RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-03714
		INDEX CODE:  102.02

		COUNSEL:  NONE

		HEARING DESIRED: YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His appointment date be changed from 17 May 2003 to 19 May 2003 and his rank be changed from captain to major effective 19 May 2003.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Because the National Guard Bureau (NGB) and personnel at his unit miscalculated his total years service date (TYSD), and did not review his application prior to his appointment, he was not given the correct information on which to base his decision regarding when to be appointed.  He contends his constructive service should have been computed as 12 years, 4 months and 1 day.  Therefore, he should have been appointed as a major with one year, four months, and one day of constructive service applied to his date of rank (DOR).

In support of his appeal, the applicant has provided copies of pertinent documents from his US Naval Reserve (USNR) career, his appointment order in the XXANG, appointment approval as a captain from ANG/DPFOO, his DD Form 214, Certificate of Release or Discharge from Active Duty, a copy of Table 2.6 from AFI 36-2005, dated 19 may 2003, and a statement from the XXANG JA. 

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant applied for appointment in the XXANG for the position of Judge Advocate (JA).  Under AFI 36-2005, seven years of service credit was required for appointment to captain.  He was credited with nine years, four months, and one day of service credit for his TYSD.  Consequently, he was appointed as a captain with two years, four months, and one day of service credit applied to his date of rank (TYSD less seven years).  His appointment in the XXANG was effective 17 May 2003.

_________________________________________________________________

AIR FORCE EVALUATION:

ANG/DPPI recommends denial.  DPPI noted errors in the original appointment package in the computation of his constructive service.  DPPI states his constructive service should have been 11 years, 4 months, and 1 day instead of the earlier computation of nine years, four months, and one day.  DPPI has corrected this error and has notified the applicant.

Regarding the appointment grade, DPPI states the applicant was appointed under the auspices of AFI 36-2005 dated 1 May 1998.  This AFI requires seven years constructive service in order to be appointed a captain and 14 years for appointment to major.  An updated version of AFI 36-2005 was issued and became effective on 19 May 2003.  The revised AFI 36-2005 requires only four years of constructive service for appointment as a captain vice the seven years and 11 years for appointment to major vice the 14 years required by the earlier version.  DPPI notes that had the applicant been appointed under the revised AFI he would have been appointed a major with four months and one day of service credit towards his DOR.  However, he was appointed in the XXANG on 17 May 2003, two days prior to the effective date of the revised AFI 36-2005.  Therefore, his appointment under the earlier version was appropriate.

ANG/DPPI’s complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states that as his appointment package was being prepared between the summer of 2002 and April 2003, he had been told several times that he would be appointed as a major.  On 28 April 2003, his unit personnel notified him that his appointment as a JA officer had been approved but that he would be appointed as a captain instead of major.  He then received a welcoming email from his superiors that notified him he had already been selected to attend the 2003 Staff Judge Advocate course.  He decided to notify the unit of his concern that his TYSD and appointment grade had been incorrectly calculated.  The unit contacted the National Guard Bureau (NGB) for verification and was assured that the TYSD and appointment grade were correct.  In order to attend the school as quickly as possible, he decided to accept the commission and work on his TYSD and rank issue later.  

Soon after returning from school, in October 2003, he began conversations with his commander who suggested he apply to the AFBCMR.  He did so and was notified by NGB that his TYSD (and therefore his DOR) had been miscalculated.  NGB informed the applicant that they added two years to his TYSD that in turn modified his DOR by two years.  These changes did not however, change his appointment grade.  He inquired as to why he was appointed as a captain and not a major and was told that while the revised AFI 36-2005 was issued on the same day he was appointed, it was not effective until 19 May 2003, two days later.  He has since estimated that he missed being appointed as a major by less than 36 hours.  He contends that had the NGB correctly calculated his TYSD and had his unit personnel told him of the revised AFI and it’s lower appointment requirements, he would have waited the 36 hours and been appointed a major.  He feels he was not given the right information with which to make an informed decision.

He adds that while he cannot easily answer the question of whether or not the inaccurate computation of service credit by NGB or that misinformation from his unit personnel was the reason why he was not appointed a major, he does state that he challenged the computation several times during and after his appointment.  He notes it was not until after he submitted his DD Form 149 to the AFBCMR that NGB discovered its error and corrected his TYSD.  He states with unequivocal certainty that had his TYSD been calculated correctly and/or he had received the correct information from his unit personnel he would have waited until the new AFI 36-2005 became effective for his appointment.  He states his current command has told him that had his appointment grade been recommended as major, that they would have supported it.  

He concludes that because of NGB’s initial error and their subsequent refusal to review his case prior to appointment he was not given the correct information with which to base his decision on the timing of his appointment.  He requests the BCMR reject the DPPI recommendation of denial of relief and change his appointment date from 17 May 2003 to 19 May 2003.  Concurrently, he requests his rank at appointment be changed from captain to major.  He is willing to forgo attendance at the May 2003 UTA in order to appear before the Board to effectuate his requested relief.

The applicant’s complete response, with attachments, is at Exhibit E.  

______________________________________________________________

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 error or injustice.  We believe the applicant was obviously miscounseled during his appointment process.  Had he known he could have extended his appointment date by two days, and be appointed as a major instead of as a captain, we believe he would have done so.  The miscounseling error was compounded by his gaining unit not computing his constructive service time correctly and his superiors pressing him to attend school and other job-related functions.  Therefore, we recommend that the records be corrected as indicated below.

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that on 19 May 2003, he was appointed in the XXXXX Air National Guard, in the grade of major, rather than on 17 May 2003, as a captain.

______________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-2003-03714 in Executive Session on 16 June 2004, under the provisions of AFI 36-2603:

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

    Exhibit A.  DD Form 149, dated 27 Oct 03, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ANG/DPPI, dated 5 Mar 04, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 26 Mar 04.
    Exhibit E.  Letter, Applicant, dated 6 Apr 04, w/atchs.

                                   

 DEPARTMENT OF THE AIR FORCE
WASHINGTON DC

Office Of The Assistant Secretary

AFBCMR BC-2003-03714

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 APPLICANT, be corrected to show that on 19 May 2003, he was appointed in the XXXX Air National Guard, in the grade of major, rather than on 17 May 2003, as a captain.