MILITARY PERSONNEL LAW BLOG
The Air Force Board for the Correction of Military Records (AFBCMR) has now granted two applications from USAFR officers we represented based on the improper use of sanctuary waivers and MPA active duty tours. In both cases the USAF approved the AFBCMR recommendations that the client’s record be corrected to show that they were not released from active duty orders, but continued to service until retirement eligibility. The decisions require the USAF to credit the officers with very substantial periods of active duty service, with full pay and allowances. Both became eligible to receive Regular USAF retirements, rather than reserve retirements. We thank the AFBCMR for recognizing the legal errors and correcting them.
In both of our cases, the USAFR was trying to “beat the system” and avoid the constraints on the use of reserve officers established by 10 U.S.C. Section 12686. What happened was this: The USAF placed the officers on active duty orders in excess of 179 days and required sanctuary waivers. Well, 10 U.S.C. Section 12686 permitted sanctuary waivers only for orders of less than 180 days. The USAF also amended the active duty orders in both of our cases, authorizing additional active duty service, and requiring additional sanctuary waivers.
The earlier case, AFBCMR No. BC-2011-05004, determined that “The applicant served on active duty orders for two periods longer than 180 days each. Accepting four consecutive six-month waivers from him to cover these periods was inconsistent with the provisions of AFI 36-2131 in effect at the time. ... Further, the applicant’s consecutive waivers were not associated with specific orders to active duty or specific amendments to such orders. ... Thus, the Air Force obtained the benefit of the applicant’s active duty for a period in excess of 179 days after the applicant had entered sanctuary. The government should not profit from those circumstances.” The very recent decision, AFBCMR No. BC-2013-04052, concluded similarly.