RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-03840
					    (CASE 3)
		INDEX CODES:  110.03, 131.01,
		              131.09

		COUNSEL:  NONE

		HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  18 Jun 06

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APPLICANT REQUESTS THAT:

He be reinstated to active duty, effective 1 Mar 98, with all back pay and allowances.

He be promoted to the grade of major as though selected by the Calendar Year 1998 (CY98) Major Board.

He be provided special consideration for subsequent promotion to the grade of lieutenant colonel by either directly promoting him to lieutenant colonel based on what would have been his in-the primary zone (IPZ) board, or he be given additional IPZ consideration on future boards.

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APPLICANT CONTENDS THAT:

While he was on active duty, he was considered for promotion to major by the Calendar Year 1996 (CY96) and Calendar Year 1997 (CY97) Major Boards but was nonselected.  He was not offered selective continuation following the CY97 board, and was involuntarily separated from active duty.  Following the removal of a disputed Officer Performance Report (OPR), he was provided Special Selection Board (SSB) consideration for promotion to major by the CY96 and CY97 boards.  Although he was nonselected, he was selected for continuation, which he accepted.  During the initial continuation period, he would have been considered for promotion by the CY98, Calendar Year 1999 (CY99), and the Calendar Year 2000 (CY00) boards.  If nonselected for promotion by the CY98 board, he would have been offered continuation to 20 years of active service.  Therefore, he should be reinstated to active duty as though he had never been separated.  Further, had he not been separated from active duty, he would have been considered for promotion every year.  Therefore, SSB consideration for all subsequent years would have been appropriate.  However, because he has no OPRs or Promotion Recommendation Forms (PRFs), he would not be competitive for promotion.  Thus, he requests reinstatement at his current rank of major, and that his date of rank (DOR) be adjusted appropriately.  After he is reinstated, whether or not his DOR is adjusted, he would not be able to be competitive for promotion to lieutenant colonel because he has not been eligible to hold positions and does not have OPRs that would make him competitive.  Therefore, he should be provided special consideration by promoting him directly or affording him addition consideration.

In support of his appeal, the applicant provided an expanded statement, and documentation pertaining to his correction of records, SSBs and selective continuation.

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

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STATEMENT OF FACTS:

Applicant was honorably discharged on 28 Feb 98 under the provisions of AFI 36-3207 (Nonselection Permanent Promotion).  He was credited with 12 years, 3 months, and 13 days of active service.

On 14 Aug 02, the Board considered and denied an application pertaining to the applicant, in which he requested that his Officer Performance Report (OPR) rendered for the period 9 Jul 93 through 22 Aug 94 be declared void and removed from his records; his OPR rendered for the period 23 Aug 94 through 15 Jul 95 be declared void and removed from his records; his PRF prepared for consideration by the CY96A Central Major Selection Board be declared void and removed from his records; his PRF prepared for consideration by the CY97C Central Major Selection Board be declared void and removed from his records; he be provided SSB consideration for promotion to the grade of major in-the-primary zone; if selected for promotion to major, he be reinstated to active duty as of the date of his separation (28 Feb 98), and his promotion be effective as of the date it would have been effective had he been promoted in-the-primary zone; he receive back pay and allowances in the grade of major from the date of his promotion to the date of his reinstatement; he receive time in grade for pay, promotion, and retirement purposes from the date of his promotion to the date of his reinstatement; all evidence of a Naval Service Flying Evaluation Board (FENAB), dated 27 Jul 94, be expunged from his records; and, if not selected for promotion by an SSB, he be selectively continued as a pilot in the rank of captain from the date of his separation with all back pay and allowances and credit for time in grade for pay, promotion, and retirement purposes (Exhibit C).  

On 23 Feb 04, the Board considered an application pertaining to the applicant, in which he requested that his OPR rendered for the period 23 Aug 94 through 15 Jul 95 be declared void and removed from his records; and, any and all actions as a result of the OPR be invalidated such as:  his OPR rendered for the period 9 Jul 93 through 22 Aug 94 be declared void and removed from his records; his PRF prepared for consideration by the CY96A Central Major Selection Board be declared void and removed from his records; his PRF prepared for consideration by the CY97C Central Major Selection Board be declared void and removed from his records; he be reinstated to active duty as of the date of his separation; he be given SSB consideration for promotion to the grade of major; and, he receive back pay, benefits, and credit toward retirement for all the active duty time he would have served.  The majority of the Board recommended denial of his appeal.  The Director, Air Force Review Boards Agency, agreed with the minority member that relief was warranted and directed the applicant’s OPR closing 15 Jul 95 and his PRFs prepared for the CY96A and CY97C Major Boards be voided and removed from his records, and he be given SSB consideration (Exhibit D).

On 13 Sep 04, the applicant was given SSB consideration for promotion to the grade of major by the CY96A and CY97C Major Boards.  Although he was nonselected for promotion, he was selected for continuation for an initial three-year period.  On 7 Dec 04, the applicant accepted the initial continuation offer.

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AIR FORCE EVALUATION:

AFPC/DPPPO indicated that if the applicant had remained on active duty, he would have been eligible for the CY98 Major Board and if nonselected, would have been offered continuation to 20 years of active service or retirement eligibility.  If he would have been selected for promotion to major by the CY98 board, he would have received a DOR and effective date of 1 Sep 98 and would have been IPZ eligible for promotion to lieutenant colonel by the CY02B lieutenant colonel board.  Based on the evidence provided, they impose no objection to the applicant’s return to active duty effective 1 Mar 98.  In addition, in order to make him competitive for future promotions, they concur with his reinstatement to active duty with promotion to major.  However, they recommend his DOR not be backdated as though selected by an earlier board, but that he retain his current DOR of 1 Oct 02.  This would allow him to build a competitive record for promotion to lieutenant colonel.  They do not support direct promotion to lieutenant colonel at this time.

A complete copy of the AFPC/DPPPO evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the advisory opinion and furnished a response indicating he concurred with the recommendation he be reinstated to active duty effective 1 Mar 98 at his current grade and DOR.

Applicant’s complete response is at Exhibit G.

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ADDITIONAL AIR FORCE EVALUATION:

AFPC/DPPPO provided another advisory indicating that because the applicant was competitively selected for promotion to major by a Reserve central promotion board, it is possible with additional reports in his record, he could have been promoted to major by an active duty board at some time later in his career.  Therefore, they recommend the applicant be promoted to major by the CY02A Major Central Selection Board with a DOR and effective date of 1 Oct 02.

A complete copy of the AFPC/DPPPO evaluation is at Exhibit H.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant provided a response indicating the advisory appeared to be only an expanded explanation of AFPC/DPPPO’s previous recommendation of his case.  As such, he saw no reason to change his position.  Therefore, he agrees with the recommendation to reinstate him to active duty as of 1 Mar 98, with an active duty promotion to major effective 1 Oct 02.

Applicant’s complete response is at Exhibit J.

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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.  After a careful and thorough analysis of the facts and circumstances of this case, and the apparent concurrence of the applicant, we agree with the latter recommended relief proffered by AFPC/DPPPO.  In our view, such corrective action is proper and fitting relief.  Accordingly, we recommend that the applicant’s records be corrected to the extent indicated below.

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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.  He was not discharged from all appointments on 28 Feb 98, but was continued on active duty and was ordered Permanent Change of Station (PCS) to his home of record (home of selection) pending further orders.

	b.  He was selected for promotion to the grade of major by the Calendar Year 2002A (CY02A) Major Central Selection Board, and that action be initiated to obtain Senate confirmation.

	c.  Upon Senate confirmation, he be promoted to the grade of major effective and with a date of rank of 1 Oct 02.

	d.  Any nonselections for promotion to the grade of lieutenant colonel prior to receiving a minimum of two Officer Performance Reports (OPRs) with at least 250 days of supervision, in the grade of major, be set aside.

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The following members of the Board considered AFBCMR Docket Number BC-2004-03840 in Executive Session on 24 Mar 05 and 13 Jun 05, 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 9 Dec 04, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Record of Proceedings, dated 11 Sep 02.
     Exhibit D.  Memorandum for Executive Director,
                 dated 30 Mar 04, w/atchs.
     Exhibit E.  Letter, AFPC/DPPPO, dated 6 Jan 05.
     Exhibit F.  Letter, SAF/MRBR, dated 14 Jan 05.
     Exhibit G.  Letter, applicant, dated 19 Jan 05.
     Exhibit H.  Letter, AFPC/DPPPO, dated 26 Apr 05.
     Exhibit I.  Letter, AFBCMR, dated 27 Apr 05.
     Exhibit J.  Letter, applicant, dated 27 Apr 05.

                                   

AFBCMR BC-2004-03840

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 , be corrected to show that:

		a.  He was not discharged from all appointments on 28 Feb 98, but was continued on active duty and was ordered Permanent Change of Station (PCS) to his home of record (home of selection) pending further orders.

		b.  He was selected for promotion to the grade of major by the Calendar Year 2002A (CY02A) Major Central Selection Board, and that action be initiated to obtain Senate confirmation.

		c.  Upon Senate confirmation, he be promoted to the grade of major effective and with a date of rank of 1 Oct 02.

		d.  Any nonselections for promotion to the grade of lieutenant colonel prior to receiving a minimum of two Officer Performance Reports (OPRs) with at least 250 days of supervision, in the grade of major, be set aside.