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Allen M., Esq.
Allen M., Esq., Lawyer
Category: Military Law
Satisfied Customers: 18788
Experience:  Lawyer and current JAG officer.
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From Nov 28, 1973 to July 1, 1991, I have a total of 17 years

Customer Question

From Nov 28, 1973 to July 1, 1991, I have a total of 17 years and 5 months of U.S. Air Force active and reserves service. I got honorary discharge due to head injury suffered from off duty accident. The injury made me physically unfit for world wide duty. Can I qualify for reserve retirement under Title 10, u.s.c. section 12731a or section 12731b?
Submitted: 6 months ago.
Category: Military Law
Expert:  Allen M., Esq. replied 6 months ago.
Thank you for trusting your question to JA today. I am a licensed attorney with over a decade of law practice and over 20 years of experience in the legal field. I’m happy to be of assistance. No, you can't use those sections. The sections that you are referring to there were put in place for force shaping, so that commanders could recommend people for earlier retirement in overstaffed occupational classifications. It was a way to enable the commanders to encourage early retirement. Fiscal law though requires that we spend funds when they are designated for spending and the time to use those force shaping funds has passed. You would have to file a DD Form 149 with the military records corrections board and argue that your basis for separation should have been a medical retirement, not an administrative separation. I've seen the board grant this and back pay military medical retirement, but it's really up to the board to determine. If you have any further questions, please let me know. I invite follow up questions, so use REPLY for those. If you have no further questions then good luck going forward and please do not forget to rate my service with a top-three rating so that I receive credit for working with you today. Also, feel free to request me in the future, if you have questions concerning a different matter.
Customer: replied 6 months ago.
I got Orders TRANSFERRED TO RETIRED RESERVE, due to physically unfit for duty, no retirement pay, can I still file DD form 149 for medical retirement. For your info, my injury happened on my civilian job.
Customer: replied 6 months ago.
Please email me your response. Thank you.
Expert:  Allen M., Esq. replied 6 months ago.
I can't email you. I have to work through this forum. Yes, you can still file the DD Form 149 arguing that the retired reserve rather than a medical retirement was the improper call. I'm not saying that you have a guaranteed win here. In fact, the facts suggest that you can't get this, but to be complete in my response I wanted you to know the process to use, even if I consider the odds against you (not entirely against you....but the government's position is a bit stronger than your own).
Expert:  Allen M., Esq. replied 6 months ago.
Hello, I wanted to check in and make sure that there was not any additional information that you required. If you need further assistance, please use REPLY and ask me for any additional information you may need. If not, take care and have a great day.

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