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

IN THE MATTER OF:      DOCKET NUMBER:  98-00526

            COUNSEL:  Joseph W. Kastl, Esq.

            HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

In the applicant’s request for reconsideration, he requests his  records  be
corrected to show he was  promoted  to  the  grade  of  lieutenant  colonel,
effective 2 January 1996, rather than 1 October 1998,  he  was  promoted  to
the grade of colonel, and he be transferred to the  Air  Force  Reserve  and
assigned to an Air Force Reserve Technician (ART) position.  (By  amendment)
 In addition to the foregoing, all unfavorable documents, which are acts  of
reprisal by the leadership of the Air National Guard, be  removed  from  his
records and he be transferred into the active duty Air  Force,  rather  than
to active Reserve status.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is a member of the Air Force Reserve and  Air  National  Guard
who is serving in the grade of lieutenant colonel, with a date of  rank  and
a promotion effective date of 1 October 1998.  His Paydate  is  10 September
1978 and his Total Federal Commissioned Service Date (TFCSD) is  20  October
1980.  His Mandatory Separation Date (MSD) is 26 October 2008.   As  of  the
Retirement Year Ending 25 September 2003, he was credited with 24  years,  7
months and 27 days of satisfactory Federal service.  Information  maintained
in the Personnel Data System (PDS)  indicates  that,  effective  15  October
2002, the applicant was assigned to duties as  an  Executive  Officer.   The
position has an authorized grade of lieutenant colonel.

The following information was  extracted  from  documents  provided  by  the
applicant.  In April 2001, the applicant  advised  that  he  was  undergoing
processing and consideration by a Medical Evaluation  Board  (MEB).   On  22
January 2002, a Formal Physical Evaluation Board (FPEB) determined that  the
applicant was not unfit because of  a  compensable,  ratable  condition  but
that there was evidence of conditions that could be unfitting but  were  not
compensable and ratable at that time, i.e., Mood Disorder,  Low  Back  Pain,
and Irritable Bowel Syndrome.  The FPEB found  the  applicant  was  fit  and
recommended he be  returned  to  duty.   The  applicant’s  organization  was
advised of the foregoing in February 2002 and that  he  was  medically  non-
deployable.  It was further recommended that he be reevaluated on  or  about
31  January  2003  or  sooner  if  his  condition  warranted  such   action.
Information provided by the Air  National  Guard  Bureau  reveals  that  the
applicant’s case was reevaluated by an MEB in early 2003.  By  letter  dated
16  May  2003,  ANG/SGPS  informed   the   applicant’s   organization   that
applicant’s status as fit  for  duty,  medically  nondeployable  was  to  be
continued with a reevaluation date of  31 January  2005  or  sooner  if  his
condition warranted such processing.

The following is a resume of the  Board’s  previous  considerations  of  the
applicant’s requests.

On 10 June 1998, the Board  favorably  considered  the  applicant’s  amended
requests that his  Officer  Performance  Reports  (OPRs)  rendered  for  the
combined rating period 3 June 1995 through 10 March  1998  be  removed  from
his records and his Promotion Recommendation Promotion Form  (PRF)  prepared
for the FY 1999 Air Force Reserve  Lieutenant  Colonel  Selection  Board  be
declared void.  The Board also recommended that a  Special  Selection  Board
consider the corrected record for promotion  by  the  FY  1999  board.   The
Board’s recommendations were accepted and a  Memorandum  for  the  Chief  of
Staff was issued on 25 June 1998.  For a complete accounting of the  Board’s
earlier consideration of this case, see the Record  of  Proceedings,  AFBCMR
98-00526, with Exhibits A through F.

On 24 November 1998, the Board considered the applicant’s  requests  for  an
earlier promotion to the grade of lieutenant colonel, he  be  placed  in  an
Air Force Reserve lieutenant colonel position,  all  negative  documents  be
removed from his Air Force Reserve and Air National Guard  records,  and  he
receive settlement of all claims and  expenses  as  authorized.   The  Board
recommended that certain derogatory data be  removed  from  the  applicant’s
records; and, that competent authority approved his application for a  Ready
Reserve assignment in the grade of lieutenant colonel and he  be  discharged
from the Air National Guard and transferred to the  Air  Force  Reserve  and
assigned to such a position for which  he  was  qualified  at  the  earliest
practicable date.   The  Board  denied  the  remainder  of  the  applicant’s
requests.  A Memorandum for the Chief of Staff, directing implementation  of
the Board’s recommendations, was issued on 20 June  2000  (see  Addendum  to
Record of Proceedings, dated 20 June 2000, with Exhibit G).

In his most recent  submission  (Exhibit  H),  counsel  indicated  that  the
applicant is appealing  the  decision  not  to  backdate  his  promotion  to
lieutenant  colonel.   Counsel  asserts  that,  but  for   the   applicant’s
allegations  of  wrongdoing,  the   subsequent   investigations,   and   the
retaliatory  actions  taken  against  the  applicant,  he  would  have  been
promoted in 1996 under the Unit  Vacancy  program,  rather  than  under  the
Reserve Officer Promotion  program.   In  further  support  of  the  appeal,
counsel provided a brief expanding on the above contentions,  an  affidavit,
a  portion  of  the  wing  commander’s   deposition,   and   documents   and
correspondence associated with actions previously taken in this case.

On 6 February 2001, ARPC/CV provided chronology  of  the  actions  taken  to
place the applicant in a Selected Reserve (SELRES) position  and  indicating
they did not have the authority  to  place  the  applicant  in  a  full-time
position ART position.  By letter dated 3 April 2001, the applicant  amended
his application to include  a  request  for  assignment  to  the  Air  Force
Reserve as an ART (Exhibit I).

_________________________________________________________________

AIR FORCE EVALUATION:

Pursuant to the Board’s request, AFRC/DPC reviewed the  applicant’s  request
for an ART position and  indicated  that  while  the  Board  does  have  the
authority  and  jurisdiction  on  matters  affecting  military  service  and
employment,  the  Board  does  not  have  jurisdiction  over  civil  service
employment actions or decisions.  DPC noted that the authority that  governs
the appointment of a competitive civil service position is  found  in  Title
5, United States Code, Section 3304.  Since there is no  documentation  that
the applicant ever held a  competitive  service  appointment,  there  is  no
authority to appoint him noncompetitive to  an  ART  position.   DPC  stated
that the applicant could apply through the Special Examining Unit  (SEU)  in
Macon, Georgia.  DPU also noted the applicant’s interest  in  an  Air  Force
Reserve ART position in  Alaska  and  stated  no  such  positions  exist  in
Alaska.

This evaluation is at Exhibit J.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant  provided  copies  of  documents  pertaining  to  his   disability
processing (at Exhibit L).  Counsel reiterated the applicant’s requests  and
his contentions concerning continuing  reprisal.   Counsel  stated  that  if
such a position as the one requested by the applicant does  not  exist,  the
circumstances warrant that one should be created for him  (see  Exhibit  M).
In August 2002, the applicant provided  a  designation  of  new  counsel,  a
simplified statement of his requests, and a statement concerning the  status
of his disability processing and duty assignment at that time  (Exhibit  N).
Also at Exhibit N is his request for a formal hearing.

_________________________________________________________________


THE BOARD CONCLUDES THAT:

1.  As a result of earlier considerations of this application, three of the
applicant’s Officer Performance Reports (OPRs), a Promotion  Recommendation
Form (PRF) and references and documents pertaining  to  the  withdrawal  of
Federal recognition and the  suspension  of  his  security  clearance  were
declared void and removed from his records, he was considered for promotion
by a Special Selection Board for promotion to lieutenant  colonel,  and  it
was directed that required actions be  taken  to  assign  him  to  a  Ready
Reserve position.  We have reviewed the applicant’s current submissions and
have determined that further relief is not warranted.  Our determination in
this matter is based on the following rationale.

      a.  The applicant is now requesting that he be  ordered  to  extended
active duty, rather than to active Reserve status or as  an  ART.   At  the
time the applicant’s case was previously considered, the Board was  unaware
that he was a full-time ANG Technician.  In any  event,  placement  of  the
applicant in an equivalent active Reserve position is not within the  scope
of the Board’s charter since this would  require  authority  over  civilian
records  and,  by  law,  this  Board’s  authority  extends  solely  to  the
correction of military records.  We note the applicant declined the  offers
by the Air Force Reserve for assignment to  various  SELRES  positions  and
have been made aware that subsequent  to  the  time  the  contested  events
transpired, the applicant has been continued in  his  position  as  an  ANG
Technician.  It also appears that the applicant has applied for  recall  to
active duty and to an ART position, with no success.  The applicant asserts
he is the victim of continued reprisal as a member of the  ANG  and  claims
his medical problems are the  result  of  a  hostile  working  environment.
However, other than the references to this charge contained in his  medical
records, which appear to have been based on  information  he  provided,  we
have seen no documents substantiating his claims.  In view of the foregoing
and because it appears that as a result of the applicant’s current  medical
status, he is not deployable, we do not believe ordering the  applicant  to
active duty with the Regular component would serve the  best  interests  of
the service or the individual.

      b.  As to the applicant’s request that he  receive  an  earlier  Unit
Vacancy promotion to lieutenant colonel, there  is  nothing  in  his  most-
recent submissions that would lead us to believe  that  the  earlier  Board
determination in this matter should be reversed.  We  do  not  dispute  the
statements concerning the Unit Vacancy program contained in the  supportive
statement by the former Chief of the Consolidated Base Personnel Office  at
Kulis ANGB.  But, none of his statements are specific  to  the  applicant’s
circumstances.  In the absence of evidence by the applicant showing he  met
the criteria for such a promotion or that, even if he had met  all  of  the
eligibility criteria, a Unit Vacancy promotion  was  automatically  assured
under all circumstances, it is our  opinion  he  was  afforded  proper  and
fitting relief when he was considered and selected for promotion by an  SSB
for the FY 1999 Air Force Reserve Lieutenant Colonel Selection  Board.   In
addition, based on the foregoing and absent  any  documentary  evidence  to
support such action, there is no basis to conclude promotion to  the  grade
of colonel is appropriate.

      c.  The applicant has requested  that  certain  documentary  evidence
based on reprisal be removed from his records.  Other than  his  assertions
of continuous wrongdoing on the part of the Alaska Air National  Guard,  he
has provided no specific evidence of the existence of errors or  injustices
in his records beyond those previously corrected by the Board.   Therefore,
we concur with the prior findings by the Board in this matter and find that
further action on this request is not possible.

2.  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 with  respect  to  the
applicant’s stated requests 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 29 June 2004 under the provisions of AFI 36-2603:

      Ms. Cathlynn B. Sparks, Panel Chair
      Ms. Martha J. Evans, Member
      Mr. James E. Short, Member

In addition  to  the  Record  of  Proceedings  and  Addendum  thereto,  with
Exhibits A through G, dated 25 June 1998 and  20  June  2000,  respectively,
the following additional documentary evidence was considered:

      Exhibit H.  Counsel’s Letter, dated 22 Nov 2000, with
                attachments.
      Exhibit I.  Letter, ARPC/CV, dated 6 Feb 2001, with
                attachments.

      Exhibit J.  Letter, AFRC/DPC, dated 1 May 2001, with
                attachments.
      Exhibit K.  Letter, AFBCMR, dated 3 June 2002.
      Exhibit L.  Applicant’s Letters and E-Mails, dated 31 Jan
                2002, 20 June 2001, and 2 March 2002, with
                attachments.
      Exhibit M.  Counsel’s Letter, dated 2 August 2002.
      Exhibit N.  Applicant’s Letter, dated 7 August 2002,
                15 August 2002, and 12 September 2002, with
                attachments.




                                   CATHLYNN B. SPARKS
                                   Panel Chair