RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 98-02950
INDEX NUMBER: 102.02, 131.00,
131.05
COUNSEL: NONE
HEARING DESIRED: YES
___________________________________________________________________
APPLICANT REQUESTS THAT:
His date of rank (DOR) to the grade of captain be restored to its
original date of 30 June 1980.
His promotion and DOR to the grade of major be adjusted from August
1992 to a date that reflects promotion when first eligible had the
error/injustice not occurred.
He be given retroactive promotion to the grade of lieutenant colonel
with his contemporaries when first eligible had the error/injustice
not occurred. If a Special Selection Board (SSB) is necessary, he
requests that his records reflect that he completed Air Command and
Staff College (AC&SC) by seminar in a timely manner.
He receive all back pay and allowances owed him as a result of the
error/injustice.
He be retired in the rank of lieutenant colonel effective 1 April
1998.
If the Board directs that he be considered by SSB for an earlier major
or lieutenant colonel board, he be given sufficient notice as to what
will be contained in his record as it will appear before the Board.
By letter, dated 26 February 1999 (Exhibit F), applicant also
requested that if considered by an SSB for an earlier lieutenant
colonel board that the 8 February 1999 letter from the rater on his
Officer Performance Reports (OPRs) closing 30 November 1995 and
30 November 1996 be included in his record.
___________________________________________________________________
APPLICANT CONTENDS THAT:
The constructive service properly awarded him upon his entrance into
the Air Force as a judge advocate in June 1980 was wrongfully and
illegally withdrawn upon his transfer to the line in June 1984. His
entire career to include pay, assignment choices, and promotions were
adversely affected because of this error/injustice.
Applicant’s complete statement and documentary evidence in support of
his appeal are at Exhibit A.
___________________________________________________________________
STATEMENT OF FACTS:
Prior to being commissioned in the Air Force, applicant had prior
enlisted service in the US Marine Corps and US Marine Corps Reserve.
On 15 June 1980, he was appointed as first lieutenant, Reserve of the
Air Force, Judge Advocate Corps. He was voluntarily ordered to
extended active duty on 30 June 1980, in the grade of captain, with a
date of rank of 30 June 1980. On 13 June 1983, he applied for
Indefinite Reserve Status (IRS); he was not selected for IRS.
Effective 18 July 1984, he was transferred from the Judge Advocate
General Department, to the Line of the Air Force, in the grade of
captain, with an adjusted date of rank of 30 June 1984.
Applicant served on continuous active duty, was integrated into the
Regular component on 8 January 1987, and progressively promoted to the
grade of major.
A resume of applicant’s OER/OPRs follows:
PERIOD CLOSING OVERALL EVALUATION
29 Jun 81 1-1-1 (w/LOE)
9 Oct 81 Education/Training Report (TR)
1 Jun 82 1-1-1
29 Jan 83 1-1-1 (w/LOE)
29 Jan 84 1-1-1
2 Jul 84 1-1-1
2 Jul 85 1-1-1
24 Apr 86 TR
24 Apr 87 1-1-1
1 Nov 87 1-1-1
1 Nov 88 Meets Standards (MS)
25 Apr 89 MS
25 Apr 90 MS
25 Apr 91 MS
25 Apr 92 MS
25 Apr 93 MS
25 Apr 94 MS
30 Nov 94 MS
* 30 Nov 95 MS
30 Nov 96 MS
* Top report in file when considered and not selected for promotion by
the CY96C Lt Col Board, which convened on 8 Jul 96.
# Top report in file when considered and not selected for promotion by
the CY97C Lt Col Board, which convened on 21 Jul 97.
On 2 October 1997, applicant requested voluntary retirement based on
maximum years of service. On 31 March 1998, he was relieved from
active duty and retired effective 1 April 1998. He was credited with
21 years, 6 months, and 2 days of active service for retirement.
___________________________________________________________________
AIR FORCE EVALUATION:
The Officer Promotion and Appointment Branch, AFPC/DPPPO, reviewed
this application and stated that in light of the OpJAGAF 1969/71, 1
Civ Law Ops. 76, there is no record of applicant ever resigning his
appointment and accepting a new appointment. Based on a well-
established legal opinion and no evidentiary information confirming
applicant’s resignation/reappointment, DPPPO believes correcting his
date of rank to captain is the right thing to do.
Should the Board approve correcting his date of rank to captain, DPPPO
will recommend applicant meet a Special Selection Board (SSB) for the
CY86B Major Board. If selected from this board, then readjustment of
his date of rank will be appropriate and DPPPO will request
supplemental consideration for other appropriate boards at that time.
The complete evaluation is at Exhibit C.
The Appeals and SSB Branch, AFPC/DPPPA, reviewed this application and
recommended that the appeal be time-barred. If the Board considers
the appeal, DPPPA agreed with DPPPO that applicant should be
considered by SSB for retroactive promotion to the grade of major by
the CY86B board and any other boards he would be eligible for based on
the correction to the date of rank to captain. They did not, however,
support direct promotion. (Exhibit D)
___________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Applicant disagreed with the advisory opinion that his application was
untimely and provided comments addressing the discovery of the error
with respect to his date of rank.
He further stated that contrary to the advisory opinion, his case is
of the “most extraordinary circumstances” where consideration by an
SSB, with respect to his promotion to lieutenant colonel, is “totally
unworkable” and that the sufficient relevant evidence to support the
request is inherent in the facts of the case itself. Under the
circumstances of this case, any solution involving an SSB is neither
workable nor fair.
Applicant’s complete response, with attachments, is at Exhibit F.
___________________________________________________________________
THE BOARD CONCLUDES THAT:
1. The applicant has exhausted all remedies provided by existing law
or regulations.
2. The application was not timely filed; 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 action
on the applicant’s request to restore his date of rank to the grade of
captain to its original date of 30 June 1980. In this regard, we
agree with the findings of the Air Force office of primary
responsibility, AFPC/DPPPO, that since there is no evidence of record
showing that the applicant tendered his resignation and accepted a new
appointment when he transferred from the Judge Advocate Corps to the
Line of the Air Force, his original date of rank should not have been
changed. We therefore agree with the Air Force that the applicant’s
date of rank should be restored to its original date.
4. Had the applicant’s date of rank not been adjusted when he
transferred to the Line of the Air Force, he would have been entitled
to earlier promotion consideration to the grade of major. Therefore,
we also find that it would appropriate to provide him promotion
consideration for all boards that he would have been eligible to meet
had the contested date of rank not been changed. Applicant’s requests
that his promotion and date of rank to the grade of major be adjusted
to a date that reflects promotion when first eligible had the error
not occurred, and that he also be given direct promotion to the grade
of lieutenant colonel are duly noted. However, we believe a duly
constituted selection board, applying the complete promotion criteria,
is in the most advantageous position to render this vital
determination, and that its prerogative to do so should only be
usurped under extraordinary circumstances. Therefore, it is our
opinion that the most appropriate and fitting relief is to place the
applicant’s record before Special Selection Boards (SSBs) for
consideration beginning with the CY86B Central Major Selection Board
and any subsequent boards to which entitled based on the corrected
record. In accordance with established procedures, the applicant will
be notified by the Air Force Personnel Center when his record will be
considered by an SSB. At that time, he may request that he be
provided a copy of his record as it will appear before the SSB.
5. We found no basis to favorably consider the applicant’s requests
that, if he is considered by an SSB for earlier lieutenant colonel
boards, the record reflect he completed Air Command and Staff College
(AC&SC) by seminar in a timely manner and that the 8 February 1999
letter from the rater on the Officer Performance Reports (OPRs)
closing 30 November 1995 and 30 November 1996 be included in his
record. Evidence in the record reflects that he did not complete
AC&SC until 1995, and the letter from his former rater pertains to his
duty performance during the 1994-1998 timeframe, events that would be
subsequent to earlier consideration for lieutenant colonel.
6. Additionally, at this time we find no basis to favorably consider
the applicant’s request that he be retired in the grade of lieutenant
colonel. Should the applicant be selected for earlier promotion to
the grade of major by SSB, and subsequently selected for promotion to
lieutenant colonel, he will be entitled to be retired in the higher
grade.
___________________________________________________________________
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force
relating to APPLICANT, be corrected to show that on 18 July 1984, he
was transferred from the Judge Advocate General Department to the Line
of the Air Force, in the grade of captain, with a date of rank of 30
June 1980 vice 30 June 1984.
It is recommended that he be considered for promotion to the grade of
major by Special Selection Board (SSB) for the CY86B and any
subsequent boards for which the now-corrected date of rank to the
grade of captain was a matter of record.
___________________________________________________________________
The following members of the Board considered this application in
Executive Session on 4 May 1999, under the provisions of AFI 36-2603:
Mr. Terry A. Yonkers, Panel Chair
Mr. Clarence D. Long III, Member
Mr. Joseph A. Roj, Member
All members voted to correct the records, as recommended. The
following documentary evidence was considered:
Exhibit A. DD Form 149, dated 15 Oct 98, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFPC/DPPPO, dated 30 Nov 98, w/atch.
Exhibit D. Letter, AFPC/DPPPA, dated 9 Dec 98.
Exhibit E. Letter, SAF/MIBR, dated 4 Jan 99.
Exhibit F. Letter, Applicant, dated 26 Feb 99, w/atchs.
TERRY A. YONKERS
Panel Chair
AFBCMR 98-02950
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 10, United States Code (70A Stat 116), it is
directed that:
The pertinent military records of the Department of the Air
Force relating to [APPLICANT], be corrected to show that on 18 July
1984, he was transferred from the Judge Advocate General Department to
the Line of the Air Force, in the grade of captain, with a date of
rank of 30 June 1980 vice 30 June 1984.
It is directed that he be considered for promotion to the grade
of major by Special Selection Board (SSB) for the CY86B and any
subsequent boards for which the now-corrected date of rank to the
grade of captain was a matter of record.
JOE G. LINEBERGER
Director
Air Force Review Boards Agency
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