RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-03885
		INDEX CODE:  135.01, 131.00

		COUNSEL:  NONE

		HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

His USAF Reserve appointment date be changed from 30 Sep 02 to 1 Jan 01 to reflect the originally intended direct transfer from active duty to the Reserve, enabling a direct transfer of his active duty promotion.

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APPLICANT CONTENDS THAT:

During the Fall of 2000, personnel officials ruled that since he was retiring, he could not transfer to the active Reserve.  However, based on a new law passed in Oct 00, the untimely guidance unfairly prevented him from transferring directly to the active Reserve on 1 Jan 01 as originally intended.  Had a direct transfer been allowed, his pending active duty promotion would have transferred as well.

In support of his appeal, applicant provided a personal statement; a copy of a letter from a former co-worker; a copy of a letter from former Chief, Contracting Division, Air Combat Command (ACC); a copy of a letter from HQ USAF/RE; a copy of applicant’s letter to HQ USAF/REPX, dated 28 Oct 02; a copy of email response from HQ USAF/REPX; a copy of USAF Reserve Appointment order, PA-03----- and a copy of DD Form 214, Certificate of Release or Discharge from Active Duty, dated 31 Dec 00.

Applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

Applicant was commissioned in the Regular Air Force on 12 Jul 79 as a second lieutenant.  He was progressively promoted to the rank of lieutenant colonel with an effective date and date of rank of 1 Mar 96.  He served on active duty from 12 Jul 79 to 31 Dec 00.  Applicant was considered and selected by the Colonel (Line/Chaplain/BSC) Selection Board (P0600A), which convened on 17 Jul 00.  He received increment number 223, with a projected promotion date of 1 Nov 01.

On 18 Aug 00, he applied for retirement; his application was approved on 21 Aug 00 for retirement effective 1 Jan 01.  On 31 Dec 00, applicant was honorably discharged under the provisions of AFI 36-3203, and retired effective 1 Jan 01.  He served 21 years, 5 months and 19 days of active duty.

Applicant was appointed in the Reserve of the Air Force as a lieutenant colonel on 30 Sep 02, under the Retired Active Duty Reserve Accession Program (RADRAP).  He is currently serving as an Individual Mobilization Augmentee (IMA) with HQ AMC/LGC, Scott AFB IL.

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AIR FORCE EVALUATIONS:

HQ ARPC/DPA reviewed the application and recommended denial.  They indicated that the applicant states in his request that he applied for retirement from active duty with a requested retirement date of 31 Dec 00.  On 9 Sep 00, he found out he had been selected for promotion to colonel.  However, he decided not to change his retirement plans and retired at the rank of lieutenant colonel on 31 Dec 00.

In the summer of 2001, he stated in his request that he received a HQ USAF/RE letter offering potential eligible retirees the opportunity to return to service part-time while still receiving retirement pay (offset by reserve pay).

He began his application process under the Retired Active Duty Reserve Accession Program to fill a vacant IMA colonel position with the Air Mobility Command (AMC) by initiating an AF Form 1288, Application for Ready Reserve Assignment.  The application was recommended for approval on 20 Dec 01 by AMC.

He accepted his appointment into the Reserve as a lieutenant colonel on 30 Sep 02.  

An appointment under the RADRAP is not a matter of a simple transfer and there is no reason to believe the USAFR appointment could have been accomplished as early as 1 Jan 01.  The implementing guidance was not in place to accomplish the appointment.  The first notifications to retirees from HQ USAF/RE announcing the new opportunity to return to service were not mailed out until Jul 01.  In order to be eligible for the program a member must be honorably retired from active duty, apply for the program through Air Force Reserve recruiting channels, be screened for mission “indispensability,” and receive SECAF approval according to Title 10, USC Section 10145, Ready Reserve: Placement in, para (d).

Since the applicant must be retired to apply under the Retired Active Duty Reserve Accession Program the applicant was not placed on the Reserve Active Status List (RASL) from the Active Duty List (ADL).  The applicant was placed in the Retired Reserve rendering him ineligible for further promotion consideration as stipulated in Title 10, USC Section 14317, Officers in Transition to and from the Active-Status List or Active-Duty List, para (a).

A copy of the Air Force evaluation, with attachments, is at Exhibit C.

HQ USAF/JAG reviewed the application and recommended the requested relief be denied.  They gave the following analysis of the applicant’s request and the applicable law requirements.

In 1994, Congress enacted legislation permitting an officer selected for promotion to be removed from the ADL to the RASL and placed on an appropriate promotion list.  That said, it was not until the summer of 2001 that the Air Force implemented the Retired Active Duty Reserve Accession Program (RADRAP), permitting potentially eligible retirees to return to service part-time.

The applicant’s assertion that HQ ACC/DPR’s “untimely guidance” unfairly prevented him from transferring to the active Reserve and denied him promotion to colonel is simply incorrect.  When the applicant inquired about RADRAP, HQ ACC/DPR’s response was they were unaware of any such program.  Given RADRAP was not implemented until the summer of 2001, it is entirely plausible that in the Fall of 2000, it had not been formally announced and/or implementing guidance disseminated.  Regardless, the burden is on the applicant to provide supporting documentation that HQ ACC/DPR provided “untimely guidance” and he has failed to do so.

Additionally, the Board should not simply accept as an uncontroverted fact the applicant’s bold statement that “…Had I not received this false information, I would have applied for and entered the Reserve directly from active duty, my promotion would have carried forward without question, and I would not be writing this to you today” as a basis on which to grant relief.  First, there is no supporting evidence establishing either HQ ACC/DPR knew, or should have known, of the RADRAP or if such information existed, that their response (of being unaware of such program) was false.  The more precise or determinative question is if the applicant had been advised that the RADRAP was to be implemented in the summer of 2001, would he have delayed or withdrawn his active duty retirement to apply for it?  However, applicant has not made any declaration or provided evidence establishing this type of detrimental reliance existed and any such statement to this effect now would be arguably insincere.

Applicant’s additional assertion is that AF/JAG’s and SAF/GC’s informal opinions (e.g. email) that in order to preserve an ADL to RASL promotion requires immediate, uninterrupted reserve appointment are an incorrect interpretation of the law.  Applicant contends 14317(c) provides that those officers who, before being promoted, are removed from the ADL and placed on the RASL are sufficiently broad enough to encompass an intervening placement on the retired list.  Other than the applicant’s proffered assertion and analysis, he offers no supporting documentation.  Our interpretation and opinion remain unchanged and are based on the “plain meaning” of the entire statute and not isolated portions of any sentence.

A complete copy of the HQ USAF/JAG evaluation is at Exhibit F.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

The applicant disagreed with the evaluation from HQ ARPC/DPA.  He stated in regard to their opinion that a retiree’s immediate reappointment to the Reserve would not comply with the law that enables a transfer of promotion.  He believes that the Air Force legal advisors issued an opposing interpretation of the law (attached email).

He further disagreed with HQ ARPC/DPA’s interpretation of the law as it relates to the circumstances surrounding his transfer from the ADL to RASL and the transfer of his pending promotion.

Applicant’s complete response, with attachment, is at Exhibit E.

In the applicant’s response to the HQ USAF/JAG opinion, he states that the JAG cited the basis for his complaint to be that he was erroneously advised that his Senate confirmed promotion selection to colonel could not be transferred from the active duty list (ADL) to the reserve active status list (RASL) and feels that they missed the mark.  The issue submitted was that he was inadvertently advised in the fall of 2001 that it was impossible for him (not his promotion) to transfer directly from active duty to the Reserve, when, in fact, it was legally possible to do so prior to his subsequent retirement.

He says that the fact remains that he was prevented from transferring directly from active duty status to active reserve status as clearly authorized by legislation in effect at the time of his retirement and that the failure to do so was through no fault of his own.

Applicant’s complete response to the HQ USAF/JAG evaluation is at Exhibit H.

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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.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  After reviewing the evidence of record, we are not persuaded that his assertions, in and of themselves, are sufficiently persuasive to override the rationale provided by the Air Force.  His contentions are duly noted; however, in our opinion, the detailed comments provided by the Air Force adequately address his contentions.  Therefore, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale expressed as the basis for our decision that the applicant has failed to sustain his burden of having suffered either an error or injustice.  Hence, in the absence of persuasive evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered AFBCMR Docket Number 02-03885 in Executive Session on 4 June 2003, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 5 Dec 02, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ ARPC/DPA, dated 16 Jan 03, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 24 Jan 03.
    Exhibit E.  Letter, Applicant, dated 1 Feb 03, w/atch.
    Exhibit F.  Letter, HQ USAF/JAG, dated 11 Apr 03.
    Exhibit G.  Letter, AFBCMR, dated 22 Apr 03, w/atch.
    Exhibit H.  Letter, Applicant, dated 8 May 03.