RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  99-01016
            INDEX NUMBER:  107.00

            COUNSEL:  NONE

            HEARING DESIRED:  YES


APPLICANT REQUESTS:

(1) Relief from the provisions of the “pay cap” of 5 USC 5532(c) as
applied to his compensation; or, if not granted or  if  not  within
the jurisdiction of the Board,

(2) An option to relinquish his retirement from the Air  Force  and
to elect either (a) the Voluntary Separation Incentive (VSI) or (b)
the Special Separation Benefit  (SSB)  under  the  Temporary  Early
Retirement Authority (TERA)  in  respect  of  his  service,  either
retroactively, or prospectively with  cash  to  equal;  or  if  not
granted,

(3) Reinstatement on active duty, retroactive to 1 May 1995; or

(4) Other appropriate relief.

Note:   If  (3)  is  afforded,   Applicant   secondarily   requests
consideration for promotion to 0-6 or higher, as appropriate, based
on comparison to “look-back” Air Force selection board records  for
11 (sic 8) fiscal years from 1987 through 1995, and to the present.
 These were years in which he  was  not  considered  by  active  or
Reserve promotion boards, despite his O-5 date of rank of  November
1984, and, he believes, despite a competitively promotable  service
record.

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:

On 1 Jul 1970, the applicant was  appointed  a  second  lieutenant,
Reserve of the Air Force.  On 25 Nov 1970, he was appointed a first
lieutenant, Reserve  of  the  Air  Force,  Judge  Advocate  General
Department.  On 15 Dec 1970, he was voluntarily ordered to extended
active duty in the temporary grade of  captain.   He  was  released
from active duty in that grade on 8 Mar 1977.  On 20 Dec  1982,  he
entered on active duty in the grade of major and  was  released  on
17 Jun 1983, and transferred to the Minnesota  Air  National  Guard
(MN ANG).  On 20 Jun 1983, he entered on active duty in  the  grade
of major and was released on 31 Jan 1984, and transferred to the MN
ANG.  On 1 Feb 1984, he entered on active  duty  in  the  grade  of
major and was  relieved  from  his  assignment  with  the  MN  ANG,
effective 31 Mar 1984.  The applicant  was  appointed  in  the  New
Mexico (NM) ANG, effective 1 Apr 1984, in the grade  of  lieutenant
colonel.  The applicant was relieved from his assignment  with  the
NM ANG on 29 Apr 1995.  On 30  Apr  1995,  he  was  transferred  to
Headquarters, Air Reserve Personnel Center (ARPC)  and  transferred
to the Retired Reserve in the grade of  lieutenant  colonel,  under
the provisions of ANGR 36-05, Voluntary Retirement with  Less  Than
20 Years of Service, Subject to PL 102-484, TERA  (Temporary  Early
Retirement Authority), effective  1 May  1995.   His  Total  Active
Service for Retirement was 19 years and 12 days.

The relevant facts pertaining to this application are contained  in
the letters prepared by the appropriate offices of the  Air  Force.
Accordingly, there is no need to recite  the  information  in  this
Record of Proceedings.

AIR FORCE EVALUATION:

The Office of the Senior Attorney-Advisor, AFPC/JA,  reviewed  this
application and concluded that no “error” exists in the applicant’s
military record and, accordingly,  no  “correction”  under  10  USC
1552(a)(1) is required.  However, they also  concluded  that  there
exists a potential “injustice” which would not be improper for  the
Board, in its discretion under  10  USC  1552(a)(1),  to  “remove.”
This office believes that the VSI and  SSB  options  are  the  only
practicable, lawful alternatives which should be considered by  the
Board.  They  went  on  to  discuss  Dual  Compensation  Rules  for
Military Retirees and Title III Reserve Pay--Dual Compensation--Pay
Caps.  They stated that their discussions of the law only  resolves
the question of whether there is an error in the applicant’s record
(answer--no) and whether the applicant could prevail  in  court  on
the legal issue (answer--no).  But the discussion does  not  answer
the question of whether the applicant suffered an injustice,  which
the Board should act to remove.  “Injustice” has  been  defined  in
situations when no “error” occurred, as treatment by  the  military
authorities  that  shocks  the  sense  of  justice,  but   is   not
technically illegal.  They reviewed the merits of a claim based  on
justice or equities--or lack of same--in this application, and,  in
their view, the issue is a close call.  AFPC/JA recommended  denial
on the grounds of “error.”  Although they do not believe  it  would
be inappropriate to grant relief on  the  grounds  of  “injustice,”
they  deferred  to  the  Board’s  judgment.    AFPC/JA’s   complete
evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to  the  applicant
on 26 Jul 1999, for review and comment within 30 days (Exhibit  D).
In accordance with the applicant’s request of 6 Aug  1999,  he  was
granted an extension in order to  reply  to  the  advisory  opinion
(Exhibit E).  The applicant’s response to the advisory  opinion  is
at Exhibit F.  Upon further review of the application and  rebuttal
comments, the AFBCMR staff determined that an  additional  advisory
opinion was required (Exhibit G).

ADDITIONAL AIR FORCE EVALUATION:

The Office of the Judge Advocate General  (HQ  USAF/JAG),  reviewed
this application and agreed with AFPC/JA’s analysis that  no  error
occurred when  the  Air  Force  did  not  affirmatively  brief  the
applicant on the pay cap provision of 5 USC 5532(c).  However, they
disagree with AFPC/JA that the issue  of  injustice  was  a  “close
call.”  They know of no law,  regulation  or  court  decision  that
imposes a duty upon the Air Force to  brief  a  member  considering
early separation options, and the impact each option  may  have  on
yet unrealized post-service employment opportunities.

The  applicant’s  request  to  have  his  records  considered   for
promotion to O-6 is also without merit.  Factored into his business
decision to retire early was his own assessment of  the  likelihood
of his being selected for promotion.  Although the ANG policy  that
prohibited assigning an O-6 AGR billet to a GS-12 position made the
applicant’s promotion unlikely, in the opinion of the office of the
JAG, it did not constitute an injustice.   HQ  USAF/JAG’s  complete
evaluation is at Exhibit H.

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to  the  applicant
on 9 Dec 1999, for review and response within 30 days (Exhibit  I).
The applicant requested documents and information pertaining to the
processing of his application (Exhibit J).  The  AFBCMR’s  response
is at Exhibit K.  The applicant’s response to the advisory opinion,
with attachments, is at Exhibit L.

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing
law or regulations.

2.  The application was timely filed.

3.  Insufficient  relevant   evidence   has   been   presented   to
demonstrate  the  existence  of  probable   error   or   injustice.
Applicant’s contention that he was unaware  of  the  “pay  cap”  of
5 USC 5532(c) relating to military retirees  who  are  subsequently
employed by the Federal government and his stated belief  that  the
failure to provide appropriate information to him during any  phase
of his retirement processing were duly noted.  However, we  do  not
find  his  arguments  sufficiently  persuasive  to   override   the
rationale provided by the Office  of  the  Judge  Advocate  General
(AF/JAG).  We therefore agree with the opinion  and  recommendation
of that office and  adopt  its  rationale  as  the  basis  for  our
conclusion that no basis exists to recommend  favorable  action  on
his request.

4.  With respect to the applicant’s  contention  that  he  was  not
considered for promotion to the grade of colonel by  either  active
duty  or  Reserve  promotion  boards,  the  applicant  stated   his
awareness of the Air National Guard’s  policy  of  prohibiting  the
assignment of an O-6 AGR billet to a GS-12 position.  Moreover,  we
have seen no evidence showing that he was treated differently  than
others who were similarly situated.  In view of the foregoing,  and
in the absence of evidence to the contrary, we find  no  compelling
basis to  recommend  favorable  consideration  on  the  applicant’s
requests.

5.  The documentation provided with this  case  was  sufficient  to
give the Board a clear understanding of the issues involved  and  a
personal appearance,  with  or  without  counsel,  would  not  have
materially added to that understanding.  Therefore, the request for
a hearing is not favorably considered.

THE BOARD DETERMINES THAT:

The applicant be notified  that  the  evidence  presented  did  not
demonstrate the existence of probable material error or  injustice;
that the application was denied without a personal appearance;  and
that the application will only be reconsidered upon the  submission
of newly discovered relevant  evidence  not  considered  with  this
application.

The following members of the Board considered this  application  in
Executive Session on 30 March 2000, under the provisions of AFI 36-
2603:

                 Mr. Thomas S. Markiewicz, Panel Chair
                 Mr. Patrick R. Wheeler, Member
                 Mr. Clarence D. Long, III, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 12 Apr 99, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/JA, dated 8 Jul 99.
   Exhibit D.  Letter, SAF/MIBR, dated 26 Jul 99.
   Exhibit E.  Letter, Applicant, dated 6 Aug 99, w/BCMR’s
               response.
   Exhibit F.  Letter, Applicant, dated 8 Sep 99.
   Exhibit G.  Letter, AFBCMR, dated 15 Nov 99.
   Exhibit H.  Letter, HQ USAF/JAG, dated 3 Dec 99.
   Exhibit I.  Letter, AFBCMR, dated 9 Dec 99.
   Exhibit J.  Letters, Applicant, dated 20 Dec and 31 Dec 99,
               w/atchs.
   Exhibit K.  Letter, AFBCMR, dated 11 Jan 00, w/atchs.
   Exhibit L.  Letter, Applicant, dated 7 Feb 00, w/atchs.


                                   THOMAS S. MARKIEWICZ
                                   Panel Chair