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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9 6 - 0 3 2 7 0
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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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