V 

IN THE MATTER OF: 

ADDENDUM TO 

RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

N J G   6 1998 

DOCKET NUMBER:  96- 0035 
COUNSEL:  None 
HEARING DESIRED:  NO 

RESUME OF CASE 
On 2 1   March  1 9 9 5 ,   the Board considered and recommended granting 
applicant's 9  July 1 9 9 4   application requesting the following: 

1.  The  Officer  Performance  Report  (OPR)  rendered  for  the 
period  25  July  1 9 9 1   through  2 4   July  1 9 9 2   be  removed  from  his 
records and  replaced with  a  reaccomplished  report  rendered for 
the period 2 5   July 1 9 9 1  through 3  February 1 9 9 2 .  

2 .  

The OPR for the period 4 February 1 9 9 2   through 30  December 

1 9 9 2   be placed in his record. 

3 .   The llFromll date in Section 1, Item 5,  on the OPR rendered 
for the period 2 5   July 1 9 9 2   through 17 September 1993,  be amended 
to reflect 3 1  December 1 9 9 2 .  

4.  He be  considered for retention by  Special Selection Board 

(SSB) for the Fiscal Year 1 9 9 3   (FY93)  Reduction-in-Force Board. 
A  complete  copy  of  the  Record  of  Proceedings  is  attached  at 
Exhibit G. 
Applicant was selected for retention on active duty by an SSB on 
14 August  1 9 9 5 ,   and  advised  to request  reinstatement on active 
duty if he so desired.  (Exhibit H) 
On  6  February  1 9 9 6 ,   applicant  submitted  another  application 
requesting: 

1.  Reinstatement  to  active  duty  with  credit  for  continuous 

service from date of separation to time of reinstatement. 

2 .  

Promotion to the grade of captain, active duty, with date 

of rank adjusted to 10 August 1 9 9 3 .  

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96-00256 

3 .   All  official  records  and  files  be  made  whole,  without 
prejudice, to  future military  promotions and  special  selection 
boards. 
Update  all  official  records  and  military  personnel 
computer to reflect positions  held up  to and  including present 
Air  Force  Reserve  position.  Update  and  correct  all  official 
records,  including  Officer  Performance  Reports  (OPRs)  and 
awards/decorations, to reflect the corrected date of promotion to 
captain. 

4.  Full  backpay  and  allowances,  from  1  January  1993  to 
present, to include but  not  limited to base pay, BAQ, BAS, the 
cost  of  medical  benefits,  commissary/BX  privileges,  MWR 
privileges, tax benefits, retirement benefits and reimbursement 
for  all  legal  fees  associated  with,  and  up  to  the  time  of 
reinstatement. 

5.  Credit for active duty annual leave accrued from 1 January 

1993 through reinstatement. 

6.  Assignment  to  a  military  position  equivalent  to  the 
position  held  as of  the  date  of  this  application. He  requests 
that  upon  reinstatement  he  be  reassigned  to  the  437th Airlift 
Wing at Charleston AFB, SC. 

7.  Assignment  to  base  of  choice prior  to  reinstatement. He 
requests  that  his  situation  be  made  whole  in  that  he  be 
reinstated to his base of separation (Charleston AFB,  SC) without 
the  financial  and  time  commitment  normally  associated  with  a 
Permanent Change of Station (PCS) move. 

8.  Reinstatement to  be  at  no  cost  or  commitment  to  service 

member. 
On  7 August  1996, the  Board  recommended  granting  applicant's 
request  for  reinstatement  to  active  duty  and  promotion  to  the 
grade  of  captain  by  the  Calendar  Year  1992B  (CY92B) Central 
Captain Selection Board and awarded an appropriate date of rank 
and  effective  date  of  promotion. 
In  addition,  the  Board 
recommended that an AF Form 77, Supplemental Evaluation Sheet, be 
prepared "and  inserted  in  the  record  in  its  proper  sequence 
indicating that no performance report is available for the period 
when  member  was  not  serving on  active  duty  and  containing the 
statement,  I'Report  for  this  period  not  available  for 
administrative reasons which were not  the fault of the member.'I* 
The Board denied applicant's remaining requests. 

A  complete  copy  of  the  Record  of  Proceedings  is  attached  at 
Exhibit I. 

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On 30 October 1 9 9 6 ,   applicant submitted additional documentation 
and  requested  the  Air  Force  Board  for  Correction  of  Military 
Records  (AFBCMR) rescind its decision to remove his Reserve OPRs 
from his official active duty record and replace them with an AF 
Form 77, his Reserve OPRs and decorations be updated and returned 
to his official record, and direct promotion to major.  His case 
was reopened.  (Exhibit J) 

AIR FORCE EVALUATION: 

The Staff Judge Advocate, AFPC/JA, reviewed the application and 
states the applicant is operating under a basic misunderstanding 
of what  documentation is maintained  in his active duty record. 
None of the documents which the applicant describes  (his Reserve 
OPRs and decorations) are now in his official active duty record. 
When the AFBCMR directed an AF  Form 77, Supplemental Evaluation 
Sheet,  be  prepared  and  inserted  in  his  official  active  duty 
record  in its proper  sequence indicating no performance report 
was available for the period when the member was not serving on 
active duty, it did not mean that applicant's Reserve OPRs would 
be removed from his record, because they have never been a part 
of  his  official  active  duty  record. 
In  crafting  the  legal 
fictions  which  are  inevitable  by  virtue  of  the  correction 
process,  some explanation  is needed  to  explain the  gap  in  the 
applicant's service.  The method routinely used to "fill the gap'' 
is the one chosen in this case, namely, placing an AF Form 77 in 
the  applicant's official  record.  This  record  creates a  legal 
fiction that the applicant was on active duty continuously from 
the time of his separation until the present.  Having corrected 
applicant's record to show a retroactive promotion and continuous 
active duty service, it  is inconsistent for his record to  show 
that he was in the Reserves and on active duty at the same time. 
The actions taken by the AFBCMR are legal, proper, and consistent 
with  long  standing  procedures  in  these  types  of  cases.  The 
applicant is unhappy with the prospect of having an AF Form 77 in 
his record covering a four year period.  His solution is to ask 
the AFBCMR  to  fill  the  gap  in his  official  active duty record 
with  his  Reserve  OPRs.  They  believe  his  situation  may  more 
accurately be  a  reflection of  the  current manning  needs of  the 
Air Force and the timing of his reinstatement to active duty than 
it is an absence of his Reserve OPRs in his record.  Assignment 
forecasting, is by its very nature, a long term process.  When a 
person  is  thrown  into  the  middle  of  this  process,  as  the 
applicant is, it may be that he cannot be  ''plugged in1' as well as 
he  might  have  been  if  he  had  been  a  part  of  the  original 
forecast.  In reality, the applicant can  (and did in this case) 
make  assignments personnel  aware of his Reserve experience even 
without  the Reserve OPRs being in his record.  The needs of the 

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Air  Force are driving the  applicant's assignment  in this case, 
not the absence of his Reserve OPRs in his official active duty 
record.  Further, by  arguing that  his  retroactive promotion to 
captain has effectively created an injustice, applicant seems to 
have  momentarily  forgotten that  his  records were  corrected to 
provide his promotion at his request.  Certainly implicit in that 
request  was  the  realization  that  success  would  place  the 
applicant in the position it did.  At  that  time, the applicant 
seemed more  than willing  to accept  from the  correction process 
the  benefits  of  the  retroactive  correction  (Le., the  status, 
date of rank and back pay as a captain); yet he now suggests that 
the correction has caused an injustice as a by-product.  In their 
view, one cannot have it both ways.  Finally, they observe that 
the correction process can only go so far to make an individual 
whole.  The applicant seems to be  demanding perfection; that is 
simply not possible.  The corrections to his record he received 
(which the AFBCMR  has provided  him  a  promotion  to the  rank  of 
captain and all the benefits and pay that go along with it) have 
necessarily  created  the  situation  of  which  he  now  complains. 
Indeed, retroactive dating to establish new dates of rank and pay 
dates to rectify errors or injustices is an integral part of the 
correction process.  If  the downside of  that process means  the 
officer  may  not  be  immediately  eligible  for  some  assignments, 
that goes with  the  territory.  Although  the  correction process 
seems to operate  in a  world  of  virtual  reality  (where fiction 
becomes  facts), when it becomes necessary to effect corrections 
involving the  establishment  of  retroactive  dates of  rank, once 
made, those corrections must be accepted as final and conclusive 
evidence for all purposes.  Just as importantly, the process must 
end  at  some  point. 
Not  every  potential  contingency  can  be 
remedied,  for  indeed,  these  cases  could  drag  on  forever 
addressing new anomalies created by tampering with history.  For 
these reasons, they believe applicant I s   request to set aside the 
natural and foreseeable consequence of the earlier correction is 
not  necessary to correct an injustice, and  they recommend that 
the application be denied. 

A  complete  copy  of  the  Air  Force  evaluation  is  attached  at 
Exhibit K. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 
The applicant reviewed the Air Force evaluation and states that 
he had not intended to return to active duty as he had hoped to 
pursue his career through the Reserves.  He was miscounseled on 
this  aspect of  his  request and  his  options upon  reinstatement. 
He  was  told  he  had  to  accept  two whole  years on active duty. 
This was not required, but  he accepted it, moved  his family and 
himself  at  considerable personal expense, and  immediately asked 

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for a waiver of  this  commitment.  He  should not  have  had  this 
commitment at all.  The AFBCMR directive ordered that he was on 
active duty at  his home of  record pending  further orders.  AFI 
36-2110, Assignments, Paragraph 4-6 states he should have had the 
option  to  separate  as  soon  as  he  received  assignment 
notification. 
Had  this  occurred,  he  would  have  separated, 
reactivated  (actually retained)  his  active  Reserve  status  and 
would have been eligible for the upcoming board.  Only because 
AFPC has chosen to drag out this process, misrepresent his rights 
and  entitlements  throughout,  has  he  found  himself  in  this 
position.  He, therefore, asks  that  the  AFBCMR  order his  file 
corrected to reflect selection for the Reserve grade of major at 
the next  ResAF promotion board.  10 USC  14004 merely  states he 
must  be  on  the  Reserve  active-status list  to  be  eligible  for 
promotion -  SAF policy requires a year time on this list.  As the 
Board will not be able to consider his file as he will not meet 
the SAF imposed eligibility criterion (he will meet the statutory 
eligibility criterion), he asks the Board to correct his record 
to reflect selection for major at this board. 

Applicant's complete response is attached at Exhibit L. 

AIR FORCE EVALUATION: 

The  Chief,  Appeals  and  SSB  Branch,  AFPC/DPPPA,  reviewed  the 
application  and  states  the  applicant  believes  he  will  not  be 
competitive  at  future  promotion  boards  with  an AF  Form  77  in 
place  instead  of  his  non-extended  active  duty  (NONEAD) 
performance  reports  and  decorations. 
They  contend  that  the 
applicant will  be  afforded the  opportunity to  communicate with 
the board president of the promotion board he is being considered 
for.  At  that time, there  is no reason the applicant could not 
attach copies of these OPRs  and decorations to his letter to the 
board president.  They do not believe the AFBCMR  should further 
entertain  appeals  of  this  nature  from  the  applicant. 
The 
applicant's record has been corrected as directed and is valid as 
it stands. 
A  complete  copy  of  the  Air  Force  evaluation  is  attached  at 
Exhibit M. 
The Staff Judge Advocate, AFPC/JA, reviewed the application and 
states  the  applicant  maintains  that  the  AFBCMR  erroneously 
followed the faulty advice of AFPC/JA when it initially sent his 
case to a S S B .   The applicant claims that decision prompted the 
filing  of  his  remaining  claims  and  resulted  in  further 
injustices.  He begins with a contention that a SSB  would first 
require his reinstatement to active duty, citing Doyle v. United 

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States, 599 F.2d 984  (1979) and Porter v. United States, No.  91- 
1008C,  Slip  Op.  (Fed.  C1.  Dec  30,  1994). 
First,  Doyle  is 
inapplicable,  as  it  predates  the  Defense  Officer  Personnel 
Management  Act  (DOPMA)  and  the  statutorily  prescribed  remedy 
provided by  DOPMA  -  the  SSB. 
Second  Porter is a nonpublished 
decision  of  the  United  States  Court  of  Federal  Claims which, 
according to the rules of the court, has no precedential value o r  
impact beyond the specific facts of that case.  Moreover, Porter 
is under appeal by the Department of Justice  ( D O J )   as having been 
decided  improperly.  In  the  opinion  of  DOJ,  an  opinion  they 
share, an officer like the applicant, who has been separated or 
retired, can be  afforded SSB  consideration without  placing  the 
officer back on the active duty list.  Such authority is clearly 
provided  the Secretary of the Air Force  (SAF)  under Section 628 
of Title 10, United States Code  (10 U . S . C .   628).  This conclusion 
is  firmly supported by  the  legislative history  of  the section, 
H.R. Rep. No.  1462,  96th Cong. 2d Session  (1980), at p.  74.  In 
the context of  the statutory scheme, the term  llofficerll applies 
to  the  status  of  the  individual  at  the  time  of  the  original 
promotion consideration when the error or injustice occurred.  In 
other words, the status of the individual at the time of the SSB 
does not govern, but rather, the status at the time of the error 
which led to the improper consideration at the original promotion 
board  -  when, of  necessity, the  individual would  have  been  on 
The  purpose  of  Section  628  is  to  provide  a 
active  duty. 
mechanism  to  compare  the  officer's record  with  a  sampling  of 
other active duty list officers' records in a process which, by 
its very design, is intended to recreate history  (a new promotion 
consideration  to  replace  the  original  faulty  one).  When  that 
premise  is  combined  with  the  realization  that  the  very  same 
subchapter of Chapter 36 that contains Section 628 also provides 
that  officers  twice  passed  over  must  be  separated  within  six 
months  (Section 631),  it  would  make  no  sense  at  all  in  the 
context  of  such  a  scheme  to  exclude  from  consideration under 
Section 628 the very officers who are most  likely going to need 
to utilize that SSB procedure to resolve the alleged errors that 
ultimately  led  to  their  separation. 
Consequently,  the  only 
reasonable  conclusion  to  be  drawn  is  that  the  authority  of 
Section  628  extends  to  separated  officers,  and  there  is  no 
requirement to reinstate such officers to active duty in order to 
use this procedure. 
Moreover, the SAF  clearly has the independent statutory authority 
pursuant  to  10  U.S.C.  8013  to  convene  an  SSB  to  consider  an 
officer  who  is  not  currently  on  the  active  duty  list.  Such 
authority was exercised when SAF  promulgated AFR 36-89, which, at 
paragraph 5 - 3  ,  provided  that  "special selection boards may  also 
be  used  for separated officers  (who have  not  been  restored  to 
active  duty)  who  have  petitioned  the  AFBCMR  or  a  court  to  be 
restored to active duty. II 
This promulgation is consistent with 
the governing DOD Directive, DODD 1320.11, which encourages the 

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use  of  SSBs  and  acknowledges  the  authority  of  the  military 
departments  to  convene  SSBs  under  an  authority  other  than  10 
U.S.C.  628(b). 
More  importantly,  that  directive  does  not 
prohibit the use of SSBs to consider separated officers who were 
on  the  active  duty  list  at  the  time  they  were  originally 
considered for promotion. 

The  applicant,  it  seems,  having  been  granted  the  relief  he 
requested, was  returned  to active duty  and promoted  to  captain 
(presumably with some back pay to go along with that promotion). 
When  that  happened,  he  received  an  active  duty  service 
commitment.  He then asked the SAF to waive that commitment and, 
when  that  request was approved, he  sought to  leave active duty 
and return to the Reserve component.  He now faces the prospect 
of meeting the upcoming reserve promotion board to major with a 
personnel record containing some active duty OPRs and an AF Form 
77.  It should be remembered that this situation was one of his 
own creation.  At  every step, the applicant was given fair and 
equitable treatment.  He created his own situation and he should 
be held  accountable for the choices he has made  along the way. 
He cannot have it both ways.  Furthermore, the applicant, if he 
so chooses, has an option of submitting a letter to the promotion 
board, explaining his situation and attaching his Reserve OPRs to 
that letter.  Thus, there is no injustice in this case. 

As  to  the  applicant's final  and  premature  request  for  direct 
promotion to major, both Congress and DOD have made clear their 
intent  that  errors  ultimately  affecting  promotion  should  be 
resolved through the use of SSBs.  Moreover, they have repeatedly 
agreed  with  AF/JAG  that  the  AFBCMR  is  not  in  the  appropriate 
position to grant a direct promotion -  that in promotion matters, 
the Board's statutory authority should be  limited to correcting 
military records which may  have affected the promotion process, 
and  recommending  SSB  consideration in  appropriate  cases.  The 
United  States  Court  of  Federal  Claims  concurs  in  this, 
Finkelstein v. United States, 2 9   Fed.Cl, 611  ( 1 9 9 3 ) .   Otherwise, 
the  AFBCMR  -  which  is  not  compromised  in  accordance  with  10 
U.S.C. 612  and has no basis for comparing an applicant's record 
with those of his competitors -  would be essentially usurping the 
statutory power of promotion boards.  At a minimum, it is safe to 
say that the AFBCMR has not in the past  (and likely will not  in 
the  future)  consider  direct  promotion  except  in  the  most 
extraordinary  circumstances where  SSB  consideration was  deemed 
totally unworkable.  The applicant's case clearly does not  fall 
into that category.  They are of the opinion that the most recent 
application for relief should be denied. 

A  complete  copy  of  the  Air  Force  evaluation  is  attached  at 
Exhibit N. 

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 
The applicant reviewed the Air Force evaluations and states that 
he is asking for full and fitting relief.  He asks for promotion 
-  this time to the Reserve grade of major -  because the delay in 
processing his petition has effectively made him  ineligible for 
the upcoming ResAF Major Selection Board.  AFPC has indicated its 
selection boards are  ttcompromisedtt -  but  the AFBCMR  is not.  He 
had  not  intended to return  to  active duty  as  he  had  hoped  to 
pursue his career through the Reserves.  He was miscounseled on 
this  aspect  of  his  request,  and  also  on  his  options  upon 
reinstatement.  He was told he had to accept two years on active 
duty.  This  was  not  required, but  he  accepted  it, moved  his 
family  and  himself  at  considerable  personal  expense,  and 
immediately asked for a waiver of this commitment.  He should not 
have had  this commitment  at  all.  The AFBCMR  directive ordered 
that he was on active duty at his home of record "pending further 
orders."  AFI  36-2110, Assignments, Para  4-6,  states he  should 
have had the option to separate as soon as he received assignment 
notification.  AFI  36-2110,  Table  17,  line  2,  confirms he  was 
eligible for the seven day option  (he was denied this option by 
MPC  personnel).  Had  this  occurred, he  would  have  separated, 
reactivated  (actually retained)  his  active  Reserve  status  and 
would have been eligible for the upcoming board.  Only because 
AFPC has chosen to drag out this process, misrepresent his rights 
and  entitlements  throughout,  has  he  found  himself  in  this 
position.  The AFBCMR, however, can order correction of records 
as long as the correction is consistent with law.  He, therefore, 
asks his file be  corrected to reflect selection for the Reserve 
grade of  major  at  the next ResAF promotion board  (March 1998). 
10 USC  Section  14004 merely  states he  must  be  on  the  Reserve 
active-status  list  to  be  eligible  for  promotion  -  SAF  policy 
requires a year time on this list.  As the promotion board will 
not be able to consider his file since he will not meet the SAF 
imposed  eligibility  criterion  (he  will  meet  the  statutory 
eligibility criterion), he  asks the Board  to correct his record 
to reflect selection for major at this board. 
Applicant's complete response is attached at Exhibit 0. 

ADDITIONAL AIR FORCE EVALUATION: 
The  Chief,  Appeals  and  SSB  Branch,  AFPC/DPPPA,  reviewed  the 
application  and  states  that  the  applicant's contention  he  is 
prohibited from affixing attachments to a letter to the promotion 
board  president  is  unfounded.  The  current  directive, AFI  36- 
2504, Officer Promotion, Continuation and Selective Early Removal 
in the Reserve of  the Air  Force, 1 March  1 9 9 7 ,   paragraph 4.7.6 
addresses the board  letter issue.  Specifically, it  states ,  "DO 

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or is already a part of the 
not attach anything that may become 
PRF,  OPRs,  or  decoration 
officer's  record  (such  as  any 
were  amended  to  reflect  a 
narratives) . 
Since  his  records 
continuous period of active duty, and he was reinstated as if he 
never had  a  break  in service, the  documents were appropriately 
removed by HQ AFPC/DPPPA and are no longer a part of his official 
records,  nor  can  they  ever  become  a  part  of  his  records. 
Therefore, he may include the OPRs and decorations, along with a 
letter explaining the  'lgapll in his OSR for consideration to the 
promotion board president.  Also, this directive applies only to 
letters to Reserve boards. 

AFPC/DPPPA  also  states  that  the  applicant's  apparent 
dissatisfaction with  the  relief  granted  by  the  Board  is  quite 
evident throughout his entire rebuttal.  He asserts at one point, 
there is no basis  for removing the OPRs from his records as he 
had documented service during those four years.  They disagree. 
The OPRs were rendered to a Reserve officer.  The applicant asked 
to  return  to  active  duty, with  no  break  in  service.  He  was 
permitted to do so by the Board's directive.  Therefore, as far 
as the Air Force is concerned, the applicant was on active duty 
and never had a break in service.  In the eyes of the Air Force, 
the applicant was never a Reserve officer.  To allow inclusion of 
the  reports  in  his  OSR  would  be  contrary  to  the  history  the 
applicant  recreated  through  his  numerous  requests  for  relief. 
The applicant can't have it both ways.  Either he was a Reserve 
officer, or he was not.  They contend the applicant's record was 
appropriately  amended  in  accordance  with  his  request  and  the 
applicable regulations and will, therefore, always reflect a four 
year gap.  As they have said over and over again, the appropriate 
method to explain this void  in his records is for the applicant 
to include copies of the extracted documents with a letter to the 
president  of  the  promotion  board. 
The  applicant  has  not 
convinced  them  they  erred  when  they  rendered  their  original 
advisory opinion.  Contrary to his opinion of them, they are not 
in the business of  "getting even".  Their job has been, and will 
continue to be, to provide accurate guidance to the Board, based 
on the regulatory requirements.  Nothing personal.  They note the 
proper  procedures  were  carried  out  as a  result  of  the  Board's 
directive to grant  the applicant relief  in these matters.  The 
applicant was returned to active duty as a captain with no break 
in service and his records were appropriately amended to reflect 
a  continuous period  of  active  duty  in accordance with  AFI  3 6 -  
2 6 0 8 ,   Military  Personnel  Records  System,  1  July  1996,  para 
2 . 2 4 . 5 .  
A  complete  copy  of  the  Air  Force  evaluation  is  attached  at 
Exhibit P. 

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The Staff Judge Advocate, AFPC/JA, reviewed the application and 
states that  with  respect  to  the  applicant's reliance upon  the 
legislative history of  the Reserve Officer Personnel Management 
Act  (ROPMA), H.R.  Rep.  No.  84, 
103rd  Cong.  lst Sess  at  71-72 
( 1 9 9 3 ) ,   they note the following.  First, the fact that Congress 
enacted  legislation  consistent  with  the  SAFIs  practice  of 
convening  SSBs  to  reconsider  the  promotion  non-selections  of 
retired  and  former active  duty  officers  in  the  context  of  Air 
Force  Reservists  is,  in  their  view,  consistent  with  their 
interpretation  of  the  Air  Force's implementation  of  10 U.S.C. 
They have nothing further to add.  This response to  the 
6 2 8 .  
applicant's rebuttal does not  change their office's position as 
stated in their last advisory opinion, and they are still of the 
opinion that  the  most  recent  application  for  relief  should  be 
denied. 
A  complete  copy  of  the  Air  Force  evaluation  is  attached  at 
Exhibit Q. 

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 
Applicant  review the Air  Force evaluations and  states that  the 
additional advisories cover only  two areas:  (1) Should he  have 
been  reinstated  for  his  SSB?  Now  a  moot  point,  but  AFPC/JA 
spends three pages trying to defend its position while ignoring a 
1 9 9 8   case  which  again  proves  his  position  is  valid,  and  ( 2 )  
Should the Board direct retention of the OPRs and decorations he 
earned in the Reserves when he reverts to the Reserves?  The SSB 
Issue  is Moot.  In  his  last  rebuttal  he  pointed  out  a  major 
portion of his problem(s) were the result of AFPC's ineptitude. 
This  really  no  longer  matters  except  as  it  relates  to  any 
credibility  this  Board  might  grant  the  AFPC  opinions. 
One 
specific issue was whether he had to be on the active duty list 
(ADL) for SSB consideration.  AFPC/JA  spends three pages which 
addresses  everything  but  this  issue.  He  merely  invites  the 
Board's attention to the 1 9 9 8   Court of Federal Claims decision in 
Cunningham v. U.S.  As highlighted near the end of this opinion, 
the Court knows that under current law and directives an officer 
must  be  on  the  ADL  for  SSB. 
As  for  the  V-atification of 
practice"  concept, he  invites the Board's attention to excerpts 
of the House and Senate 1 9 9 9   Defense Appropriations Bills which 
change  10  USC  Para  628  to  allow  consideration  of  former  and 
retired officers.  If his position was not correct, why would the 
Congress act to change it?  Obviously the law said just what  he 
claimed  it  said  -  and  the  courts and  Congress know this well. 
The Reserve  Record  Issues.  At  issue here  is  retention of  the 
OPRs  and  decorations/awards  he  received  while  a  Reservist 
awaiting return to active duty.  From its advisory, it  is again 

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quite obvious AFPC has lost grasp of the obvious.  He pointed out 
in his rebuttal that both the active duty and reserve promotion 
regulations do not allow attachment of documents which can later 
become  added  to  the  candidate's  file.  AFPC  plays  some  word 
games, but  the  attachment  they provided  confirms  his  position! 
AFI  36-2504,  Para  4.7  (Letters  to  Selection  Boards)  states: 
"4.7.6  Do not attach anything that may become or is already a 
part  of  the  officer's  record  (such  as  any  PRF,  OPRs,  or 
decoration narratives).  This is precisely the  reason the AFPC 
\\cure" won't  work  -  he  can't  send  these  documents  to  the 
selection  board. 
But  rather  than  acknowledge  the  obvious 
injustice, AFPC merely parrots its pedantic position that because 
he  was  reinstated  to  active  duty  (due in  part  to  AFPC's  own 
error), he  is no  longer entitled  the performance  documentation 
and awards and decorations he earned in the Reserves.  To accept 
the  AFPC  position  would  be  patently  absurd  as  it  effectively 
\\throws the baby out with the bath water."  More  importantly, it 
would  guarantee  that  he  continue  to  suffer the  injustice  this 
Board ordered corrected.  He, therefore, again asks the Board to 
merely  allow  retention  of  his  Reserve  OPRs  and  awards  and 
decorations as he transitions into the Reserves. 

Applicant  further states he must admit he  finds it amazing AFPC 
has spent so much time first on a moot point  (the SSB issue), and 
secondly on a Reserve promotion record issue (perhaps that is why 
they cited the wrong regulation initially).  He merely asks the 
Board to rely upon the evidence -  not  the unsupported illogical 
ramblings of AFPC.  The only conclusion supported by the evidence 
is retention of  the Reserve OPRs and  awards and decorations in 
his file  -  which he  asks this Board to so direct.  As AFPC has 
not objected, he can only assume it  is within the Board's  scope 
and authority to also direct his promotion to the Reserve grade 
of major which he also asks the Board to direct. 

Applicant's complete response is attached at Exhibit S. 

THE BOARD CONCLUDES THAT: 
1.  The  applicant  has  exhausted  all  remedies  provided  by 
existing law or regulations. 
2.  The application was timely filed. 

Insufficient  relevant  evidence  has  been  presented  to 
3. 
demonstrate the existence of probable error or injustice.  In a 
prior  Record  of  Proceedings,  the  Board  recommended  the 
applicant's  corrected record be  considered for retention by  SSB 
for the  FY93  RIF  board  and  that, if  selected for retention by 
SSB, he  be  provided  the  opportunity to  return  to  active  duty. 
Applicant  chose to  return to active duty.  Therefore, we  agree 
with  the opinion and  recommendation of  the Air  Force  and  adopt 
their  rationale  as  the  basis  for  our  conclusion  that  the 

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applicant  has  not  been  the  victim  of  an  error  or  injustice. 
Therefore, in the absence of evidence to the contrary, we find no 
compelling basis to recommend granting the relief sought in this 
application. 

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 2  July 1 9 9 8 ,   under the provisions of AFI 36- 
2603 : 

Mr. LeRoy T. Baseman, Panel Chair 
Mr. Gregory H. Petkoff, Member 
Mr. Patrick R. Wheeler, Member 
Ms. Gloria J. Williams, Examiner  (without vote) 

The following documentary evidence was considered: 

Exhibit G.  ROP, dated 2 6   Apr 95,  w/atchs. 
Exhibit H. Letter, AFPC/DPPPAB, dated 1 2   Oct 9 5 .  
Exhibit I. ROP, dated 3  Sep 96,  w/atchs. 
Exhibit J. Applicant's Response, dated 3 0   Oct 96,  w/atch. 
Exhibit K. Letter, AFPC/JA, dated 4 Apr 9 7 .  
Exhibit L. Applicant's  Response, dated 30 Jun 97,  w/atchs. 
Exhibit M. Letter, AFPC/DPPPA, dated 1 8  Aug 9 7 .  
Exhibit N. Letter, AFPC/JA, dated 2 2   Oct 9 7 .  
Exhibit 0.Applicant's Response, dated 30 Dec 9 7 .  
Exhibit P. Letter, AFPC/DPPPA, dated 10 Feb 98,  w/atch. 
Exhibit Q.  Letter, AFPC/JA, dated 23 Feb 9 8 .  
Exhibit R. Letters, AFBCMR, dated 3  Nov 97,  and 1 6   Mar 9 8 .  
Exhibit S .   Applicant's Response, dated 1 9   May 98,  w/atchs. 

LEROY T. BASEMAN 
Panel Chair 

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