ADDENDUM TO
                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-1999-02923
            INDEX CODE:  131.00

      XXXXXXX    COUNSEL:  VICTOR KELLEY

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

In the applicant’s request for reconsideration, he requests continuation  on
the Reserve Active  Status  List  (RASL)  until  such  time  as  he  accrues
sufficient experience and evaluations  to  be  meaningfully  considered  for
selection to the rank of lieutenant colonel.

_________________________________________________________________

STATEMENT OF FACTS:

Based on available records, the applicant, then a captain  with  a  date  of
rank of 3 Feb 89, was reassigned to the Nonaffiliated Reserve Section (NARS-
NA) with an effective date of assignment of 11 Sep 97.  His  Paydate  was  9
Oct 75, his total years service date (TYSD) was  9  Oct  78  and  his  total
federal commissioned service date (TFCSD) was 9 Oct 81.  At the time of  his
reassignment to NARS, applicant was credited with 14 years  of  satisfactory
federal service.

On 21 Feb 01, the Board  recommended  the  applicant’s  officer  performance
report (OPR) closing 31 Jan 90 be voided and removed from his  records;  his
United States Naval Reserve officer performance  documentation  be  obtained
and placed in his Officer Selection Record in its proper sequence; that  his
records be considered for promotion by a Special Review  Board  (SRB);  they
be evaluated in comparison with the records of officers who  were  and  were
not selected by the FY97 Line and Nonline Major  Promotion  Selection  Board
which convened in Mar 96; if not selected for promotion  by  the  FY97  Line
and Nonline Major Promotion Board, his corrected record  be  considered  for
promotion by a Special Selection Board (SSB); that his record  be  evaluated
in comparison with the records of officers who were or were not selected  by
the FY98 Line and Nonline Major Promotion Selection Board which convened  in
Mar 97; if he is recommended for promotion by a SRB or SSB,  the  AFBCMR  be
advised of that recommendation at the earliest possible date,  so  that  all
necessary and appropriate actions may be completed; if not  recommended  for
promotion by either  the  SRB  or  the  SSB,  that  the  office  of  primary
responsibility (OPR)  advise  him  of  the  recommendation  of  the  SRB/SSB
(Exhibit A).

On 25 Oct 01, the AFBCMR was notified that in conjunction with the FY02  Air
Force Reserve Line and  Nonline  Colonel  Promotion  Selection  Boards,  the
applicant was recommended for promotion to  major  by  the  A0497A  –  Judge
Advocate General (JAG) Major Promotion Board.

On 15 Nov 01, the AFBMCR corrected the applicant’s records to show that;  he
was considered and selected for promotion to the Reserve grade of  Major  by
the FY97 JAG Major Promotion Board, with a date of rank and  effective  date
of 30 Sep 95; he was not relieved  from  his  assignment  at  9005  ARS  (HQ
ARPC/JAR) and assigned to the Retired Reserve Section, effective 1  Mar  98,
but continued in his assignment; his corrected records resulted in  50 total
and  retirement  points  and  satisfactory  years  of  federal  service  for
Retention Years Ending in 29 Sep 98, 99, 00, and 01, and during  the  period
1 Oct 01 to 30 Nov 01, he was awarded four (4) paid active duty  points  and
four (4) paid inactive duty points (Exhibit B).

Subsequent  to  his  current  request,  the  applicant  was  considered  for
promotion  by  the  FY03  and  FY04  JAG  and  Chaplain  Lieutenant  Colonel
Selection Boards which convened April 02 and  April  03,  respectively,  and
was not selected by either board.  He was considered and  not  selected  for
continuation  by  the  CY03 JAG  and  Chaplain  and  Major  Twice   Deferred
Selective Continuation Board, in April 03.   Applicant  was  transferred  to
the Retired Reserve, awaiting pay at age 60, effective 1  Oct  03.   He  was
credited with 20 years of satisfactory federal service.

On 1 Jun 2005, through  his  counsel,  applicant  submitted  a  request  for
reconsideration, requesting continuation on the RASL until such time  as  he
accrues sufficient experience and evaluations to be meaningfully  considered
for selection to the rank of lieutenant colonel.   To  support  his  appeal,
the applicant provided a copy of his Reserve Forces  Judge  Advocate  course
certificate; copy of his acceptance for continuation on the  RASL,  dated  9
Jul 03; a copy of letter  of  notification  of  erroneous  notification  for
selection for continuation on the RASL, dated 17 Sep 03, and a copy  of  his
AF Form 707A, closing 26 Feb 03.

Additionally, applicant’s counsel cited a previous AFBCMR  case  to  support
his client’s case.

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

_________________________________________________________________

AIR FORCE EVALUATION:

HQ ARPC/DPB recommended denial.  They provided  the  following  analysis  of
the case:

Applicant was considered but not selected by the  FY  03  and  FY04 JAG  and
Chaplain Lieutenant Colonel Selection Boards, which  convened  on  April  02
and April 03, respectively.

Title 10 U.S.C., Section 14506 requires a major non-selected  for  promotion
for the second time, be removed from the RASL (either retire [if  qualified]
or discharged) on the first day of the month after  the  month  the  officer
completes 20 years commissioned service; or the first  day  of  the  seventh
month after the month in which the  promotion  approval  authority  approves
the report of the board that did not select the  officer  the  second  time.
According to Section  14506,  the  applicant  was  required  by  law  to  be
separated not later than 1 Apr 04.

Applicant was considered by the  CY03  JAG  and  Chaplain  and  Major  Twice
Deferred Selective Continuation Board; however, he was not selected.

The only provisions for an officer  to  remain  in  a  participating  status
after  two  non-selections  for  promotion   are   Reserve   sanctuary   and
continuation.  When the applicant was non-selected for the second  time  and
not offered continuation, he was in sanctuary  and  remained  on  the  RASL,
until he qualified for retired pay.

Title 10 U.S.C., Section 14701, Selection of officers  for  continuation  on
the RASL, allows an officer in a continued status to stay on the RASL up  to
the  end  of  the  month  in  which  the  officer  completes  24  years   of
commissioned service.  The applicant’s “24” years expired on 31 Oct 05.   He
was found not fully qualified for continuation and therefore is not  allowed
the “24 years.”

The law is very specific concerning how much time an officer is afforded  to
attain  promotion,  and  what  avenues   the   officer   has   to   continue
participating.  The applicant availed himself of “sanctuary”  and  was  able
to retire with pay at age 60.  He  is  not  eligible  for  continuation  now
(beyond the allowed 24 years afforded by 10 U.S.C., Section 14701)  and  was
found not qualified for continuation in 2003.

A complete copy of the evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant’s counsel argues  that  the  advisory  opinion’s  “conclusion”  is
simply illogical.

Counsel’s complete response is at Exhibit G.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

HQ USAF/JAA reviewed this application  and  recommended  denial.   In  their
discussion of the applicant case, they stated  returning  the  applicant  to
the RASL would be the means for correction of an injustice.   However,  they
concluded that the  applicant  failed  in  his  burden  to  demonstrate  the
existence of an injustice.  Accordingly, it becomes unnecessary  to  discuss
whether it is legally possible to return him to the RASL  in  light  of  the
apparent  inconsistency  of  such   restoration   with   various   statutory
provisions regarding the RASL.

The implication—perhaps even the very  essence—of  the  applicant’s  current
request is that the AFBCMR’s earlier corrections (making  him  eligible  for
successful competition for promotion to major and  for  retirement)  created
an inherent injustice in that it became difficult for  him  to  compete  for
promotion to higher grade.  In  short,  in  order  to  achieve  the  records
correction applicant seeks, the applicant is essentially asking  the  AFBCMR
to impeach its own  earlier  decisions  correcting  records  in  his  favor.
Perhaps more importantly, consequential impact of  two  extremely  favorable
AFBCMR decisions is something the applicant has to accept.  There is  seldom
a perfect solution and in this case the AFBCMR has made very reasonable  and
appropriate decisions based on the evidence before it.

HQ USAF/JAA complete evaluation is at Exhibit H.

_________________________________________________________________

ADDITIONAL APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant’s counsel submits that the JAA advisory opinion adds nothing.   In
fact, the totality of the opinion would appear to be result-oriented.

Counsel disagreed with the JAG’s statement, “we conclude that the  applicant
had failed in his burden to demonstrate  the  existence  of  an  injustice.”
Counsel  submits  that  it  is  the  Board’s  responsibility   to   make   a
determination whether or not the application demonstrates “the existence  of
an injustice”, not the office of the judge advocate general.

He further indicates the JAG  was  incorrect  in  its  statements  that  the
applicant “is essentially asking the  AFBCMR  to  impeach  its  own  earlier
decisions correcting records in his favor.”  He says the applicant  does  no
such  thing.   Upon  notification  that  he  was  “erroneously  notified  of
selection for continuation in  the  Reserve  Active  Status  List,  guidance
specifically advises him that the appropriate remedy is  an  application  to
the BCMR.

Applicant’s counsel’s complete response is at Exhibit J.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

Insufficient  relevant  evidence  has  been  presented  to  demonstrate  the
existence of  error  or  injustice.   We  took  notice  of  the  applicant's
complete submission in judging the merits of the  case.   Applicant  records
were corrected by removing his OPR closing 31 Jan 90,  awarding  four  years
of satisfactory federal service,  and  promotion  consideration  by  an  SRB
which resulted in his selection for promotion to major with a date  of  rank
of 30 Sep 95.  He now requests continuation on the RASL until such  time  as
he  accrues  sufficient  experience  and  evaluations  to  be   meaningfully
considered for selection to the rank of lieutenant colonel.  We do not  take
issue with the argument that the previous corrections placed  the  applicant
at a disadvantage when competing against his peers  who  have  a  much  more
substantiated record of performance.  However, the Board notes that  had  it
not taken the applicant six years to seek correction to his  records,  which
resulted in his retroactive promotion to major, he       most  likely  would
have been promoted by the original board and would not be  in  the  position
he now finds himself.  This is unfortunate.  Nonetheless, we recognize  that
in  a  number  of  cases,  we  cannot  make  an  officer  completely  whole.
Therefore we strive to provide substantial equity.  In this regard, we  note
the applicant has benefited from the correction of records process,  availed
himself of the sanctuary and has been transferred to  the  Retired  Reserve,
with pay at age 60.  Based on the  totality  of  the  circumstances  of  the
case, including the fact that the officer’s lack  of  due  diligence  was  a
factor in this matter, the applicant has been  provided  substantial  equity
and that further relief is not appropriate.

_________________________________________________________________

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 15 August 2006, under the provisions of AFI 36-2603:

      Mr. Richard A. Peterson, Panel Chair
      Ms. LeLoy W. Cottrell, Member
      Ms. Karen A. Holloman, Member

Ms. Cottrell and Ms. Holloman voted to  deny  the  applicant’s  request,  as
recommended.  Mr. Peterson abstained from consideration of the  application.
 The following documentary evidence was considered:

      Exhibit A.  Memorandum for Consideration, dated 21 Feb 01.
                with exhibits.
      Exhibit B.  Memorandum for Consideration, dated 15 Nov 01,
                with exhibits.
      Exhibit C.  DD Form 149, dated 1 Jun 05, w/atchs.
      Exhibit D.  Letter, HQ ARPC/DPB, dated 22 Nov 05.
      Exhibit E.  Letter, SAF/MRBR, dated 28 Nov 05.
      Exhibit F.  Letter, AFBCMR, dated 22 Feb 06.
      Exhibit G.  Applicant, dated 29 Mar 06, w/atchs.
      Exhibit H.  Letter, HQ USAF/JAA, dated 17 Apr 06.
    Exhibit I.  Letter, AFBCMR, dated 17 May 06.
    Exhibit J.  Letter, Applicant’ Counsel, dated 16 Jun 06.




                                   RICHARD A. PETERSON
                                   Panel Chair