RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-1998-03235
                               (Case 2)

            INDEX CODE:  131.01, 135.00

            COUNSEL:  EUGENE R. FIDELL

            HEARING DESIRED:  NO


MANDATORY CASE COMPLETION DATE:  4 JUNE 2006

_________________________________________________________________

APPLICANT REQUESTS:

1.  Reconsideration of his  original  application  for  correction  of
military records, dated 16  November  1998.   Specifically,  that  his
records be corrected to reflect Squadron Officer School (SOS) as  part
of  his  Professional  Military  Education  (PME);  and,  that  he  be
considered for promotion to the grade  of  major  by  another  major’s
board, without prejudice, and/or that he be allowed to meet a  special
selection board or continuation board, with his corrected record.

2.  His earlier Special Selection Board (SSB),  which  convened  on  1
March 1999, be expunged.

3.  Reinstatement to his previous active Reserve status, with back pay
and allowances.

4.  If not selected for  promotion  to  the  grade  of  major,  he  be
considered for continuation  until  the  completion  of  20  years  of
service.
_________________________________________________________________

APPLICANT CONTENDS THAT:

He was wrongly deprived of his statutory right to Board review of  his
properly submitted application in November 1998.  He is also  entitled
to restoration of the position he would have  held  in  1998  had  the
Board correctly considered his application at that  time.   Therefore,
his subsequent SSB and discharge from the  USAFR  cannot  properly  be
considered by the Board.

Through a 2000 Freedom of Information Act (FOIA) response, he  learned
that the letters he sent to the Board President for the FY98  an  FY99
major promotion boards and the 1999  SSB  were  not  included  in  his
selection folder for consideration.  This failure violated the law and
USAFR regulatory standards and deprived him of the  beneficial  impact
those letters might have  had  on  the  Board’s  decision  whether  to
promote him to major.

A related unfairness associated with the proceedings of the  1999  SSB
is that he was considered only for promotion to major rather than also
considering him for continuation in the grade of captain as would have
happened in the ordinary course of the normal  major  selection  board
process.  He was  entitled  to  continuation  board  consideration  in
conjunction with the 1999 major’s board.

On 1 March 1999, by order of the commander of the 9th Air Wing, he was
not allowed to  drill  or  perform  military  duty.   The  commander’s
decision had no basis in law and was arbitrary and unfair  because  it
deprived him of six months of accrued  military  time;  i.e.,  another
creditable year towards retirement with correlating pay.

In support of his request, counsel submits a Brief with exhibits.  The
applicant’s complete submission, with attachment, is at Exhibit A.
_________________________________________________________________

STATEMENT OF FACTS:

In January 1999, HQ ARPC administratively  corrected  the  applicant’s
original 1998  appeal  for  approval  of  SSB  consideration,  with  a
corrected Officer Selection Brief (OSB) showing completion of  SOS  in
the PME block.  On 22  November  2004,  counsel  requested  the  Board
consider the applicant’s original 1998 application for  correction  of
military records.

The applicant’s Total Federal Commissioned Service Date (TFCSD)  is  3
February 1984.  He was progressively promoted to the grade of captain,
Reserve of the Air Force, with an effective date of rank of 3 February
1991.

Applicant's profile for the last nine reporting periods follows:

            Period Ending    Evaluation

                5 Jun 91     Meets Standards (MS)
               10 Mar 92          MS
               10 Mar 93          MS
               10 Mar 94          MS
               10 Mar 95          MS
            #  10 Mar 96          MS
            ## 10 Mar 97          MS
                7 Mar 98          MS
                7 Mar 99          MS

# Top report at  the  time  he  was  considered  and  nonselected  for
promotion to major by the FY98 Line and Nonline Major Promotion Board,
which convened on 3 March 1997.

## Top report at the  time  he  was  considered  and  nonselected  for
promotion to major by the FY99 Line and Nonline Major Promotion Board,
which convened on 2 March 1998.

Information extracted  from  applicant’s  submission  reveals  he  was
notified of his second deferral for promotion on  28 August  1998  and
that, due to his second deferral for promotion, he would be discharged
on his adjusted mandatory separation date (MSD) of 1 March 1999.

On 7 January 1999, HQ AFPC/DP notified the applicant that he had  been
granted SSB  consideration  for  the  FY99  Air  Force  Reserve  Major
Selection Board and that the SSB was scheduled to meet  1 March  1999.
The applicant was considered and  nonselected  for  promotion  to  the
grade of major by an SSB, which convened on 1 March 1999, for the FY99
Line and Nonline Major Promotion Board.

It appears the applicant was discharged from the Air Force Reserve  in
the grade of captain, effective 1 March 1999.

Information extracted from the Military Personnel Data System (MilPDS)
reveals that, subsequent to the applicant’s discharge, he enlisted  in
the Air National Guard and held the grade  of  staff  sergeant  (E-5),
with an effective date and date of rank of 5 August  1999.   Effective
29 April 2003, he was assigned to  the  Nonobligated  Nonparticipating
Ready Personnel Section (NNRPS).  He  has  completed  a  total  of  15
years, 4 months and 5 days of satisfactory Federal service.
_________________________________________________________________

AIR FORCE EVALUATION:

HQ ARPC/DPB recommends the application be denied.   DPB  states  that,
due to administrative errors, the applicant was unable to complete the
final test for Squadron Officer School (SOS) prior to the  FY99  major
selection  board  convening  date.   Therefore,  the  SOS   completion
information was not available for the FY99 Major Selection Board.  The
applicant’s original request was for correction of his military record
to include SOS as part of the Professional  Military  Education  (PME)
and requested he meet another  major’s  selection  board,  special  or
continuation board.  In accordance with AFI 36-2504, HQ  ARPC/DPJ  was
authorized to administratively  correct  the  applicant’s  record  and
grant consideration by SSB.  The applicant  was  notified  by  letter,
7 January 1999, that SSB consideration had been granted for  the  FY99
Line and Nonline Major Promotion Board (2 March 1998).   The  SSB  was
conducted concurrently with the FY00 Line and Nonline Major  Board  (1
March 1999).  DPB indicates that reconsideration  of  the  applicant’s
case at this time would not result in a  change  to  the  sequence  of
events that occurred at the time of the original submission.

DPB states the applicant met the FY98 and FY99 Major Selection  Boards
and was not recommended for promotion.  The first  USAFR  continuation
board (December 1998) considered a very small number of  captains  and
majors in “critical skill” Air Force  Specialty  Codes  (AFSCs).   The
applicant was not  eligible  for  continuation  consideration  by  the
continuation board held for officers twice nonselected during the FY99
boards since his AFSC was not identified as critical.   The  applicant
was granted an SSB  in  lieu  of  the  FY99  Line  and  Nonline  Major
Selection Board providing  an  administrative  solution  in  a  timely
manner.  The applicant was not recommended for promotion by  the  SSB.
Although the SSB was conducted in conjunction with the FY00  board  (1
March 1999), the applicant was not considered by the FY00  board.   He
was, therefore, not entitled to continuation consideration because  he
did not meet the primary eligibility  criteria  of  the  CY99  Captain
Continuation Board (which was second time  nonselection  by  the  FY00
Major Board).  Nonselection by this SSB (in lieu of  the  FY99  board)
did not qualify him for continuation consideration by a future  (FY00)
board.  Officers eligible for promotion consideration have the  option
under Title 10 USC, Section 14106, to write  a  letter  to  the  Board
President.  DPB is unable to verify if letters for any of  the  boards
were received because letters to the board  are  destroyed  after  the
board adjourns.   The  absence  of  a  letter  to  the  board  is  not
sufficient to  initiate  an  SSB.   The  applicant  was  appropriately
discharged from the Air Force Reserve, effective 1 March 1999.

The HQ ARPC/DPB evaluation is at Exhibit C.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel reviewed the advisory opinion and disagrees with the assertion
that “[t]he absence of a letter would  not  be  sufficient  ground  to
initiate an SSB.”  Counsel states that denial of  this  key  statutory
right is a compelling basis for referring an officer’s  record  to  an
SSB, or, in the alternative, sending it to a new regular board without
prejudice.   The  applicant  was  not   afforded   consideration   for
continuation on active duty as he would  have  received  had  he  been
considered by a regular board rather than an SSB.  The  advisory  does
not  show  that  the  applicant  would  have   been   precluded   from
consideration for continuation had he been  considered--as  he  should
have been--by a later continuation board.  He should have met the 1999
board as a “new” board.  Counsel’s complete submission 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 not  timely  filed;  however,  it  is  in  the
interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented  to  demonstrate
the existence of error or injustice.  After reviewing the  applicant’s
submission and the evidence of record, we  are  unpersuaded  that  the
applicant’s records are in error or that he has been the victim of  an
injustice.  His contentions are noted; however, in  our  opinion,  the
detailed  comments  provided  by  the  appropriate  Air  Force  office
adequately  address  those  allegations.   Therefore,  we  agree  with
opinion and recommendation of the Air Force and  adopt  the  rationale
expressed as the basis for our decision that the applicant has  failed
to sustain his burden that he has  suffered  either  an  error  or  an
injustice.  In view of the above and absent evidence to the  contrary,
we find no basis to recommend  granting  the  relief  sought  in  this
application.
_________________________________________________________________

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  this  application  in
Executive Session on 17 May 2005, under the provisions of AFI 36-2603:

                  Ms. B. J. White-Olson, Panel Chair
                  Ms. Patricia R. Collins, Member
                  Ms. Janet I. Hassan, Member

The following documentary evidence was considered in  connection  with
AFBCMR Docket Number BC-1998-03235.

   Exhibit A.  DD Form 149, dated 19 Oct 04, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ ARPC/DPB, dated 25 Feb 05.
   Exhibit D.  Letter, SAF/MRBR, dated 4 Mar 05.
   Exhibit E.  Letter from Counsel, dated 10 Mar 05.




                                   B. J. WHITE-OLSON
                                   Panel Chair