RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2007-03998
		INDEX CODE: 135.02
		COUNSEL: NONE

		HEARING DESIRED: YES

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APPLICANT REQUESTS THAT:

1. Thirty five (35) points be added to each retention/retirement (R/R) year 19 May 1995 through 18 May 1996 and 19 May 1996 through 18 May 1997 to ensure satisfactory years for retirement.

2. Adjustments be made to his date of rank for the grades of major and lieutenant colonel as he would have been promoted if not for unnecessary and lengthy transfer processes. 

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APPLICANT CONTENDS THAT:

His transfer from the Army Reserve to the Air Force Reserve was hindered by both error and injustice.  

In support of his application, the applicant has provided a personal statement, and letters pertaining to his transfer from the Army Reserve to the Air Force Reserve. 

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

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STATEMENT OF FACTS:

The applicant is currently serving in the Air Force Reserve in the grade of lieutenant colonel with a date of rank of 1 October 1999.

On 3 Jan 96, he applied for a Conditional Release (CR) from the United States Army Reserve (USAR) that would give him six months to complete the process of being appointed in the Air Force Reserve (AFR).  His reason for leaving the USAR was due to recent downsizing of the Individual Mobilization Augmentee (IMA) program, which affected the security of his position within the Office of the Chief Counsel, US Army Corps of Engineers. The terms of a CR do not allow him to serve for the purpose of accumulating participation points as he was effectively not a member of either the USAR or the AFR during the effective dates of the CR.  Consequently, and also during the time spent between services, he was in fact prohibited from meeting time in grade (TIG) and time in service (TIS) milestones; both of which are requirements of promotion eligibility.  

On 8 April 1996, the applicant's CR from the Army Reserve was granted for the purpose of pursuing an appointment in the AFR. During the appointment process he indicated a history of peptic ulcer disease (PUD).  On 14 June 1996, the Air Reserve Personnel Center’s Surgeon General (ARPC/SG) requested a medical evaluation to determine his eligibility for appointment in the AFR. Peptic Ulcer Disease is listed as a disqualifying medical condition for commissioning. 

On 6 August 1996, ARPC/SG determined the applicant was not medically qualified for world wide duty and appointment into the Air Force Reserve.  Meanwhile, on 12 September 1996, the applicant was mistakenly discharged from the USAR. The USAR was not supposed to have discharged him until they had been notified of his acceptance by and his appointment into the AFR.  The discharge from the USAR also terminated his commission.  Concurrently he had contacted the ARPC’s waiver authority and was granted a waiver for appointment into the AFR.  Unfortunately, when he applied for appointment in Jan 97, he was told the AFR was not accepting appointments at that time but would consider an application for transfer (from the USAR) instead.  He applied for reinstatement into the USAR and was approved.  He then applied for another CR from the USAR that wasn’t granted until 25 Jun 97.  On 22 Jul 97, he was transferred into the AFR effective 13 Aug 97 and was assigned to the Staff Judge Advocate’s (SJA’s) office at Bolling AFB.

On 14 Feb 98, he was advised that his Retention/Retirement (R/R) year was 19 May, the date of his USAR commission.  

He was considered but not selected by the Fiscal Year 1999 (FY99) Line and Nonline Reserve Major Promotion Selection Board, which convened in March 1998. When considered by the board, the applicant had been a member of the AFR since August 1997. His Army performance evaluations were in his records however, his officer selection brief (OSB) showed no decorations, no participation since 1995 and no professional military education (PME).

He was considered and selected by the FY00 Line and Nonline Reserve Major Promotion Selection Board, with a date of rank of   1 October 1999. During that period, the applicant had completed his military PME, received two decorations and his most recent participation year was satisfactory. 

He was considered and selected by the FY07 Line and Nonline Reserve Lieutenant Colonel Promotion Selection Board, with a date of rank of 1 October 2006. 

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AIR FORCE EVALUATION:

ARPC/DPB recommends denial and states the applicant was a member of the Army Reserve for participation years ending 18 May 1996 and 18 May 1997. The applicant will need to petition the Army Board of Correction of Military Records to request participation credit for the time spent waiting for his transfer from the Army to the Air Force Reserve. 

If the applicant is successful in petitioning the Army to award participation credit, he will be eligible for special selection board (SSB) consideration in lieu of the FY99 Line and Nonline Reserve Major Promotion Board. Further, SSB eligibility would depend on the results of the first SSB, if conducted.

ARPC/DPB's complete evaluation is at Exhibit B. 

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force advisory and states while it is clear the Army made an error in discharging him when they were not supposed to, that does not form the basis for his claim and likely would not have happened, but for the injustice, he believes he suffered as a result of the Air Force's application of its regulations. He should not have had such a difficult and time consuming process to first learn about the ability to request a medical waiver and then to receive the waiver that was ultimately granted in a very haphazard manner. Other than letters regarding ARPC/SG's need for more information and his attempts to provide that information, he thinks all communications were oral. In seeking the waiver, he should not have had to speak with so many different people before he happened upon the decision-making authority who, as stated in his request, granted a waiver in a very cavalier way. He wonders if this Air Force approval authority realized that he was indirectly recommending him to falsify future official documents about the PUD when he stated "Your mistake was to tell us (that you had had an ulcer)."

Applicant's complete response 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.  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, the Board does not find these assertions, in and by themselves, sufficiently persuasive to override the rationale provided by the Air Force. In this regard, we note that the applicant had a disqualifying medical condition which required a medical review and waiver by the ARPC Surgeon General prior to his acceptance into the Air Force Reserve. While we can appreciate his frustration with the length of time it took him to ultimately process the required waiver; during the time period in question, the applicant technically was assigned to the Army while on his conditional release.  Therefore, 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. 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.  

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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-2007-03998 in Executive Session on 29 May 2008, under the provisions of AFI 36-2603:

The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2007-03998:

    Exhibit A.  DD Form 149, dated 26 Nov 07, w/atchs. 
    Exhibit B.  Letter, ARPC/DPB, dated 21 Dec 07.
    Exhibit C.  Letter, SAF/MRBR, dated 1 Aug 03.
    Exhibit D.  Applicant's response, dated 7 Feb 08.