RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02331
            INDEX CODE:

            COUNSEL:  NONE

            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  1 FEBRUARY 2006

_________________________________________________________________

APPLICANT REQUESTS THAT:

The eight-month extension of his 27 October 1999 6-year enlistment  be
canceled.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was miscounseled.   During  his  extension  briefing,  he  was  not
informed of the six-year enlistee Zone A exception in  Section  IX  of
his extension agreement.  His tour  length  was  subsequently  changed
from four years to three years after the extension was signed for  the
four-year tour eligibility.  Based on  changes  in  policy  concerning
reenlistments, this extension will cause  him  to  forfeit  a  Zone  A
Selective Reenlistment Bonus (SRB), potentially costing him $39,820 in
bonus losses.

Applicant provided a personal statement, two e-mails, and  a  copy  of
his  extension  request.   Applicant's   complete   submission,   with
attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 27 October 1999  for  a
period of  six  years.   On  2  April  2002,  applicant  extended  his
enlistment for eight months to  qualify  for  a  permanent  change  of
station (PCS) assignment.  As a result, his  date  of  separation  was
extended from 26 October 2005 to 26 June  2006.   Information  in  the
Military  Personnel  Data  System  indicates  on,  25  May  2005,  the
applicant reenlisted in the Regular Air Force for a period of 4  years
and 13 months.  His reenlistment contract shows  he  was  eligible  to
receive a Zone A, Multiple 4 SRB based on 4 years of service.   He  is
currently serving on active duty  in  the  grade  of  staff  sergeant,
having been promoted to  that  grade  on  1  July  2003.   He  has  an
established date of separation of 24 June 2010.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPAE states that on 2 April  2002  the  applicant  extended  his
enlistment for eight  months  to  qualify  for  a  PCS  to  become  an
instructor.   At  the  time  he  requested  the  extension,  the  tour
requirement for an instructor was four years  of  retainability.   The
applicant had to extend eight months, as that  was  the  retainability
requirement at the time he  was  approved  for  that  assignment.   In
October 2002, the retainability requirement  for  instructors  changed
from four years to three years.  However, the  applicant  had  already
PCSd to his new duty location and therefore DPPAE believes there is no
reason to cancel the extension.  The extension was for the purpose  of
PCSing and the applicant did that.  Therefore, they  recommend  denial
of applicant’s request.

A complete copy of the evaluation is at Exhibit C.

On 3 June 2005, a copy of a  legal  opinion  in  a  similar  case  was
provided to the applicant for review in comment.  In their opinion, HQ
USAF/JAA indicated the Supreme Court  has  consistently  held  that  a
“soldier’s entitlement to pay is dependent upon a statutory right” and
that “the common law governing private  employment  contracts  has  no
place in the area of military pay.”  JAA opined  that,  based  on  the
governing  laws,  certain   court   decisions,   and   the   governing
instruction, no service member has a statutory right  to  reenlist  at
the expiration of a  current  enlistment  and  Service  Secretary  may
establish rules and procedures  to  implement  an  SRB  program.   JAA
provides an analysis of a case factually  similar  to  the  one  under
review decided in the Federal Court of Claims in 1995.  JAA stated the
federal claims court concluded that the plaintiff was not entitled  to
the SRB because he failed to fulfill the eligibility  requirements  of
the governing statute.  In sum, JAA indicated the  Secretary  has  the
legal authority to determine  eligibility  periods  for  reenlistment.
While the applicant’s window of eligibility was changed  in  a  manner
that prevented him from reenlisting, that, in and of itself, does  not
appear to be an error or injustice (see Exhibit D).

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 20 August 2004 and 3 June 2005, respectively,  copies  of  the  Air
Force evaluation and the JAA opinion were forwarded to  the  applicant
for review and response.  As of this date, this office has received no
response.

_________________________________________________________________

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.  Applicant contends that the tour
length was changed from four years to three years after the  extension
was signed for the four-year tour eligibility.  However, based on  the
evidence of record, the Board  majority  is  not  persuaded  that  the
applicant has been a victim of an error or injustice.  The applicant’s
contentions are duly noted;  however,  the  Board  majority  finds  no
evidence that the applicant was  miscounseled  or  that  he  has  been
treated any differently than others who  were  similarly  situated  at
that time.  The Board majority notes that, contrary to the applicant’s
assertion he would be deprived of a Zone  A  bonus,  he  is  currently
receiving such a bonus based on his 25 May 2005 reenlistment.  In view
of the  above,  the  Board  majority  agrees  with  the  opinions  and
recommendations of the Air Force offices of primary responsibility and
adopts their rationale as  the  basis  for  our  conclusion  that  the
applicant has not been the victim of an error or  injustice.   In  the
absence of evidence to the  contrary,  the  Board  majority  finds  no
compelling basis to recommend  granting  the  relief  sought  in  this
application.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

A majority of the  panel  finds  insufficient  evidence  of  error  or
injustice and recommends the application be denied.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 29 June 2005, under the  provisions  of  AFI  36-
2603:

                       Mr. Gregory H. Petkoff, Panel Chair
                       Ms. Jan Mulligan, Member
                       Ms. Patricia Robey, Member

By a majority vote, the Board recommended denial of  the  application.
Ms. Robey voted to grant the applicant’s request but  elected  not  to
submit a Minority Report.   The  following  documentary  evidence  was
considered:

      Exhibit A.  DD Form 149, dated 23 Jul 04, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFPC/DPPAE, dated 19 Aug 04.
      Exhibit D.  Letter, HQ USAF/JAA, dated 21 Apr 05.
      Exhibit E.  Letters, SAF/MRBR, dated 20 Aug 04 and
                  AFBCMR, dtd 3 Jun 2005.




                             GREGORY H. PETKOFF
                             Panel Chair





AFBCMR BC-2004-02331





MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
                 FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of

      I have carefully reviewed the evidence of record and the
recommendation of the Board members.  A majority found that applicant
had not provided substantial evidence of error or injustice and
recommended the case be denied.  I concur with that finding and their
conclusion that relief is not warranted.  Accordingly, I accept their
recommendation that the application be denied.

      Please advise the applicant accordingly.






                                        JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency