RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBERS:  00-00516
            INDEX CODE 131.01  131.03
            COUNSEL:  None

            HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be afforded consideration by Special Selection Board (SSB) for  the
Fiscal Year 2000 (FY00) Air Force Reserve Colonel Promotion  Selection
Board, which convened on 18 Oct 99, and any subsequent Reserve Colonel
Promotion Board for which he was not considered.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Due to  numerous  administrative  and  material  errors,  he  was  not
considered for promotion to colonel by either the  Reserve  or  Active
Duty promotion boards. He was assured that his  extended  active  duty
(EAD) acceptance would not adversely affect his chances for  promotion
and, in fact had received the eligibility letter with the officer pre-
selection brief. However, never  during  his  10-week  recall  to  EAD
coordination and approval process was he or  his  supervisor/commander
informed of his ineligibility to meet the FY00 Reserve board. HQ  ARPC
failed to notify his senior rater, his commander, or himself that  his
promotion folder had been pulled prior to the board on  the  erroneous
assumption that he was retiring.

The applicant includes, among other  documents,  statements  from  his
gaining and losing commanders and senior rater, who assert  they  were
unaware of his ineligibility and strongly support SSB consideration.

The applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

In an opinion dated 30 Mar 99, HQ USAF/JAG concluded that Active  Duty
Special Work (ADSW) exists when an officer has been given a  task  for
which no other officer on  active  duty  is  available  or  when  that
officer possesses unique qualifications or special skills required  to
complete the task.  HQ USAF/JAG cited the legislative history  of  the
Defense Officer Personnel Management Act (DOPMA) and  Title  10,  USC,
Section 641.  The same legislative  history  notes  that  a  Reservist
called to ADSW will remain on duty “for a  short  period  of  time  to
perform a task that is temporary in nature.”  DOD Instruction  1215.19
states that ADSW tours exceeding  180  days  are  accountable  against
active duty strengths unless specifically provided in public law.   By
DOD policy, ADSW tours normally are limited to 139 days, or  less,  in
one fiscal year.  Exceptions to the 139-day limited may be granted  on
an individual basis for special mission requirements.  Title 10,  USC,
Section 115 excludes Reservists on active duty for 180 days  or  fewer
to perform special work from active duty  end  strengths.   Title  10,
USC, Section 641 excludes all Reservists “on active  duty  to  perform
special work” from the active duty list (ADL) for promotion purposes--
regardless of the length of the ADSW tour.

The applicant, an individual mobilization augmentee (IMA) assigned  to
the Air Force  Historical  Research  Agency,  volunteered  to  fill  a
requirement for a historical officer  at  USAFE/SA  to  serve  on  the
Kosovo Air Campaign Study Group.  In addition to  historical  analysis
and research, the position required the ability to integrate  existing
databases within USAFE with other databases from worldwide sources and
archive these records for future research and preservation.  Based  on
his  unique  qualifications  and  skills  in  operations,   electronic
archiving and the European Theater, the applicant was selected for the
position and approved for recall to EAD on 23 Aug 99.

During the coordination and approval process,  neither  the  applicant
nor his chain of  command  was  advised  that  the  EAD  recall  would
negatively impact his promotion consideration.  In fact, the 11th Wing
Reserve Affairs letter, dated  24  May  99,  advised  the  applicant’s
senior rater of the upcoming 18 Oct 99 FY00  board  and  included  the
applicant’s name in the attached list of four eligibles.   This  would
be his first consideration for colonel above the promotion zone (APZ).
 As a result, the senior rater  rendered  a  Promotion  Recommendation
Form (PRF) for the FY00  board,  with  an  overall  recommendation  of
“Definitely Promote.”  The PRF was forwarded to HQ  ARPC/DPPBR  on  19
Aug 99 and, on 15 Sep 99, the applicant was ranked as the  number  one
of the four eligibles.  This naturally impacted  the  ranking  of  the
other eligibles meeting that board.

[One of the lower-ranked ratees, upon learning that the applicant  had
been removed as an eligible, filed an appeal  requesting  that  he  be
given SSB consideration for the FY00 board with the number one ranking
reflected on his PRF. The senior rater, believing his number one ratee
(the applicant) was no longer eligible  for  consideration,  re-ranked
the lower ratee as his number one. The Reserves initially  recommended
denial because at the time they planned  to  give  the  applicant  SSB
consideration. However,  after  revoking  the  applicant’s  SSB,  they
awarded it to the ratee, who is scheduled for  SSB  consideration  for
the FY00 board on 19 Feb 01.]


In the meantime, Special Order AGA-122, dated 14 Sep 99, directed  the
applicant to EAD effective 1 Oct 99.

However, because HQ ARPC personnel erroneously assumed  the  applicant
had applied for retirement, he was administratively removed  from  the
Reserve Active Status List (RASL) and, effective 19 Sep 99, his record
was withdrawn from consideration by the FY00  Reserve  Colonel  Board.
As a result of his call to duty, he was  counted  against  the  active
duty end strength calculation; however, he was not  considered  by  an
active duty selection board.

The applicant and his rating chain did not learn that his records  had
been  excluded  from  FY00  Reserve  board  consideration  until   the
promotion results were published and his name did not appear on either
the select or nonselect list.  He subsequently filed  an  appeal  with
the AFBCMR on 4 Feb 00.

As the applicant’s appeal was being processed,  HQ  ARPC/DPBS  advised
the applicant on 11 May 00  that,  because  his  EAD  tour  was  being
treated as ADSW, he should  not  have  been  removed  from  the  RASL.
Further, on 19 Feb 01, he would be considered by an SSB for  the  FY00
Reserve board.  He was also advised that he was scheduled to meet  the
mandatory FY01 Reserve Colonel board, which would convene  on  16  Oct
00.  Since administrative relief was being provided,  the  applicant’s
AFBCMR appeal was closed.

However, HQ ARPC/DPBS subsequently reversed themselves and,  in  their
21 Dec 00 evaluation to the  AFBCMR  (Exhibit  B),  advised  that  the
applicant was not eligible after all to meet either the  FY00  SSB  or
the FY01 mandatory board.  They based this on a  HQ  USAF/JAG  opinion
which indicated that officers whose  EAD  lasts  more  than  139  days
cannot  be  considered  as  ADSW.   They  believed  that,  since   the
applicant’s  tour  was  several  years  in   length,   his   promotion
eligibility transferred to the active force when he began his tour  on
1 Oct 99.  As a result, the applicant’s AFBCMR appeal was reopened.

The FY2001 National Defense Authorization Act (NDAA) added  a  section
to Title 10, USC, Section 641, to exclude Reserve officers  called  to
active duty under Title 10, USC, Section 12301(d) for three  years  or
fewer from promotion under the ADL.

_________________________________________________________________

AIR FORCE EVALUATION:

The Chief, Reserve of the Air Force Promotion  Board  Secretariat,  HQ
ARPC/DPB,  reviewed  the  appeal  and  provided  his   rationale   for
recommending denial, citing the 30 Mar 99 HQ  USAF/JAG  opinion.   The
applicant was ineligible to meet the FY00 Reserve Colonel board as  he
was transferred to the ADL and no  longer  on  the  RASL.   The  Chief
suggests the applicant may have been eligible  to  meet  the  Calendar
Year 2000 (CY00) Colonel Selection Board that convened at HQ  AFPC  in
July 00.

A complete copy of the evaluation, with attachment, is at Exhibit B.

The Staff Judge Advocate, HQ AFPC/JA, notes that the applicant’s chain
of command supports  his  claim  for  relief.  Without  question,  the
applicant  sought  information  from   experts   regarding   promotion
consideration to colonel and was assured that the EAD tour would  have
no negative impact. Further, the applicant’s chain  of  command  notes
that if law and regulation required him be counted against active duty
roles upon his recall to EAD, the recall would have been delayed  long
enough to allow him to be considered by the FY00 board on  18 Oct  99.
Title 10, USC, Section 641, does not limit a Reservist exclusion  from
the ADL based upon the amount of time the officer is called to  active
duty.  Had the FY2001 NDAA amendment been in effect when the applicant
was called to EAD, he would have been considered by the  FY00  Reserve
colonel board.  The  applicant’s  assignment  satisfies  the  “special
mission requirement.” His records should reflect  that,  when  he  was
recalled to active duty to perform special work, he  remained  on  the
RASL for promotion purposes and was considered  by  the  FY00  Reserve
board and all subsequent Reserve colonel promotion boards, or that  he
be granted SSB consideration for same.

A complete copy of the evaluation is at Exhibit C.

The Chief, Officer Promotion  &  Appointment  Branch,  HQ  AFPC/DPPPO,
recommended that, since the applicant is not eligible for active  duty
promotions, he remain on the RASL  and  be  eligible  to  compete  for
Reserve promotion boards.

A complete copy of the evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant totally disagrees  with  HQ  ARPC’s  recommendation  and
itemizes by paragraph the  flaws  to  which  he  takes  exception.  He
reiterates that ARPC pulled his folder prior to the FY00 Reserve board
for the wrong reason and, if they had properly notified someone in his
chain of command, his recall to EAD would have been delayed  in  order
for him to be eligible to meet the FY00 Reserve  board.   He  explains
why HQ ARPC’s suggestion of an SSB for an  ADL  board  is  unfair  and
unacceptable.  He has been placed in a “floating limbo”  since  1  Oct
99.  As a  result  he  was  denied  several  promotion  considerations
because he was not either on the RASL or  the  ADL.   Being  initially
coded ADSW, he should have remained on the  RASL,  and  he  cites  the
pertinent amendment contained in the FY01  NDAA.   He  asks  that  the
Board  concur  with   HQ   AFPC/JA’s   evaluation.    He   wants   SSB
consideration, APZ, for  two  missed  Reserve  boards  and  he  should
compete as an Air Guard/Reservist (AGR), not an IMA.

A complete copy of  applicant’s  response,  with  attachments,  is  at
Exhibit F.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The Chief, General Law Division, HQ USAF/JAG, concurs  with  AFPC/JA’s
recommendation.  The applicant’s changing legal status on the ADL  and
RASL resulted in a small vortex of “Catch 22’s” and confusion. Had  he
been properly advised of the implications of his active duty tour,  he
could have adjusted his tour to insure he remained on  the  RASL.   In
the alternative, an exception to DOD policy  could  easily  have  been
obtained to classify the applicant’s tour as an ADSW tour.  In  either
case, the law now clearly  provides  that  members  in  his  situation
remain on the RASL.  The proper  action  in  this  case  would  be  to
correct the applicant’s records to show he remained on the  RASL  when
he entered active duty and should have been  considered  by  the  FY00
board and all subsequent Reserve colonel promotion boards.

A complete copy of the evaluation is at Exhibit G.

_________________________________________________________________

APPLICANT’S REVIEW OF THE ADDITIONAL EVALUATION:

The applicant  provided  two  letters,  stating  he  has  not  seen  a
promotion board in over two years and asking for  priority  processing
so he can be considered by the 1 Jun 01 board.  He wants a  fair  look
at promotion on two Reserve  colonel  selection  boards.   He  concurs
totally with the HQ USAF/JAG advisory opinion and seeks relief in  the
form of SSB consideration for two RASLs in Oct  99  and  Oct  00.   He
wants to compete, APZ, as an AGR, not an IMA.

The applicant’s complete response is at Exhibit I.

________________________________________________________________

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  probable  error  or  injustice.   After  carefully
considering all the circumstances and contentions  pertinent  to  this
appeal, we agree with the analysis and recommendations of  HQ  AFPC/JA
and HQ USAF/JAG.  Had the  applicant  been  properly  advised  of  the
implications of his EAD tour, he could  have  adjusted  the  effective
date of  his  tour  to  insure  he  remained  on  the  RASL.   In  the
alternative, an exception to DOD policy could have  been  obtained  to
classify his tour as an ADSW tour.  In any event, the law now provides
that members in the applicant’s “Catch 22” situation are to remain  on
the RASL.  Therefore, we recommend his records be amended  to  reflect
his retention on the RASL and that he be considered  by  SSB  for  the
FY00 selection board, with the PRF originally provided by  the  senior
rater for that board’s review.  If the applicant is  not  selected  by
the FY00 board, then he should be  considered  for  promotion  to  the
grade of colonel by SSB for the FY 01 board  and  any  subsequent  Air
Force Reserve promotion boards for which he may  have  been  eligible.
We noted the applicant’s request to compete as an AGR, rather than  an
IMA, when considered by the SSB; however, he has not demonstrated that
he should be so categorized.  Therefore,  we  believe  the  Air  Force
Reserves are  in  the  best  position  to  determine  the  applicant’s
appropriate competitive category.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT,  be  corrected  to  show  that,  upon  entering
extended active duty on 1 October 1999 in an Active Duty  for  Special
Work tour, he be retained on the Reserve Active Status List  and  that
he was considered for promotion to the grade of colonel by  a  Special
Selection Board (SSB) for  the  Fiscal  Year  2000  (FY00)  Air  Force
Reserve  Colonel  Promotion  Selection  Board,  with   the   Promotion
Recommendation Form provided for that board.

It is further recommended that, if he is  not  selected  by  the  FY00
board, he be considered for promotion to the grade of colonel  by  SSB
for any subsequent Air Force Reserve selection boards for which he may
have been eligible.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 19 April 2001, under the provisions  of  AFI  36-
2603:

            Mr. Teddy L. Houston, Panel Chair
            Mr. Laurence M. Groner, Member
            Ms. Barbara J. White-Olson

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

   Exhibit A.  DD Form 149, dated 4 Feb 00, w/atchs.
   Exhibit B.  Letter, HQ ARPC/DPB, dated 21 Dec 00, w/atchs.
   Exhibit C.  Letter, HQ AFPC/JA, dated 19 Jan 01.
   Exhibit D.  Letter, HQ AFPC/DPPPO, dated 23 Jan 01.
   Exhibit E.  Letter, SAF/MIBR, dated 2 Feb 01.
   Exhibit F.  Letter, Applicant, dated 27 Feb 01, w/atchs.
   Exhibit G.  Letter, HQ USAF/JAG, dated 14 Feb 01.
   Exhibit H.  Letter, AFBCMR, dated 26 Feb 01.
   Exhibit I.  Letters, Applicant, dated 1 Mar 01, w/atchs.




                                   TEDDY L. HOUSTON
                                   Panel Chair



AFBCMR 00-00516




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          , be corrected to show that, upon entering
extended active duty on 1 October 1999 in an Active Duty for Special
Work tour, he was retained on the Reserve Active Status List and that
he be considered for promotion to the grade of colonel by a Special
Selection Board (SSB) for the Fiscal Year 2000 (FY00) Air Force
Reserve Colonel Promotion Selection Board, with the Promotion
Recommendation Form provided for that board.

      It is further directed that, if he is not selected by the FY00
board, he be considered for promotion to the grade of colonel by SSB
for any subsequent Air Force Reserve selection boards for which he may
have been eligible.





   JOE G. LINEBERGER

   Director

   Air Force Review Boards Agency

Attachment:
FY00 PRF