RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-03714
            INDEX CODE:  102.02

            COUNSEL:  NONE

            HEARING DESIRED: YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His appointment date be changed from 17 May 2003 to 19  May  2003  and
his rank be changed from captain to major effective 19 May 2003.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Because the National Guard Bureau (NGB)  and  personnel  at  his  unit
miscalculated his total years service date (TYSD), and did not  review
his application prior to his appointment, he was not given the correct
information on which  to  base  his  decision  regarding  when  to  be
appointed.  He contends his  constructive  service  should  have  been
computed as 12 years, 4 months and 1 day.  Therefore, he  should  have
been appointed as a major with one year, four months, and one  day  of
constructive service applied to his date of rank (DOR).

In support of  his  appeal,  the  applicant  has  provided  copies  of
pertinent documents from his  US  Naval  Reserve  (USNR)  career,  his
appointment order in the NJANG, appointment approval as a captain from
ANG/DPFOO, his DD Form 214, Certificate of Release or  Discharge  from
Active Duty, a copy of Table 2.6 from AFI 36-2005, dated 19 may  2003,
and a statement from the NJANG JA.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant applied for appointment in the NJANG for the position of
Judge Advocate (JA).  Under AFI 36-2005, seven years of service credit
was required for appointment to captain.  He was  credited  with  nine
years, four months, and one  day  of  service  credit  for  his  TYSD.
Consequently, he was appointed as  a  captain  with  two  years,  four
months, and one day of service credit applied  to  his  date  of  rank
(TYSD less seven years).  His appointment in the NJANG  was  effective
17 May 2003.

_________________________________________________________________

AIR FORCE EVALUATION:

ANG/DPPI  recommends  denial.   DPPI  noted  errors  in  the  original
appointment package in the computation of  his  constructive  service.
DPPI states his constructive service should  have  been  11  years,  4
months, and 1 day instead of the earlier computation  of  nine  years,
four months, and one day.  DPPI  has  corrected  this  error  and  has
notified the applicant.

Regarding  the  appointment  grade,  DPPI  states  the  applicant  was
appointed under the auspices of AFI 36-2005 dated 1  May  1998.   This
AFI requires seven years constructive service in order to be appointed
a captain and 14 years for appointment to major.  An  updated  version
of AFI 36-2005 was issued and became effective on 19  May  2003.   The
revised AFI 36-2005 requires only four years of  constructive  service
for appointment as a captain vice the seven years  and  11  years  for
appointment to major  vice  the  14  years  required  by  the  earlier
version.  DPPI notes that had the applicant been appointed  under  the
revised AFI he would have been appointed a major with four months  and
one day of service credit towards his DOR.  However, he was  appointed
in the NJANG on 17 May 2003, two days prior to the effective  date  of
the revised AFI 36-2005.  Therefore, his appointment under the earlier
version was appropriate.

ANG/DPPI’s complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states that as his appointment package  was  being  prepared
between the summer of 2002 and April 2003, he had  been  told  several
times that he would be appointed as a major.  On 28  April  2003,  his
unit personnel notified him that his appointment as a JA  officer  had
been approved but that he would be appointed as a captain  instead  of
major.  He then received a welcoming email  from  his  superiors  that
notified him he had already been selected to  attend  the  2003  Staff
Judge Advocate course.  He decided to notify the unit of  his  concern
that his TYSD and appointment grade had been  incorrectly  calculated.
The unit contacted the National Guard Bureau  (NGB)  for  verification
and was assured that the TYSD and appointment grade were correct.   In
order to attend the school as  quickly  as  possible,  he  decided  to
accept the commission and work on his TYSD and rank issue later.

Soon  after  returning  from  school,  in  October  2003,   he   began
conversations with his commander who suggested he apply to the AFBCMR.
 He did so and was notified by NGB that his TYSD  (and  therefore  his
DOR) had been miscalculated.  NGB informed  the  applicant  that  they
added two years to his TYSD that in  turn  modified  his  DOR  by  two
years.  These changes did not however, change his  appointment  grade.
He inquired as to why he was appointed as a captain and  not  a  major
and was told that while the revised AFI 36-2005 was issued on the same
day he was appointed, it was not effective until 19 May 2003, two days
later.  He has since estimated that he missed  being  appointed  as  a
major by less than 36 hours.  He contends that had the  NGB  correctly
calculated his TYSD and had his unit personnel told him of the revised
AFI and it’s lower appointment requirements, he would have waited  the
36 hours and been appointed a major.  He feels he was  not  given  the
right information with which to make an informed decision.

He adds that while he cannot easily answer the question of whether  or
not the inaccurate computation  of  service  credit  by  NGB  or  that
misinformation from his unit personnel was the reason why he  was  not
appointed a major, he does state that he  challenged  the  computation
several times during and after his appointment.  He notes it  was  not
until after he submitted his DD  Form  149  to  the  AFBCMR  that  NGB
discovered  it’s  error  and  corrected  his  TYSD.   He  states  with
unequivocal certainty that had  his  TYSD  been  calculated  correctly
and/or he had received the correct information from his unit personnel
he would have waited until the new AFI 36-2005  became  effective  for
his appointment.  He states his current command has told him that  had
his appointment grade been recommended as major, that they would  have
supported it.

He concludes that because of NGB’s initial error and their  subsequent
refusal to review his case prior to appointment he was not  given  the
correct information with which to base his decision on the  timing  of
his appointment.  He requests the BCMR reject the DPPI  recommendation
of denial of relief and change his appointment date from 17  May  2003
to 19 May 2003.  Concurrently, he requests his rank at appointment  be
changed from captain to major.  He is willing to forgo  attendance  at
the May 2003 UTA in order to appear before the Board to effectuate his
requested relief.

The applicant’s complete response, with attachments, is at Exhibit  E.


______________________________________________________________

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.   We  believe  the  applicant  was
obviously miscounseled during his appointment process.  Had  he  known
he could have extended his  appointment  date  by  two  days,  and  be
appointed as a major instead of as a captain, we believe he would have
done so.  The miscounseling error was compounded by his  gaining  unit
not  computing  his  constructive  service  time  correctly  and   his
superiors  pressing  him  to  attend  school  and  other   job-related
functions.  Therefore, we recommend that the 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 19 May 2003, he was
appointed in the New Jersey Air National Guard, in the grade of major,
rather than on 17 May 2003, as a captain.

______________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2003-03714 in Executive Session on 16 June 2004, under the  provisions
of AFI 36-2603:

      Mr. Michael K. Gallogly, Panel Chair
      Mr. Michael J. Novel, Member
      Ms. Olga M. Crerar, Member

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

    Exhibit A.  DD Form 149, dated 27 Oct 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ANG/DPPI, dated 5 Mar 04, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 26 Mar 04.
    Exhibit E.  Letter, Applicant, dated 6 Apr 04, w/atchs.




                                   MICHAEL K. GALLOGLY
                                   Panel Chair



                         DEPARTMENT OF THE AIR FORCE
                                WASHINGTON DC




[pic]
Office Of The Assistant Secretary



AFBCMR BC-2003-03714




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 APPLICANT, be corrected to show that on 19 May 2003,
he was appointed in the New Jersey Air National Guard, in the grade of
major, rather than on 17 May 2003, as a captain.








     JOE G. LINEBERGER

     Director

     Air Force Review Boards Agency