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illegally withdrawn upon his transfer to the line in June  1984.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