RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-03905
		INDEX CODE:  135.03

		COUNSEL:  NONE

		HEARING DESIRED: YES

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APPLICANT REQUESTS THAT:

His discharge status be changed to reflect transfer to the Retired Reserve with privileges, but without pay or pension.

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APPLICANT CONTENDS THAT:

From 1980 through 1986 he was an active duty Marine Corps pilot flying the A-4M Skyhawk.  In 1987, he joined the California Air National Guard (CAANG) and became an F-4 fighter pilot with the 196th Tactical Fighter Squadron (TFS).  He contends he was a very proud member of the squadron, even after acknowledging the many problems the squadron had experienced: six fatalities from four aircraft crashes, occurring just before he joined the squadron until he was separated.  In 1991, due to the problems the squadron was experiencing, when he suffered a class C mishap, he was used as an example and given one of three choices: lose his wings, a Flying Evaluation Board (FEB), or leave the unit.  He had experienced a similar situation while flying in 1989, took the same action, and was commended for his action by a notation in his 6 March 1990 Officer Performance Report (OPR).  From 1992 to 1996, he was in a non-participating, Reserve status.  In early 1997, he resumed Reserve service and was assigned to Los Angeles AFB in a points-only position.  When he checked on any affect on his promotion potential his break-in-service might have had, he was told he would not meet any major’s promotion board until he had received a one-year “observed” OPR.  Frustrated with the delay in getting a new security clearance, he applied for a Reserve Assistance Program Officer with the Civil Air Patrol (CAP), on 22 March 1998.  He was selected and began his service on 28 August 1998.  He was under the impression he would meet the fiscal year 2001 (FY01) promotion board with a year and a half of service with the CAP, and, if necessary, meet the FY02 promotion board with two and a half years of service.  He was shocked when, after only three months with the CAP, he was notified he was to meet the FY00 promotion board.  Additionally, he was told he had already met the FY94 promotion board and was non-selected.  He was not selected by the FY00 board no doubt he contends, to the brief period of evaluation.  He continued to serve in a points-only position up until the end of 1999 and was ultimately discharged on 1 January 2000 after over 16 years of service.  He feels he attempted every remedy possible to remain in a participating Reserve status but was unsuccessful.  He is now searching for a solution that would allow him to maintain his military affiliation in a retired status, at little or no cost (i.e. no pay) to the U.S. government.  While he realizes he has no legal standing to make this request, it is his hope the Board will act in the interest of fairness.  He admits that not every decision he ever made was a good one and he feels the Air Force failed him in a lot ways also.  It his contention that when all the facts are weighed, transfer to the Retired Reserve with privileges but without pay is fair and equitable.

In support of his appeal, the applicant has provided a personal statement and two letters of support.

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

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STATEMENT OF FACTS:

Applicant began his military career with the Marine Corps Reserve on 26 October 1977.  On 26 October 1987, he joined the CAANG, in the grade of captain, as a Tactical Reconnaissance Pilot flying the F-4.  He received a referral OPR for the rating period 30 January 1991 to 15 October 1991 for his involvement in a Class C aircraft incident that occurred on 10 February 1991.  He was offered the opportunity to meet a Flying Evaluation Board or transfer to the inactive Reserve.  His last satisfactory year of service was his reserve/retirement (R/R) year of 26 October 1990 to 25 October 1991.  On 16 October 1993, he was transferred to the Inactive Status List Reserve Section (ISLRS).  On 1 March 1993 he met the FY 94 Board but was not selected.  On 1 April 1997 he was removed from ISLRS list when he joined the Civil Air Patrol (CAP).  On 12 February 1999, he received an OPR for the period 2 April 1997 to 1 December 1998 wherein he was listed as “Meets Standards.”  On 14 July 1999, he received notification of his second non-selection to the grade of major by the FY 00 major selection board.  Consequently, on 1 January 2000, he was honorably discharged in the grade of captain after having served over 16 years of combined active and Reserve service.  

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AIR FORCE EVALUATION:

HQ ARPC/DPP recommends denial.  While DPP notes they were not able to find a copy of the 1993 non-select letter that was supposed to be in the applicant’s record, they also note the applicant did not complete 20 years of satisfactory service and is therefore, not eligible to retire.  Additionally, DPP contends, there is no provision of law that would allow a member to retire with entitlements and no pay.  He is either eligible to retire with benefits or he is not eligible to retire.  

DPP’s complete evaluation, with attachments, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states that while he is no authority on retirement matters, he does believe that retirement after 15 years of service is allowable at times.  He states the points he earned between 1 April 1999 and 1 January 2000 were not counted.  He is not sure why this happened.  Had the points been credited to his account and he had been allowed to continue participation he would have completed 16 years of service by 1 April 2000.

While many of the decisions he made regarding his military career were not the best decisions, many of them were made of receiving no counsel or counsel by Air Force personnel.  His decision to leave the CAANG was made because of the “climate within the organization at the time” as stated in an enclosed letter from Major General.  He contends on his departure from the CAANG he was never given any counseling or advice on how to proceed with his career.

On his return to military service at Los Angeles Air Force Base (LAAFB), he was told that he would have one, if not two, OPR’s available prior to meeting two Boards.  In hindsight, he states this information was obviously incorrect.  When he was put in for a security clearance (his previous one had lapsed), their inability to update one for him in a timely matter should not be held against him and for the record, a Top Secret clearance was finally granted after he left LAAFB.  Consequently, he was in an unobserved (for OPR) status for the entire year preceding the surprise notification he would meet the FY 2000 Major Promotion Board.

He worked diligently at his position (for points and no pay) with the CAP in hopes the Air Force would somehow rectify his situation and continued his efforts at returning to Reserve service.  He was unable to do so.  He feels ultimately that his single lapse in aerial judgment for which he took full responsibility, coupled with a lack of proper counseling and misinformation, cost him a fair opportunity to serve for an additional four years to secure a Reserve retirement.

He disagrees with paragraph four of ARPC’s advisory and states he worked very hard and is proud of his record of service with the USMC, the CAANG, and the USAF Reserve.  He requests the Board consider his record in it’s entirety and do what is fair: order that he be transferred to the Retired Reserve, be issued an ID card, and, if necessary provide him with a pension of one dollar per year.

Applicant’s complete submission, with attachments, is at Exhibit E.
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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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case including his notable efforts to return to some type of military service; 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.  There appears to be no provision of law that would allow a member to retire with entitlements and no pay nor a means to retire without meeting eligibility requirements.  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 issue(s) involved.  Therefore, the request for a hearing is not favorably considered.

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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 BC-2004-03905 in Executive Session on 6 April 2005, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 17 Dec 04, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ARPC/DPP, dated 4 Feb 05, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 11 Feb 05.