RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-03885
            INDEX CODE:  135.01, 131.00

            COUNSEL:  NONE

            HEARING DESIRED: NO

___________________________________________________________________

APPLICANT REQUESTS THAT:

His USAF Reserve appointment date be changed  from  30  Sep  02  to
1 Jan 01 to reflect the originally intended  direct  transfer  from
active duty to the Reserve,  enabling  a  direct  transfer  of  his
active duty promotion.

___________________________________________________________________

APPLICANT CONTENDS THAT:

During the Fall of 2000, personnel officials ruled  that  since  he
was  retiring,  he  could  not  transfer  to  the  active  Reserve.
However, based on a new law passed in Oct 00, the untimely guidance
unfairly prevented him from transferring  directly  to  the  active
Reserve on 1 Jan 01 as originally intended.  Had a direct  transfer
been  allowed,  his  pending  active  duty  promotion  would   have
transferred as well.

In support of his appeal, applicant provided a personal  statement;
a copy of a letter from a former co-worker; a copy of a letter from
former Chief, Contracting Division, Air  Combat  Command  (ACC);  a
copy of a letter from HQ USAF/RE; a copy of applicant’s  letter  to
HQ USAF/REPX, dated 28 Oct 02; a copy of  email  response  from  HQ
USAF/REPX; a copy of USAF Reserve Appointment order, PA-03----- and
a copy of DD Form 214, Certificate of  Release  or  Discharge  from
Active Duty, dated 31 Dec 00.

Applicant’s complete submission is at Exhibit A.

___________________________________________________________________

STATEMENT OF FACTS:

Applicant was commissioned in the Regular Air Force on 12 Jul 79 as
a second lieutenant.  He was progressively promoted to the rank  of
lieutenant colonel with an effective  date  and  date  of  rank  of
1 Mar 96.  He served on active duty from 12 Jul  79  to  31 Dec 00.
Applicant   was   considered   and   selected   by   the    Colonel
(Line/Chaplain/BSC) Selection Board  (P0600A),  which  convened  on
17 Jul 00.  He received increment  number  223,  with  a  projected
promotion date of 1 Nov 01.

On 18 Aug 00,  he  applied  for  retirement;  his  application  was
approved on 21 Aug 00  for  retirement  effective  1  Jan  01.   On
31 Dec 00, applicant was honorably discharged under the  provisions
of AFI  36-3203,  and  retired  effective  1  Jan  01.   He  served
21 years, 5 months and 19 days of active duty.

Applicant was appointed in the  Reserve  of  the  Air  Force  as  a
lieutenant colonel on 30 Sep 02,  under  the  Retired  Active  Duty
Reserve Accession Program (RADRAP).  He is currently serving as  an
Individual Mobilization Augmentee (IMA) with HQ AMC/LGC, Scott  AFB
IL.

___________________________________________________________________

AIR FORCE EVALUATIONS:

HQ ARPC/DPA reviewed the application and recommended denial.   They
indicated that the applicant states in his request that he  applied
for retirement from active duty with a requested retirement date of
31 Dec 00.  On 9 Sep 00, he found out  he  had  been  selected  for
promotion to colonel.   However,  he  decided  not  to  change  his
retirement plans and retired at the rank of lieutenant  colonel  on
31 Dec 00.

In the summer of 2001, he stated in his request that he received  a
HQ  USAF/RE  letter  offering  potential  eligible   retirees   the
opportunity to return to service part-time  while  still  receiving
retirement pay (offset by reserve pay).

He began his application process  under  the  Retired  Active  Duty
Reserve Accession Program to fill a  vacant  IMA  colonel  position
with the Air Mobility Command (AMC) by initiating an AF Form  1288,
Application for Ready  Reserve  Assignment.   The  application  was
recommended for approval on 20 Dec 01 by AMC.

He accepted his  appointment  into  the  Reserve  as  a  lieutenant
colonel on 30 Sep 02.

An appointment under the  RADRAP  is  not  a  matter  of  a  simple
transfer and there is no reason to believe  the  USAFR  appointment
could  have  been  accomplished  as  early  as  1  Jan   01.    The
implementing  guidance  was  not  in  place   to   accomplish   the
appointment.  The first notifications to retirees from  HQ  USAF/RE
announcing the new opportunity to return to service were not mailed
out until Jul 01.  In order to be eligible for the program a member
must be honorably retired from active duty, apply for  the  program
through Air Force Reserve  recruiting  channels,  be  screened  for
mission “indispensability,” and receive SECAF approval according to
Title 10, USC Section 10145, Ready Reserve: Placement in, para (d).

Since the applicant must be retired  to  apply  under  the  Retired
Active Duty Reserve Accession Program the applicant was not  placed
on the Reserve Active Status List (RASL) from the Active Duty  List
(ADL).  The applicant was placed in the Retired  Reserve  rendering
him ineligible for further promotion consideration as stipulated in
Title 10, USC Section 14317, Officers in Transition to and from the
Active-Status List or Active-Duty List, para (a).

A copy of the Air Force evaluation, with attachments, is at Exhibit
C.

HQ USAF/JAG reviewed the application and recommended the  requested
relief  be  denied.   They  gave  the  following  analysis  of  the
applicant’s request and the applicable law requirements.

In  1994,  Congress  enacted  legislation  permitting  an   officer
selected for promotion to be removed from the ADL to the  RASL  and
placed on an appropriate promotion list.  That  said,  it  was  not
until the summer of 2001 that the Air Force implemented the Retired
Active  Duty  Reserve  Accession   Program   (RADRAP),   permitting
potentially eligible retirees to return to service part-time.

The applicant’s assertion that  HQ  ACC/DPR’s  “untimely  guidance”
unfairly prevented him from transferring to the active Reserve  and
denied him promotion to colonel  is  simply  incorrect.   When  the
applicant inquired about RADRAP, HQ  ACC/DPR’s  response  was  they
were unaware of any such program.  Given RADRAP was not implemented
until the summer of 2001, it is entirely plausible that in the Fall
of 2000, it had not been  formally  announced  and/or  implementing
guidance disseminated.  Regardless, the burden is on the  applicant
to  provide  supporting  documentation  that  HQ  ACC/DPR  provided
“untimely guidance” and he has failed to do so.

Additionally,  the  Board  should   not   simply   accept   as   an
uncontroverted fact the applicant’s bold statement that “…Had I not
received this false information,  I  would  have  applied  for  and
entered the Reserve directly from active duty, my  promotion  would
have carried forward without question, and I would not  be  writing
this to you today” as a basis on which  to  grant  relief.   First,
there is no supporting  evidence  establishing  either  HQ  ACC/DPR
knew, or should have known, of the RADRAP or  if  such  information
existed, that their response (of being unaware of such program) was
false.  The more  precise  or  determinative  question  is  if  the
applicant had been advised that the RADRAP was to be implemented in
the summer of 2001, would he have delayed or withdrawn  his  active
duty retirement to apply for it?  However, applicant has  not  made
any declaration or provided  evidence  establishing  this  type  of
detrimental reliance existed and any such statement to this  effect
now would be arguably insincere.

Applicant’s additional assertion  is  that  AF/JAG’s  and  SAF/GC’s
informal opinions (e.g. email) that in order to preserve an ADL  to
RASL   promotion   requires   immediate,   uninterrupted    reserve
appointment are an incorrect interpretation of the law.   Applicant
contends 14317(c) provides that those officers  who,  before  being
promoted, are removed from the ADL  and  placed  on  the  RASL  are
sufficiently broad enough to encompass an intervening placement  on
the retired list.  Other than the applicant’s  proffered  assertion
and  analysis,  he  offers  no   supporting   documentation.    Our
interpretation and opinion remain unchanged and are  based  on  the
“plain meaning” of the entire statute and not isolated portions  of
any sentence.

A complete copy of the HQ USAF/JAG evaluation is at Exhibit F.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

The applicant disagreed with the evaluation from HQ  ARPC/DPA.   He
stated in regard  to  their  opinion  that  a  retiree’s  immediate
reappointment to the Reserve would not comply  with  the  law  that
enables a transfer of promotion.  He believes that  the  Air  Force
legal  advisors  issued  an  opposing  interpretation  of  the  law
(attached email).

He further disagreed with HQ ARPC/DPA’s interpretation of  the  law
as it relates to the circumstances surrounding  his  transfer  from
the ADL to RASL and the transfer of his pending promotion.

Applicant’s complete response, with attachment, is at Exhibit E.

In the applicant’s response to the HQ USAF/JAG opinion,  he  states
that the JAG cited the basis for his complaint to be  that  he  was
erroneously advised that his Senate confirmed  promotion  selection
to colonel could not be transferred from the active duty list (ADL)
to the reserve active status list (RASL) and feels that they missed
the mark.  The  issue  submitted  was  that  he  was  inadvertently
advised in the fall of 2001 that it was impossible for him (not his
promotion) to transfer directly from active duty  to  the  Reserve,
when, in fact, it was legally  possible  to  do  so  prior  to  his
subsequent retirement.

He  says  that  the  fact  remains  that  he  was  prevented   from
transferring directly from active duty  status  to  active  reserve
status as clearly authorized by legislation in effect at  the  time
of his retirement and that the failure to  do  so  was  through  no
fault of his own.

Applicant’s complete response to the HQ USAF/JAG evaluation  is  at
Exhibit H.

___________________________________________________________________

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 error or injustice.   After  reviewing
the evidence of record, we are not persuaded that  his  assertions,
in and of themselves, are sufficiently persuasive to  override  the
rationale provided by the Air  Force.   His  contentions  are  duly
noted; however, in our opinion, the detailed comments  provided  by
the Air Force adequately address his  contentions.   Therefore,  we
agree with the  opinions  and  recommendations  of  the  Air  Force
offices  of  primary  responsibility  and  adopt  their   rationale
expressed as the basis for our  decision  that  the  applicant  has
failed to sustain his burden of having suffered either an error  or
injustice.  Hence, in the absence of  persuasive  evidence  to  the
contrary, we find no compelling basis  to  recommend  granting  the
relief sought in this application.

___________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified  that  the  evidence  presented  did  not
demonstrate the existence of 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 AFBCMR Docket  Number
02-03885 in Executive Session on 4 June 2003, under the  provisions
of AFI 36-2603:

      Ms. Charlene M. Bradley, Panel Chair
      Ms. Marcia J. Bachman, Member
      Ms. Marilyn Thomas, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 5 Dec 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ ARPC/DPA, dated 16 Jan 03, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 24 Jan 03.
    Exhibit E.  Letter, Applicant, dated 1 Feb 03, w/atch.
    Exhibit F.  Letter, HQ USAF/JAG, dated 11 Apr 03.
    Exhibit G.  Letter, AFBCMR, dated 22 Apr 03, w/atch.
    Exhibit H.  Letter, Applicant, dated 8 May 03.




                                   CHARLENE M. BRADLEY
                                   Panel Chair