the Air Force.
________________________________________________________________
The following members of the Board considered AFBCMR Docket
Number BC-2013-05059 in Executive Session on 14 Oct 14, under
the provisions of AFI 36-2603:
Mr., Panel Chair
Mr., Member
Mr., Member
All members voted to correct the records, as recommended. The
following documentary evidence was considered:
Exhibit A. DD Form 149, dated 24 Oct 13, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, NGB/A1PP, dated 29 Jan 14.
Exhibit D. Letter, SAF/GCI, dated 23 Jun 14, w/atch.
Exhibit E. Letter, SAF/MRBR, dated 25 Jun 14.
Exhibit F. Letter, Counsel, dated 16 Jul 14.
AF | BCMR | CY2011 | BC-2011-05004
10 U.S.C, § 12686(a) and AFI 36-2131 do not permit the Air Force to require waivers for members who are ordered to active duty for a period of 180 days or more. A complete copy of the AFMOA/SGHI evaluation is at Exhibit G. ________________________________________________________________ ADDITIONAL APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Counsel disagrees with AFMOA/SGHIs recommendation, and again points-out the applicant was placed on orders well in excess of 179 days while in the...
AF | BCMR | CY2013 | BC-2012-02765
The applicant reached his date of eligibility for sanctuary protection under AFI 36-2131 and Title 10 USC 12686; however, a MSD waiver package was not submitted or approved by the ANG; therefore, he was processed for transfer to the Retired Reserve IAW the governing directives and was not improperly and illegally removed from active duty and retired. First, his orders were in fact long-term (greater than 179 days) and that he was in fact eligible to apply for sanctuary protection under 10...
AF | BCMR | CY2011 | BC-2011-02618
However, the Chief of Air Force Reserve (AF/RE) and Secretary of the Air Force Personnel Council (SAFPC) unjustly denied an extension to her mandatory separation date (MSD) in order to deprive her of an active duty (AD) retirement. In support of her appeal, the applicant provides copies of multiple Military Personnel Appropriation (MPA) man-day tour waivers from 2002 to 2009 with supporting documentation; signed Statements of Understanding: Waiver of Active Duty Sanctuary; and her request...
AF | BCMR | CY2012 | BC 2012 05927
Since the applicant was in the Retired Reserve and not yet receiving retirement pay, he argues that he was not retired, and therefore is not eligible to be recalled to EAD under 10 USC § 688a, which pertains to the recall of "retired members." After a thorough review of the evidence of record and the applicant's complete submission the majority of the panel does not find the applicant's legal arguments or the evidence presented sufficient to conclude that his recall to EAD under 10 USC §...
AF | BCMR | CY2013 | BC 2013 04052
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'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...
AF | BCMR | CY2012 | BC 2012 04220
Since the applicant was in the Retired Reserve and not yet receiving retirement pay, he argues that he was not retired, and therefore is not eligible to be recalled to EAD under 10 USC § 688a, which pertains to the recall of "retired members." Had Congress intended to include 10 USC § 688a as service entitling a member to early retirement pay eligibility, it certainly could have done so. In this respect, we note the applicants argument that his recall to EAD under 10 USC § 688a must be...
AF | BCMR | CY2013 | BC-2012-04220
Since the applicant was in the Retired Reserve and not yet receiving retirement pay, he argues that he was not retired, and therefore is not eligible to be recalled to EAD under 10 USC § 688a, which pertains to the recall of "retired members." Had Congress intended to include 10 USC § 688a as service entitling a member to early retirement pay eligibility, it certainly could have done so. In this respect, we note the applicants argument that his recall to EAD under 10 USC § 688a must be...
AF | BCMR | CY2013 | BC 2013 02836
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-02836 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. The applicant requested an extension to her MSD to allow her the opportunity to complete 20 years of satisfactory service for retirement. In this respect, we note the applicant timely requested an extension of her 31 Dec 12 MSD in Mar 12;...
AF | BCMR | CY2013 | BC 2012 04467
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. We note the applicants argument that his recall to EAD...
AF | BCMR | CY2013 | BC 2013 01524
The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force, which is attached at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: ARPC/DPA recommends that partial relief be granted indicating that it would be in the interest of justice to correct the applicants records to reflect her 1 Oct 11 MSD was waived and that she was retained in the Reserve until 1 Apr 12,...