RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2007-02526 INDEX CODE: 107.00 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ _ APPLICANT REQUESTS THAT: He be given full recognition of status as a lieutenant colonel (LtCol), USAFR, Retired Reserve. ________________________________________________________________ _ APPLICANT CONTENDS THAT: The status afforded him as a LtCol will give him the same legal rights as any other LtCol in the Retired Reserve. He cites 10 U.S.C. 10209 which prohibits discrimination between and among the Reserve. Under said statute, he believes he should be entitled to the same legal rights as every other LtCol in the Retired Reserve. In support of his appeal, the applicant has provided email trails, certificates and diplomas, and copies of pertinent parts of his Army Reserve and Navy personnel records. Applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: On 5 November 2004, after serving for several years, in several grades, with military components of the Navy, Army and Air Force, he enlisted with the California Air National Guard (CAANG) in the grade of SSgt. He served with the CAANG until he applied for Reserve retirement in May 2007. During the retirement process it was found that because he had previously served for more than three years as a LtCol (05) in the Army Reserve, he was eligible for a Highest Grade Held (HGH) determination. It was determined that he would be eligible for Reserve retired pay in the grade of 05 beginning on XXXXXXXX, his 60th birthday. Pursuant to Air Force Instructions (AFIs), he was offered a commission for retirement purposes only and, on 22 May 2007, he was transferred to the Retired Reserve with the rank of lieutenant colonel. ________________________________________________________________ _ AIR FORCE EVALUATION: HQ ARPC/JA recommends denial. JA states that the applicant was correctly retired as a LtCol. They note the only remaining question as being whether his retirement as a LtCol should allow him to serve on active duty as a LtCol or was his grade of LtCol for retirement purposes only. JA notes that the applicant places great weight upon Title 10 U.S.C. 10209 in his application for relief however; his reliance on that statute is misplaced. JA contends the applicant was treated equally to equally situated officers who retire. What he appears to claim is that he has a right to leave the Retired Reserve and accept an active duty or Reserve assignment. In fact, JA states no such right exists. Instead of identifying the correct statute to argue his claim, he appears to rely only on 10 U.S.C. 10209 and the proposition that if some officers are recalled, all officers may be recalled at their desire. Recall from the Retired Reserve is discretionary and based on the needs of the Air Force; not subject to the whim or personal desires of the retired member. The applicant failed to carry his burden of proof by a preponderance of the evidence that any right exists to recall or that to not recall him would constitute a discriminatory act. JA’s complete evaluation is at Exhibit B. ________________________________________________________________ _ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant cites AFI 36-3209 wherein is stated that a member on the Reserve Retired List awaiting Reserve retired pay at age 60 may request an assignment by processing an AF Form 1288, through the normal assignment processing channels. He contends he is not claiming any special right to leave the Retired Reserve. He is not claiming all officers may be recalled at their desire and he understands the recall is discretionary and based on the needs of the Air Force. However, subsequent to his re-commissioning, he has been selected for several positions and each time he submitted an AF Form 1288, it was declined by ARPC on the basis that he was not eligible. Therefore, he has not, in fact, been entitled to the same consideration as every other LtCol in the Retired Reserve. To further illustrate his contention, the applicant was once again accepted to a position as recently as 10 September 2007. He was notified of his selection, given a billet number and noted that the organization would like to have him on board prior to 30 September 2007. Once again, his AF Form 1288 was turned down by ARPC as they do not believe he is entitled to the same rights in connection with AFI 36-3209 as any other LtCol. He cites the JA advisory writer’s statement that his opinion does not address the issue of whether a vacancy exists in the Reserve for which the applicant may be suited. Therefore, the applicant states that since the advisory opinion grants him what he has requested – that he be treated equally to all other LtCol’s on the Retired list – then in the event he is recalled to active duty, that he be recalled in the rank of lieutenant colonel and that the AFBCMR issue an opinion to that affect that will allow ARPC to process any AF Form 1288 received on his behalf in the same manner as they would process a AF Form 1288 from any other LtCol in the Retired Reserve. Applicant’s complete response, with attachment, is at Exhibit C. ________________________________________________________________ _ ADDITIONAL AIR FORCE EVALUATION: HQ ARPC/DPP indicated that although the applicant was eligible to draw retired pay in the grade of 05, ARPC determined that their 2007 Reserve appointment to lieutenant colonel was without authority in accordance with a 2005 memorandum from the Department of Justice that removed ARPC’s officer appointment authority by prohibiting the re-delegation of appointment authority below the Secretary of Defense. Therefore the applicant’s appointment to lieutenant colonel was considered illegal even for the purpose of retirement and clearly for the purposes for which the applicant made application to the BCMR. In late 2007, ARPC administratively corrected the applicant’s record to show he was retired in the grade of SSgt, but that he would draw Reserve retired pay in the grade of lieutenant colonel upon reaching the age of 60. DPP’s complete evaluation, with attachments, is at Exhibit D. Examiner’s Note: On 11 December 2007, the applicant’s case was administratively closed by the applicant until such time as he was ready to proceed. On 13 June 2008, he requested his case be reopened and expedited. ________________________________________________________________ _ APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION: Applicant notes that his review of the additional Air Force Evaluation included the ARPC/JA (initial evaluation) opinion dated 14 September 2007, the ARPC/DPP opinion (additional evaluation) dated 12 November 2007 and the subsequent rescission of the order promoting him to LtCol upon his transfer to the Retired Reserve. The applicant notes that it is apparent from the confusion between the two advisory opinions that both JA and DPP are confused about the actual law involved in this matter. He notes that he was selected by a Special Selection Board (SSB) for promotion to full colonel (06) by the US Army. In 2007, he elected transfer to the Retired Reserve and requested appointment as a colonel based on his selection for promotion to colonel. During his HGH determination it was found that he had not served the requisite time-in-grade as a colonel and he was therefore appointed as an LtCol with an appointment date of 22 May 2007 and a date of rank (DOR) of 14 January 2002, a loss of almost three years of seniority on his Army DOR to LtCol. The rest of his rebuttal is essentially the same response as that found in his rebuttal to the ARPC/JA opinion dated 12 November 2007 at Exhibit E. On 28 January 2009, the BCMR received additional documentation from the applicant in the form of a personal statement, with one attachment, in regard to critical shortages in the Air Force aviation career field and two notices dated 6 January 2009 from SAF/OS implementing the Voluntary Rated Officer Limited Period Recall Program (LPRP). The applicant would like to apply for a rated position under the LPRP. ________________________________________________________________ _ 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 took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. The applicant is eligible to receive Reserve retired pay in the grade of LtCol, but for all other intents and purposes, he was transferred to the Reserve Retired list awaiting Reserve retired pay in the grade of staff sergeant – not LtCol - and is therefore not eligible for consideration by any plan or program that requires an applicant to be a commissioned Air Force officer. Additionally, we acknowledged his contention he was selected to the grade of colonel by a US Army SSB and note that any further action regarding an Army SSB or any other Army promotion board must be addressed to the Army BCMR as a matter falling under their purview. 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 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 AFBCMR Docket Number BC-2007-02526 in Executive Session on 11 March 2009, under the provisions of AFI 36-2603: The following documentary evidence with regard to AFBCMR Docket Number BC-2007-02526 was considered: Exhibit A. DD Form 149, dated 9 Aug 07, w/atchs. Exhibit B. Letter, ARPC/JA, dated 14 Sep 07. Exhibit C. Letter, SAF/MRBR, dated 21 Sep 07. Exhibit D. Letter, Applicant, undated, w/atch. Exhibit E. Letter, ARPC/DPP, dated 12 Nov 07. Exhibit F. Letter, SAF/MRBR, dated 16 Nov 07. Exhibit G. Letter, Applicant, undated, w/atch.