RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-00703
            INDEX NUMBER:  135.03
      XXXXXXX    COUNSEL:  None

      XXXXXXX    HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be allowed to serve in the Judge Advocate General’s  Corps  Reserve
in order to deploy in support of Operation Iraqi Freedom.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Applicant outlines his case in an 11-page brief with attachments.

He provides a summary of his service in the Air National Guard and Air
Force Reserve and his unique qualifications to  serve  in  support  of
Operation Iraqi Freedom.

Applicant provides a detailed  summary  of  the  actions  he  took  in
support  of  his  efforts  to   deploy   to   Iraq,   which   includes
correspondence or visits to HQ ARPC, his  former  Air  National  Guard
chain of command, a letter to his congressman,  and  actions  he  took
through the ARPC Reserve IMA representative to become an IMA.

HQ ARPC ignored at least 24 written and oral notifications that he was
attempting to change  his  reserve  status  from  the  Inactive  Ready
Reserve (IRR) to the IMA program, before the period of his  assignment
to the IRR expired.

The ARPC IMA Reserve representative took more than three weeks to send
him an application.  He also told him that  he  would  deal  with  his
upcoming second promotion board.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Oklahoma Army National Guard (ANG) on  7
Jun 94 and served until 18 Dec 94.  On 19 Dec 94, he was  appointed  a
commissioned officer in the Oklahoma Army National Guard in the  grade
of first lieutenant.  He was promoted to the grade of  captain  on  14
May 96.  On 15 Aug 97, the applicant was appointed a Judge Advocate in
the California Air National Guard.  On 30  Jun  99,  he  resigned  his
position with the California Air National Guard and was transferred to
the Individual Ready Reserve (IRR).  While in the IRR,  the  applicant
was twice considered and not selected for promotion to  the  grade  of
major.  As a result of  his  second  nonselection  for  promotion  the
applicant was discharged effective 2 Jan 04.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ ARPC/JA recommends denial of the applicant’s request.  They discuss
in detail why they consider the  applicant’s  claim  to  be  factually
inaccurate.  They also opine  that  the  applicant’s  claim  fails  to
address the central issue in the case; that by operation  of  law  his
fate in the Air Force Reserve was  decided  when  he  was  twice  non-
selected for promotion, before he contacted HQ ARPC to apply  for  the
IMA program.

The applicant appears to believe that his repeated representations  to
various military  or  DOD  personnel  that  he  desired  to  become  a
participating reservist and deploy to  Iraq  conferred  upon  him  the
right to do so.   This  belief  is  incorrect.   Pertinent  Air  Force
instructions make it clear that assignment as a  participating  member
of the Reserve is not a right but a  privilege  requiring  application
and acceptance.

In their 20 Nov 03 response to a Congressional Inquiry  on  behalf  of
the applicant, the Air Force Office of Legislative Liaison recommended
that if the applicant believed his second nonselection  for  promotion
was an error or injustice, he could file a petition with  the  AFBCMR.
The applicant has chosen instead to base his claim on  some  perceived
administrative delay.  The only  error  that  occurred  was  ARPC/JA’s
failure to more quickly discover the applicant’s ineligibility due  to
his second nonselection for promotion.

It is not certain,  or  even  likely,  that  had  the  applicant  been
assigned as an IMA, he would have been  afforded  the  opportunity  to
deploy to Iraq, an opportunity he now claims as the primary reason for
his interest in becoming an IMA.

HQ ARPC/JA states that they have never opposed the  applicant’s  entry
into the Judge Advocate General’s Corps Reserve.  They  even  approved
his application to become an IMA.   However,  no  error  or  injustice
occurred in the process leading to the applicant’s discharge from  the
Reserve and ineligibility for assignment to the Selected Reserve.  The
complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant responded to the Air Force evaluation in a nine-page  brief.
The applicant opines that the presence of injustice in his case is not
in dispute.  He states that the Judge  Advocate  General  of  the  Air
Force clearly stated in his written response to him that he “wished he
had the authority to change the result of the regulation” as its blind
application in his case would prohibit a qualified  JAG  officer  from
further serving his nation in uniform.  Applicant further opines  that
the evaluation prepared by ARPC/JA is moot in light of the  fact  that
the top lawyer for the Air Force had expressed in writing  six  months
earlier his  wish  for  authority  to  remedy  the  injustice  in  the
applicant’s case.

The applicant addresses what he believes are factual inaccuracies  put
forth by ARPC/JA.  He states that ARPC/JA is incorrect in stating that
he failed to contact them or the Air Force prior  to  3  Jun  03.   He
provides a summary of letters he claims to have written in Apr 03.

The applicant discusses ARPC/JA’s assertion that the ARPC Reserve  IMA
representative has no recollection of a 25 Jun 03  phone  conversation
with the applicant.  Among the applicant’s conclusions is  his  belief
that for the ARPC IMA Representative to acknowledge the  conversation,
he would have to admit that he failed to follow-up on the  applicant’s
application.

Applicant responds to ARPC’s assertion that his application mailed  to
their office on 12 Jul 03 did not contain  the  required  Staff  Judge
Advocate recommendation letter by pointing out that the  cover  letter
mailed to him stated that the letter would be sent directly to ARPC/JA
rather than through the applicant.

The applicant states that ARPC/JA’s claim that at no point  between  3
Jun 03 and 5 Aug 03 did he inform them that he desired  to  become  an
IMA is incorrect.  He refers the Board to documents provided with  his
initial application as proof that this is false.

The applicant discusses ARPC’s assertion that he never  informed  them
about his  second  nonselection  for  promotion.   He  references  his
discussion of the phone conversation on 25 Jun 03 that  the  ARPC  IMA
Representative denies.

Applicant further discusses inaccuracies he states  are  contained  in
the discussion section of the ARPC evaluation.  He opines that  ARPC’s
view that he was under the mistaken belief that  he  had  a  right  to
deploy conflicts with  information  contained  in  the  SJA  interview
report.

The applicant states that he has been trying to rejoin the military in
order to deploy as part of Operation Iraqi Freedom.  He realizes there
is a regulation that has stifled his efforts,
but with the nation at war, and the expressed desire of the top lawyer
in the Air Force to have the authority to  remedy  the  injustice,  he
does not understand why the personnel office is making it so difficult
for a “qualified American to serve his country.”

He respectfully requests that the Board use the date of 2  Apr  03  as
the effective date of his acceptance into the IMA JAG program.

The applicant’s complete response 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.  Insufficient relevant evidence has been presented  to  demonstrate
the existence of  error  or  injustice.   We  carefully  reviewed  the
applicant's complete submission in judging the  merits  of  the  case;
however, we agree with the opinion and recommendation of the Air Force
office of primary responsibility and adopt its rationale as the  basis
for our conclusion that the applicant has not been the  victim  of  an
error or injustice.  As pointed out by ARPC/JA, we believe the central
issue in the applicant’s case  is  his  being  twice  nonselected  for
promotion to major and, accordingly, his ineligibility for  assignment
to the Selected Reserve.  While it may be regrettable that  applicable
law provides this result,  it  does  not  rise  to  the  level  of  an
injustice.  The applicable  statute  would  apply  equally  to  anyone
similarly situated.  Therefore, in the  absence  of  evidence  to  the
contrary, we find no compelling basis to recommend granting the relief
sought in this application.

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   issues   involved.
Therefore, the request for a hearing is not favorably considered.

_______________________________________________________________

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 Docket  Number  BC-2004-
00703 in Executive Session on 24 June 2004, under  the  provisions  of
AFI 36-2603:

      Mr. Laurence M. Groner, Panel Chair
      Ms. Kathleen F. Graham, Member
      Mr. John B. Hennessey, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 1 Mar 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, ARPC/JA, dated 15 Mar 04.
    Exhibit D.  Letter, SAF/MRBR, dated 19 Mar 04.
    Exhibit E.  Letter, Applicant, dated 30 Mar 04.




                                   LAURENCE M. GRONER
                                   Panel Chair