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

IN THE MATTER OF:      DOCKET NUMBER:  00-00023
            INDEX NUMBER:  131.01

      XXXXXXXXXXXXX    COUNSEL:  None

      XXX-XX-XXXX      HEARING DESIRED:  No

___________________________________________________________________

APPLICANT REQUESTS THAT:

His previous consideration and nonselection  by  Special  Selection
Board (SSB) for the CY96B Central Colonel Selection Board be voided
and a new board be convened and constituted in accordance with  the
law.

___________________________________________________________________

APPLICANT CONTENDS THAT:

A reserve officer not on the active duty list (ADL) served  on  his
SSB for the CY96B Central Colonel Selection Board in  violation  of
law.

The DoD Fiscal Year 2001 Authorization Act  contains  a  provision,
section 504, which amends 10 USC 612(a).  This  section,  which  is
retroactive to all selection boards convened on or after  1  August
1981 requires that each member of a selection  board  shall  be  an
officer on the active-duty list.

The applicant’s complete submission is at Exhibit L.

___________________________________________________________________

STATEMENT OF FACTS:

The applicant retired in the grade of lieutenant colonel  effective
1 August 2000.

As a result of a previous BCMR  case,  the  applicant  was  granted
promotion consideration to colonel by SSB  (Record  of  Proceedings
for this case is at Exhibit C).

On 7 Sep 00, the Board considered  a  second  BCMR  case  from  the
applicant to void all his previous considerations  by  SSB  and  to
convene new SSBs in accordance with the law.  The Board granted the
applicant new SSBs for  the  CY95B  (Below-the-Promotion-Zone)  and
CY97B (Above-the-Promotion-Zone) Central Colonel Promotion  Boards.
The Board denied the applicant’s request for  a  new  SSB  for  the
CY96B promotion board (Exhibit K).

___________________________________________________________________
AIR FORCE EVALUATION:

Pursuant to the Board’s request, HQ USAF/JAG provided an evaluation
of the applicant’s request for reconsideration.  They advised  that
Section 612 does not expressly require that the five members on the
active duty list (ADL) all be voting members.  Accordingly, the Air
Force has interpreted Section 612 such that the combination of four
voting ADL and a Board President, who is on the ADL, is  sufficient
to comply with the statutory five-ADL membership requirement.   Air
Force instructions recognize that the Board President  is  a  board
member.  Applicant’s selection board consisted of four  voting  ADL
members and the Board President, who was on the ADL.   Accordingly,
there was no error or injustice.

The complete evaluation is at Exhibit M.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded to the Air Force evaluation  by  indicating
that he believes the AF/JAG Opinion 2001/13 incorrectly  reads  the
language of the statute as it was amended by the  DoD  Fiscal  Year
2001 Authorization Act.  The applicant emphasizes that the  statute
requires that  all  Board  members  be  on  the  ADL.   The  AF/JAG
evaluation candidly admits that at least one member of his SSB  was
not on  the  ADL,  in  violation  of  the  statute.   Further,  the
amendment to section 612(a) was made retroactive to  all  selection
boards convened on or after 1 Aug 81.  Since  his  SSBs  were  held
after Aug 81, and each member of the Board was not on the ADL,  the
SSB for the CY96 Board was not legally constituted as  required  by
10 USC 612.

The applicant’s complete response is at Exhibit O.

___________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

Pursuant to a second request from the Board, HQ  USAF/JAG  provided
an additional evaluation in response to the applicant’s assertions.
 They indicate that to a certain extent, the applicant  is  correct
when he points out  that  when  Congress  amended  10  USC  612  it
required that each selection board member be on the ADL retroactive
to 1981.  They indicate that the Air Force was  the  proponent  for
change to the amendment.  The  original  intent  was  to  make  the
amendment retroactive only for  selection  boards  that  considered
reserve  members.   Unfortunately,  the  plain  language   of   the
effective date provision included all boards convened under 611(a).
 Thus, while they are obligated to follow the literal  language  of
the effective date provision as it applies to boards convened under
611(a), they are not required to apply it to boards convened  under
other sections.  For those boards, the effective date was the  date
the amendment was signed into law.  This is important because  SSBs
are convened under Section 628, not Section  611(a).   Accordingly,
the new requirements of Section 612 apply  only  to  SSBs  convened
after Oct 00.

Applicant’s IPZ SSB held in Sep 98 did have a non-ADL member.  SSBs
convened  under  Section  628  are  required  to  be  composed   in
accordance with Section 612.  Prior to Oct 00, Section 612 required
only that five members of the selection board be on  the  ADL.   In
their opinion, the applicant’s IPZ SSB held in  1998  met  the  ADL
requirement of Section 612 at that time.  Since  the  amendment  to
Section 612 applies only to SSBs convened after Oct 2000, there was
no error or injustice with the composition of applicant’s 1998  IPZ
SSB.

The complete evaluation is at Exhibit P.

___________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

In his response to  the  AF/JAG  additional  evaluation,  applicant
indicates that the AF/JAG’s position appears to be  that  SSBs  are
not governed by section 611.  This interpretation does  not  square
with the provisions of the statutes found in 10  USC,  Chapter  36.
The  various  sections  cross-reference  each   other   and   must,
therefore, be read as a whole.  The convening of  SSBs  is  covered
first by 10 USC 628.   In  particular,  note  that  10  USC  628(g)
defines a “promotion board” to be a selection board convened  under
10 USC 611(a).  Section 628 says that if a person was considered by
a promotion board (i.e., a board convened under section 611(a))  in
an unfair manner, the Secretary will convene an SSB.   Further,  10
USC 628(f) states that the composition of SSBs will be governed  by
10 USC 612.  When one looks to section 612, one finds  that  it  is
referring to  boards  convened  under  10  USC  611(a).   Thus  the
statutory scheme set out requires that SSBs be convened in the same
manner as selection boards that are convened under 10  USC  611(a).
Therefore, the amendment to section 612 applies equally to SSBs  as
well as Central Selection Boards.

The AF/JAG position would read out of Title 10 the strictures of 10
USC 628(g), which predicates the entire reason for  convening  SSBs
due to unfairness in the convening of selection boards, and 10  USC
612, which governs the composition of all promotion boards, be they
normal selection  boards  or  SSBs.   AF/JAG’s  position  that  the
statute applied only to selection  boards  convened  under  section
611(a) ignores the reality of  the  interrelationship  between  the
three statutes discussed above.  Nothing in the legislative history
of PL 106-398  supports  the  interpretation  posited  by  the  JAG
advisory.   Because  SSBs  are  convened  to   address   unfairness
resulting from selection boards convened under section 611(a),  the
JAG position incorrectly concludes that the amendments of  PL  106-
398  do  not  apply  to  SSBs  convened  since   1981.    Such   an
interpretation  would  effectively  gut  the  remedy   specifically
provided for by Congress, further undermining the integrity of  the
promotion process.

The applicant’s complete response is at Exhibit R.

___________________________________________________________________

THE BOARD CONCLUDES THAT:

Insufficient relevant evidence has been  presented  to  demonstrate
the existence of  error  or  injustice.   We  took  notice  of  the
applicant's complete submission in judging the merits of the  case;
however, the majority of the Board  agrees  with  the  opinion  and
recommendation of AF/JAG and adopts their rationale  as  the  basis
for their conclusion that the applicant has not been the victim  of
an error or injustice.  Therefore, in the absence  of  evidence  to
the contrary, the majority of the Board finds no  compelling  basis
to recommend granting the relief sought in this application.

___________________________________________________________________

RECOMMENDATION OF THE BOARD:

A majority of the Board finds insufficient  evidence  of  error  or
injustice and recommends the application be denied.

___________________________________________________________________

The following members of the Board  considered  Docket  Number  00-
00023 in Executive Session on 21 October 2002, under the provisions
of AFI 36-2603:

      Mr. Joseph G. Diamond, Panel Chair
      Mr. Jackson A. Hauslein, Member
      Mr. William H. Anderson, Member

By a majority vote, the Board voted to  deny  applicant’s  request.
Mr. Hauslein voted  to  grant  the  applicant’s  requests  and  has
provided a Minority Report at Exhibit S.  The following  additional
documentary evidence was considered:

    Exhibit K.  Record of Proceeding, w/atchs, 27 Oct 00.
    Exhibit L.  Letter, Applicant, dated 18 Dec 00, w/atchs.
    Exhibit M.  Memorandum, HQ USAF/JAG, dated 6 Jul 01.
    Exhibit N.  Letter, SAF/MRBR, dated 7 Aug 01.
    Exhibit O.  Letter, Applicant, dated 21 Aug 01.
    Exhibit P.  Memorandum, HQ USAF/JAG, dated 31 May 02.
    Exhibit Q.  Letter, SAF/MRBR, dated 10 Jun 02.
    Exhibit R.  Letter, Applicant, dated 6 Jul 02.
    Exhibit S.  Minority Report, dated 18 Dec 02.




                                   JOSEPH G. DIAMOND
                                   Panel Chair

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
                 FORCORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of XXXXXXXXXX, XXX-XX-XXXX

      I have carefully reviewed the evidence of record and the
recommendation of the Board members.  A majority found that applicant
had not provided sufficient evidence of error or injustice and
recommended the case be denied.  I concur with that finding and their
conclusion that relief is not warranted.  Accordingly, I accept their
recommendation that the application be denied.

      Please advise the applicant accordingly.




                                        JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency
MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
                 FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of XXXXXXXXXX, XXX-XX-XXXX


          In Executive Session on 21 October 2002,  we  considered  the
applicant’s request.  A  majority  of  the  Board  voted  to  deny  the
applicant relief primarily based on the recommendation  of  AF/JAG.   I
disagree with their recommendation.

          The central argument in this case appears  to  be  the  legal
interpretation of the amendment of  10  U.S.C.  §612  in  the  FY  2001
National Defense Authorization Act (NDAA)  that  each  selection  board
member be on the active duty list (ADL).  Since this amendment was made
retroactive to 1981, the applicant contends that it affects his 1998 in-
the-primary-zone (IPZ) special selection board  (SSB).   The  applicant
believes that he is entitled to a new IPZ SSB because there was a  non-
ADL member on his board.

          AF/JAG opines that the amendment to section 612 applies  only
to SSBs convened after October 2000 because the amendment  specifically
refers to any selection board convened under section  611(a)  and  SSBs
are convened under section 628.  They contend that  the  Air  Force  is
only obligated to follow the literal language  of  the  effective  date
provision as it applies to boards convened under section 611(a).

          The applicant counters that AF/JAG’s position appears  to  be
that SSBs are not governed by section 611.  According to the applicant,
this does not “square” with the provisions of the statutes found in  10
U.S.C., Chapter 36.  He points out that the convening of SSBs is  first
covered by section 628 and that  section  628(g)  defines  a  promotion
board  as  a  selection  board  convened  under  section  611(a).   The
applicant concludes that the statute requires that SSBs be convened  in
the same manner as selection boards that  are  convened  under  section
611(a).

          Indeed,  it  is  difficult  to  know  exactly  what  Congress
intended when it enacted the amendment to section 612.  However,  after
reviewing the arguments of AF/JAG and  the  applicant  concerning  this
amendment, it is my opinion that the applicant has  raised  substantial
doubt concerning the position taken by AF/JAG.  In  the  absence  of  a
clear and unambiguous interpretation of the amendment to section 612, I
believe that such doubt should be resolved in favor of  the  applicant.
Accordingly, I recommend that the applicant be given  another  SSB  for
his IPZ board with all members of the promotion  board  on  the  active
duty list.  Granting such an SSB will ensure  that  the  applicant  has
received fair and equitable consideration for promotion by his IPZ SSB.





                             JACKSON A. HAUSLEIN
                             Panel Member