RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-03009
		INDEX CODE:  129.01, 135.00

		COUNSEL:  NONE

		HEARING DESIRED: YES

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APPLICANT REQUESTS THAT:

1. He be awarded active duty points, back pay and allowances, and Aviation Continuation Pay (ACP) from 1 January 1998 to 22 May 2004, plus the difference in back pay between captain and major (Maj/04) from 1 October 1997 to 31 December 1997.  

2. His record be changed to show he accepted a Regular Air Force (RegAF) appointment from the calendar year 1990 (CY90) Regular Air Force Appointment Board and that he held a Regular commission when he was considered for promotion to major by the CY95A and CY96A Major Selection Boards.

3. He meet a Special Selection Board (SSB) for promotion to major reflecting his status as a Regular officer instead of his Indefinite Reserve Status (IRS).  Should he be selected for promotion to major by a Special Selection Board, his date of rank (DOR) to major and to lieutenant colonel (Lt Col/05) be adjusted accordingly and he receive back pay and allowances for those grades as well as Aviation Continuation Pay (ACP).

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APPLICANT CONTENDS THAT:

Applicant was selected for promotion to the grade of major while serving with the 169th Air Control Party Flight (ACPF), Illinois Air National Guard (ILANG).  On 19 April 1997, he left the ILANG for a position with the AF Reserve (AFR).  He assumed the new assignment would be as a major as he and his gaining commander had talked about him being selected for promotion to major by the FY97 ANG Major’s Board.    He states the authorized grade at the new AFR assignment turned out to be a captain (Capt/03).  His commander informed him he could either remain a captain in the AGR position or resign the AGR position and pin on major as a Traditional reservist.  He contends he was never informed why he was not in a majors position or what his options as an AGR in this situation might have been.  However, he understood the situation to be that if he did not resign his AGR position and accept the promotion to major, then the March 1997 selection Board to major would count as a “pass over.”  

In May 2004, as he was reviewing his records for the FY 04 Lt Col Promotion Board, he was sent a copy of an amendment that had been made to his original AGR order.  The amendment, dated 6 October 1997, changed his authorized grade from captain to major, presumably in an attempt to allow him to pin on major and remain in AGR status.  He was never aware of the amendment, and in fact, resigned his AGR position to accept his promotion to major on 31 December 1997.  He contends he should have been promoted to major and kept his original fulltime AGR position back in October 1997.  He contends he would have stayed on for the duration of his AGR tour (1 October 1997 to 1 October 2001), as he intended to stay for 20 years of active federal service, and had he been able to stay in his AGR tour he would have reached 20 years of active duty on 22 May 2004.  

In support of his appeal, the applicant has provided personal statements, and copies of numerous pertinent Special Orders, the organizational history of the 43rd Flying Training Squadron, pertinent email trails, Leave and Earnings statements, and pertinent promotion paperwork.

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

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STATEMENT OF FACTS:

Applicant enlisted in the ILANG on 12 September 1980 where he served as an Avionics Instrument Systems Technician for 3 years and 11 months.  He applied for an Air Force commission, was accepted and completed Undergraduate Pilot Training (UPT). 

On 20 August 1990, he was selected for a Regular Appointment by the Regular Air Force Appointment Board.  His Military Personnel Flight (MPF) was sent notification of the appointment offer on 30 October 1990 and instructed to forward it to his commander and eventually to the applicant.  He was given a suspense of 28 December 1990 to respond.  He did not respond by the suspense date, the offer was terminated, and he was placed in an administratively declined status.

He was considered but not selected for promotion to the grade of major by the CY95A and CY96A Central Major Selection Boards.

On 11 June 1996, he was released from active duty and transferred to the Reserve of the Air Force effective 29 September 1996.  On 30 September 1996, he joined the ILANG as a Traditional Guardsman.

On 5 December 1996, he applied for a position with the AF Reserve (AFR) and on 28 February 1997, he was selected and his transfer to the AFR was approved.

On 7 March 1997, he was selected for promotion to the grade of major by the FY97 ANG Major Selection Board.  His effective date and date of rank (DOR) was 1 October 1997.  

On 10 April 1997, he was ordered to active duty (AGR) with the Air Force Reserve with a reporting date of 20 April 1997.  On 14 April 1997, he was relieved from the ILANG and gained by the 951st RSPTS, AFR effective 19 April 1997.  

On 1 October 1997, he was released from the 951st RSPTS and assigned to the 43rd FTF. On 6 October 1997, the order transferring him to the 43rd FTF was amended changing his position number and rank from 090325/Captain to 0903234/Major.

On 21 October 1997, he submitted a letter officially resigning his AGR position for a Traditional Reserve (TR) position.  On 22 October 1997, he was officially reassigned from the AGR program to a TR program.

On 29 December 1997, an overgrade waiver was submitted on his behalf requesting an overgrade from captain to major for a period of two years – 1 January 1998 to 1 January 2000.

On 14 January 1998, an order was published releasing him from his AGR position.  The orders Remarks column reads: Member will convert to TR position with authorized grade of captain.  Overgrade waiver approved on 4 January 1998 for two years.  Also on 14 January 1998, a promotion order was published promoting him to the grade of major, effective and with a DOR of 1 October 1997.  

On 23 August 2004, he was notified of his selection for promotion to the grade of lieutenant colonel by the AFR.

He has served over 26 years of combined Air Force and Reserve component service.

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AIR FORCE EVALUATION:

HQ USAF/REAMO addresses the applicant’s request for active duty points, back pay, and ACP from 1 January 1998 to 22 May 2004 as well as the difference in captain and major pay between the dates 1 October 1997 and 31 December 1997.  REAMO recommends partial relief in that the applicant is entitled to back pay for the rank of major from 1 October 1997 to 31 December 1997.  

Regarding his request to receive back pay of ACP from 1 January 1998 to 22 May 2004, REAMO notes the AFR did not implement the ACP program until 2000.  Therefore he would not have been able to apply for ACP prior to 2000.  Further, his request has merit only if he had not resigned his AGR position with an authorized grade of captain on 21 October 1997 in favor of a Traditional reservist position with an authorized grade of major.  If he had remained an AGR however, it is conceivable he could have requested an extension of his tour making him eligible for an ACP contract after 2000, assuming his extension request would have been granted.  Regarding his request for back points and active duty pay from 1 January 1998 to 22 May 2004, REAMO notes again that had he retained his AGR status, and assuming necessary tour extensions, he would now be eligible for an active duty retirement.  

REAMO states the applicant’s claim that because of ineffective administrative support he was misinformed and had to give up his AGR tour in order to accept a promotion to major is without merit.  According to Air Force Instruction (AFI) 36-2504, Officer Promotion, Continuation and Selective Early Removal in The Reserve of The Air Force, even if the applicant had thought he was in a captain’s billet, he could still have held on to the promotion until he had secured a major’s billet.  He then would have been eligible to pin-on immediately with a DOR of 1 October 1997.  REAMO notes that even though they (USAF/REAMO) did not exist at the time, they checked with the AGR managers of the time (AF/REP and HQ AFRC) and found that AGRs were not forced out of their tours for an inability to pin on rank.  The member was eligible to remain in the AGR program at the rank of the authorized billet until the member secured a billet (through transfer or upgrade of position) at the rank for which they were promoted.  The member would then be immediately eligible to pin on the new rank.  REAMO contends there is no record in the file as to why his AGR tour was curtailed.  Applicant states it was curtailed because he was unable to pin-on major and was therefore “forced out of the tour.”  REAMO states the applicant resigned from his AGR tour voluntarily.

REAMO’s complete evaluation is at Exhibit C.

HQ AFPC/DPPPOO addresses the applicant’s eligibility for a RegAF appointment.  DPPPOO states the applicant met and was selected for a RegAF Appointment by the CY90 Regular Air Force Appointment Board that convened on 20 August 1990.  The RegAF Board results were released on 30 October 1990 and selectees were given until 28 December 1990 to accept the RegAF offer.  DPPPOO states applicant was not aware of his selection for a RegAF appointment and that had he known, he would have taken the steps necessary to accept the offer.  DPPPOO notes as the applicant’s squadron was deployed in support of Desert Shield/Desert Storm the possibility exists his servicing Military Personnel Flight (MPF) may have inadvertently thought the applicant was also deployed and that the personnel team at his deployed location was handling notifications for the deployed officers.  Since access to the selection lists were prohibitively limited in 1990, DPPPOO believes the possibility exists the applicant would have found it difficult to locate any information about his selection or nonselection for a RegAF appointment.  Therefore, DPPPOO recommends his records be changed to show he accepted the RegAF appointment.  Additionally, he be granted Special Selection Board (SSB) consideration for the CY95A Major Selection Board and if not selected he be considered for promotion to major by the CY96A Major Selection Board.  Further, his Officer Selection Brief be corrected to show his DOS as Indefinite rather than, 31 December 2003.

DPPPOO’s complete evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant disagrees with the HQ USAF/REAMO advisory and provides a copy of an AF Form 1288, the document that transferred him from the 169th ACPF to 10 AF/CCS, clearly stating the position number and authorized grade of the position to be major.  He contends this is proof positive that the “Capt” on Special Order (SO) A-094, is incorrect and that SO AA-116 showing the authorized grade of major is correct.  He contends REAMO’s contention that curtailment statements were not found (removing him from his AGR tour), is without merit as he has found the documents in question confirming his statement that he was under the impression he was in an overgrade situation.  His commander’s statement that his career goals, “…changed from one of full time service to that of a part time reservist, and the pursuit of a civilian,” is misrepresentative.  At the time, he had no job prospects and certainly would not have terminated his civilian position and associated major billet to uproot his family and move them to Columbus, MS, unless it was for what he would consider a good career move.  He states that, in direct contradiction to the AGR Career Management Program, he was not given the opportunity to realize a career and potential retirement in the AGR program and he was not properly afforded career counseling he now knows he needed to make more informed decisions.  He states he intends to continue serving with the 43rd FTS no matter what the Board concludes and argues against the advisory’s opinion that his application is speculative when referring to tour extensions and rank issues.  

Applicant’s complete evaluation, 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.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice in regards to the applicant’s request for a Regular Air Force appointment, consideration for promotion to the grade of major by SSBs, and the difference in pay from October 1997 to December 1997.  The CY90 Regular Air Force Appointment Board met on 20 August 1990 and published its results on 30 October 1990.  Applicant had been selected and was given until 28 December 1990 to accept the Regular Air Force Appointment offer.  The Air Force office of primary responsibility recommends approval of his request for a Regular Air Force Appointment and we agree.  Further, as he was not selected for promotion to the grade of major by the CY95A and CY96A Major Selection Boards with an accurate record, we believe he should be granted SSB consideration for promotion to the grade of major by the selection boards in question.  As a matter of interest, whether or not he is allowed to continue on active duty depends on the results of the SSBs.  If he is selected for promotion, he will be provided an opportunity to return to active duty.  In regards to his request for back pay for the period he was serving as a major and being paid as a captain, we recommend he receive the difference in pay between the two grades for the period 1 October 1997 to 31 December 1997.  Therefore, we recommend that the records be corrected as indicated below.  

4.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice regarding the remaining issues for which he has requested relief.  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 office 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 in that he voluntarily curtailed his AGR tour and is not entitled to back pay and allowances, ACP, and active duty points.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the remaining relief sought.

5.  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 RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that:

		a. On 5 February 1990, he was tendered and accepted a Regular Air Force Appointment and action be initiated to obtain Senate confirmation.

		b. The Field Grade Officer Performance Report (OPR), rendered for the period 25 July 1990 through 26 August 1991, be amended in block 2, SSN, by deleting "FV" and in Section VI, by deleting the words "Augment to the Regular force and".

		c. The OPR rendered for the period 27 August 1991 through 25 May 1992, be amended in block 2, SSN, by deleting "FV", in Section VI, by deleting the words “Augment now” and in Section VII, by deleting the sentence “Augment into the Regular Air Force”.

		d. The OPR rendered for the period 26 May 1992 through 25 May 1993, be amended in Section VII, by deleting the words “…and augment into the Regular Air Force”.

		e. The OPR rendered for the period 26 May 1993 through 11 February 1994, be amended in Section VI, by deleting the words “Augmentation is a must for this clearly superior officer”, and in Section VII, deleting the words “-Augment now!”.

		f. The OPR rendered for the period 12 February 1994 through 22 July 1994, be amended in Section VI, by deleting the words “Augment and…” and in Section VII, by deleting the sentence “Augment--then ISS” and inserting the sentence "Send to ISS.".

It is further directed that he be considered for promotion to the grade of major by Special Selection Boards for the Calendar Year 1995A and 1996A Central Major Selection Board, to include the above corrections to his record.
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The following members of the Board considered this application in Executive Session on 4 May 2005, 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 6 Jul 04, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ USAF/REAMO, dated 25 Oct 04.
    Exhibit D.  Letter, SAF/MRBR, dated 29 Oct 04.
    Exhibit E.  Letter, APPLICANT, dated 11 Nov 04, w/atchs.

DEPARTMENT OF THE AIR FORCE
WASHINGTON DC

Office Of The Assistant Secretary

AFBCMR BC-2004-03009

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:

		a. On 5 February 1990, he accepted a Regular Air Force Appointment and upon Senate confirmation he be tendered a Regular Air Force Appointment.

		b. The Field Grade Officer Performance Report (OPR), rendered for the period 25 July 1990 through 26 August 1991, be amended in block 2, SSN, by deleting "FV" and in Section VI, by deleting the words "Augment to the Regular force and".

		c. The OPR rendered for the period 27 August 1991 through 25 May 1992, be amended in block 2, SSN, by deleting "FV", in Section VI, by deleting the words “Augment now” and in Section VII, by deleting the sentence “Augment into the Regular Air Force”.

		d. The OPR rendered for the period 26 May 1992 through 25 May 1993, be amended in Section VII, by deleting the words “…and augment into the Regular Air Force”.

		e. The OPR rendered for the period 26 May 1993 through 11 February 1994, be amended in Section VI, by deleting the words “Augmentation is a must for this clearly superior officer”, and in Section VII, deleting the words “-Augment now!”.

		f. The OPR rendered for the period 12 February 1994 through 22 July 1994, be amended in Section VI, by deleting the words “Augment and…” and in Section VII, by deleting the sentence “Augment--then ISS” and inserting the sentence "Send to ISS.".

	It is further directed that he be considered for promotion to the grade of major by Special Selection Boards for the Calendar Year 1995A and 1996A Central Major Selection Board, to include the above corrections to his record.