Legal Question in Military Law in Florida

prior enlisted officer...

I was enlisted for 14 years before becoming an officer. I have been in now for 21 years but cannot retire due to the fact that I must do 10 as an O to retire as one. If I try to retire as an E, I must prove some sort of hardship and have the SAF approve it. i dont have a hardship. So basically, even though I have 20 plus years in I cannot retire at my E grade. this was made clear to me recently when I was threatened with orders and said I would 7 day opt. I was then shown the reg that said I could 7 day opt but could NOT retire. instead I would be seperated. I have copies of all these regs. Also, this is just the tip of the iceberg as far as prior E's getting forced to stay in 10 years after becoming an O depsite TAFMS time. I would love to talk to someone about this as I believe this is not only unfair but unlawful. It is actually punishment for having earned a commission. I owed a 4 yr ADSC after PA School and paid that time back. Now I am being held hostage for my retirement. Do I jave any recourse?


Asked on 6/13/08, 11:03 am

1 Answer from Attorneys
Donald G. Rehkopf, Jr. Brenna, Brenna & Boyce, PLLC

Re: prior enlisted officer...

I hate to be the bearer of bad news, but "retirement" is legally a privilege that you earn after complying with the statutory preconditions. I say "statutory" because this is all a matter of federal law, not - in your case - AF policy.

It has long been the law that when NCO's opt for a commission, that to retire as an officer, you must (a) have a minimum of 10 years of service as an officer; and (b) otherwise qualify for retirement.

Since you have satisfied the 8 year military service obligation, but do not have enough time in as an officer to retire, an administrative separation, or resignation are your options, but as you know, neither preserves your retirement.

The other option that you MIGHT have, is to transfer to the Reserves until you get the 10 you need as an officer, but then be aware, that you cannot draw your retirement until age 60.

Congress made the law the way it is so that people could not get a commission, pay back their ADSC and then immediately retire, which would cause both financial and manpower issues. Like pilots for example, they put a 10 year time frame in place to basically "recoup" their investment in you as an officer.

If this is purely a financial consideration, i.e., you have an outstanding civilian job prospect, I'd seriously consider the Reserves [or Air Nat'l Guard] to get you to the 10 years of commissioned service status. If not, then you have to make "THE" decision - separate, retire or hang in there.

I wish I could tell you that there was another option, but absent a change in the law by Congress, you are literally between the rock and a hard place.

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Answered on 6/13/08, 4:02 pm


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