RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  00-02046
                                     INDEX CODE:  102.08, 115.04,
                                                  131.09
            COUNSEL:  NONE

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be promoted to the grade of major with a date of rank (DOR) of 1 Jul  58;
he be reinstated to active reserve status in the Reserve of  the  Air  Force
effective 1 Jul 58; he be awarded constructive  service  credit,  creditable
toward retirement, from  1 Jul 58 through 15 Oct 79 and that he be  entitled
to all benefits thereof; his pilot rating be  upgraded  to  reflect  command
pilot; the statute of limitations be waived; he be promoted to the grade  of
lieutenant colonel with a DOR of 1 Jul 65; and, he be promoted to the  grade
of colonel with a DOR of 1 Jul 69.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He received a letter dated 18 Apr 58, from the commander of the Air  Reserve
Records Center notifying him of his nonselection for promotion to the  grade
of major.  He was never informed that he was being considered for  promotion
and thus was not afforded the opportunity to submit a communication  to  the
selection board  as  allowed  by  Section  203(e)  of  the  Reserve  Officer
Personnel Act (ROPA) of 1954.  His nonselection for  promotion  resulted  in
his placement into a "deferred" officer status and he  lost  precedence  for
promotion purposes from 28 Jul 44 to 1 Jul 52.  He was advised that  he  was
being considered for promotion to major a second time in February  1959,  at
which time he submitted a written communication to  the  board.   After  his
second nonselection for promotion he was assigned  to  the  Retired  Reserve
Section and his name was placed on the Reserve Retired  List,  effective  28
Sep 59.  At that time he had  18  years,  7  months,  and  4  days  military
service, 8 of which were active duty service.  He was not given  credit  for
2 of his non-active duty service years between World War II and  the  Korean
War, and for 2 years immediately following  his  release  from  active  duty
after the Korean War.  For retirement purposes, he was  only  credited  with
14 years, 7 months and 4 days.  Air Force records show that he  is  5  years
and 5 months short of having enough retirement years to  receive  retirement
benefits at age 60, which occurred on 15 Oct 79.  The Air  Force  broke  the
law, violated the  terms  of  ROPA,  and  violated  his  Constitutional  Due
Process rights when it  allowed  a  selection  board  to  consider  him  for
promotion  without  affording  him   the   right   to   submit   a   written
communication.

In a similar application he submitted in 1992 ARPC’S  response  stated,  "We
are unable to verify if the applicant was notified he  would  be  considered
for these boards.  We can verify that he was notified of the first  deferral
to major.  Since he wrote a letter to the board President,  we  must  assume
he was aware he was being considered in 1959."   ARPC,  where  his  military
records were kept, is admitting that there  is  no  record  showing  he  was
notified that he was to be considered for the first selection board.   Since
there are no records showing that the Air Force did comply with the law,  it
obviously did not.  The Board, in its previous decision to deny his  request
as untimely committed  very  gross  errors  of  law,  committed  fraud,  and
deprived him of his Constitutionally protected due  process  rights.   After
the Board's refusal to correct his records, he appealed to  the  U.S.  Court
of Federal Claims, the U.S. District  Court  for  the  Western  District  of
Tennessee, and the U.S. District Court for the District  of  Columbia.   The
first two courts held that they had no jurisdiction to decide that  the  Air
Force and Board decisions were wrong, and the  District  of  Columbia  Court
protected the Air Force by holding that the  first  two  jurisdiction  court
hearings were res judicata, thus precluding any  decision  against  the  Air
Force and Board.

In support of his request applicant  submitted  a  personal  brief;  letters
notifying him of his nonselections for promotion to major; an  extract  from
ROPA; a copy of his letter to the February 1959 selection  board  President;
an extract from Title 10, U.S.C.; documents associated  with  his  placement
on the Retired Reserve List;  documents  associated  with  his  request  for
Congressional inquiries; his 12 Mar 92 application  under  10  U.S.C.  1552;
his 27 Jun 94, letter to the Secretary of the  Air  Force  and  the  Board’s
response; copies of records of court proceedings; correspondence  associated
with AFPC's attempts to retrieve his ID  cards;  documents  associated  with
his medical treatment bills; an extract of 10 U.S.C. 1552;  and,  AFR  31-3,
Air  Force  Board  for  Correction  of  Military  Records.    His   complete
submission is at Exhibit A.

________________________________________________________________

STATEMENT OF FACTS:

Applicant was appointed a second lieutenant,  Army  United  States,  Officer
Reserve Corps on 12 Dec 41.  He was progressively promoted  to  the  Reserve
grade of captain, having assumed that grade on 19 Sep 45.   On  10  May  59,
applicant requested transfer to the Retired Reserve Section, IAW  AFR  45-39
paragraph 5.  His name was placed on the Honorary Retired  Reserve  List  on
28 Feb 59.  Applicant has 14 years, 7 months, and  4  days  of  satisfactory
Federal service.

On 12 Mar 92, applicant submitted an application  to  the  Board  requesting
that his transfer to the Retired  Reserve  in  1959  be  set  aside,  he  be
credited with 20 years of satisfactory  Federal  service,  and  that  he  be
entitled to Reserve retired pay.  On    25 Jun 93, the Board considered  and
denied his request as untimely.

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 Chief, Reserve of the Air Force Promotion Board  Secretariat,  ARPC/DPB,
reviewed applicant's requests and recommends denial.  DPB states that  while
the records of notification are not kept, lack of notification  is  not,  in
itself, a sound basis for reconsideration for promotion.  As  applicant  was
notified and he did send a letter to the  second  selection  board,  he  was
afforded the opportunity to present his case to the  promotion  board.   His
status as a "deferred" officer was known  only  to  himself;  the  promotion
board is never informed if any officer has ever met a  previous  board.   No
member of a promotion board may  perform  the  same  function  on  a  latter
promotion board if any officer considered  by  the  first  board  is  to  be
considered by the second.  Additionally there  is  no  simple  way  for  any
member of a promotion board to figure out if an officer's  record  met  more
than one board.

The final OER, rendered by his active duty rater, covered the period  3  Sep
53 through 3 Jan 54.  This final OER was  a  referral  report  and  was  the
information the selection board had in their  consideration  for  selection.
He unsuccessfully petitioned to have this report removed from his  selection
record at the time the report was rendered.  His Reserve  participation  was
never documented in an OER, as he was not attached to an organized  unit  or
individual  mobilization  augmentee  position,  he  earned   most   of   his
participation points by Extension Course Institute  correspondence  courses.


Applicant transferred to the Honorary Retired Reserve effective 28  Sep  59.
He completed 18 years, 7 months and 4 days  of  honorable  Federal  service;
however he only completed 14 years, 7 months, and 4 days  of  this  time  as
satisfactory service creditable for retired pay.  Honorable service  is  the
total years of service including inactive regular and Reserve.  It  includes
satisfactory years as well as years in which the member did not  participate
sufficiently  to  earn  satisfactory  years  toward  retired   pay.    Since
applicant did not complete 20 years of satisfactory service for  retirement,
he is  not  eligible  for  Reserve  retired  pay  or  any  of  the  benefits
associated with such pay.

Applicant has provided no information not previously  available  during  the
processing of any of  the  other  appeals.   His  selection  record,  as  it
appeared before the 1958 and 1959 selection boards, was not of  the  caliber
of those officers selected for promotion.   He  did  not  accrue  sufficient
satisfactory service for retired  pay  and  is  therefore  not  eligible  to
receive retired pay (see Exhibit C).

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant responded to the advisory and states that the  advisory  does  not
address all the corrections he requested.  In particular  his  request  that
his retirement date be changed from 28 Sep 58 to 15 Oct 79; his request  for
his right to use his blue ID card to be supported  by  the  proper  records;
that his name be confirmed in DEERS that he is  a  retired  officer  who  is
entitled to all benefits  of  retirement;  and,  that  his  pay  records  be
amended to show that he is not obligated to pay  for  health  care  services
provided to him and his wife between 1985 and 1992.

Applicant reiterates that he did not know about a promotion  board  in  1958
or even if he was considered by a selection board in 1958.  He has  seen  no
documentary evidence of the existence  of  such  board,  failure  to  attach
documentary evidence constitutes failure to support any  opposition  to  his
application for correction.  The advisory seems to take  the  position  that
because he was notified in 1958 that he could send a  communication  to  the
1959 selection board, that he was afforded all the due  process  rights  the
constitution requires.   This  argument  ignores  the  fact  Section  203(e)
provides that “Any officer eligible for consideration for promotion  by  any
selection board...”  Any selection board included the selection board  which
may render an officer a “deferred” officer.

The advisory takes the position that the  second  selection  board  did  not
know he was a deferred officer, that the information presented to the  board
was the same as presented to the first.  Section  512  of  ROPA  shows  that
selection boards in 1958 were not immune from word from higher authority  as
to who to promote.  Not only did he become a  “deferred”  officer  prior  to
the second selection  board,  he  was  deprived  of  8  years  of  promotion
service.  That loss of service  was  a  red  light  to  that  second  board,
effectively requiring them not to  recommend  him  for  promotion.   In  the
communication that he submitted to the second board, he opened  his  remarks
by submitting the fact that he was a “deferred” officer.   The  advisory  is
in error by stating that he was not attached to an organized  Reserve  unit.
The order assigning him to the Retired  Reserve,  dated  8  Sep  59,  reads:
“...is relieved from assignment,...”

The advisory recommends “no waiver of 3-year limit on  date  of  discovery.”
Applicant reiterates that he  first  discovered  the  law-breaking  ploy  in
1992.  10 U.S.C. provided that the 3  year  statute  of  limitation  may  be
excused in the interest of  justice.   The  advisory  offers  no  supporting
logic or authority for concluding that it is in his interest of  justice  to
condone law breaking and unconstitutional acts.

Applicant provided a detailed  account  of  the  events  which  led  to  his
referral report and ultimately his unlawful dismissal from the service.   He
concludes by itemizing some of his personal accomplishments both during  and
after military  service.   In  further  support  of  his  request  applicant
provided an Aeronautical  Order,  dated  21  Dec  54;  his  AFR  35-6  Board
Proceeding cover letter, dated 16 Aug 57; and, his WD  Form  66,  Officer’s,
Warrant Officer’s, and Flight Officer’s Qualification Record.  His  complete
submission is attached at Exhibit E.

_________________________________________________________________

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.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence  of  probable  error  or  injustice.   We  took  notice   of   the
applicant's complete submission in judging the  merits  of  the  case.   His
contentions are duly noted; however, we do  not  find  these  uncorroborated
assertions, in and by themselves, sufficiently persuasive  to  override  the
evidence of record or the rationale provided by  the  Air  Force  office  of
primary responsibility.  It appears that the crux of  his  argument  is  his
allegation that he was not  advised  of  his  first-time  consideration  for
promotion  to  major,  thus   precluding   him   from   submitting   written
correspondence to  that  board.   He  provides  no  convincing  evidence  to
support this claim.  We took notice also that he has completed 18  years,  4
months and 4 days  of  honorable  Federal  service;  however,  he  was  only
credited with 14 years, 7 months and 4 days as satisfactory Federal  service
creditable for retired pay.  The requirement of law is that in order  to  be
eligible to receive retired pay at age 60, he must have been  credited  with
20 years of satisfactory Federal service with the last  six  years  of  that
service having been served in a Reserve component.   The  evidence  at  hand
clearly indicates that he has not  met  this  requirement  and  we  are  not
persuaded that he has been a  victim  of  an  error  or  injustice  in  this
matter.  Therefore, in the absence of evidence to the contrary, we  find  no
compelling  basis  to  recommend  granting  the  relief   sought   in   this
application.

4.  Having found no basis to conclude that  the  applicant’s  considerations
for promotion were improper or  that  his  separation  from  active  Reserve
status in 1959 was erroneous or contrary to law, we have no basis  on  which
to take favorable action with respect to the remainder  of  the  applicant’s
requests related to reinstatement in the Air Force  Reserve  and  to  flying
status, service credit, promotion, and entitlement to  a  Reserve  component
retirement with all benefits associated with such a retirement.

5.  The applicant's case is adequately documented and it has not been  shown
that a personal appearance with or without counsel will  materially  add  to
our understanding of the issues involved.   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 28 Mar 01, under the provisions of AFI 36-2603:

      Mr. David C. Van Gasbeck, Panel Chair
      Mr. Robert S. Boyd, Member
      Mr. Edward H. Parker, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 25 Jul 00, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ARPC/DPB, dated 21 Nov 00.
    Exhibit D.  Letter, SAF/MIBR, dated 8 Dec 00.
    Exhibit E.  Letter, Applicant, dated 18 Dec 00, w/atchs.




                                   DAVID C. VAN GASBECK
                                   Panel Chair