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AF | BCMR | CY1998 | 9803270
Original file (9803270.pdf) Auto-classification: Approved
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER:  96-03270 
COUNSEL:  Steven E. McCullough 

HEARING DESIRED: No 

JUL  3 1 )898: 

APPLICANT REQUESTS THAT : 
He  be  awarded  compensation  for back  pay  and  retirement points 
(based on an average of the  three previous  calendar years) for 
the period 3 1  December 1994 through 1 November 1996;  promoted to 
the  grade  of  colonel;  and  reinstated  to  the  same  or  similar 
flying  position  and  duties  he  had  before  being  wrongfully 
separated. 

APPLICANT CONTENDS THAT: 

The reasons the applicant believes the records to be in error or 
unjust and the evidence submitted in support of the appeal are at 
Exhibit A. 

STATEMENT OF FACTS: 
Effective 3 November 1996, applicant was assigned to the Retired 
Reserve, in the grade OS  lieutenant colonel, awaiting pay at age 
60.  He has 27  years, 4 months and 1 day of satisfactory federal 
service for retirement 

The  remaining  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. 
Accordingly,  there  is  no  need  to  recite  these  facts  in  this 
Record of Proceedings. 

AIR FORCE EVALUATION: 

Chief,  Utilization,  HQ  ANG/MPPU,  reviewed  the  application  and 
states  that  partial  relief  is  warranted. 
Review  of  the 
Department  of  Defense  Inspector  General  (DoDIG)  investigation 
report indicate the 1994 
Retention Review Board 
procedures weie  flawed a-rt 
of  the  remedy, applicant 
was reinstated in thedp%))Air National Guard  (ANG) on 6 February 
1996.  The author recommends that the applicant be given back and 
retirement points for the time he was wrongfully separated, i.e., 

1 January 1995 to 5 February 1996, but  that the applicant's  two 
remaining requests be denied.  The author provides rationale for 
these recommendations. 
A complete copy of the evaluation is attached at Exhibit C. 

APPLICANT'S  REVIEW OF AIR FORCE EVALUATION: 
A complete copy of the Air Force evaluation was forwarded to the 
applicant on 7 April 1997, for review and comment 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. 

v sed by the 1994 

3.  Sufficient  relevant  evidence  has  been  presented  to 
demonstrate  the  existence  of  probable  error  or  injustice 
warranting  partial  relief. 
In  its  advisory,  HQ  ANG/MPPU 
recommends the applicant be given pay  and points from 1 January 
1995  until  he  was  reinstated,  but  that  he  should  neither  be 
promoted to colonel nor  reinstated to his previous,  or similar, 
flying  position. 
After  thoroughly  reviewing  the  available 
documentation, we agree.  The applicant was reinstated into the 
ANG  because  a  oDIG  investigation found that  the procedures 
Retention Review Board were flawed.  Based on 
his past participation in the ND ANG  drills, there is no reason 
to believe he would not have performed drills and duty as usual 
had he not been separated on 3 1   December 1994.  As a result, we 
believe that he should be credited and paid on the basis of what 
he presumably would have earned, rather than merely an average of 
his  three  previous  years. 
His  request  for  points  through 
1 November  1996  was  noted;  however,  he  had  an  opportunity  to 
accumulate  points  since  he  was  reinstated  in  the 
ANG  on 
6 February 1996.  Therefore, we believe 6 February 1996 should be 
the  cut-off date  for  awarding points by  corrective action.  In 
view  of  the  above,  we  recommend  the  applicant's  records  be 
corrected to the extent indicated below. 

4.  Notwithstanding the above determination, with respect to his 
request for promotion to the grade of colonel, we believe that it 
would  be  purely  s eculative  to  assume  that,  had  he  not  been 
removed from the &ANG, 
he would have been promoted to the grade 
of  colonel.  Therefore, we  agree with  the  recommendation of HQ 
ANG/MPPU and adopt the rationale expressed as the basis  for our 
conclusion  that  applicant  has  failed  to  sustain his  burden  of 
establighing the existence of an error or an injustice warranting 
favorable action on this request. 

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.

 

-

5.  Applicant's  request to be  reinstated into a  flying position 
is duly noted; however, since applicant has been  transferred to 
the Reserve Retired list, this is a moot  issue.  As a matter of 
r,  even if  the applicant were  still assigned 
Air National Guard, we would be reluctant to ~- 
usurp  the  State  Guard's  prerogative  to  determine  how  best  to 
utilize its members.  Furthermore, we  are also not qualified to 
determine  whether  or  not  an  individual  should  be  returned  to 
flying duties. 

THE BOARD RECOMMENDS THAT: 

The pertinent military records of the Department of the Air 
relating to APPLICANT, be corrected to show that: 

Force 

a.  He  was  credited with  an  additional  15 paid  Active  Duty 
Training  (ADT) points, 48 paid Flying Training Pay  (FTP) points, 
and  24  paid  Inactive  Duty  Training  (IDT)  points  during  the 
retirement/retention year 2 July  1994 to  1 July  1995, resulting 
in 150 total retirement points. 

b.  He was credited with an additional 17 paid ADT points, 52 
paid  FTP  points,  and  52  paid  IDT  points  during  the 
retirement/retention year 2 July 1995 to  1 July  1996, resulting 
in 77 total retirement points; and that the period 2 July 1995 to 
1  July  1996  is  a  year  of  satisfactory  Federal  Service  for 
retirement. 

The following members of the Board considered this application in 
Executive  Session on 14 July  1998, under  the provisions of AFI 
36-2603: 

Ms. Patricia J. Zarodkiewicz, Panel Chair 
Mr. Richard A. Peterson, Member 
Mr. Dana J.  Gilmour, Member 

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

Exhibit A.  DD Form 149, dated 29 Oct 96, w/atchs. 
Exhibit B.  Applicant's Master Personnel Records. 
Exhibit C.  Letter, HQ ANG/DPPU, dated 12 Mar 97. 
Exhibit D.  Letter, AFBCMR, dated 7 Apr 97. 

\ 

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Panel C h a i v  

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