RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  00-01988 (Case 4)
            INDEX CODE:  136.01, 131.00,

            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________


APPLICANT REQUESTS THAT:

His retirement grade of major be changed to lieutenant colonel and his
retirement date of 1 Jul 95 be changed to 1 Jul 00, with recomputation
of his 1405 service date to reflect he retired from active  duty  with
22 years and 2 months of service.

He be reimbursed for active  duty  pay  in  the  grade  of  lieutenant
colonel (Lt Col) from 1 Aug 94 to 1 Jul 00.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was nonselected for promotion to Lt Col by the CY93 and CY94 Lt Col
Selection Boards.  Due to his nonselections, he was forced into  early
retirement on  1  Jul  95.   He  appealed  the  nonselection  and  was
subsequently promoted to Lt Col by a Special Selection Board (SSB).

In support of his request, applicant submits copies of his  retirement
orders, Lt Col promotion orders, orders returning him to  active  duty
and a memo for record, with a copy of a Defense Manpower  Data  Center
Actuary Table (Exhibit A).

_________________________________________________________________

STATEMENT OF FACTS:

The applicant has prior active duty service as an officer in  the  Air
Force Reserve (28 Aug 72 - 1 Aug 76).  He was reassigned from the  Air
Force Reserve Officer Reserve Section (ORS) to the Air  Force  Reserve
Inactive Status List  Reserve  Section  (ISLRS)  on  28 Aug  78.   The
applicant was selected by the 18-21 Jan 82 Voluntary  Reserve  Officer
Recall Board for return to extended active duty.  On 23 Jun 82, he was
ordered to active duty in the  grade  of  captain  for  an  indefinite
period in accordance with 10 USC 672(d).  The applicant was integrated
into the Regular Air Force on 1 Jun 83 and progressively  promoted  to
the grade of major, with an effective date and date of rank of  1  May
89.

On 30 Jun 95, the applicant was relieved from active duty in the grade
of major under the provisions of AFI  36-3203  (Voluntary  Retirement:
Temporary Early Retirement Authority (TERA)) and retired, effective  1
Jul 95.  At the time of retirement, he served a total of 16 years,  10
months and 18 days of active service for retirement; and, 17 years,  2
months and 6 days of service per 10 USC 1405.

On 11 Mar 99,  the  AFBCMR  considered  and  recommended  approval  of
applicant's request that the Officer Performance Report (OPR), closing
15 Apr  93  be  removed  from  his  records  and   replaced   with   a
reaccomplished OPR provided; that his  Promotion  Recommendation  Form
(PRF), prepared for the CY93A Lt Col Selection Board, be removed  from
his records and replaced with a reaccomplished PRF provided; and, that
he be considered for promotion by a  Special  Selection  Board  (SSB),
with his corrected record.  On 1 Jul 99,  the  Deputy  for  Air  Force
Review Boards directed the removal of the 15 Apr 93 OPR and the P0593A
PRF from the applicant's records and replaced with the  reaccomplished
OPR and PRF and that he be provided promotion consideration by  a  SSB
for the CY93 Lt Col Selection Board  and  any  subsequent  boards  for
which the cited OPR was a matter of record.  A  copy  of  the  ROP  is
appended at Exhibit C.

The applicant was considered and selected for promotion to  the  grade
of Lt Col by an SSB for the CY93A Lt Col Selection Board.  By  Special
Order JB-000242, dated 1 Mar 00, the applicant  was  promoted  to  the
grade of Lt Col, with an effective date and date of rank of 1 Aug 94.

The 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:

The Directorate  of  Personnel  Program  Management,  HQ  AFPC/DPPRRP,
stated that, a Special Selection Board (SSB) convened on 30 Aug 99  to
consider the applicant for promotion to the grade of  Lt  Col  by  the
CY93A (12 Oct 93) Selection Board.  It was  determined  that  had  the
originally scheduled board considered his corrected record, the  CY93A
Selection Board would have selected  him  for  promotion  to  Lt  Col.
Subsequent to Senate confirmation, the applicant was  promoted  to  Lt
Col on 1 Mar 00, with an effective date and date of rank of 1 Aug  94.
He was also advised that he could request reinstatement to active duty
if he so desired.

DPPRRP stated that the applicant was informed on 7 Dec 94 that he  was
considered but not selected for promotion to the grade of  Lt  Col  by
the CY94  (11  Oct  94)  Lt  Col  Selection  Board.   Since  this  was
applicant’s second nonselection for promotion, he was required by  Law
to be separated.  However, as an exception to  policy,  applicant  was
eligible to elect to  retire  under  the  Temporary  Early  Retirement
Authority (TERA).  On 16 Feb 95, the applicant applied for  retirement
under TERA and his application was approved  on  5  Apr  95,  with  an
effective date of retirement of 1 Jul 95.  At the time of  retirement,
applicant had 16 years, 10 months and 18 days of active service.

DPPRRP stated that Title 10, Section 8911, USC, states “The  Secretary
of the Air Force may, upon the officer’s request, retire a regular  or
reserve commissioned officer of the Air Force  who  has  at  least  20
years of service computed under Section 8925 of this title,  at  least
10 years of which have been active service as a commissioned officer.”
 The applicant would have reached 20 years of active service, with the
10 years of active commissioned service, on 1 Sep 98.

DPPRRP agrees that an error  did  occur  in  the  applicant’s  records
insofar as his promotion nonselects occurred and that  the  Air  Force
should indeed try to correct his records in as equitable a  manner  as
possible.  However, DPPRRP does not agree that he  should  be  granted
excess unearned service.

DPPRRP recommended the applicant’s request to be  retired  as  Lt  Col
with over 22 years for 1405 service be denied.  DPPRRP agrees that  an
error did occur, but to  grant  the  applicant  the  unearned  service
credit is not appropriate.

DPPRRP recommended that the applicant be  allowed  to  retire  in  the
grade of Lt Col, but only at the point in time he would have  met  the
legal  requirements  (20  years  active  service,  10   years   active
commissioned service, and a minimum of 3 years time-in-grade (TIG)) to
retire, which would be 1 Sep 98.  By extending his retirement date out
to his first retirement eligibility  in  the  grade  of  Lt  Col,  the
applicant would receive additional unserved active service credit of 3
years and 2 months.  This retirement  would  be  voluntary  and  would
allow the applicant to retire with 20 years  and  18  days  of  active
service and 26 years, 5 months and 15 days of service  for  pay.   The
applicant’s 10 USC 1405 service would increase to 20 years,  4  months
and 6 days.

A complete copy of this evaluation is appended at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force  evaluation  was  forwarded  to  applicant  on
1 September 2000 for  review  and  response.   As  of  this  date,  no
response has been received by this office (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.  Sufficient relevant evidence has been presented to demonstrate the
existence of a probable  error  or  an  injustice  warranting  partial
relief.   Because  of  the  circumstances  of  the  applicant’s  early
retirement, i.e., failure of promotion to lieutenant  colonel  because
of  an  inaccurate  record,  we  agree  with  the  office  of  primary
responsibility (OPR) that he should be  permitted  to  retire  in  the
higher grade without returning to active duty.  We disagree  with  the
OPR and the applicant, however, concerning the  amount  of  additional
active service that should be awarded.  The applicant  asks  that  his
records be corrected to reflect that he retired from active duty  with
22 years and 2 months of service (1 July 2000).   The  OPR  recommends
his retirement with the minimum number of  years  of  active  military
service to support his retirement in the higher  grade  of  lieutenant
colonel.  Since the applicant does not want to return to active  duty,
at first blush, the recommendation of the OPR seems to  be  reasonable
and fair to all concerned.  However,  after  considering  all  of  the
circumstances, we do not believe the relief  recommended  by  the  OPR
provides the applicant  full  and  fitting  relief.   First,  had  the
applicant elected to return to active duty, we would have recommended,
and the approving official would have routinely approved,  retroactive
reinstatement  on  active  duty  at  the  earliest  practicable  date.
Second, the applicant had no choice except to elect discharge or early
retirement under the TERA on 1 July 1995 because  he  had  been  twice
nonselected for promotion to the grade of lieutenant colonel based  on
grossly inaccurate records.  Third, he commenced pursuing a correction
of his records on 9 August 1994 (initial application to the ERAB) and,
because he could not predict the outcome of his  appeals,  he  had  no
recourse except to get on with his life.  Moreover, until such time as
he was notified by AFPC on 10 November 1999, he had no reason to  make
a decision concerning the possibility of  returning  to  active  duty.
Finally, having been off of active duty for nearly five years,  it  is
not at all surprising that the applicant would not elect to return and
compete for promotion to colonel with  no  record  of  performance  or
experience as a lieutenant colonel.  Having said this, however, we  do
not believe that equity or justice requires that he be allowed to pick
a retirement date solely for his convenience.   To  the  contrary,  we
believe that the  applicant  should  be  provided  a  retirement  date
approximately 90 days subsequent to being officially apprised  of  the
necessity of making a decision  regarding  further  military  service.
Except where necessary to validate a retroactive promotion to a higher
grade, any active military service beyond  this  date,  in  our  view,
would constitute an  unwarranted  expenditure  of  public  funds.   In
arriving at our decision, we are aware that the courts have held  that
we have an abiding moral sanction to  determine  what  constitutes  an
error or an injustice and to take steps  to  grant  full  and  fitting
relief.  In view  of  the  foregoing,  we  recommend  the  applicant’s
records be corrected to the extent indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

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

      a.    He was  promoted  to  the  grade  of  lieutenant  colonel,
effective and with a date of rank of 1 August 1994.

      b.    He was not retired under the provisions of  the  Temporary
Early Retirement Authority (TERA) on 1 July 1995, but on that date was
continued on active duty and ordered permanent change  of  station  to
his home of record (home of  selection)  until  29 February  2000,  on
which date he was relieved from active duty and retired for length  of
service, effective 1 March 2000.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 14 December 2000, under the provisions of AFI 36-
2603:

                  Mr. Thomas S. Markiewicz, Panel Chair
                  Mr. Joseph A. Roj, Member
              Ms. Patricia D. Vestal, Member

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

   Exhibit A.  DD Form 149, dated 17 Jul 00, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  ROP, Docket Number 95-00115 (Case 3).
   Exhibit D.  Letter, HQ AFPC/DPPRRP, dated 17 Aug 00, w/atchs.
   Exhibit E.  Letter, SAF/MIBR, dated 1 Sep 00.




                                   THOMAS S. MARKIEWICZ
                                   Panel Chair



AFBCMR 00-01988




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:

            a.   He was promoted to the grade of lieutenant colonel,
effective and with a date of rank of 1 August 1994.

            b.   He was not retired under the provisions of the
Temporary Early Retirement Authority (TERA) on 1 July 1995, but on
that date was continued on active duty and ordered permanent change of
station to his home of record (home of selection) until 29 February
2000, on which date he was relieved from active duty and retired for
length of service, effective 1 March 2000.




            JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency