RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  97-03667

      XXXXX COUNSEL:  None

      XXXXXX     HEARING DESIRED: No


_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    He be credited with 28 years of active and reserve  duty  rather  than
27 years.

2.    He be awarded the Legion of Merit (LOM) rather  than  the  Meritorious
Service Medal (MSM).

_________________________________________________________________

APPLICANT CONTENDS THAT:

He did not understand how the reserve points system worked and did not  earn
creditable or “good years” for a three year period.  After  separating  from
the Air Force in February 1970,  he  attended  law  school  from  June  1970
through 1972.  He was an individual  mobilization  augmentee  (IMA)  in  the
munitions career field until his position was terminated.  He then  obtained
a reserve position as an Air Force Academy Liaison Officer.  He earned  well
over 50 points for the three years combined.

He also contends that he served 3½ years  on  active  duty  as  a  Munitions
Officer.  Near the  time  of  his  mandatory  retirement,  his  active  duty
counterpart, Colonel J---  R---,  Staff  Judge  Advocate  (SJA),  HQ  AFRES,
recommended him for a retirement LOM.  The recommended  award  was  approved
by the Chief of the Air Reserve Personnel Center (ARPC) in Denver.  When  he
reported to Robins AFB for his retirement ceremony, he was informed  by  the
Deputy Staff Judge Advocate that his award had been downgraded  by  the  Air
Force Policy Board to a MSM.  The reason given was that there had  not  been
enough time between his last MSM and the retirement LOM.  The pertinent  Air
Force Instruction (AFI) requires a minimum two year period  since  the  last
award.  There was, in fact, more than two years between his last MSM  (April
1994) and the retirement  LOM  (July  1996).   Col  R---  and  he  discussed
whether to put him in for the last MSM  knowing  he  would  be  retiring  in
1996.  He had been led to believe by Awards and Decorations  personnel  that
he would not likely be awarded a LOM without having at  least  one  MSM  oak
leaf cluster.  The last MSM period covered over five years of duty,  but  he
would still have over 2 years before retiring.  Therefore, Col R--- put  him
in for the MSM.  Several months before retiring, he was  told  by  HQ  AFRES
Awards and Decorations personnel there should be no  problem  in  his  being
awarded  a  retirement  LOM  since  he  had  30  years  of   service   after
commissioning.  They said this knowing  he  had  not  obtained  three  “good
years” earlier in his career.  They said the 30 years of total  service  was
what counted.  He is also hoping that having another “good year” (28  years)
may help to approve the recommended LOM if not having  30  creditable  years
was a factor  in  the  downgrade.   He  believes  it  was  an  injustice  to
downgrade the recommended and HQ ARPC approved  retirement  LOM  because  he
had performed the duties and responsibilities of a senior  colonel  assigned
to  an  important  IMA  position.   He  believes  his  responsibilities  and
performance were especially noteworthy and that he met all the  requirements
for the LOM.  The fact this was a retirement LOM should also be  taken  into
consideration.  It was not just a little over two  years  that  should  have
been considered, but also an entire career of active and reserve duty.

In support of the appeal, applicant submits his last annual  point  summary,
retirement order, LOM recommendation and citation, draft appeal,  last  OPR,
and letters of recommendation.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant was commissioned in the grade of  second  lieutenant,  Reserve
of the Air Force, on 3 June 1996, and entered on extended active duty  (EAD)
on 31 August 1966.  On 28 February 1970, the  applicant  was  released  from
active duty under the provisions of AFR  36-12,  and  assigned  to  the  Air
Reserve Personnel Center (ARPC) in an inactive status as an IMA reservist.

On 18 July 1972, the applicant was relieved from  the  Reserve  Section  MF,
ARPC, and assigned to the  Non-Affiliated  Reserve  Section  -  A  (NARS-A),
ARPC.

For  retirement  year  ending  (RYE)  2  June  1971,  applicant  earned   27
retirement points and was not awarded a satisfactory retirement  year.   For
RYE 2 June 1972, he was  assigned  to  an  inactive  status,  therefore  not
earning   retirement   points   and    was    only    credited    with    15
membership/retirement  points  and  not  awarded  a  satisfactory  year  for
retirement purposes.  For RYE 2 June 1973, he earned 7 active  duty  points,
15 inactive duty points and was awarded 15 membership points for a total  of
37 retirement points and was not awarded a satisfactory year for  retirement
purposes.  All subsequent years were satisfactory for retirement purposes.

On 17 June 1996, the applicant was awarded the MSM Second Oak  Leaf  Cluster
(2OLC) by             for the period 1 May 1994 to 1 July 1996.

On 2 July 1996, applicant’s mandatory separation date, he  was  assigned  to
the Retired Reserve and was credited with 27 years, 0 months,  and  29  days
of satisfactory Federal service.

Under the provisions of Title  10,  United  States  Code  (U.S.C.),  Section
12731, a member must earn a minimum of 50 retirement points  during  his/her
R/R year.  Fifteen  points  are  awarded  for  Reserve  membership  but  the
remaining 35 points must be  earned  through  active  duty  training  (ADT),
inactive duty training, or Extension Course Institute (ECI) courses.

_________________________________________________________________

AIR FORCE EVALUATION:

The Staff Judge Advocate, HQ AFRC/JA, reviewed this application  and  states
that they do not believe the matters submitted support a request to the  Air
Force Personnel Council to reconsider it’s  decision  to  approve  the  MSM,
instead of the LOM, upon his retirement.  The period of the award was  short
and the substantive achievements  during  the  period  do  not  support  the
higher award.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluation and states his  main  reason
for requesting another creditable year is to enhance his  chances  of  being
awarded  a  retirement  LOM.   He  knows  a  creditable  year  under  normal
circumstances requires 50 points, but it is his understanding the Board  may
combine two or more years to grant a creditable  year.   Now  under  Reserve
Officer Promotion Management Act (ROPMA),  he  could  serve  35  years  from
commissioning instead of  the  “mandatory”  retirement  at  30  years  under
Defense Officer Personnel  Management  Act  (DOPMA).   While  he  knows  the
advisory opinion will be given consideration, he believes it should only  be
given some weight.  The SJA for HQ AFRES recommended him  for  a  retirement
LOM.  The recommendation was approved by  the  Chief  of  HQ  ARPC  and  his
staff, including his SJA.  That recommendation process should be given  more
weight.  He also requests that the Board avail itself of the  wide  latitude
given under the AFI to award a retirement LOM.  He realizes  a  little  over
two years is the minimum time, but he asks for consideration  of  his  case.
There is obviously a difference between  active  and  reserve  service;  but
what would be the outcome of an active duty colonel with over  27  years  of
service who was retiring with a little over two years of service  since  his
or her last award?  Would the recommended retirement LOM be downgraded to  a
MSM?  As to his position and duties, he understands they have  to  be  of  a
high level even for a retirement LOM.  His  last  OPR,  he  believes,  fully
supports his position and duties met this standard.  He was the  senior  IMA
and mobilization augmentee (MA) to the SJA at  a  major  Air  Force  Command
Headquarters.  He  continued  in  this  position  up  to  the  time  of  his
retirement.  Not reflected in his  OPR  or  award  recommendation  were  the
countless hours of consultations with the Headquarters SJA and his staff  on
command legal matters and individual cases.  These  are  part  of  the  high
level duties expected of a senior colonel.  No OPR was  done  for  his  last
year because the  Deputy  SJA  said  one  was  not  required  since  he  was
retiring.  Further, he is aware of other Reserve colonels within  the  AFRES
command structure who held lower positions and duties  than  his,  who  were
awarded retirement LOMs.  This is also why he believes the downgrade of  his
recommended retirement LOM was an injustice to him.  The Reserve Forces  are
part of the Total Force concept as repeatedly expressed  by  their  national
and military leaders.  They should be treated the same when it  comes  to  a
retirement award based on long and faithful service to their branch  of  the
military and to their Country.  He would be  ever  so  grateful  to  receive
this award.

Applicant's complete response, with attachments, is attached at Exhibit E.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.    The applicant has exhausted all remedies provided by existing  law  or
regulations.

2.    The application was timely filed.

3.    Insufficient relevant evidence has been presented to  demonstrate  the
existence of probable error or injustice.  After reviewing the  evidence  of
record, we are not persuaded that the existing  evidence  warrants  granting
the applicant’s requests.  We note he chose not to earn the  minimum  of  50
retirement points during retirement years ending 2 June 1971, 2  June  1972,
or 2 June 1973.  We believe he had the opportunity to  participate  to  earn
the required points to have  an  additional  satisfactory  year  of  Federal
service and did not participate.   The  applicant  also  requests  that  his
Meritorious Service Medal be upgraded to a Legion of Merit.  The  Air  Force
states  that  the  period  of  the  award  was  short  and  the  substantive
achievements during the period do not support the higher award.   We  agree.
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 19 November 1998, under the provisions of AFI 36-2603:

      Mrs. Barbara A. Westgate, Panel Chair
      Mr. Kenneth L. Reinertson, Member
      Ms. Ann L. Heidig, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 7 Dec 97, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFRC/JA, dated 15 Apr 98.
      Exhibit D. Letter, AFBCMR, dated 11 May 98.
      Exhibit E. Applicant’s Response, dated 8 Jun 98.




                             Panel Chair