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

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02938
            INDEX NUMBER:  102.00
      XXXXXXX    COUNSEL:  None

      XXXXXXX    HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

His 1985 regular appointment in the Air Force be reinstated to  allow
him time to meet his in-the-promotion-zone (IPZ) board for  promotion
consideration to lieutenant colonel.

_________________________________________________________________

RESUME OF CASE:

On 11 Jan 05, the Board considered and denied the applicant’s request
as stated above (Exhibit E).  On 8 Feb 05,  the  applicant  submitted
new evidence and requested reconsideration of his appeal (Exhibit F).
 In his new evidence, the applicant states that the Board  failed  to
consult legal counsel to advise them of Public Law  108-375,  28  Oct
04, known as the “Ronald W. Reagan National Defense Authorization Act
for Fiscal Year 2005.”  The applicant states that  the  Act  modifies
the  provisions  in  Title  10  regarding  granting  of   a   regular
commission.  Since the advisory opinion provided in his case as  well
as the rationale of  the  Board  failed  to  address  this  Act,  the
applicant does not believe his case was given a  fair  hearing.   The
applicant provided an electronic copy of the Act and refers the Board
to Section 531, “Transition of active-duty list officer  force  to  a
force of all regular officers.”  The applicant opines that the intent
of the act is to make all officers on the  active-duty  list  regular
officers and that the section of the Act referenced would  allow  him
to be offered a regular commission.

_________________________________________________________________

AIR FORCE EVALUATIONS:

Pursuant to the Board’s request, AFPC/DPPPOO provided  an  evaluation
of the applicant’s new evidence.  They continue to recommend denial.

Although the applicant highlights key elements  of  the  Fiscal  Year
(FY) 2005 National Defense Authorization  Act  (NDAA),  he  fails  to
address the provision of law (Title 10, United States  Code,  Section
532) that outlines the age eligibility  requirements  for  a  regular
appointment.  They note that the  FY  2005  NDAA  increased  the  age
eligibility requirements for  a  regular  commission  from  “able  to
complete 20 years of active commissioned service before his/her fifty-
fifth birthday” to “able to complete 20 years of active  commissioned
service before his/her sixty-second  birthday.”   Unfortunately,  the
applicant still cannot meet the age  eligibility  requirements.   The
applicant will reach 20  years  of  active  commissioned  service  in
October 2015, but  will  reach  62  years  of  age  in  August  2014.
AFPC/DPPPOO notes that they had hoped to include with their  response
a copy of the Air Staff’s transitional  policy/execution  message  to
provide additional clarification  on  “this  complex  topic”  to  the
applicant, but as of the date they prepared their  response,  it  was
not available.  However, they note that this does not alter the  fact
the applicant is ineligible for a regular appointment.

In support of their determination, AFPC/DPPPOO provides an extract of
Title 10, Section 532 and excerpts from the FY05 NDAA.

The complete evaluation, with attachments, is at Exhibit G.

Pursuant  to  the  Board’s  request,  AFPC/JA  also   evaluated   the
applicant’s request for reconsideration of  his  case.   They  concur
with the determination  made  by  AFPC/DPPPOO  that  the  applicant’s
request should be denied.

The complete evaluation is at Exhibit H.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

In his response to the Air Force evaluations,  the  applicant  states
that interpretation of the  law  is  based  on  intent,  not  literal
wording.  The applicant opines that the intent of Section 501 of  the
FY 2005 NDAA is to transition the Active Duty List officer force to a
force of all regular officers  in  order  to  correct  problems  with
retention and esprit de corps.  The applicant further opines that  if
the age requirements in US Code, Title 10, Section 532,  were  to  be
applied to subsection c of  Section  531,  a  force  of  all  regular
officers on the Active Duty List (ADL) would never be achieved.   The
applicant argues that “in order to reach the desired end state  of  a
force of all regular officers on the ADL, as intended by Section  501
of the FY  2005  NDAA,  the  original  regular  officer  appointments
allowed under Title 10, Section 531 must be  treated  as  intentional
and limited exceptions to the age requirements of Section 532.”

The applicant states that the principle of interpreting the law based
on the  intent  of  the  enacting  body  is  well  established.   The
applicant provides an extract from a previous court  case,  which  he
claims illustrates this principle.  The applicant  asserts  that  the
Congressional Record reflects the intent of Section 501 of  the  FY05
NDAA and references the entry dated 8 Oct 04, Volume 150, page H9532:

          “The House bill contained a provision (sec. 511) that would
authorize the Secretary of Defense  to  commission  all  new  officer
accessions as Regular officer (sic) and transition  all  officers  on
the  active-duty  list  to  regular  status.”   The  applicant   also
references a provision he states shows that Section 501 of  the  FY05
NDAA is intended to correct the officer retention  issues  identified
in  the  “Defense  Science  Board  Task  Force  on  Human   Resources
Strategy.”  The applicant indicates that this task  force  notes  the
adverse affect multiple commissioning types has on  the  active  duty
force’s retention and esprit de corps.  Applicant further opines that
the title of Section 501 of the FY05 NDAA, “Transition of Active-Duty
List Officer Force to  a  Force  of  All  Regular  Officers”  clearly
reflects the intent of the section.  He notes that the title uses the
word "all" when referring to which officers on the Active  Duty  List
are to be transitioned to regular status.

The applicant discusses that the addition of subsection  c  to  Title
10, Section 531, was added in order to implement the  intent  of  the
FY05 NDAA.  The applicant also discusses how application of  the  age
requirement of Title 10 of the US Code, Section  532,  would  prevent
the desired end state of an all regular force  from  being  realized.
The applicant opines that if all reserve  officers  on  the  Reserves
Active Status List who are transferred to the Active Duty List cannot
be offered regular commissions because many of them are too old, then
the “Active Duty List Officer Force” will never be a  “Force  of  all
Regular Officers.”  The applicant states because he  was  permanently
transferred from the Reserve Active Status List to the Active  Status
List of the Air Force, Title 10, Section 531, subsection (c)  of  the
US Code applies and offering him a regular commission  would  fulfill
the intent of the FY05 NDAA.

The applicant states that failure to offer  officers  such  as  he  a
regular commission will result in a continued mixture of regular  and
Reserve career officers, an outcome not  intended  by  Congress.   He
notes that Reserve officers are limited to 20 years active service by
Air Force policy,  which  negatively  impacts  their  promotions  and
assignment opportunities.  The AFBCMR must allow those officers  that
are disadvantaged by virtue of their  commission  type  to  have  the
opportunity to compete on an even playing field, now that  the  clear
intent of Congress is to create such an environment.

The applicant’s complete response is at Exhibit J.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

After reviewing  the  complete  new  evidence,  we  still  find  that
insufficient relevant evidence has been presented to demonstrate  the
existence of error or injustice.  We  agree  with  the  opinions  and
recommendations of the Air Force offices  of  primary  responsibility
and adopt their rationale as the basis for our  conclusion  that  the
applicant  has  not  been  the  victim  of  an  error  or  injustice.
Therefore, in the absence of evidence to the contrary, we again  find
no compelling 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 Docket Number  BC-2004-
02938 in Executive Session on 1 November 2005, under  the  provisions
of AFI 36-2603:

      Mr. Richard A. Peterson, Panel Chair
      Mr. Patrick C. Dougherty, Member
      Ms. Barbara R. Murray, Member

The following documentary evidence was considered:

    Exhibit E.  ROP, dated 28 Jan 05, w/atchs.
    Exhibit F.  Memorandum, Applicant, dated 8 Feb 05, w/atchs.
    Exhibit G.  Memorandum, AFPC/DPPPOO, dated 16 Aug 05, w/atch.
    Exhibit H.  Memorandum, AFPC/JA, dated 18 Aug 05.
    Exhibit I.  Letter, AFBCMR, dated 18 Aug 05.
    Exhibit J.  Letter, Applicant, dated 10 Sep 05, w/atch.




                                   RICHARD A. PETERSON
                                   Panel Chair