RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-00847
		INDEX CODE:  131.09

		COUNSEL:  NONE

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His records be corrected to reflect that he was appointed into the Air Force Reserve in the grade of lieutenant colonel (0-5).

By amendment, a promotion order be issued based on his Senate confirmation for promotion to the grade of commander (0-5), United States Naval Reserve, and his securing a valid lieutenant colonel position.

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APPLICANT CONTENDS THAT:

At the time of his appointment in the Air Force Reserve, his rank was based on his equivalent rank while on active duty with the Navy.  The Navy has now corrected his record to reflect that, at the time of his separation from the Navy and appointment in the Air Force Reserve, he had been selected for promotion to 0-5.  He is requesting that his Air Force appointment order and/or appropriate records be corrected to reflect that, at the time of his appointment to the Air Force Reserve, he had been selected to the equivalent rank of lieutenant colonel.

In support of his appeal, the applicant provided an expanded statement, his Complaint of Wrongs under Article 138, Uniform Code of Military Justice (UCMJ), along with all endorsements and final adjudication by the Office of the Assistant Secretary of the Navy, correspondence concerning his request for and results of the Special Selection Board, and other documents associated with the matter under review.

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

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STATEMENT OF FACTS:

Information extracted from the Personnel Data System (PDS) indicates that the applicant is currently serving in the Air Force Reserve in the grade of major, having been promoted to that grade on 1 Aug 95.  His Total Years Service Date (TYSD) and Total Federal Commissioned Service Date (TFCSD) is 17 May 85.

The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force.

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AIR FORCE EVALUATION:

ARPC/DPA recommended denial.  AFPC/DPA noted that, on 22 May 00, the Reserve Appointment Programs Branch, ARPC/DPABA, received the applicant’s Air Force Reserve commissioning application package requesting an interservice transfer from the United States Naval Reserve to the Air Force Reserve.  Prior to DPABA receiving the applicant’s commissioning application package, a “Complaint of Wrongs” with the Navy was filed under Article 138, UCMJ, requesting that a “Special Fitness Report” be removed from the applicant’s record and promotion to commander (USN 0-5) be reevaluated.  As a result of the Navy’s decision, the applicant requested and was granted a Special Selection Board in accordance with (IAW) SECNAV Instruction 1401.lB.  The Bureau of Naval Personnel convened this Board on 7 Sep 00.  On 3 Jan 01, the Senate confirmed the applicant's nomination to the rank of commander.  In accordance with SECNAV Instruction 1401.lB, the selection would be retroactive and the date of rank (DOR) would be assigned as if applicant had been selected by the Fiscal Year 2000 (FY00) Selection Board.  The DOR was established as 1 Sep 00, per the Department of The Navy, Special Promotion Selection Board letter, dated 11 May 01

According to DPA, on 26 May 00, the applicant was appointed into the Air Force Reserve as a major IAW Air Force Instruction (AFI) 36-2005, Appointment in Commissioned Grades and Designation and Assignment in Professional Categories - Reserve of the Air Force and United States Air Force, Table 2.3, “Appointment Grade and Computation of TYSD, Date of Rank (DOR), & Total Federal Commissioned Service Date TFCSD,” Rule 8, which  states, “If the individual is an officer of a Reserve component of another uniformed service (except PHS) and interservice transfers to a Reserve component of the Air Force in the same competitive category, then appointment in the grade held in the parent service.  Compute the TYSD by backdating the date of appointment by the total amount of service credit awarded according to AFI 36-2604 and this instruction.  The DOR is the DOR held in the parent service adjusted for any periods of inactive status.  The TFCSD is the same as that held in the parent service.  The TYSD and DOR must not place the officer beyond mandatory phase points for promotion to the next higher Reserve grade.”  The applicant’s appointment to the Air Force Reserve as a major (26 May 00) was prior to the effective date of promotion to the grade of commander in the US Naval Reserve (1 Sep 00).

A complete copy of the ARPC/DPA evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the advisory opinion and furnished a response indicating that ARPC appointed him based on his permanent rank on 26 May 00; however, there is no prohibition from issuing a subsequent promotion order based on his Senate confirmation.  His original request was to correct his appointment order and/or appropriate records.  If ARPC is unable to change his appointment order due to a date of rank later than his date of appointment, he requests that ARPC issue a promotion order based on his Senate confirmation and his securing a valid lieutenant colonel position.

Applicant’s complete response and additional documentary evidence are at Exhibit E.

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ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s staff request, the ARPC/DPA provided an additional advisory and indicated that the applicant is unable to carry his promotion to commander from the United States Naval Reserve to the Air Force Reserve as a lieutenant colonel.  His appointment in the Air Force Reserve was prior to his promotion in the United States Naval Reserve.  In their view, the most appropriate way to correct the applicant’s records if the Board decides to grant relief is to:

	a.  Authorize the applicant to apply for reinstatement into the United States Naval Reserve with no break in service, voiding the naval discharge.

	b.  Rescind the applicant’s Air Force Reserve commission.  Rescind the applicant’s Air Force Reserve appointment order.

	c.  Recoup any pay and compensation given to the applicant while in the Air Force Reserve.

	d.  Authorize interservice transfer to the Air Force Reserve from the United States Naval Reserve, effective 3 Sep 00, with the rank of lieutenant colonel.

A complete copy of the ARPC/DPA evaluation is at Exhibit F.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant provided a response to the additional advisory opinion and indicated that the entire case is due to the improper actions of one superior officer and the lengthy administrative process required to investigate and correct the effects of this injustice.  In his view, ARPC seeks to further penalize him for something over which he had no control.

Applicant’s complete response and additional documentary evidence (letter from his squadron commander) are attached at Exhibit H.

Subsequent to the applicant’s response, his wing commander provided a statement in support of his appeal, which is attached at Exhibit I.

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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.  Sufficient relevant evidence has been presented to demonstrate the existence of probable injustice.  The evidence of record indicates that the applicant was a lieutenant commander (0-4) on active duty in the United States Navy who resigned his commission, was transferred to the United States Naval Reserve, and was ultimately appointed a major (0-4) in the Air Force Reserve on 26 May 00.  Prior to his appointment in the Air Force Reserve, the applicant filed a Complaint of Wrongs under Article 138, Uniform Code of Military Justice (UCMJ), regarding a fitness report.  The Deputy Assistant Secretary of the Navy found the fitness report was unjustified and he was granted an SSB.  The applicant was subsequently selected for promotion to the grade of 0‑5 by the SSB as though he had been selected by the selection board while he was on active duty, with an effective date of 1 Sep 00, which was confirmed by the Senate on 3 Jan 01.  Since the applicant’s appointment into the Air Force Reserve was prior to the effective date of this promotion to the grade of 0-5, we do not believe that his records should be corrected to show that he was appointed in the Air Force Reserve in the grade of lieutenant colonel.  Nevertheless, after a thorough review of the facts and circumstances of this case, we are of the opinion that it is in the interest of justice to have the applicant’s records corrected to reflect that he was promoted to the Reserve grade of lieutenant colonel (0-5), with an effective date of 1 Sep 00.  We believe the most appropriate way to accomplish this is to show that he was selected for promotion to the Reserve grade of lieutenant colonel by a position vacancy promotion board.  In our view, the applicant has earned the promotion to 0-5 and should not be denied assuming this rank because of his unusual situation.  Furthermore, the applicant fully has the support of his superiors.  In view foregoing, we recommend that the applicant’s records be corrected as set forth below.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that he was selected for promotion to the Reserve grade of lieutenant colonel by the Fiscal Year 2001 (FY01) Reserve of the Air Force Line and Health Professions Lieutenant Colonel Position Vacancy Promotion Selection Board, which convened in June 2000, with an effective date and date of rank (DOR) of 1 Sep 00.

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The following members of the Board considered this application in Executive Session on 8 Aug 01 and 10 Jan 02, under the provisions of AFI 36-2603:

Panel Chair
Member
Member

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 20 Mar 01, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, ARPC/DPA, dated 25 May 01.
     Exhibit D.  Letter, SAF/MIBR, dated 15 Jun 01.
     Exhibit E.  Letter, applicant, dated 19 Jun 01, w/atch.
     Exhibit F.  Letter, ARPC/DPA, dated 13 Nov 01.
     Exhibit G.  Letter, SAF/MRBR, dated 15 Nov 01.
     Exhibit H.  Letter, applicant, dated 5 Dec 01, w/atch.
     Exhibit I.  Letter, in applicant’s behalf, dated 15 Dec 01.

                                   
                                   Panel Chair

AFBCMR 01-00847

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to , be corrected to show that he was selected for promotion to the Reserve grade of lieutenant colonel by the Fiscal Year 2001 (FY01) Reserve of the Air Force Line and Health Professions Lieutenant Colonel Position Vacancy Promotion Selection Board, which convened on 19 June 2000, with an effective date and date of rank (DOR) of 1 Sep 00.

                                                                           
                                                                           Director
                                                                           Air Force Review Boards Agency