ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2005-01679
								INDEX CODE:  100.00
XXXXXXXXXXXXXXXXXX			     COUNSEL:  XXXXX

XXX-XX-XXXX				     HEARING DESIRED:  YES

________________________________________________________________

APPLICANT REQUESTS THAT:

His separation be declared void, he be retroactively reinstated to active duty, he be promoted to the grade of lieutenant colonel, and allowed to remain on active duty until he became eligible for retirement upon completion of 20 years of service, i.e., 2 June 1996, and such other thorough and fitting relief.

________________________________________________________________

APPLICANT CONTENDS THAT:

Given his overall stellar record as well as his status as an Academy graduate, his over 15 years of active duty service, and his willingness to incur a three-year Active Duty Service Commitment (ADSC) in connection with the White House Fellowship Program (WHFP), there is no reason to presume that he would not have remained on active duty through at least the time he became eligible for a 20-year retirement had it not been for the damage caused to his career as a result of the unfounded controversy over his WHFP.  Further, his separation was involuntary since he was separated prior to the expiration of his ADSC without it being waived.  He was obligated to fulfill his ADSC and would have had to request a waiver, which would have required Secretary of the Air Force approval based on special circumstances such as hardship.  However, he never applied for such a waiver, nor did he agree to voluntarily resign in lieu of further adverse action.  Any official adverse action would have offered important due process and evidence discovery rights.

His direct promotion is warranted since it is difficult to see how he could fairly compete for promotion before an SSB without a full and complete record of actual, rated performance as a major as well as a Promotion Recommendation Form (PRF).

Counsel cites previous AFBCMR cases in which the Board adopted a realistic approach to whether a resignation is truly voluntary, as opposed to having been effectively coerced as a result of injustice.  Since the applicant had no effective forum available and no discovery mechanism to learn the precise circumstances of the Air Force’s mishandling of the matter, he had no reasonable alternative but to leave active duty and try to salvage some form of retirement through the Air Force Reserve or the Air National Guard (ANG) as recommended to him.

In further support of his appeal, the applicant submits a statement from a former Air Force Noncommissioned Officer-in-Charge (NCOIC), a former JAG WHF participant, and the former Judge Advocate General (TJAG).  The NCOIC indicates that in 1992 the applicant made efforts to affiliate with the Reserve or ANG, and that all the efforts failed when the recruiters all saw the referral OPR which has now been removed from his records.  The former JAG WHF states that he was told that people throughout AF department were okay with him as a Fellow but they had problems with the [applicant] because he had disgraced the entire JAG department and obtained the Fellowship through deceitful means.  He further states that if the applicant had been allowed to continue his Air Force career following the Fellowship, he would have faced a great deal of resistance and difficulty in an environment as intimate as the JAG corps.  The former TJAG states, in part, that the applicant’s decision to separate was his only option under the circumstances of a completely poisoned atmosphere; that his career was inappropriately cut short by the overreaction of a few people to what was at worst a misunderstanding of his description of an aspect of his prior duties; and that had his case been handled with something less than the coercive hysteria it was, he would have continued to serve on active duty with complete distinction until his retirement.

Applicant’s complete submissions, with attachments, are at Exhibit M.

________________________________________________________________

STATEMENT OF FACTS:

On 20 January 2007, the Board considered the applicant’s request for the following:

	1.	The Field Grade Officer Performance Report (OPR) rendered for the period from 27 May 1990 to 31 July 1990, and any related correspondence, be removed from his records.

	2.	His 1991 separation from the Regular Air Force and honorary retirement from the Air Force Reserve (AFRes) be set aside, and he be retroactively reinstated into the Regular Air Force.

	3.	His corrected record be considered for promotion to the grade of lieutenant colonel by Special Selection Boards (SSBs) for the first two selection boards he would have been eligible to meet.

	4.	He be retroactively retired from the Regular Air Force upon eligibility.
	5.	In the alternative to the above requested relief, he receive retroactive constructive service credit in the Air National Guard (ANG) or AFRes from 1991, he receive SSB consideration to the Reserve grade of lieutenant colonel by the first two boards he would have been eligible to meet, and be placed in a non-Judge Advocate General (JAG) Individual Mobilization Augmentee (IMA), Category B position; or in the alternative, he receive constructive service credit in the AFRes until retirement eligibility, and retired accordingly.

	6.	He receive such other thorough and fitting relief as the Board determines just and proper.

The Board found sufficient evidence to warrant removing the OPR closing 31 July 1990 from the applicant’s records but denied the remainder of his requests. For an accounting of the facts and circumstances surrounding the applicant’s separation, and the rationale of the earlier decision by the Board, see the Record of Proceedings at Exhibit L.

On 12 July 2007, the applicant, through counsel, submitted a request for reconsideration, providing additional documentation in support of the request.  The applicant’s complete submission, with attachments, is at Exhibit M.

________________________________________________________________

THE BOARD CONCLUDES THAT:

1.	After thoroughly reviewing the evidence of record, and the additional documentation provided by the applicant, we do not believe he has overcome the rationale expressed in our previous decision.  The additional statements provided in his behalf are duly noted; however, they do not overcome the fact that he voluntarily chose to terminate his Air Force career.  Further, whether or not he was separated prior to the expiration of his ADSC is irrelevant, and does not render his separation involuntary.  In view of the fact that AF/JAG was intimately familiar with his situation when they approved his separation, we see no reason to believe they would not have approved waiving any existing ADSC.  Therefore, in view of the above, and in the absence of evidence to the contrary, we find no basis upon which to recommend favorable consideration of his request.

2.	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.

________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the additional 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-2005-01679 in Executive Session on 25 October 2007, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

     Exhibit L.  Record of Proceedings, dated 7 Mar 07, w/atchs.
     Exhibit M.  Letter, Counsel, dated 12 Jul 07, w/atchs.

                                   
                                   Panel Chair