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AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

ADDENDUM TO 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER:  94-00739 m  COUNSEL: 

HEARING DESIRED:  Yes 

RESUME OF CASE: 

In an application dated 25 January 1994, applicant requested that 
he be allowed to enlist in the Regular Air Force, in the grade of 
staff sergeant; or in the alternative, he be offered the option 
to elect the Variable  Separation Incentive  (VSI) or the Special 
Separation Benefit  (SSB) . 
On  25  May  1995,  the  Board  considered  and  denied  applicant's 
request.  The  Board  concluded  that  applicant  was  eligible but 
chose to decline the VSI/SSB programs aftek being advised by his 
commander that he would be a candidate for the Fiscal Year  1993 
(FY93) Reduction-In-Force  (RIF) Board.  Additionally, after being 
selected  by  the  RIF  and  given  the  opportunity  to  reenlist  as 
early as September 1992, he elected to remain on active duty and 
reenlist effective 1 January 1993, thereby maximizing the amount 
of  pay  and  allowances  he  would  receive  as  an  officer. 
The 
National  Defense  Authorization  Act  ( N D A A ) ,   enacted  23  October 
1993,  amended  Section  8258  by  deleting  the  reenlistment 
eligibility  of  former  Reserve  officers  who  separated  for 
qualitative  reasons or whose  former Regular Air  Force  enlisted 
status  and  grade  were  based  solely  on  participation  in  a 
precommissioning  program.  This  change  applied  to  all  officers 
discharged or released from active duty after the enactment date 
and did not provide grandfathering of individuals in applicant's 
situation.  In  an  exception  to  policy,  the  Air  Force  allowed 
individuals,  such  as  applicant  who  had  previously  obtained 
authorization to reenlist, the opportunity to reenlist under the 
provisions  of  the  Prior  Service program provided  they  received 
their  former  commander's  recommendation. 
Applicant's  former 
commander  did  not  recommend  him  for  enlistment. 
The  law 
precluded  applicant's reenlistment and  the Board's  authority  is 
limited  to  what  is  allowed  by  law. 
Further,  a  review  of 
applicant's record did not provide a basis upon which to conclude 
that  the  commander's  decision  was  arbitrary  or  capricious.  A 
complete copy of the Record of Proceedings is attached at Exhibit 
G. 

Applicant's  counsel  submitted  additional  information  on  16 May 
and  25  August  1998,  requesting  de  novo  consideration  of 
applicant's  request and amended applicant's requests  (Exhibits H 

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AFBCMR 94-00739 

and K).  Counsel asserts that the Air Force had an obligation to 
advise applicant of pending  legislation that  ultimately  changed 
his reenlistment rights. 

The amended requests are as follows: 

1.  Voiding  of  applicant's  release  from  active  duty  in  the 

United States Air Force  (USAF), effective 3 1  December 1992; 

2. Correction  of  applicant's  records,  and  any  other  records 
and/or system(s) of records of the Department of the Air Force, 
to  show  applicant's  reenlistment  in  the  USAF,  effective 
22 October 1992, for a period of s i x   (6) years; 

3. Correction  of  applicant's  records,  and  any  other  records 
and/or system(s) of records of the Department of the Air  Force, 
to  show  that  applicant has  been  serving on  active  duty  in  the 
USAF in an enlisted status since 22 October 1992; 

4. Incorporation into applicant's records of an appropriate and 
nonprejudicial  statement  to  show  that  applicant  was  non-rated 
during the period from 22 October 1992 to the date of retroactive 
reinstatement in an active status in the USAF; and 

5. Such other and/or further relief as may be deemed necessary 
and/or appropriate in order to accord applicant full and complete 
relief including, but not limited to, the payment of any pay and 
allowances  due  as  a  result  of  the  correction  of  applicant's 
records. 

Applicant's case has been reopened at this time. 

AIR FORCE EVALUATION: 

The  Staff Judge Advocate, AFPC/JA,  reviewed the new information 
and  recommended  denial  on  the  basis  that  applicant  failed  to 
state an error upon which relief could be granted. 

A complete copy of the evaluation is attached at Exhibit L. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

Counsel reviewed the Air  Force evaluation and provides a 31-page 
response, with attachments, which is attached at Exhibit R. 

THE BOARD CONCLUDES THAT: 
1.  We  note  applicant's  request  for  de  novo  consideration; 
however,  we  find  no  compelling basis  upon  which  to  grant  this 
treatment not 
relief. 

Such action would constitute preferential 

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AFBCMR 94-00739 

available  to  other  applicants  similarly  situated  and  could  be 
construed  as  an  unfair  advantage  that  other  applicants  do  not 
receive , 
2 .   Notwithstanding  the  aforementioned,  we  find  insufficient 
relevant evidence has been presented to demonstrate the existence 
of probable error or injustice.  Counsel ' s numerous contentions 
regarding  the  Air  Force's  obligation  to  advise  applicant  of 
pending changes in legislation which would impact his eligibility 
to reenlist in the Regular Air Force are duly noted; however, we 
do  not  find  these  uncorroborated  assertions,  in  and  by 
themselves,  sufficiently  persuasive  to  override  the  rationale 
provided by the Air Force.  Counsel would have us believe that it 
was the responsibility of the Air Force to brief the applicant on 
what the effects of the pending legislation would have had on his 
right to reenlist should this legislation be  approved and signed 
into law.  On the contrary, as indicated by the Air Force,  there 
was no statutory requirement, no requirement imposed by judicial 
ruling, and no administrative burden imposed by the Air Force or 
the Department of Defense regulation, directive or instruction to 
do so.  In fact, applicant presents insufficient documentation to 
persuade us that he would have reenlisted prior to the change in 
legislation had he been so advised.  We make this observation on 
the basis that he was briefed regarding his eligibility to elect 
VSI/SSB after being advised that he would be a candidate for the 
RIF and yet chose to remain on active duty and subject himself to 
the RIF,  Further,  it would  have been  truly speculative on  the 
part  of  the Air  Force  to  attempt  to predict which way  Congress 
would have voted on the proposed legislation and whether or not 
the  President  would  have  signed  the  National  Defense 
Authorization  Act,  which  ultimately  resulting  in  applicant's 
ineligibility to reenlist.  In this respect, we  find no evidence 
that applicant was treated any differently than other individuals 
similarly situated.  In fact, realizing the impact this approved 
legislation would have on affected members, the Secretary created 
an  exception  to  policy  which  would  have  allowed  applicant's 
reenlistment, upon an approved recommendation from his commander. 
The fact that he was not recommended was apparently predicated on 
his  overall  performance  as  an  officer. 
Again,  we  find  no 
evidence  that  the  commander's  decision  was  arbitrary  or 
capricious.  We  therefore, agree with  the recommendation of the 
Staff  Judge Advocate  and  adopt  the  rationale  expressed  as  the 
basis  for our decision that the applicant has  failed to sustain 
his burden of establishing the existence of either an error or an 
injustice, 
3.  The applicant's case is adequately documented and it has n o t  
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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AFBCMR 94-00739 

THE BOARD DETERMINES THAT: 

The  applicant be  notified  that  the  evidence  presented  did  not 
demonstrate  the  existence  of  probable  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 this application in 
Executive  Session on 20  June  1998, under  the provisions of AFI 
36-2603: 

Mr. LeRoy T. Baseman, Panel Chair 
Mr. Thomas S. Markiewicz, Member 
Mr. Richard A. Peterson, Member 

The following documentary evidence was considered: 

Exhibit G . 
Exhibit H. 
Exhibit I . 
Exhibit J. 
Exhibit K. 

Exhibit L. 
Exhibit M. 
Exhibit N. 
Exhibit 0. 
Exhibit P. 
Exhibit Q. 
Exhibit R. 

ROP, dated 28 Jun 95, w/atchs. 
Counsel's Submission, dated 16 May 97, w/atchs 
(1-90). 
Letter, AFBCMR, dated 6 August 97. 
AFBCMR Memorandum For AFPC/JA, dated 6 Aug 97. 
Counsel's Letter, dated 25 Aug 97, w/atchs 
(91-97). 
Letter, AFPC/JA, dated 25 Nov 97. 
Letter, AFBCMR, dated 8 Dec 97. 
Letter, Counsel, dated 8 Jan 98. 
Letter, AFBCMR, dated 14 Jan 98. 
Letter, Counsel, dated 30 Jan 98. 
Letter, AFBCMR, dated 6 Feb 98. 
Counsel's response, dated 14 Apr 98, w/atchs 
(98-103). 

/ 

THOMAS S. MARKIEWICZ 
Acting Panel Chair 

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