DEPARTMENT OF THE AIR FORCE 

WASHINGTON, DC 

I 

OCT2 0 1998 

Office of the Assistant Secretary 

AFBCMR 97-02561 

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 IO, United States 
Code (70A Stat 116),  it is directed that: 

records of the Department of the Air Force relating to- 

corrected to show that: 

a.  On 2 January 1985, he was not appointed a Reserve of the Air Force. 
b.  On  12 September  1995, he  was tendered and  accepted an appointment as a 
Captain, Reserve of the Air Force, with a promotion service date and promotion effective date of 
1 August 1992. 

c.  He  was  not  considered for promotion to  the Reserve  grade  of  major  by  the 

Fiscal Years 1997 and 1998 Major Selection Boards. 

c 

d.  He  was  not  transferred to  Headquarters Air  Reserve  Personnel  Center Non- 

S/NA), effective 11 Sep 
Support Group/DPMPS, 

e.  Reserve Orde 

dated 8 August 1998, be, and hereby is, revoked. 

f.  He was credited with 35 non-paid Inactive Duty Training (IDT) points and  15 
membership  points  during  the  retirementhetention  year  12  September  1997  through 
11 September 1998, resulting in 50 total points; and, that the period  12 September 1997 through 
11 September 1998 is a year of satisfactory Federal service. 

h 

'1 

I/  Air Force Review Boards Agency 

AIR FORCE 

IN THE MATTER OF: 

RECORD OF PROCEEDINGS 

BOARD FOR CORRECTION OF MILITARY RECORDS 
OCTI2 0 7998 

DOCKET NUMBER:  97-02561 
COUNSEL:  NONE 
HEARING DESIRED:  NO 

APPLICANT REOUESTS THAT: 
1.  His  records  be  corrected  to  reflect  a  ten-year  break  in 
service, from 1 January 1985 through 12 September 1995. 
2.  His  two nonselections for promotion to the grade  of  major, 
for the Fiscal Year 1997  (FY97) and FY98 Reserve Major Promotion 
Boards, be set aside. 

3.  The  Officer  Effectiveness  Report  (OER),  for  the  period 
1 November  1983  through  31  October  1984,  be  declared  void  and 
removed from his records. 
4.  His  service  dates,  including  his  promotion  service  date 
(PSD) , be adjusted. 
5.  He receive point credits for appropriate participation in the 
Air  Force  Reserve  retroactive  to  11 September  1997  and  also 
credit for a good year of satisfactory Federal service. 

APPLICANT CONTENDS THAT: 
Following  an  administrative  correction  to  his  record  in  July 
1995,  his  record  now  does not  reflect  an appropriate break  in 
service from January 1985 through September 1995.  Therefore, his 
Officer  Selection  Brief  (OSB), at  the  FY97  and  FY98  major 
promotion board  incorrectly reflected  several  non-participating 
years.  Applicant  states that  he  did not  come back  into active 
status until  September  1995  and  was  not  on  active  status  the 
requisite  one  continuous  year  prior  to  meeting  the  promotion 
board.  Therefore, his  record  only  showed  one  current  Officer 
Performance Report  (OPR) ,  no  rlgoodll participation  year, and  no 
current  awards  or  decorations.  Also,  his  service  dates  are 
incorrectly stated and need to be adjusted. 
Applicant's submission is attached at Exhibit A. 

STATEMENT OF FACTS: 
The relevant facts pertaining to this application, extracted from 
the  applicant's military  records, are  contained  in  the  letter 
prepared  by  the  appropriate office  of  the Air  Force  Office  of 
Primary Responsibility  (OPR) .  Accordingly, there is no need to 
recite these facts in this Record of Proceedings. 

AIR FORCE EVALUATION: 

The  Director  of  Assignments  and  Readiness, HQ  ARPC/DA,  states 
that  after  review  of  the  applicant's  original  request  for 
appointment, they have  concluded that he did not understand the 
repercussions  of  requesting  appointment  without  the  ten-year 
break  in  service. 
They  recommend  approval  of  applicant's 
requests. 

A complete copy of this evaluation, with attachments, is attached 
at Exhibit C. 
The Acting  Chief, Appeals and SSB Branch, HQ AFPC/DPPPA, states 
that with regard to the removal of the 3 1  October 1984 OER, the 
applicant  contends  he  did  not  request  an  OER  at  his  date  of 
separation  (DOS)  and  that  it  is  substandard  because  it  was 
written after he had  submitted his DOS from active duty.  There 
is no  provision  in AFR  36-10  for the  ratee  to  request  an OER 
after he or she has applied for separation from active duty.  The 
regulation states that if the report is required as a result of 
the separation, retirement, or permanent change of station (PCS) 
reassignment of the rater or, PCS or separation of the ratee, the 
report is usually closed out 30 calendar days before the rater or 
ratee's departure date.  In the applicant's case, the contested 
OER was an annual report, and  it  closed out well  in advance of 
his  date  of  separation  of  1 January  1985.  The  applicant  has 
provided nothing to substantiate the contested OER  is inaccurate 
as written.  They recommend applicant's request to remove the OER 
be denied. 
A  complete  copy  of  the  Air  Force  evaluation  is  attached  at 
Exhibit D. 

The  Staff  Judge Advocate, HQ  AFPC/JA, reviewed  the  application 
and believes  that  the  relief sought by  the  applicant  (with the 
exception of his request that his 1984 OER be removed) should be 
granted  and  the  actions  recommended by  HQ ARPC/DA  be  taken  in 
this case. 
A complete copy of this evaluation is attached at Exhibit E. 

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 
Copies  of  the  Air  Force  evaluations  were  forwarded  to  the 
applicant on 7 July 1998 for review and response within 30 days. 
As of this date, no response has been received by this office. 

THE BOARD CONCLUDES THAT: 
1.  The applicant has exhausted all remedies provided by existing 
law or regulations. 
2 .   The application was timely filed with regard to a majority of 
applicant's requests.  However, the  application was  not  timely 
filed with regard to applicant's request to void the OER closing 
31 October  1984;  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  probable  error  or  injustice 
warranting  favorable  consideration of  a  portion  of  applicant's 
requests. 
After  reviewing  the  evidence  of  record  and  the 
applicant's submission, we agree with HQ AFPC/JA and HQ ARPC/DA 
that  at  the  time  the  applicant  initially separated  from active 
duty, on 1 January 1985,  it was possible that he did not receive 
proper counseling in that he was under the impression that he was 
transferred to the Inactive Reserve.  Therefore, in 1995 when the 
Air  Force  Reserve  reinstated  the  applicant  to  his  commission, 
retroactive to  1 January 1985,  the applicant did not understand 
the repercussions of  requesting appointment without the ten-year 
break  in  service.  The  reinstatement  retroactive to  1 January 
1985  caused him  to be  considered  for promotion  to  the  Reserve 
grade  of  major  by  the  FY97  and  FY98  Reserve  Major  Promotion 
boards and he was not selected by either board.  It appears that 
the  second  nonselection  caused  him  to  be  transferred  from 
participating status to the non-affiliated reserve section (NARS) 
with a mandatory separation date  (MSD) of  1 March 1998.  We note 
that the applicant has been relieved from his assignment in NARS 
and  subsequently  discharged.  Therefore, we  believe  that  the 
relief  sought  by  the  applicant  should  receive  favorable 
consideration  and  we  recommend  the  applicant's  records  be 
corrected to the extent indicated below. 
4.  Insufficient  relevant  evidence  has  been  presented  to 
demonstrate  the  existence  of  probable  error  or  injustice  with 
regard to applicant's request to void  the Officer Effectiveness 
Report  (OER)  for  the  period  closing  31  October  1984. 
The 
applicant  stated that he did not  request an OER  at  his date of 
separation  (DOS)  and  that  it  is  substandard  because  it  was 
written after he submitted his request for separation.  However, 
as stated by  HQ AFPC/DPPPA, the  contested report was  an  annual 
report  and  it  closed  out  well  in  advance  of  his  date  of 
separation  of  1 January  1985.  The  applicant  has  provided  no 

3 

evidence to substantiate that the OER in question is inaccurate. 
Therefore, we  believe  the  applicant  has  failed  to  sustain his 
burden that he has suffered either an error or an injustice and 
we do not  recommend that  the OER  in question be  declared void. 
We  also  note  that  at  the  time  the  applicant's  records  were 
corrected by  the Air  Reserve Personnel Center  (ARPC) to omit  a 
ten-year break in service, he was considered for promotion to the 
Reserve  grade  of  major  by  the  FY97  and  FY98  Reserve  major 
promotion boards.  However, since the AFBCMR  is now recommending 
the applicant's records be corrected to reflect a ten-year break 
in  service  and  voiding  the  two  promotion  non-selections,  it 
appears  that  the  applicant  will  possibly  be  considered  for 
promotion by the FY2001 Reserve major board.  Therefore, he would 
not be eligible at this time to be considered by a special review 
board  (SRB)  for promotion. 

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 2 January 1985, he was not appointed a Reserve of the 

Air Force. 

b.  On  12  September  1995, he  was  tendered  and  accepted  an 
appointment  as  a  Captain,  Reserve  of  the  Air  Force,  with  a 
promotion service date and promotion effective date of  1 August 
1992. 

c.  He was not considered for promotion to the Reserve grade 
of  major  by  the  Fiscai  Years  1997  and  1998  Major  Selection 
Boards. 

d.  He  was  not  transferred  to  Headquarters  Air  Reserve 
Personnel  Center  Non-affiliated  Reserve  Section  (NARS/NA) 

I 

e.  Reserve Order 
dated 8 August 1998, be revoked. 
f.  He was credited with 35 non-paid  Inactive Duty Training 
(IDT)  points 
the 
retirement/retention year 12 September 1997 through 11 September 
1998,  resulting  in  50  total  points;  and,  that  the  period 
12 September  1997  through  11  September  1998  is  a  year  of 
satisfactory Federal service. 

membership 

and 

15 

points 

during 

The following members of the Board considered this application in 
Executive Session on 2 5   August  1 9 9 8 ,   under the provisions of AFI 
3 6 - 2 6 0 3 :  

Mrs. Barbara A. Westgate, Panel Chair 
Ms. Olga M. Crerar, Member 
Ms. Patricia D. Vestal, Member 

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

Exhibit A.  DD Form 1 4 9 ,   dated 2 6   Aug 97,  w/atch. 
Exhibit B.  Applicant's Master Personnel Records. 
Exhibit C.  Letter, HQ ARPC/DA, dated 1 9  Mar 98, w/atchs. 
Exhibit D.  Letter, HQ AFPC/DPPPA, dated 11 Jun 9 8 .  
Exhibit E.  Letter, HQ AFPC/JA, dated 2  Jul 9 8 .  
Exhibit F.  Letter, AFBCMR, dated 7  Jul 9 8 .  

.- 

Panel Chair 

U 

5 

I .  

DEPARTMENT  OF  THE  AIR  FORCE 

HEADQUARTERS  AIR  RESERVE  PERSONNEL  CENTER 

MEMORANDUM FOR AFBCMR 

1661 Air Force, Pentagon 
Washington DC  20330-1 661 

FROM:  HQ ARPC/DA 

6760 E lrvington PI #2000 
Denver  CO  80280-2000 

1 . The requested correction cannot be accomplished administratively at this level. 

2. The applicant requests correction of his military record to reflect that he had a ten 
year  break in service, from  1  January  1985 through  12  September  1995.  The 
applicant  claims omitting  the  ten  year  break  in service  caused  his  being twice 
deferred  from  promotion  on  the  FY97  and  FY98  major  promotion  boards  and 
requests the deferrals to be removed.  He also requests, if appropriate, a Special 
Review Board be convened and the  1984 Officer  Effectiveness Report (OER)  be 
removed from his record.  The applicant further requests participation points to give 
him a year of satisfactory service to 11 September 1997 when he was removed from 
participating status. 

3.  The following is an analysis of the case: 

a.  The applicant separated from active duty on 1 January 1985 and claims 

that due to improper counseling was not transferred to the Air Force Reserve. 

b.  The  applicant  submitted  an  application  to  the  Air  Force  Board  for 
Correction of Military Records (AFBCMR 95-01 971 , dated 21 July 1995) requesting 
he be appointed as Reserve of the Air Force without a break in service. 

c.  On 12 September 1995, through administrative correction, the applicant 
was  appointed as Reserve of  the Air  Force without a break in service effective 2 
January 1985. 

d.  The applicant was considered but yet not selected for  promotion by the 

FY97 and FY98 major promotion boards. 

e.  Due to the twice deferral from promotion, the applicant was transferred, 
effective 1 1 September  1997, from participating status to the non-affiliatd reserve 

.*. . 

DEPARTMENT  O F  T H E  A I R   FORCE 

H E A D Q U A R T E R S  AIR  FORCE  P E R S O N N E L C E N T E R  

R A N D O L P H  AIR  FORCE B A S E  TEXAS 

11 JUN 98 

MEMORANDUM FOR AFBCMR 

FROM:  HQ AFPC/DPPPA 

550 C Street West, S,uite 8 
Randolph AFB TX.  78 150-47 10 

This is in response to your subject memorandum in which you request our review and 
comment regarding the applicant’s request to void his 3 1 Oct 84 officer effectiveness report 
(OER) and the removal of the two nonselections for promotion to the grade of major by the 
FY97 and FY98 Reserve promotion boards.  Since the promotion boards were Reserve boards 
conducted while the applicant was not on active duty, we are unable to comment on them. 
Instead, we believe HQ Air Reserve Personnel Center (HQ ARPC), Officer Promotions, should 
have the opportunity to comment on this issue.  We will discuss the applicant’s request to 
remove the 3 1 Oct 84 OER only. 

First of all, the request to remove the OER is not timely filed.  The application may also be 

dismissed under the equitable doctrine of laches, which denies relief to one who has 
unreasonably and inexcusably delayed in asserting a claim.  Laches consists of two elements: 
inexcusable delay and prejudice to the Air Force resulting therefrom.  In the applicant’s case, he 
has waited 13+ years to file and took no action on the claim before that.  The applicant has 
inexcusably delayed his appeal (providing no explanation) and, as a result, the Air Force no 
longer has documents on file, memories fade, and this complicates the ability to determine the 
merits of his position.  In addition, the test to be applied is not whether the applicant discovered 
the error within three years, but whether, through due diligence, it was discoverable (see 
OpJAGAF 1988/56,28 Sep 88, and the cases cited therein).  Clearly, the alleged error(s) upon 
which he relies hadhave been discoverable since the alleged error(s) occurred.  In short, the Air 
Force asserts that the applicant’s unreasonable delay regarding a matter now dating back 13+ 
years has greatly complicated its ability to determine the merits of the applicant’s position. 

The contested OER has been a matter of record for 13+ years.  The test to be applied is not 

merely whether the applicant discovered the error within three years, but whether through due 
diligence, he could or should have discovered the error(s) (see OpJAGAF 1988/56,28 Sep 88, 
and the cases cited therein).  Clearly, the alleged error(s) upon which he relies hashave been 
discoverable since publication of the OER in question.  Therefore, we see no valid reason to 
waive the statute of limitations and consider the applicant’s requests. 

The governing directive is AFR 36- 10, Officer Evaluations, 25 Oct 82. 

The applicant contends he did not request an OER at his date of separation (DOS) and that 

“it is substandard because it was written after he had submitted (his) DOS from active duty.” 
There is no provision in AFR 36- 10 for the ratee to request an OER after he or she has applied 
for separation from active duty.  AFR 36-10, Table 4-7, note 3, states, “If the report is required as 
a result of the separation, retirement, or PCS reassignment of the rater or PCS or separation of 
the ratee, the report is usually closed out 30 calendar days before the rater or ratee’s departure 
date ....”  In the applicant’s case, the contested OER was an annual report, and it closed out well 
in advance of his date of separation of 1 Jan 85. 

The applicant has provided nothing to substantiate the contested OER is inaccurate as 
written.  He just simply states it is substandard.  Statements from the evaluators during the 
contested period are conspicuously absent.  In order to successfhlly challenge the validity of an 
evaluation report, it is important to hear from the evaluators--not necessarily for support, but at 
least for clarificatiodexplanation.  The applicant has not provided any such documentation. 
Without benefit of these statements, we can only conclude the OER is accurate as written. 

An evaluation report is considered to represent the rating chain’s best judgment at the time 

it is rendered.  We contend that once a report is accepted for file, only strong evidence to the 
contrary warrants correction or removal from an individual’s record.  The burden of proof is on 
the applicant.  He has not substantiated the contested report was not rendered in good faith by all 
evaluators based on knowledge available at the time. 

We strongly recommend this application be time-barred from consideration.  The applicant 
separated from active duty over 13 years ago.  If, however, the AFBCMR decides to consider the 
application on its merits, then we firmly believe the application should be denied due to lack of 
merit. 

- - Acting Chief, Appeals and SSB Branch 
Directorate of Pers Program Mgt 

2 

DEPARTMENT O F  T H E  AIR  FORCE 

H E A D Q U A R T E R S  AIR  FORCE  P E R S O N N E L C E N T E R  

R A N D O L P H  AIR  FORCE  B A S E  TEXAS 

2 July 1998 

MEMORANDUM FOR AFBCMR 

FROM:  HQ AFPC/J4- 

550 C Street West, Suite 44 
Randolph AFB TX 78 150-4746 

SUBJECT:  Application for Correction of Military Records - 

Applicant is before the AFBCMR for the second time.  The applicant initially separated 
from active duty on 1 January 1985 and claimed that because of improper counseling he was not 
transferred into the Air  Force  Reserve.  In  1995, upon  learning he  was not  a member  of the 
Inactive Reserve, the applicant filed his first application for relief with the AFBCMR  seeking 
“reinstatement” of his commission retroactive to  1 January  1985.  In August  1995, HQ ARPC, 
believing  that  corrective action  could  be  taken  administratively, made  the  corrections to  his 
record and gave the applicant constructive credit in the Inactive Reserve retroactive to 2 January 
1985.  The applicant was subsequently considered but not  selected for promotion by  the FY97 
and  FY98  Reserve  major  promotion  boards.  The  second  deferral  triggered  a  transfer  from 
participating  status to  the  non-affiliated  reserve  section (NARS)  with  an  adjusted mandatory 
separation date (MSD) of  1 March  1998.  On  26 August  1997, the applicant filed  his  second 
application for relief, now asking the AFBCMR to change his military record back to show the 
proper “break in service” from  1 January 1985 through  1 September 1995.  He also asks to have 
his status as twice deferred to Major deleted and seeks appropriate adjustments to his MSD and 
PSD to ensure he meets the proper Major selection Board. 

The  advisory  opinion provided  by  HQ  ARPC/JA  in  this  second  case  has  stated  that 
HQ ARPCDAO  had  no  authority  to  make  the  “administrative correction”  referred  to  above. 
You have asked for our review of this second application for relief and our comments relating to 
the conclusions reached by ARPC/JA’s advisory opinion in this case.  We agree completely with 
the  legal  conclusions  stated  by  HQ  ARPC/JA.  Legally,  HQ  ARPCDAO  did  not  have  the 
authority to t e e  it upon themselves to provide the applicant any constructive service credit.  The 
Secretary  acting  through ‘the  AFBCMR  has  that  responsibility  as  set  forth  i n  its  Charter 
(10 U.S.C.  1552).  Having lacked the authority to act, we believe the administrative correction 
(constructive  credit  retroactive  to  1  January  1985)  to  applicant’s  record  was  void  and, 
consequently, any matters arising directly as a result of those void actions would also be a nullity 
(Le., the FY96 and FY97 Reserve major promotion board actions deferring the applicant).  We 
do  not  believe,  however,  that  the  applicant’s  appointment  as a  Reserve  Officer,  nor  his 
assignment to a Reserve Unit are void because those actions were independent of and well within 

the authority of HQ ARPC.  Having said that, we believe the relief sought by the applicant (with 
the exception of his request that his  1984 OPR be removed) should be granted and the actions 
recommended by HQ ARPCDA, dated 19 March 1998, be taken in this case. 

Staff Judge Advocate 

F 

.., 

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