RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

                INDEX CODE 110.03  136.01   131.00
IN THE MATTER OF:      DOCKET NUMBERS:  BC-2003-01681
                             Case #2
            COUNSEL:  None

            HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

His original  mandatory  separation  date  (MSD)  of  30  Sep  02  and
retirement in the grade of lieutenant colonel (LTC) on  1  Oct  02  be
rescinded and he be reinstated to active duty in the grade of  colonel
until his new MSD of 1 Jul 04.
_________________________________________________________________

APPLICANT CONTENDS THAT:

HQ ARPC/DPBS’s extensive Special Selection Board (SSB) delays resulted
in one SSB pushing his retirement MSD and the last one being conducted
after his retirement MSD. Although notified about the first SSB on  15
Jun 01, it did not convene until 10 months later. Neither he  nor  his
supervisor was notified of his nonselection in a timely manner,  which
impacted preparation time for follow-on SSB and career move decisions.
His late release from the Stop/Loss List in late Jul 02 gave him  only
2.5 months to retire and get his affairs in order. The second SSB date
was changed from Aug 02 to Oct 02. Despite a pending SSB in Oct 02, he
was told he was not eligible  for  a  waiver  because,  as  a  Reserve
officer, he had already exceeded 20 years  for  active  duty  service.
Thus, he had to retire on his MSD (30 Sep 02) against his  will  on  1
Oct 02. He was not given any official correspondence of his  promotion
alternatives or acknowledgement of  his  promotion,  its  active  duty
service commitment (ADSC)  date  or  even  how  he  could  serve  that
commitment for retirement as a colonel. He discusses how adversely  he
has been impacted by HQ ARPC’s mishandling of his situation. As  of  1
Oct 02, he technically has already served  17  months  time  in  grade
(TIG) as a colonel  on  active  duty.  He  would  like  to  serve  the
remainder of his ADSC on active duty and retire from active duty as  a
colonel.

Included in his submission are emails between himself, HQ AFRC and  HQ
ARPC regarding various outcomes to his case. The applicant’s  complete
submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant was a Reserve LTC who entered extended active duty (EAD)
on 1 Oct 99. However, due  to  numerous  administrative  and  material
errors, the applicant was not considered for promotion to the grade of
colonel in 1999/2000 by either the Reserve or  Active  Duty  promotion
boards. In a 4 Feb 00 appeal, he requested SSB consideration  for  the
Fiscal Year 2000 (FY00) Air Force Reserve Colonel Promotion  Selection
Board, which convened on 18 Oct 99, and any subsequent Reserve Colonel
Promotion Board for which he was not considered.  On  19 Apr  01,  the
AFBCMR determined that when the applicant entered EAD on 1 Oct  99  on
an Active Duty for Special Work Tour, he should have been retained  on
the Reserve Active Status List  (RASL).  The  AFBCMR  directed  he  be
considered by SSB for the FY00 board and any subsequent Reserve boards
for which he was not considered.

For an accounting of  the  facts  and  circumstances  surrounding  the
applicant’s previous appeal and the rationale of the earlier  decision
by the Board, see the Record of Proceedings at Exhibit C.

On 15 Jun 01, the applicant was notified that he was being granted SSB
consideration  for  the  FY00  and  FY01  Air  Force  Reserve  Colonel
Promotion Selection Boards. An SSB  was  scheduled  for  Mar  02.  The
second SSB was tentatively scheduled for Jun 02.

The FY00 SSB convened in Mar 02, but did not select the applicant.  In
Jun 02, he learned he was not selected. He was also informed that  the
FY01 SSB tentatively scheduled for Jun 02 was actually  scheduled  for
Aug 02. In Jul 02, he was advised that the FY 01 SSB  was  rescheduled
for Oct 02, but he had to involuntarily retire because of his  30  Sep
02 MSD.

On 1 Oct 02, the applicant retired in the grade  of  LTC  for  maximum
service/TIG with 20 years, 1 month and 17 days of active service.

In the meantime, his records met the FY01 SSB on 21 Oct 02 and he  was
selected for promotion to the grade of colonel. He was notified of his
selection on 14 Jan  03.  Reserve  Order  BA-233,  dated  14  Feb  03,
directed his promotion to colonel effective and with a  date  of  rank
(DOR) of 1 May 01.

As a result of his selection, the applicant’s MSD would now  be  1 Jul
04. If reinstated to active duty, his earnings would be offset by  his
retired pay and any possible civilian earnings.

_________________________________________________________________

AIR FORCE EVALUATION:

AFSLMO/CA advises that, since the applicant’s promotion was  effective
1 May 01 and his retirement was  not  effective  until  1 Oct  02,  he
should receive retroactive  pay  for  that  time.  In  order  for  the
applicant to remain on active duty, AFSLMO would have had  to  find  a
colonel billet for him and approve an additional EAD tour. Due to  end
strength ceilings, they generally do  not  approve  additional  active
duty tours or requests for new EAD tours. They would  not  extend  the
active duty tour for the sole purpose  of  allowing  TIG  accrual  for
retirement. They do not consider the Historian career  field  critical
now, nor would they have considered it critical  in  Oct  02.  Of  the
different scenarios they present, they believe the applicant should be
given the opportunity to return to a Reserve assignment as an  colonel
with his MSD adjusted for his promotion; he can then accrue  time  for
retirement in the grade of colonel as a Reservist.

A complete copy of the evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant is disappointed and troubled by the lack of  urgency  in
processing his case and the length of time taken  to  produce  such  a
superficial advisory. Even his name is spelled  incorrectly.  AFSLMO’s
speculation of possible EAD events back in Oct 02  vice  his  new  MSD
distorts the picture. They forget that Air Force administrative errors
placed him in this predicament. Technically, the 1 Oct 02 MSD is a non-
issue because, with a retroactive promotion to 1 May 01 and a new  MSD
of 1 Jul 04, he would have ample opportunity to apply for another  EAD
assignment but at the colonel level. The opportunities he lost  during
that timeframe are the real issue  here,  not  the  EAD/MSD  extension
dates. As a rated senior officer with  critical  Air  Force  Specialty
Codes (AFSCs) and unique skills that  filled  active  duty  leadership
positions, he would have  had  no  problem  getting  an  extension  or
another tour. Bottom line, he believes he would  still  be  on  active
duty today if he had received his timely promotion to  colonel  during
that period. He discusses the  difficulties  and  financial  hardships
with the Reserve service options presented in the advisory.  Declining
the promotion is not an option, for this is precisely what his  appeal
for SSB consideration was all about. Instead of being rewarded  for  a
senior  officer  promotion,  he’s  being  penalized  to   accept   it,
especially knowing it was caused by the Air Force and no fault of  his
own. He believes  a  legal  interpretation  with  regard  to  the  TIG
requirement may be necessary.  He can live with either  recommendation
for reinstatement or retirement as a colonel, but the Reserve  options
would be hardships. He asks for an expeditious decision.

A complete copy of  applicant’s  response,  with  attachments,  is  at
Exhibit F.

________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

HQ USAF/JAA notes the three options proposed by HQ ARPC:

      a.  The applicant would be recalled to active duty, pay back all
his active duty LTC retired pay, accept an active duty assignment, and
serve until he completed three years TIG (1 May 04) or until  his  new
MSD of 1 Jul 04.

      b.  The applicant would return to the Select  Reserve  (SelRes),
forgo and pay back the LTC active duty retired  pay,  serve  until  he
reached his MSD, at which time he would be eligible  for  active  duty
colonel retired pay.

      c.  The applicant would return to the SelRes under  the  retired
active duty program permitting him to receive active duty LTC  retired
pay while serving as a Reserve colonel until he reached his MSD,  when
he would continue to receive active  duty  LTC  retired  pay  but  his
active duty retired pay would be recalculated to colonel retired pay.

      The applicant voluntarily agreed to EAD orders for three  years,
from  1  Oct  99  to  1  Oct  02.  His  promotion  to  colonel,   even
retroactively, does not alter the fact that the duration  of  his  EAD
orders would not have changed. In other words, three years means three
years and his EAD orders terminated on 1 Oct 02, when he  had  served,
albeit constructively, as an colonel for 17  months.  Other  than  the
applicant’s bare assertions, the Board has no evidence before it  that
he would have had the opportunity to reapply for other EAD assignments
or may have qualified for some other recall program, etc. As  for  his
argument that his separation was involuntary for purposes  of  Section
1370, with his retroactive promotion to colonel,  his  service  is  no
longer limited to 28 years of commissioned  service  and  he  may  now
serve 30 years. Thus, with the applicant’s  retroactive  promotion  to
colonel he is, in effect, “unretired,” restored to the  RASL,  and  no
longer qualifies for retirement in the grade of colonel after only six
months TIG pursuant to the provisions of Section 1370. Considering the
equities for both the applicant and the Air Force,  the  Board  should
consider Option C above.  The  applicant  would  be  admitted  to  the
SelRes, under the retired active duty program, effective 1 Oct 02.  He
would not be required to repay any active duty  retired  pay  and  may
continue receiving active duty retired pay.  Further,  the  Board  may
consider ordering the applicant receive  constructive  SelRes  service
from 1 Oct 02 to his active SelRes participation or his  Jul  04  MSD,
whichever comes first, and that his service be  credited  for  retired
colonel  pay   purposes   including   any   authorized   retired   pay
recalculations. While the applicant’s circumstances  are  unfortunate,
it would be inappropriate to place him in a better  position  than  he
would have otherwise found himself on 1  Oct  02.  The  Board  has  no
evidence that he would have been permitted to serve on active
duty for an additional 19 months to achieve the requisite three  years
TIG to qualify for active duty retired pay as an colonel. More  likely
than not, he would have continued to serve, in a Reserve capacity,  as
colonel. Option C is appropriate.

A complete copy of the additional evaluation is at Exhibit G.

________________________________________________________________

APPLICANT’S REVIEW OF THE ADDITIONAL EVALUATION:

The applicant  concurred  with  HQ  USAF/JAA’s  advisory  opinion.  He
requests the following: he be assigned to the SelRes under the retired
active duty program effective 1  Oct  02;  he  be  allowed  to  remain
retired as an LTC and continue to receive active duty retired pay;  he
receive constructive SelRes service from 1 Oct 02 to his active SelRes
participation or his MSD (Jul 04), which ever comes first; his service
be credited for retired colonel pay purposes, including any authorized
retired pay recalculations from 1 Oct 02 to present;  he  continue  to
receive retired pay once he has attained the required TIG for  colonel
but recalculated to the new colonel retired pay level. He believes the
SelRes option under the active duty retired program to be in the  best
interests of himself and the Air Force.

The applicant’s complete response is at Exhibit I.

________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

Based on the applicant’s STOP LOSS and other contentions, an  advisory
was also requested from HQ AFPC/DPPRRP and is summarized below.

HQ AFPC/DPPRRP asserts the applicant was on the Active Duty List (ADL)
for the entire duration of his EAD tour, was  involuntarily  separated
from active duty pursuant to Title 10, USC, Section 12301(d),  elected
to retire from active duty in accordance with AFI 36-3203 effective  1
Oct 02, and was retroactively promoted to colonel on 1 May 01 after he
had been retired. The applicant is entitled to receive the benefits he
would have been afforded if he had been promoted while on active duty.
They believe he should be  retired  as  a  colonel  effective  on  his
original retirement date of 1 Oct 02, with only 17 months of TIG.

A complete copy of the HQ AFPC/DPPRRP evaluation, with attachments, is
at Exhibit J.

In view of the conflicting opinions between the HQ USAF/JAA HQ and  HQ
AFPC/DPPRRP evaluations, an additional advisory was requested from  HQ
USAF/JAA to determine  whether  HQ  AFPC/DPPRRP’s  recommendation  was
within legal  constraints.  HQ  USAF/JAA’s  additional  evaluation  is
summarized below.

HQ USAF/JAA notes HQ AFPC/DPPRRP based their recommendation  on  Title
10, USC,  Section  1370,  which  requires  only  six  months  TIG  for
retirement purposes when an officer’s transfer or separation is due to
the requirements of  a  nondiscretionary  provision  of  law  such  as
attaining the maximum years of service. They also note that HQ AFPC/JA
was initially consulted  telephonically  but  was never  provided  the
applicant’s file. HQ AFPC/JA has since  advised  HQ  AFPC/DPPRRP  that
their recommendation is unsupported by statute or case  law.  However,
HQ AFPC/DPPRRP declined to withdraw or correct its recommendation  and
HQ AFPC/JA has subsequently withdrawn its stated concurrence  and  now
concurs with HQ USAF/JAA. They reaffirm their  recommended  relief  as
stated in their 14 Nov 03 advisory.

A complete copy of the HQ USAF/JAA evaluation, with attachment, is  at
Exhibit L.

________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Complete copies of the 7 Jan 04 HQ AFPC/DPPRRP and the 18  Feb  04  HQ
USAF/JA advisories were forwarded to the applicant on 16  Jan  and  24
Feb 04, respectively, for review and comment within  30  days.  As  of
this  date,  the  applicant  has  provided  no  further  comment   and
presumably continues to concur with HQ USAF/JA’s recommended relief.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.    The applicant has exhausted all remedies  provided  by  existing
law or regulations.

2.    The application was timely filed.

3.    Sufficient relevant evidence has been presented  to  demonstrate
the existence of probable  error  or  injustice  to  warrant  granting
partial relief. After carefully considering the circumstances of  this
case, the applicant’s submission, and the conflicting evaluations,  we
conclude some form of Option C suggested by the 14 Nov 03 HQ  USAF/JAA
advisory offers a compromise that best serves  the  interests  of  the
applicant and the Air Force while complying with  the  intent  of  the
law. We agree with HQ USAF/JAA’s assertion that placing the  applicant
in a better position than he would have  otherwise  found  himself  on
1 Oct 02 would be inappropriate. The applicant has  not  persuaded  us
that he would have been permitted to  serve  on  active  duty  for  an
additional 19 months and achieve the  requisite  three  years  TIG  to
qualify for active duty retired pay as a colonel.  We  agree  that  he
should be given the opportunity to serve in a Reserve  capacity  as  a
colonel. The applicant’s active duty retired pay as an LTC  would  not
be changed by his Reserve service as a colonel. However, at age 60  he
will be eligible for Reserve retired pay as a colonel.  Therefore,  we
recommended the applicant be approved to serve in the Select  Reserves
in the grade of colonel, under the retired active  duty  program,  and
continue to collect his active duty retired pay in the grade  of  LTC,
with entitlement to Reserve retired pay in the grade of  colonel  upon
reaching age 60.

4.    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  issue(s)   involved.
Therefore, the request for a hearing 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,  following  his
retirement from active  duty  on  1  October  2002  in  the  grade  of
lieutenant colonel, competent authority approved  his  return  to  the
Select Reserve in the grade of colonel on 2 October  2002,  under  the
provisions of the Retired Active Duty  Program,  with  entitlement  to
active duty retired pay in the grade of lieutenant colonel;  and  that
he was approved to serve in the Select Reserve in the grade of colonel
and credited with constructive Select Reserve service from  2  October
2002  until  meeting  the  three-year  time-in-grade  requirement  for
colonel or his mandatory separation date, whichever comes first,  with
entitlement to Reserve retired  pay  in  the  grade  of  colonel  upon
reaching 60 years of age.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 7 April 2004, under the  provisions  of  AFI  36-
2603:

                                  Mr. Joseph A. Roj, Panel Chair
                                  Ms. Rita J. Maldonado, Member
                                  Ms. Leslie E. Abbott, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 21 Apr 03, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Record of Proceedings, dated 4 May 01.
   Exhibit D.  Letter, AFSLMO/CA, dated 12 Aug 03.
   Exhibit E.  Letter, SAF/MIBR, dated 15 Aug 03.
   Exhibit F.  Letter, Applicant, dated 11 Sep 03, w/atchs.
   Exhibit G.  Letter, HQ USAF/JAA, dated 14 Nov 03.
   Exhibit H.  Letter, AFBCMR, dated 21 Nov 03.
   Exhibit I.  Letter, Applicant, dated 9 Dec 03.
   Exhibit J.  Letter, HQ AFPC/DPPRRP, dated 7 Jan 04, w/atchs.
   Exhibit K.  Letter, SAF/MRBR, dated 16 Jan 04.
   Exhibit L.  Letter, HQ USAF/JAA, dated 18 Feb 04.
   Exhibit M.  Letter, AFBCMR, dated 24 Feb 04.




                                   JOSEPH A. ROJ
                                   Panel Chair



AFBCMR BC-2003-01681




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, following his
retirement from active duty on 1 October 2002 in the grade of
lieutenant colonel, competent authority approved his return to the
Select Reserve in the grade of colonel on 2 October 2002, under the
provisions of the Retired Active Duty Program, with entitlement to
active duty retired pay in the grade of lieutenant colonel; and that
he was approved to serve in the Select Reserve in the grade of colonel
and credited with constructive Select Reserve service from 2 October
2002 until meeting the three-year time-in-grade requirement for
colonel or his mandatory separation date, whichever comes first, with
entitlement to Reserve retired pay in the grade of colonel upon
reaching 60 years of age.





   JOE G. LINEBERGER

   Director

   Air Force Review Boards Agency