RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2006-00061
		INDEX CODE:  131.00
		COUNSEL:  

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1.  His record be corrected to reflect promotion to the rank of lieutenant colonel effective 1 September 1995.  

2.  The effective date of his retirement be changed from 1 May 2003 to the first day of the month following the month of the Special Selection Board’s decision.  By amendment at Exhibit D, applicant requests his retirement date be corrected to any date after the AFBCMR makes its decision in this case.

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THE APPLICANT CONTENDS THAT:

The retirement date of 1 May 2003 was not voluntary.  It was mandated by the fact he had reached the maximum number of years of commissioned service (24 years) permitted for the grade of major.  If he had not been illegally discriminated against on the basis of race and gender in September 1994, he would have stayed on active duty.

In support of his appeal, the applicant submits a copy of the Record of Proceedings dated June 16, 2005 and a copy of the selection notification and Senate Confirmation.  Applicant’s submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

On 26 September 2005, the applicant was selected for promotion by the Special Selection Board for the CY94A Lieutenant Colonel Line Central Selection Board.  

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AIR FORCE EVALUATIONS:

AFPC/DPPRRP states they have made the required administrative corrections to the applicant’s record reflecting his grade of lieutenant colonel.  However, DPPRRP states that the applicant’s request to change his retirement date to 1 May 2003 to 1 October 2005 should be denied.  DPPRRP advises the applicant may or may not have continued his Air Force career past 1 May 2003 even if he had been promoted at his original CY94A promotion board.  The AFPC/DPPRRP evaluation is at Exhibit B.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

Counsel states that because the applicant was promoted to lieutenant colonel effective 1 September 1995, the basis for his retirement on 1 May 2003 no longer exists.  The Air Force has absolutely no evidence to support its speculation that the applicant would have requested retirement.  Such speculation is simply a pretense for not providing the applicant the relief to which he is legally entitled.  Counsel advises the applicant will be willing to accept a correction of his retirement date to any date after the AFBCMR makes its decision in this case.  If the Air Force is unwilling to accept this alternative offer, then the applicant demands his legal right to return to active duty.  The counsel’s letter is at Exhibit D.

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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 error or injustice to warrant relief.  After a thorough review of the evidence presented, we are sufficiently persuaded that corrective action is warranted in this case.  Because of the circumstances of the applicant’s early retirement, i.e., failure of promotion to lieutenant colonel because of an inaccurate record, the applicant was mandatorily retired on 1 May 2003 because he had reached the maximum (24 years) number of years of active commissioned service as a major.  We disagree with the rationale of the office of primary responsibility regarding whether the applicant may or may not have continued his Air Force career past 1 May 2003.  Given the totality of the circumstances of this case, we do not believe the recommendation by the OPR to deny a change in his retirement date provides the applicant full and fitting relief.  The fact the applicant did not voluntarily retire as a major earlier than his mandatory retirement date demonstrates he may have continued his career and not have requested retirement on or before 1 May 2003.  We noted the applicant’s request to accept a correction of his retirement date to any date after the Board’s decision; we believe this request to be reasonable.  In arriving at our decision, we are aware that the courts have held that we have an abiding moral sanction to determine what constitutes an error or an injustice and to take steps to grant full and fitting relief.  In view of the foregoing, we recommend the applicant’s records be corrected to the extent indicated below.  

4.  In regard to the applicant’s request that his record be corrected to reflect promotion to the rank of lieutenant colonel effective 1 September 1995, we note that on 20 January 2006, the applicant was advised by the Air Force Personnel Center that a correction to his retirement order and DD Form 214, Certificate of Release or Discharge from Active Duty, was accomplished to reflect the grade of lieutenant colonel with the date of rank of 1 September 1995.  Therefore, action by this Board on this request is not required.

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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 not retired on 1 May 2003, but on that date was continued on active duty and ordered permanent change of station to his home of record (home of selection) until 31 March 2006, on which date he was relieved from active duty and retired for length of service, effective 1 April 2006.  

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The following members of the Board considered Docket Number BC-2006-00061 in Executive Session on 21 March 2006, 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 12 Jan 06, w/atchs.
    Exhibit B.  Letter, AFPC/DPPRRP, dated 20 Jan 06, w/atchs.
    Exhibit C.  Letter, SAF/MRBR, dated 3 Feb 06.
    Exhibit D.  Letter, Counsel, dated 14 Feb 06.

                                   

AFBCMR BC-2006-00061

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 he was not retired on 1 May 2003, but on that date was continued on active duty and ordered permanent change of station to his home of record (home of selection) until 31 March 2006, on which date he was relieved from active duty and retired for length of service, effective 1 April 2006.