RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

            INDEX CODE 136.00, 131.05
IN THE MATTER OF:      DOCKET NUMBERS:  BC-2003-02723
                                        (Case #3)
            COUNSEL:  None

            HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be retired under Section 1370(a)(2)(A) of Title  10,  USC,  in  the
grade of lieutenant colonel (LTC),  rather  than  major;  or,  in  the
alternative (Exhibit E), that his date of rank (DOR) to LTC be changed
from 1 Feb 01 to 1 Jul 00 so that he would meet the three-year time-in-
grade (TIG) requirement.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He earned the right to retire in the grade of LTC based on the quality
of his service and that his duty positions at the  General  Litigation
Division were both LTC positions, as was his position  in  Korea.   He
cites the medals he earned during his career.   He  was  on  track  to
readily attain the three years TIG as LTC while serving at the General
Litigation Division.  He was personally asked by  The  Judge  Advocate
General (TJAG) to accept the position in Korea  against  his  personal
reservations.  Largely as a result of adhering to the  core  value  of
placing service before self, he is now retired  as  a  major;  had  he
shirked  that  duty,  he  would  be  better  off.   He  suspects  TJAG
arbitrarily sent him to Korea to facilitate a personnel move  designed
to advance another officer. The Secretary of a military department may
reduce the period a LTC must serve in grade to retire in that grade to
a period not less than two years for retirements effective during  the
period 1 Oct 02 - 31 Dec 03.  This provision of law was not  effective
when he applied to retire in the grade of major, but was effective  on
the date his retirement was effective.

The applicant’s complete submission, with attachments, is  at  Exhibit
A.

_________________________________________________________________

STATEMENT OF FACTS:

Secretary of the Air Force Order (SAF)) 240.8, para. 4(a)(3), dated 17
Dec 99, delegated secretarial authority to the SAF  Personnel  Council
(SAFPC) under certain circumstances regarding reduction of the  three-
year TIG requirement for voluntary retirement in a grade above major.

On 8 Feb 00, the AFBCMR approved the applicant’s request  for  Special
Selection Board (SSB) consideration by the Calendar Year 1999A (CY99A)
LTC board with the inclusions of award citations in his  records,  and
for any subsequent boards in which the corrections were not  a  matter
of record.  (A copy of the  AFBCMR  Record  of  Proceedings  (ROP)  is
provided at Exhibit B.)

The applicant was selected for LTC by SSB for  the  CY99B  LTC  board,
which had originally convened on 30 Nov 99, and given a DOR of  1  Feb
01.

On 31 Dec 01, Title 10, USC, Section 1370(a)(2)(A) authority to reduce
the TIG requirement from three to two years expired.   Prior  to  this
the SAF, under delegated  authority  from  the  Secretary  of  Defense
(SecDef), could approve retirements in grade when members  had  served
at least two years in grade.

In Jul 02, the applicant submitted a second AFBCMR appeal,  this  time
requesting his DOR to LTC  be  changed  as  if  the  CY99A  board  had
selected him.  He contended the “Definitely Promote” recommendation on
his Promotion Recommendation Form (PRF) was disregarded by the SSB  as
a “freebie.”  He also argued, in part, that if he  had  been  promoted
earlier he would be eligible to retire in the  grade  of  LTC  at  the
completion of his unaccompanied tour in Korea, rather  than  requiring
three-years TIG under current law.

On 14 Aug 02, the applicant  submitted  a  voluntary  application  for
retirement effective 1 Jul 03 and  a  waiver  of  the  three-year  TIG
requirement under the provisions of AFI 36-3203 (extreme  hardship  or
unusual circumstances).  The applicant indicated  on  his  application
that if his waiver request was disapproved, he did not wish retirement
in the next lower grade held satisfactorily.  Applications  requesting
waiver to the three-year TIG requirement were processed to  the  SAFPC
for review.  The SAFPC had the authority to disapprove the TIG  waiver
request or forward the case through channels for possible Presidential
approval.  Apparently, the application  was  not  submitted  to  SAFPC
because of the applicant’s subsequent second request.

On 13 Sep 02, the applicant submitted a second  voluntary  application
for retirement, again requesting a 1  Jul  03  effective  date.   This
application was received prior to his previous  1 Aug  02  application
being sent to SAFPC and the applicant indicated  on  this  application
that he was applying to retire on 1 Jul 03 in the grade of major as he
would not have  the  required  three-year  TIG  as  a  LTC.   He  also
indicated he hereby withdrew his 14 Aug 02 retirement  application  on
which he had applied  for  a  waiver  of  the  TIG  requirement.   His
application for  voluntary  retirement  in  the  grade  of  major  was
approved on 17 Oct 02.

On 2  Dec  02,  the  Bob  Stump  Fiscal  Year  2003  National  Defense
Authorization Act (FY03 NDAA), was enacted.  Section 1370(a)(2)(A)  of
Title 10, USC, was amended by directing that a commissioned officer in
a grade above major or lieutenant commander must serve on active  duty
in that grade for not less than three years in order  to  be  eligible
for voluntary retirement, except that the  SecDef  may  authorize  the
Secretary of a military department to reduce such a period to not less
than two years in the case of retirements effective during the  period
1 Oct 02 and ending 31 Dec 03.  Section 1370(a)(2)(C) [Section 505  of
FY03 NDAA] stipulated that authority provided by  the  SecDef  to  the
Secretary of a military  department  under  subparagraph  (A)  may  be
delegated within that military department only to a civilian  official
of that military department appointed by the President,  by  and  with
the advice and consent of the Senate.   Section  1370(a)(2)(D)  stated
the President may waive subparagraph (A) in individual cases involving
extreme  hardship  or  exceptional  or  unusual  circumstances.   This
Presidential authority could not be delegated.

On 27 Mar 03, the applicant’s AFBCMR request for an amended DOR to LTC
was denied by the Board.  (A copy of this  ROP  is  also  provided  at
Exhibit B.)

On 6 May 03, the applicant wrote to the SAF  requesting  a  waiver  to
retire in the grade of LTC with less than three years TIG.  He claimed
his [14 Aug 02] request for a waiver  was  stopped  by  the  TJAG  and
never, to his knowledge, forwarded for action to SAFPC.  He  contended
his waiver was stopped improperly and he was denied the right to  have
his waiver application considered by appropriate  civilian  authority.
He also requested the SAF to seek authority from the SecDef to grant a
TIG waiver pursuant to Section 1370(a)(2)(A) or, in  the  alternative,
direct the AFBCMR to adjust his DOR to fit  the  TIG  requirement  for
LTC.

SecDef Memorandum dated 5 Jun 03 authorized  the  Secretaries  of  the
military departments to take the actions described in Section 1370, as
amended.  The SAF could now consider and, if desired, waive the three-
year TIG requirement.

On 30 Jun 03, HQ AFPC/CCXI (Inspector General (IG) for AFPC) wrote the
applicant that, when a retirement application requires a  waiver,  the
career functional managers provide their recommendation regarding  the
merits of its approval.  After this review, they forward  the  package
to SAFPC, who has the authority to disapprove the request  or  forward
the case for possible Presidential approval.  On 4  Sep  02,  the  Air
Force  Judge  Advocate  Professional  Development  Division   (AF/JAX)
notified AFPC Retirement officials  that  they  did  not  support  the
applicant’s waiver.  They did not, however,  forward  his  package  to
SAFPC.  HQ AFPC/CCXI also noted  that  a  17 Sep  02  email  from  the
applicant
instructed AFPC Retirements to consider  only  the  second  retirement
application  for  processing  because  he  had  withdrawn  the   first
application.  Therefore,  based  on  his  new  application  and  email
instructions, AFPC Retirements did not forward his  request  to  SAFPC
but terminated processing his original application and processed  only
the second application.  He was subsequently approved  for  retirement
effective 1 Jul 03.  HQ AFPC/CCXI added that if he had not  instructed
AFPC Retirements to withdraw his original package,  SAFPC  would  have
received his application and waiver request.  As  for  forwarding  his
request to SAFPC, AFPC officials, not his functional  community,  have
this responsibility.

The applicant retired in the grade of major  on  1  Jul  03  after  20
years, 1 month and 23 days of active service.  He served in the  grade
of LTC for approximately 29 months, 7 months short of  the  three-year
TIG requirement.

In a 1 Aug 03 letter, Director, Senior  Official  Inquiries,  SAF/IGS,
advised  the  applicant  that  their  preliminary  inquiry  into   the
applicant’s allegations against TJAG found no wrongdoing on his  part.
Following a review by attorneys from the Air  Force  General  Counsel,
the report was forwarded, along with  their  recommendations,  to  The
Inspector General (TIG).  The evidence did not establish a prima facie
case that TJAG abused his authority by not forwarding his  14  Aug  02
retirement request/TIG waiver to SAFPC.  Evidence revealed  that  AFPC
was never tasked by TJAG or AF/JAX to  stop  the  applicant’s  initial
package.  However, he submitted his second application rescinding  his
TIG waiver request prior to his original package  being  submitted  to
SAFPC by AFPC.  The original retirement package was not and could  not
be stopped by TJAG. SAF/IGS added that  the  authority  to  waive  the
three-year  TIG  requirement  to  two  years  set   out   by   Section
1370(a)(2)(A) of Title 10, USC, had lapsed at the time he applied  for
retirement but was reenacted by Section 505 of the FY03 NDAA  and  was
in effect on his  retirement  date  of  1  Jul  03.   They  noted  the
applicant did not request a waiver  under  that  authority  but  could
still do so through the AFBCMR.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPRRP advises that in the past the  provision  pertaining  to
reducing the TIG requirement to not less than two years  was  employed
as a management tool  to  draw  down  the  Armed  Forces--it  was  not
intended to be an entitlement. The key to this provision of law is the
word “may.”  By definition in Section 101, Title  10,  USC,  the  word
“may” is used in the permissive sense.  The SAF  has  elected  not  to
exercise this authority, i.e., not to reduce the TIG requirement.  The
applicant requested withdrawal of his original 14 Aug  02  application
and requested retirement in the lower grade  of  major.   Had  he  not
asked for this withdrawal,
AFPC/DPPRR  would  have   forwarded   the   request   to   SAFPC   for
consideration.  In the applicant’s case, the SAF has  elected  not  to
implement the exception authorized by the SecDef.   He  was  correctly
retired in the grade of major effective 1 Jul 03.   Approval  in  this
case would be contrary to the intent of the law and would be unfair to
others who retired during the period of 1 Oct 02 to 31 Dec 03.  Denial
is recommended.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant notes the advisory effectively acknowledges  that  under
the cited statute the SAF is empowered to approve  his  retirement  in
the grade of LTC based on his having served 29 months in  that  grade.
He disagrees with the advisory’s implication that the authority vested
in Section 1370(a)(2)(A) may only be used in the form of a  reduction-
in-force (RIF) program.  The statute speaks directly to the use of the
authority in  an  individual  officer’s  case  in  that  the  critical
sentence of the statute specifically refers to a commissioned  officer
in the singular, refers to a period of time of three years which  that
singular commissioned officer must serve, and then refers back to that
same period as “such period” in the context of it being reduced to two
years.  He contends it would not be unfair to  others  as  others  may
just as readily request similar relief.  He is merely asking  for  the
SAF to exercise the authority granted to him by the  statute  and  the
SecDef.  The SAF has not denied his  application,  de  facto,  by  not
implementing a RIF program, as also implied in the advisory.  The  SAF
has not acted on his application and  he  did  not  receive  a  direct
response to his inquiry.  He asks the Board to affirmatively determine
his case, on behalf of the SAF, and correct his record on  the  merits
as he has requested.   He  presents  the  alternative  request  of  an
amended DOR so that he would meet the three-year TIG requirement.

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

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The Board convened on 11 Dec 03 but deferred a final decision  pending
an advisory opinion from SAFPC.  SAFPC’s opinion, provided on  18  Dec
03, is summarized below.

SAFPC asserts that while the temporary legislative  authority  enacted
for FY02 through  31  Dec  03  allowed  the  Service  Secretaries  the
discretion to use the TIG waiver provisions, the SAF elected not to do
so, and no implementing policy or guidance was  issued.   Thus,  SAFPC
handled  TIG  waiver  requests  during  that  period  using  the  same
stringent requirements for recommending approval as  cited  under  the
President’s normal authority, reserving approval  recommendations  for
those  cases  demonstrating  a  documented  hardship,  or  unusual  or
exceptional circumstances.  SAFPC continued to exercise its  delegated
disapproval  authority  without  any  requirement  to   forward   such
disapproved requests to a higher level  of  review.   It  is  unlikely
SAFPC would have had  the  opportunity  to  consider  the  applicant’s
request for TIG waiver coincident to his first retirement  application
because the normal staffing process was not complete and  it  had  not
reached SAFPC before the applicant explicitly  withdrew  his  request.
It’s not unusual for such routine requests to take more than  30  days
to be staffed through the chain of command and there was only a 30-day
period between the applicant’s two applications.  However, even if the
applicant had not submitted his second application and  withdrawn  the
earlier request, it is unlikely SAFPC would have recommended  approval
and staffed the application to the SAF for  decision.   The  applicant
has not demonstrated his situation was more  unique  or  unusual  than
other retirement-eligible officers who endure similar circumstances in
order to achieve the required TIG before retirement, those who request
TIG waivers and are denied them due to insufficient justification,  or
those  who  choose  to  retire  in  the  lower  grade  due  to   those
circumstances.  He chose not  to  exercise  the  option  of  accepting
another one-year assignment, which would have extended his  commitment
to the Air Force five months beyond the date at which he attained  the
required three years TIG to retire in the higher grade.  The applicant
does not have a peculiar  right  or  privilege  to  have  his  request
handled any differently than anyone else by asserting the SAF  had  to
personally review his request  as  disapproval  authority  is  clearly
delegated to SAFPC and would likely have been exercised in  his  case.
Therefore, denial is recommended.

A complete copy of the advisory opinion is at Exhibit F.

_________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL EVALUATION:

The applicant asserts he is  not  applying  for  a  TIG  waiver  under
Section 1370(a)(2)(D) but that his retirement in the grade of  LTC  be
approved under Section 1370(a)(2)(A) based on his more than two  years
of service in that grade; or, in the alternative, his DOR for  LTC  be
changed to reflect three years TIG based on the equities of his  case.
His request under Section 1370(a)(2)(A), unlike Section 1370(a)(2)(D),
does  not  require  an   extreme   hardship   or   exceptional/unusual
circumstances demonstration. Section 1370(a)(2)(A) sets out  in  clear
language that a service secretary, when authorized by the SecDef,  may
reduce to two years the period a commissioned officer must have served
on active duty
to be eligible for  voluntary  retirement  in  a  grade  above  major.
Section 1370(a)(2)(D)  does  not  modify,  alter,  condition  or  make
exception to Section 1370(a)(2)(A); it simply authorizes the President
to waive the application of the latter section to  a  particular  case
involving extreme hardship or exceptional/unusual  circumstances.   By
the very  terms  of  Section  1370(a)(2)(D),  the  President’s  waiver
authority may not be delegated; thus Section 1370(a)(2)(A)  cannot  be
interpreted as a delegation of the  President’s  waiver  authority  to
“allow broader uses of the TIG authority.”  There must  be  a  factual
basis in his record upon which a decision to deny his  application  is
based.  While SAFPC may  indeed  deny  waiver  applications  submitted
under Section 1370(2)(D), SAFPC has  no  explicit  authority  to  deny
requests for retirement under Section 1370(a)(2)(A) based on two years
of service.  He takes exception to the statement that he did not  meet
his “burden of proof” that his situation was “more unique or  unusual”
than those of other retirement-eligible officers.  The word  “extreme”
does not modify “exceptional or unusual” in the text of  the  statute;
all  that  is  necessary  is  that  the  decision  maker   finds   his
circumstances exceptional or unusual.  He would  have  attained  three
years TIG had he stayed  in  Roslyn  instead  of  accepting  what  was
represented as an unexpected,  short-notice,  must-fill  unaccompanied
position.  He performed the duties of an LTC for at least three years.
 He and his family have made enumerable sacrifices.   He  simply  asks
for the relief he earned and which is made available  through  Section
1370(a)(2)(A).

In a second rebuttal, the applicant asserts that, under the provisions
of Section 1370(a)(2)(A), only the SAF himself has  the  authority  to
approve/disapprove his request as neither SAFPC  nor  the  Board  have
been specifically delegated that authority.

The applicant’s complete responses are at Exhibit H.

_________________________________________________________________

SAF/GCM EVALUATION:

Based on the  applicant’s  rebuttal  comments,  a  legal  opinion  was
requested on 4 Feb 04.  The  4  May  04  evaluation  from  SAF/GCM  is
summarized below.

SAF/GCM advises that SAF  Order  (SAFO)  240.8,  para  4(a)(3),  dated
17 Dec 99, delegates  SAF  authority  to  take  final  action  in  the
reduction of the three-year TIG requirement for  voluntary  retirement
in a grade above major, in connection with  a  commissioned  officer’s
application for voluntary retirement to SAFPC.  This passage  is  thus
dispositive of SAF’s intent to delegate authority  for  TIG  reduction
decisions.   However,  the  current  iteration  of  SAFO   240.8   was
promulgated on 17 Dec 99, before passage  of  the  FY03  NDAA.   While
statutory changes made since the promulgation of the SAFO  take  legal
precedence, the  SAFO  should  be  interpreted  to  preserve  as  much
Secretarial intent as possible, consistent with  those  new  statutory
mandates.  Although the new legislation requires that  SAF/MR  act  as
the approval authority for waiver of TIG  requirements,  it  does  not
prohibit SAFPC from having the delegable authority under SAFO 240.8 to
disapprove the waiver of TIG requirement requests.  The intent  behind
SAFO 240.8 was for the SAF to delegate both approval  and  disapproval
authority of military personnel cases to  the  lowest  level  possible
subject to applicable statutes, regulations and other directives.   As
such, para 4(a)(3) delegated both approval and  disapproval  authority
for TIG requirements to SAFPC.  The FY03 NDAA legislation only  limits
the approval authority of the waiver of TIG  requirements  to  SAF/MR.
There is no limitation on the denial authority.  As such,  in  keeping
with the purpose and premise of SAFO 240.8,  SAFPC  retains  delegable
authority to deny requests for waiver of TIG requirements.   In  cases
where approval of the  waiver  of  TIG  requirements  is  recommended,
actions must now be forwarded to SAF/MR for decision, as  required  by
the FY03 NDAA.

A complete copy of the evaluation is provided at Exhibit I.

___________________________________________________________

APPLICANT’S REVIEW OF SAF/GCM:

The applicant agrees with the SAF/GCM advisory  that  his  request  to
retire as a LTC, based on his more than two years of service  in  that
grade, may be approved by SAF/MR or denied by the Director of the  Air
Force Personnel  Council.   The  opinion  affirms  his  position  that
approval  or  disapproval  of  his  request  rests  within  the  sound
discretion of the SAF’s appropriate designees and should be  based  on
the nature and quality of his service.  He regrets the  opinion’s  use
of the term “waiver” as it may serve to confuse the  issue.   He  does
not seek a waiver, but instead an approval of a “reduction” of the TIG
requirement.  Approval of his request is warranted  primarily  because
he served honorably and well for 29 months in the grade of LTC and for
over 36 months in LTC duty positions. His career  accomplishments  and
his family’s sacrifices should be considered.  There is no  reason  to
recommend against approval of his request.

A complete copy of the applicant’s response is at Exhibit K.

_________________________________________________________________

ADDITIONAL SAFPC EVALUATION:

Based on the SAF/GCM advisory, the applicant’s case was  forwarded  to
SAFPC for board review and recommendation.

SAFPC explains the temporary legislative authority  enacted  for  FY02
through 31 Dec 03 and the SecDef’s 5 Jun 03  delegation  memo  allowed
the Service Secretaries the discretion to reduce  TIG  provisions  for
retirement, but the SAF elected not to  do  so.   Thus  SAFPC  handled
requests to retire in the higher grade in  the  same  fashion  as  TIG
waiver requests, reserving approval  recommendations  only  for  those
cases  demonstrating  extremely  strong  justification.   SAFPC   also
continued to  exercise  its  delegated  authority  under  SAFO  240.8,
without any requirement to forward  such  disapproval  requests  to  a
higher level of review.  The applicant has not demonstrated  that  his
situation was more unique or unusual than those of  other  retirement-
eligible officers who endure similar circumstances in order to achieve
three years TIG before retirement, those who request TIG  waivers  and
are denied them due to insufficient justification, or those who choose
to retire in the lower grade due to  those  circumstances.   Approving
the applicant’s request  would  not  be  consistent  with  past  SAFPC
decisions and recommendations; accordingly, denial is recommended.

A complete copy of SAFPC advisory is at Exhibit L.

_________________________________________________________________

APPLICANT’S REVIEW OF SAFPC ADVISORY:

The applicant contends the SAFPC evaluation disapproving  his  request
to  retire  in  the  grade  of  LTC  under  Title  10,  USC,   Section
1370(a)(2)(A) is erroneous, unjust, contrary  to  law,  arbitrary  and
capricious.  He makes, in part, the following arguments:

      -- Implicit in the 4 May 04 SAF/GCM advisory  is  that  officers
with two  years  or  more  TIG  as  a  LTC  may  apply  under  Section
1370(a)(2)(A) to retire on the basis of that amount  of  service.   If
not, there would be no reason for SAFPC to retain delegable  authority
under the FY03 NDAA to deny such applications.  Further,  SAF/GCM  did
not even address the implication that application under  this  Section
is not restricted to a SAF force-shaping program.

       --  SAFPC  arbitrarily  and  capriciously  applied  the  higher
standard  of  Section  1370(a)(2)(D),  i.e.,   extreme   hardship   or
exceptional/unusual  circumstances,  to  his  appeal  and   cited   no
statutory or regulatory authority for this use of a  higher  standard.
SAFPC’s contention that they chose to apply the higher standard in the
absence of a force-shaping program runs counter  to  the  notion  that
applications may be made under Section 1370(a)(2)(A),  notwithstanding
the absence of a force-shaping program.

      --  In  effect,  SAFPC  makes  Section  1370(a)(2)(D)  the  only
possible means to retire with less than three years  TIG  and  renders
Section 1370(a)(2)(A) useless except where the SAF relies on it for  a
force-shaping program.  Thus, SAFPC defies Congress’s intent  to  make
it possible to retire under  Section  1370(a)(2)(A)  regardless  of  a
force-shaping program.  Congress  required  the  standard  of  extreme
hardship  or  exceptional/unusual  circumstances   (and   Presidential
approval) because Section 1370(a)(2)(D)  allows  for  retirement  with
less than two years TIG.  Congress authorized a lower  approval  level
because Section 1370(a)(2)(A) applicants still must have at least  two
years TIG.  The two statutory provisions  address  entirely  different
circumstances. Congress did not intend Section 1370(a)(2)(A) only  for
force shaping and SAFPC should not arbitrarily limit the effect of the
statute without authority.

      -- In applying Section 1370(a)(2)(D), SAFPC erroneously required
his circumstances to be “more”  unique/unusual  than  those  of  other
retirement-eligible officers in  similar  circumstances,  rather  than
sufficiently exceptional or unusual, without  relation  to  any  other
officer’s case, for the President to see fit to grant approval.

      -- The three TIG cases approved in  CY00  that  SAFPC  cited  in
their 18 Dec 03 advisory must have  been  applications  under  Section
1370(a)(2)(A) because they were  approved  at  the  SAF  level  as  an
exception to policy under a standard presumably less than  that  under
Section 1370(a)(2)(D), which requires Presidential  approval.   It  is
fair to infer a lesser standard was applied  because  SAFPC  initially
non-recommended them for  not  meeting  this  higher  standard.   This
“exceptional” approval raises several questions as to how and why.

      -- SAFPC’s discussion of CY00, CY01, CY02 and CY03  cases  makes
it apparent their “policy” is to disapprove all Section  1370(a)(2)(A)
applications in the absence of force-shaping guidance by imposing  the
standards of Section 1370(a)(2)(D).  This is an arbitrary exercise  of
discretion.

The applicant also provides a  24  May  04  Air  Force  Times  article
regarding approximately 300 officers who,  due  to  a  change  to  TIG
rules, will now enjoy the benefit  of  Section  1370(a)(2)(A)  without
application of the extreme hardship or exception/unusual circumstances
standard.

The applicant’s complete response, with attachment, is at Exhibit N.

_________________________________________________________________

ADDITIONAL SAF/GCM REVIEW:

SAF/GCM  provides  a  chronology  of  legislative   action   and   the
applicant’s circumstances.  They concur with the  applicant  that  the
appropriate statutory standard the Board should apply  to  assess  his
request for relief is Title  10,  USC,  Section  1370(a)(2)(A).   They
reached this conclusion based upon both statutory  interpretation  and
the specific facts in this application.   The  language  creating  the
foundational three-year TIG requirement has remained unchanged  during
all times relevant to the applicant’s appeal.  However,  the  language
addressing the authority to waive this  foundational  TIG  requirement
has changed, repeatedly, in the different iterations of  the  statute.
The current iteration of Section 1370(a)(2)(A) concludes “. . . except
that the [SecDef] may authorize the Secretary of a military department
to reduce such period to a period not less than two  years.”   Section
1370(a)(2)(D) is a separate provision that  creates  an  undelegatable
“standing”  Presidential  authority  to  waive  subparagraph  (A)   in
individual cases involving extreme hardship or exceptional or  unusual
circumstances.

There was a period of 25 days while the applicant was on  active  duty
(5 Jun to 1 Jul 03) when the SAF had received delegated authority from
SecDef (pursuant to Section 1370(a)(2)(A)) to reduce the TIG  required
to retire as a LTC from three  to  two  years,  making  the  applicant
facially eligible for the TIG relief requested.   SAF/GCM  hastens  to
add this facial eligibility does not  create  an  entitlement  to  TIG
relief, only a legal basis for the Board to do so should it find  this
action necessary to correct an error or injustice.  They  also  concur
with the applicant that the Board should not judge the merits  of  his
request based upon the force-shaping guidance  that  might  have  been
applicable  during  the  period  of  5  Jun  to  1  Jul  03.   Section
1370(a)(2)(A)  granted  SecDef  and,   as   delegated,   the   Service
Secretaries, the discretion to reduce TIG requirements for  LTCs  from
three to two years as they deemed appropriate.  As such, SAF/GCM  does
not believe it would be appropriate  for  the  Board  to  consider  as
dispositive whether granting the applicant TIG relief would have  been
necessary or in accordance with force shaping guidance existing at the
time.  The Board should focus its analysis on  the  gravamen  of  this
applicant’s submission, which is his retirement as a major constitutes
an injustice the Board should now correct, rather than on the  nuances
of statutory construction or comparison between  the  two  TIG  waiver
statutes.  However, the Board  can  and  should  consider  how  other,
similarly situated officers  were  treated  as  one  of  the  relevant
factors in deciding  whether  this  applicant  suffered  an  error  or
injustice.  SAF/GCM presents a decision-making  matrix  as  a  legally
defensible formula for the Board’s determinations on this application.
 If the Board  finds  no  error  or  injustice  has  occurred  in  the
applicant’s retirement in the grade of major, then the case should  be
denied.  Any Board action that could result in retirement in the grade
of LTC should be elevated to  SAF/MR  for  final  approval  to  remain
consistent with the underlying statutory authority being relied upon.

A complete copy of SAF/GCM’s additional evaluation is at Exhibit O.

_________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL SAF/GCM EVALUATION:

The applicant indicates he appreciates the Board carefully  evaluating
his application and allowing him  a  full  opportunity  to  argue  his
points.   He  contends  his  retirement  as  a  major  constitutes  an
injustice as opposed to an error.  He held the LTC grade for 29 months
and performed the duties of a LTC for over three years.   Even  though
he did not want the assignment, he served  overseas  in  an  extremely
short-notice,  unaccompanied  LTC  assignment.   The  timing  of  this
assignment in relation  to  his  DOR  as  a  LTC  prevented  him  from
attaining the 36-month TIG.  He was not given  the  option  to  extend
this overseas tour to allow him to meet the TIG requirement.  He would
have accepted that opportunity.  If he had remained in his  assignment
at  Roslyn,  he  would  have  readily  attained   the   36-month   TIG
requirement.  He served overseas in  five  assignments  including  the
Philippines, Japan, Korea, Germany and  Italy.   Contrary  to  SAFPC’s
arguments, the Board should  not  focus  on  whether  or  not  he  has
justified relief so much as whether or not relief is justified in  his
case as a matter of fundamental fairness.  The Board should  not  rely
on SAFPC’s past decisions which may have wrongly applied the  “extreme
hardship or exceptional circumstances” standard to cases  that  should
have been evaluated under Section 1370(a)(2)(A).  Approval of his case
would be completely consistent with the three SAFPC cases approved  as
an “exception to policy”; disapproval of his case  may  be  viewed  as
arbitrary and capricious.  Further, as of 6 May  04,  the  SAF,  under
Section 1370(a)(2)(A), authorized the reduction of the TIG requirement
for LTCs to two years.  While not applicable to him, it broadly speaks
to the unfairness of his retirement as a major in relation to  others.
This authorization  does  not  impose  on  applicants  any  burden  of
establishing justification, which supports his argument that the issue
in his case is not whether or not he has  justified  approval  of  his
request but whether or not approval of his request is fair.  If  other
LTCs who retired as majors between 1 Oct 02 and 31 Dec 03 had  applied
for TIG relief under Section 1370(a)(2)(A) and were denied for failing
to justify a finding of “extreme hardship or  exceptional  or  unusual
circumstances,” perhaps their cases should  be  reevaluated.   On  the
other hand, it would be nonsensical to say that a  timely  and  proper
application for TIG relief  should  be  denied  simply  because  other
eligible officers failed to  apply.   He  and  his  family  have  made
innumerable sacrifices in the service of  the  Air  Force.   He  hopes
their faith in the Air Force and this Board will result  in  a  proper
outcome of this matter.

The applicant’s complete rebuttal, with attachment, is at Exhibit Q.

_________________________________________________________________

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  error  or  injustice  to  warrant  waiving  the  TIG
requirements, under  the  provisions  of  Section  1370(a)(2)(A),  and
allowing the applicant to retire in the grade of  LTC.   In  its  last
evaluation, SAF/GCM concurs with the applicant  that  the  appropriate
statutory standard to be assigned in assessing his request for  relief
is Title 10, USC, Section 1370(a)(2)(A).  SAF/GCM further agrees  with
the applicant it would be inappropriate to judge  the  merits  of  his
request based upon the force shaping guidance  that  might  have  been
applicable during the period of 5 Jun to 1 Jul 03.  During this 25-day
period, while the applicant was still on  active  duty,  the  SAF  had
received the SecDef’s  delegated  authority  to  reduce  the  LTC  TIG
requirement from three to two years under the  provisions  of  Section
1370(a)(2)(A).  As the applicant had more than two but less than three
years TIG as a LTC, he appears to have been facially eligible for, but
not necessarily  entitled  to,  the  TIG  relief  requested.   Careful
reading of this case appears to  indicate  that  granting  TIG  relief
based on Section 1370(a)(2)(A) is not without precedent.  However,  as
we are not privy to the facts or bases for  any  prior  approvals,  we
have limited our rationale  to  the  narrow  confines  of  this  case.
Through SSB action, the applicant was promoted to LTC with a DOR of  1
Feb 01.  He had made clear  he  was  not  a  volunteer  for  any  more
unaccompanied, short-notice overseas assignments and  was  considering
retiring as a LTC upon attaining the required three years TIG.  In May
02, he was advised the TJAG had asked  him  personally  to  accept  an
unaccompanied, one-year assignment  to  Korea  in  order  to  fill  an
urgent, unexpected vacancy.  He accepted the  assignment  against  his
own best interests but soon learned there apparently was  no  genuine,
unexpected vacancy.  To retire as a LTC,  he  then  had  to  accept  a
follow-on assignment and relocate his family for the  second  time  in
one year, accept another follow-on unaccompanied tour for one year, or
extend his unaccompanied tour in Korea to nearly 19  months.   He  was
not offered the option of extending his  Korean  assignment  by  seven
months.  If he  had  remained  in  Roslyn,  he  no  doubt  would  have
fulfilled the 36-month TIG requirement.  These  circumstances  do  not
necessarily rise to the level of  hardship  as  many  officers  endure
similar inconveniences; but we are not considering this case under the
requirements of Section 1370(a)(2)(D).  We fully acknowledge  the  Air
Force’s right  to  assign  its  officers  as  best  suits  its  needs.
However, the timing of the applicant’s Korean assignment  in  relation
to his LTC DOR and the closing of his career  may  have  impacted  his
ability to complete the 36 months TIG requirement.  Further, while  we
by no means make any accusations,  the  possibility  exists  that  the
applicant, through misunderstanding  or  misrepresentation,  may  have
accepted an overseas assignment  which  subsequently  constrained  his
options in satisfying both the Air Force’s  needs  and  those  of  his
family.  Finally, an indirect, but still relevant issue unique to this
case should be considered.  When the applicant  was  first  considered
for promotion by the CY99A and CY99B LTC boards, the citations for two
significant awards were missing from his  records.   Although  he  was
afforded  SSB  consideration  through  a  Feb 00  AFBCMR  action   and
subsequently selected for promotion by the CY99B board,  who  can  say
with absolute certainty whether the  applicant  would  not  have  been
promoted by the original CY99A board had his records been  correct  in
the first place?  If this had occurred, his DOR would have been  1 Aug
00, according to AFPC/DPPPOO.  He would have  lacked  one  month  from
satisfying the 36-month TIG  requirement  and  events  may  have  been
sufficiently different to have allowed him to retire after three years
as a LTC as he had planned.  The ripple effects of that original error
are not conclusive, but this element taken together  with  the  timing
of, and rationale for, his assignment to  Korea  and  his  efforts  to
obtain a TIG waiver before his retirement persuades  us  that,  as  an
exception to policy, he should be retired in the grade  of  LTC  under
the provisions Section 1370(a)(2)(A).  While others may question  why,
in this particular case we ask why  not?   The  applicant  served  his
country  well  and  honorably  as  a  LTC  for  29  months,  and   the
circumstances  surrounding  his  retirement  as  well  as  his  cogent
arguments have persuaded us to recommend his records be  corrected  as
indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show  that,  on  29 June  2003,
under the provisions of Title  10,  USC,  Section  1370(a)(2)(A),  the
Secretarial Designee approved his request for  a  time-in-grade  (TIG)
waiver to retire in the grade of lieutenant colonel  and,  on  1  July
2003, he was retired in the grade of lieutenant colonel,  rather  than
in the grade of major.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 11 December 2003 and 7 December  2004  under  the
provisions of AFI 36-2603:

                 Ms. Marilyn Thomas, Vice Chair
                 Ms. Martha Maust, Member
                 Mr. Albert C. Ellett, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence relating to AFBCMR  Docket  Number  BC-
2003-02723 was considered:

   Exhibit A.  DD Form 149, dated 12 Aug 03, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records, with ROPs.
   Exhibit C.  Letter, HQ AFPC/DPPRRP, dated 30 Sep 03.
   Exhibit D.  Letter, SAF/MRBR, dated 10 Oct 03.
   Exhibit E.  Letter, Applicant, dated 3 Nov 03, w/atchs.
   Exhibit F.  Letter, SAFPC, dated 18 Dec 03.
   Exhibit G.  Letter, AFBCMR, dated 6 Jan 04.
   Exhibit H.  Letters, Applicant, dated 13 & 23 Jan 04.
   Exhibit I.  Letter, SAF/GCM, dated 4 May 04.
   Exhibit J.  Letter, AFBCMR, dated 5 May 04.
   Exhibit K.  Letter, Applicant, dated 14 May 04.
   Exhibit L.  Letter, SAFPC, dated 28 Jun 04.
   Exhibit M.  Letter, AFBCMR, dated 1 Jul 04.
   Exhibit N.  Letter, Applicant, dated 10 Jul 04, w/atch.
   Exhibit O.  Letter, SAF/GCM, dated 2 Nov 04.
   Exhibit P.  Letter, AFBCMR, dated 4 Nov 04.
   Exhibit Q.  Letter, Applicant, dated 8 Nov 04, w/atch.




                                   MARILYN THOMAS
                                   Vice Chair




AFBCMR BC-2003-02723




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, on 29 June 2003,
under the provisions of Title 10, USC, Section 1370(a)(2)(A), the
Secretarial Designee approved his request for a time-in-grade (TIG)
waiver to retire in the grade of lieutenant colonel and, on 1 July
2003, he was retired in the grade of lieutenant colonel, rather than
in the grade of major.





   JOE G. LINEBERGER

   Director

   Air Force Review Boards Agency