ADDENDUM TO
                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  00-00105
                               (Case 2)

            COUNSEL:  NONE

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

A waiver be granted for an exception to policy  for  retirement  under
the Fiscal Year 2000/2001 (FY00/01) Phase III Officer Early Retirement
Program.

A waiver be approved for his remaining active duty service  commitment
for his permanent change of station.

A waiver be approved for the 120-day notification period prior to  the
retirement effective date.

_________________________________________________________________

RESUME OF THE CASE:

On 22 Apr 99,  the  Board  considered  an  appeal  pertaining  to  the
applicant, in which he requested that his Officer  Performance  Report
(OPR) closing 31 Oct 96 be declared void and removed from his records;
his records be corrected to reflect award of the  Meritorious  Service
Medal (MSM) for his  duty  at  the  United  States  Air  Force  (USAF)
Academy; the SWC/AE medal be included in the record that  goes  before
the supplemental promotion board; he be given Special Selection  Board
(SSB) consideration for promotion to the grade of  lieutenant  colonel
by  the  CY98B  Central  Lieutenant  Colonel  Selection  Board,  which
convened on 1 Jun 98, with his corrected record; and,  if  his  record
could not be satisfactorily corrected and he is not  promoted  to  the
grade of lieutenant  colonel,  he  be  allowed  the  option  of  early
retirement in fiscal year (FY) 1999.  The Board recommended  that  the
contested OPR be voided and removed from his records, the applicant be
awarded  the  MSM,  and  he   be   given   SSB   consideration.    The
recommendation of the Board was approved by the  Director,  Air  Force
Review Board’s Agency.  The applicant’s requests for inclusion of  the
SWC/AE medal in his record and for early retirement were not favorably
considered.  A complete copy  of  the  Record  of  Proceedings  is  at
Exhibit I.

On 27 Jun 00, the Board considered and denied an appeal pertaining  to
the applicant, in which he requested that he be directly  promoted  to
the grade of lieutenant colonel as though  selected  by  the  Calendar
Year 1998B (CY98B) Lieutenant Colonel Board, which convened on  1  Jun
98; or, as an alternative, as an exception to policy,  he  be  retired
under the Fiscal Year 2000/2001 (FY00/01) Voluntary  Early  Retirement
Program.   A  complete  copy  of  the  Record  of  Proceedings  is  at
Exhibit J.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The Board did not consider a memorandum from the DOD/IG team leader of
his Whistleblower investigation.

He delayed applying for early retirement, in part, because of repeated
assurances that the results of the DOD IG were forthcoming.  With  the
encouragement of the DOD IG investigators,  he  had  every  reason  to
believe his reprisal claim would be quickly resolved.  If the  DOD  IG
had completed its investigation in  a  timely  manner,  the  Temporary
Early Retirement Authority (TERA) would have  been  available  and  he
would have immediately applied for early retirement.

He does not request early retirement as an entitlement, but rather  as
a small measure of relief for the  illegal  reprisal  actions  he  has
endured.  He believes his actions  have  always  been  reasonable  and
prudent--and certainly honorable.  He has suffered injustices with the
IG’s lengthy delay and its flawed findings.  The  injustice  continued
after he was denied early retirement in Aug 99.

Applicant’s complete submission, to include a statement from  the  DOD
IG former team leader, is at Exhibit K.

_________________________________________________________________

AIR FORCE EVALUATION:

Pursuant  to  the  Board  staff’s  request,  the  Retirements  Branch,
AFPC/DPPRR,  reviewed  the  applicant’s  most  recent  submission  and
recommended  denial.   According  to  DPPRR,  the  applicant  met  the
eligibility criteria for the FY98 Officer Voluntary  Early  Retirement
Program.  At that time, he had the choice of either (1)  applying  for
early retirement and (if he desired) then requesting  to  correct  his
records through the AFBCMR process an appeal to the SSB for  promotion
to the grade of lieutenant colonel, or (2) remaining  on  active  duty
and pursuing correcting his  records  and  applying  to  the  SSB  for
promotion to the grade of lieutenant colonel.  However, the Air  Force
changed the eligibility for subsequent early retirement programs  that
made his Air Force specialty ineligible to apply.  The Air Force  made
no offer or guarantee that, having completed all actions and still not
promoted by the  SSB,  his  request  for  early  retirement  would  be
approved.  Granting the applicant early retirement would establish  an
unwarranted precedent.  Specifically, his records have been  corrected
and he has not demonstrated that he has been harmed  by  not  choosing
early retirement.

A complete copy of the DPPRR evaluation is at Exhibit L.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the advisory opinion and furnished a  response  and
additional documentary  evidence.   In  his  response,  the  applicant
invoked the Military Whistleblower Protection Act under 10 USC 1034.

Applicant’s complete submission is at Exhibit N.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION

Pursuant to the Board staff’s request, the General  Law  Division,  HQ
USAF/JAG, reviewed  the  applicant’s  request  that  his  request  for
reconsideration be processed under 10 USC 1034, Military Whistleblower
Protection Act.  JAG indicated  that  once  an  application  has  been
processed under the Military Protection Act, a subsequent request  for
relief based on the same allegation of reprisal  is  not  entitled  to
expedited processing.

According to JAG, they doubt whether denial of  a  request  for  early
retirement constitutes a prohibited personnel action as envisioned  by
the statute.  The Air Force denied the applicant’s request  for  early
retirement because he did not meet the  eligibility  requirements  for
the  program,  not  because  he  made   a   protected   communication.
Consequently, the denial of the applicant’s request  to  retire  early
was not a personnel action prohibited by the Whistleblower  Protection
Statute (WPS).  Thus, while  the  Board  may  certainly  consider  the
application reconsideration request, it  need  not  do  so  under  the
expedited processing requirements of the WPS.  JAG indicated that they
recommend it be processed under normal procedures.

A complete copy of the JAG evaluation is at Exhibit O.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant reviewed the advisory opinion and furnished a response.   In
his  response,  the  applicant  indicated  that  he  requested   early
retirement on 14 Jun 99 before SSB consideration.  Clearly, his 14 Jun
99 memorandum stated that he  wanted  early  retirement  and  not  SSB
promotion consideration.

Applicant’s complete response is at Exhibit Q.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  Sufficient relevant evidence has been presented to demonstrate the
existence of probable injustice regarding the applicant’s request  for
early retirement.  After a thorough review  of  the  applicant’s  most
recent  submission,  a  majority  of  the  Board  is  persuaded   that
corrective action is warranted.  The majority took particular note  of
the statement from the former DOD IG investigator who  indicated  that
he opined on the likely results of the DOD  IG  investigation  to  the
applicant before the investigation was completed.  He  further  stated
that  he  knew  the  applicant  was  factoring  the  results  of   the
investigation into a retirement decision, and that he  recommended  to
the applicant that he wait for the IG results.  While the majority  is
not of the opinion that it is the function of DOD IG  investigator  to
offer career advice, given his official position of investigator,  the
majority believes it  is  reasonable  to  assume  that  the  applicant
relied, to his detriment, on the advice of the investigator.  In  view
of the foregoing, and having no basis to  question  the  integrity  of
this individual, the majority believes that it is in the  interest  of
justice to  favorably  consider  the  applicant’s  request  for  early
retirement.  Accordingly, a majority of the Board recommends that  the
applicant’s records be corrected as indicated below.

2.  The applicant’s request that his request  for  reconsideration  of
his appeal be processed under the  Military  Whistleblower  Protection
Act (10 USC 1034) was noted.  However, HQ USAF/JAG has indicated  that
once an application has been processed under the  Military  Protection
Act, a subsequent request for relief based on the same  allegation  of
reprisal is not entitled to expedited  processing.   We  accept  their
assessment  concerning  this  matter.   Accordingly,  the  applicant’s
request is not favorably considered.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that, as an  exception  to
policy,  he  applied  for  retirement  under  the  provisions  of  the
Temporary Early Retirement Authority (TERA) and  his  application  was
approved by competent authority;  he  registered  on  the  Public  and
Community Service Registry prior to his retirement; and,  that  he  is
eligible to retire at the earliest practicable date.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 28 Jun 01 and 23 Jul 01, under the provisions  of
AFI 36-2603:

      Mr. David W. Mulgrew, Panel Chair
      Ms. Kathy L. Boockholdt, Member
      Mr. Christopher Carey, Member

By a majority vote,  the  Board  voted  to  correct  the  records,  as
recommended.  Mr. Mulgrew voted to deny the  appeal  and  submitted  a
minority report.  The following additional  documentary  evidence  was
considered:

     Exhibit I.  Record of Proceedings, dated 8 Jun 99, w/atchs.
     Exhibit J.  Record of Proceedings, dated 4 Aug 00, w/atchs.
     Exhibit K.  Letter, applicant, dated 2 Jan 01, w/atchs.
     Exhibit L.  Letter, AFPC/DPPRR, dated 14 Mar 01.
     Exhibit M.  Letter, SAF/MIBR, dated 16 Mar 01.
     Exhibit N.  Letter, applicant, dated 23 Mar 01, w/atchs.
     Exhibit O.  Letter, HQ USAF/JAG, dated 2 Apr 91.
     Exhibit P.  Letter, AFBCMR, dated 10 Apr 01.
     Exhibit Q.  Letter, applicant, dated 17 Apr 01.
     Exhibit R.  Minority Report.




                                   DAVID W. MULGREW
                                   Panel Chair










AFBCMR 00-00105




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, as an exception to
policy, he applied for retirement under the provisions of the
Temporary Early Retirement Authority (TERA) and his application was
approved by competent authority; he registered on the Public and
Community Service Registry prior to his retirement; and, that he is
eligible to retire at the earliest practicable date.






    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency