RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00703
		INDEX NUMBER:  135.03
	XXXXXXX	COUNSEL:  None

	XXXXXXX	HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be allowed to serve in the Judge Advocate General’s Corps Reserve in order to deploy in support of Operation Iraqi Freedom.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Applicant outlines his case in an 11-page brief with attachments.

He provides a summary of his service in the Air National Guard and Air Force Reserve and his unique qualifications to serve in support of Operation Iraqi Freedom.

Applicant provides a detailed summary of the actions he took in support of his efforts to deploy to Iraq, which includes correspondence or visits to HQ ARPC, his former Air National Guard chain of command, a letter to his congressman, and actions he took through the ARPC Reserve IMA representative to become an IMA.

HQ ARPC ignored at least 24 written and oral notifications that he was attempting to change his reserve status from the Inactive Ready Reserve (IRR) to the IMA program, before the period of his assignment to the IRR expired.

The ARPC IMA Reserve representative took more than three weeks to send him an application.  He also told him that he would deal with his upcoming second promotion board.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Oklahoma Army National Guard (ANG) on 7 Jun 94 and served until 18 Dec 94.  On 19 Dec 94, he was appointed a commissioned officer in the Oklahoma Army National Guard in the grade of first lieutenant.  He was promoted to the grade of captain on 14 May 96.  On 15 Aug 97, the applicant was appointed a Judge Advocate in the California Air National Guard.  On 30 Jun 99, he resigned his position with the California Air National Guard and was transferred to the Individual Ready Reserve (IRR).  While in the IRR, the applicant was twice considered and not selected for promotion to the grade of major.  As a result of his second nonselection for promotion the applicant was discharged effective 2 Jan 04.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ ARPC/JA recommends denial of the applicant’s request.  They discuss in detail why they consider the applicant’s claim to be factually inaccurate.  They also opine that the applicant’s claim fails to address the central issue in the case; that by operation of law his fate in the Air Force Reserve was decided when he was twice non-selected for promotion, before he contacted HQ ARPC to apply for the IMA program.

The applicant appears to believe that his repeated representations to various military or DOD personnel that he desired to become a participating reservist and deploy to Iraq conferred upon him the right to do so.  This belief is incorrect.  Pertinent Air Force instructions make it clear that assignment as a participating member of the Reserve is not a right but a privilege requiring application and acceptance.

In their 20 Nov 03 response to a Congressional Inquiry on behalf of the applicant, the Air Force Office of Legislative Liaison recommended that if the applicant believed his second nonselection for promotion was an error or injustice, he could file a petition with the AFBCMR.  The applicant has chosen instead to base his claim on some perceived administrative delay.  The only error that occurred was ARPC/JA’s failure to more quickly discover the applicant’s ineligibility due to his second nonselection for promotion.

It is not certain, or even likely, that had the applicant been assigned as an IMA, he would have been afforded the opportunity to deploy to Iraq, an opportunity he now claims as the primary reason for his interest in becoming an IMA.

HQ ARPC/JA states that they have never opposed the applicant’s entry into the Judge Advocate General’s Corps Reserve.  They even approved his application to become an IMA.  However, no error or injustice occurred in the process leading to the applicant’s discharge from the Reserve and ineligibility for assignment to the Selected Reserve.  The complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant responded to the Air Force evaluation in a nine-page brief.  The applicant opines that the presence of injustice in his case is not in dispute.  He states that the Judge Advocate General of the Air Force clearly stated in his written response to him that he “wished he had the authority to change the result of the regulation” as its blind application in his case would prohibit a qualified JAG officer from further serving his nation in uniform.  Applicant further opines that the evaluation prepared by ARPC/JA is moot in light of the fact that the top lawyer for the Air Force had expressed in writing six months earlier his wish for authority to remedy the injustice in the applicant’s case.

The applicant addresses what he believes are factual inaccuracies put forth by ARPC/JA.  He states that ARPC/JA is incorrect in stating that he failed to contact them or the Air Force prior to 3 Jun 03.  He provides a summary of letters he claims to have written in Apr 03.

The applicant discusses ARPC/JA’s assertion that the ARPC Reserve IMA representative has no recollection of a 25 Jun 03 phone conversation with the applicant.  Among the applicant’s conclusions is his belief that for the ARPC IMA Representative to acknowledge the conversation, he would have to admit that he failed to follow-up on the applicant’s application.  

Applicant responds to ARPC’s assertion that his application mailed to their office on 12 Jul 03 did not contain the required Staff Judge Advocate recommendation letter by pointing out that the cover letter mailed to him stated that the letter would be sent directly to ARPC/JA rather than through the applicant.

The applicant states that ARPC/JA’s claim that at no point between 3 Jun 03 and 5 Aug 03 did he inform them that he desired to become an IMA is incorrect.  He refers the Board to documents provided with his initial application as proof that this is false.

The applicant discusses ARPC’s assertion that he never informed them about his second nonselection for promotion.  He references his discussion of the phone conversation on 25 Jun 03 that the ARPC IMA Representative denies.

Applicant further discusses inaccuracies he states are contained in the discussion section of the ARPC evaluation.  He opines that ARPC’s view that he was under the mistaken belief that he had a right to deploy conflicts with information contained in the SJA interview report.  

The applicant states that he has been trying to rejoin the military in order to deploy as part of Operation Iraqi Freedom.  He realizes there is a regulation that has stifled his efforts,
but with the nation at war, and the expressed desire of the top lawyer in the Air Force to have the authority to remedy the injustice, he does not understand why the personnel office is making it so difficult for a “qualified American to serve his country.”

He respectfully requests that the Board use the date of 2 Apr 03 as the effective date of his acceptance into the IMA JAG program.

The applicant’s complete response 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.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  We carefully reviewed the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  As pointed out by ARPC/JA, we believe the central issue in the applicant’s case is his being twice nonselected for promotion to major and, accordingly, his ineligibility for assignment to the Selected Reserve.  While it may be regrettable that applicable law provides this result, it does not rise to the level of an injustice.  The applicable statute would apply equally to anyone similarly situated.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

4.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

_______________________________________________________________

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.

_______________________________________________________________

The following members of the Board considered Docket Number BC-2004-00703 in Executive Session on 24 June 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 1 Mar 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, ARPC/JA, dated 15 Mar 04.
    Exhibit D.  Letter, SAF/MRBR, dated 19 Mar 04.
    Exhibit E.  Letter, Applicant, dated 30 Mar 04.