RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2007-03913 INDEX CODE: 107.00 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ _ APPLICANT REQUESTS THAT: The Secretary of the Air Force forward his appointment as LtCol to the Secretary of Defense for his approval or that the recognition by the President of the United States of his promotion to colonel while he served in the USAF, be sufficient to reinstate him to the grade of lieutenant colonel (LtCol). ________________________________________________________________ _ APPLICANT CONTENDS THAT: His commission to Lt Col was revoked on 9 November 2007 and no reason was given. In support of his appeal, the applicant has a copy of an ARPC/JA advisory submitted for an earlier application dated 14 September 2007 and a copy of the Reserve order rescinding his promotion to LtCol dated 9 November 2007. 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 an 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 XX XXXXX XXXX, 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 LtCol. On 12 November 2007, HQ ARPC/DPP provided an advisory opinion with regard to an earlier application submitted by the applicant requesting that he be recalled to active duty and allowed to serve in an active status in the grade of Lt Col. The ARPC advisory indicated that although the applicant was eligible to draw retired pay in the grade of LtCol, ARPC determined that their 2007 Reserve appointment to LtCol was without authority in accordance with a 2005 memorandum from the Department of Justice that removed ARPC’s officer appointment authority by prohibiting the redelegation of appointment authority below the Secretary of Defense. Therefore the applicant’s appointment to LtCol 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. ________________________________________________________________ _ AIR FORCE EVALUATION: HQ ARPC/JA recommends denial. JA notes that in his current submission the applicant cites an earlier advisory from ARPC/JA, dated 14 September 2007, that was provided to the AFBCMR in response to an earlier case submitted by the applicant. In his current submission, the applicant cites the earlier advisory and makes the comment that the earlier advisory stated he was legally retired in the grade of Lt Col. JA states that the earlier opinion had been recalled shortly after it was issued. JA states the applicant is aware of the recall action as he made several phone calls to JA inquiring about a revised advisory. JA contends that ARPC does not have the authority to appoint an officer as the Department of Justice (DOJ) has opined that only the President or the Secretary of Defense can appoint officers pursuant to the United States Constitution. JA contends the applicant was given every benefit provided by law and that no action take by the Air Force has harmed him legally or equitably. JA’s complete evaluation, with attachments, is at Exhibit B. Examiner’s note: On 31 January 2008, the applicant’s case was administratively closed in accordance with his undated request. On 3 June 2008, his application was reopened in response to an undated request from the applicant that he was ready to proceed. ________________________________________________________________ _ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant contends it is undisputed that he is in the Retired Reserve. It is also undisputed that he is entitled to be commissioned as an LtCol and since he has properly executed the appointment which was tendered to him, he can see no reason why the AFBCMR could not order that his appointment be sent to the Secretary of Defense for approval. He has requested a reason why this has not been done numerous times and has yet to receive a satisfactory answer. He asks why the confirmation of the President of the United States of his promotion to full colonel could not suffice as an approval by the President for his promotion to LtCol. Applicant’s complete response, with attachments, is at Exhibit D. ________________________________________________________________ _ 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 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. 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 a member to be a commissioned Air Force officer. Additionally, we note his contention that the President confirmed his promotion to colonel while he was serving in the USAF. In fact, the President only nominated the applicant for promotion to the grade of colonel and forwarded his nomination to the Senate for actual confirmation. He was not serving in the USAF at that time but in the CAANG (as a staff sergeant) and he was selected for confirmation by an Army Reserve promotion board that convened after he had left the Army Reserve and enlisted in the CAANG. Consequently, any further action regarding an 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-2007-03913 in Executive Session on 11 March 2009, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 13 Nov 07, w/atchs. Exhibit B. Letter, ARPC/JA, dated 21 Dec 07. Exhibit C. Letter, SAF/MRBR, dated 11 Jan 08. Exhibit D. Letter, Applicant, undated. Exhibit E. Letter, SAF/MRBC, dated 31 Jan 08. Exhibit F. Letter, Applicant, undated, w/atchs.