RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-03564
            INDEX CODE:

      xxxxxxxxxxxxxx   COUNSEL:  NONE

      xxxxxxxxxxxxxxx  HEARING DESIRED:  YES


MANDATORY CASE COMPLETION DATE:  22 MAY 2006


_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to show restoration of lost points, lost pay,
compensation  for  lost  promotion  opportunities,  consideration  for
retirement eligibility,  correction  of  original  DD  Form  214,  and
correction of Reserve status after separation from active duty.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Errors in the handling of  his  separation  papers  from  active  duty
denied him the ability to continue service in the Air  Force  Reserve.
His  records  were  improperly  processed,  which  led  to  his  being
discharged instead of transferred to the Air  Force  Reserve  and  the
Inactive Ready Reserve (IRR).

In support of his  application,  the  applicant  provided  a  personal
statement, a letter from ARPC/DPABA, Regular  Officer  Twice  Deferred
for Promotion that Received Separation Pay,  Reserve  Order  PC-00576,
Appointing him a Reserve of the  Air  Force  captain,  a  letter  from
ARPC/DPBS, informing the applicant of his promotion to  the  grade  of
major, Reserve Order BA-173, appointment to the  Grade  of  major,  DD
Form 214 Certificate of Release or Discharge from Active  Duty,  USAFR
Officer Selection Printout, a  letter  to  the  FY98  Major  Selection
Board, a letter from applicant to ARPC/DPBS, dated 14 June 2004.

Applicant's complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant was commissioned a second lieutenant in the Regular  Air
Force on 13 April 1984.  He was discharged in the grade of captain  on
30 November 1996, for twice non-selection for permanent promotion.  He
accepted separation pay in the amount of  $54,123.30,  and  agreed  to
serve in the Ready Reserve for three years as required  by  10  U.S.C.
Section 1174 (a).  However, he was not  properly  processed  into  the
USAFR.

On 5 January 2004, Reserve Order PE-00576 assigned applicant  to  Non-
Obligated,  Non-Participating  Reserve   Personnel   Section   (NNRPS)
effective 30 November 1996.

On 8 January 2004, the applicant was notified by ARPC/DPABA, an  audit
revealed he was not properly processed into the  Ready  Reserve  as  a
condition for receiving separation pay.  DPABA also  informed  him  he
could be eligible for promotion consideration by a  Special  Selection
Board (SSB).

Based on his assignment to NNRPS and his date of rank to  captain,  it
was determined the applicant missed two USAFR promotion opportunities;
FY98 Line and NonLine Major Promotion Selection Board (March 1998) and
the FY99 Line and  NonLine  Major  Promotion  Selection  Board  (March
1999).  He was non-selected by  the  SSB in-lieu  of  the  FY98  board
(conducted March 2004), and selected by the SSB in-lieu  of  the  FY99
board conducted in August 2004.

On 25 October 2004, he was notified of his selection for promotion  to
the Reserve grade of major by the FY99 SSB with a  date  of  rank  and
promotion effective date of 1 October 1998.

_________________________________________________________________

AIR FORCE EVALUATION:

ARPC/DPRF recommends denial.  DPRF states that  after  review  of  the
applicant’s record and documentation  relating  to  his  discharge  no
error in the DD Form 214 was found.

The error of processing him to the Air  Force  Reserve  was  corrected
prior  to  his  AFBCMR  application.   Based  on  the  correction   of
appointment date, he was considered and selected by a USAFR  promotion
selection board while in NNRPS.  While in a NNRPS, he was not entitled
to any pay or points.  While assigned  to  the  Inactive  Status  List
Reserve Section (ISLRS) or as a civilian, he did not  accumulate  time
toward promotion eligibility for the next grade.

DPRF states determination of  any  other  lost  pay  and  compensation
depended solely on whether the applicant  was  and  is  qualified  for
USAFR assignment.  The applicant is eligible to apply  for  a  Reserve
position by utilizing the services of  a  Reserve  recruiter  and  his
record is currently in MilPDS.  There are several positions in the Air
Force  Reserve  that  he  may  apply  for  if  he  meets   eligibility
requirements.

A complete copy of the evaluation, with attachments, is at Exhibit C.

_________________________________________________________________



APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant states he is dismayed and frustrated that DPR missed the
point and reasons for his requests, and hopes to clarify  the  issues.
From the time he separated from active duty he was led to believe that
he was no longer eligible for promotion and his ability to participate
in the Air National Guard or Air Force  Reserve  was  over.   Repeated
attempts at finding a way to participate  were  denied  for  the  sole
reason that his promotion eligibility was in doubt.  After a few years
of trying to find a unit to accept him, he accepted the fact that  his
ability to participate had come to an end.

He states had his promotion to major occurred back in  1997,  when  it
was supposed to, he would have  been  able  to  walk  into  any  unit,
presented his promotion, and been hired.  This did not happen  due  to
the failure to properly augment him into the Reserve in 1997.

He was surprised to find out a year ago that his  records  were  being
administratively corrected.  Afterwards, he spent months communicating
with ARPC, which was an eye opener.  He also spoke with  personnel  in
the Air Force Inspector General’s Office as well as the Department  of
Defense (DoD) Inspector General’s office.

He believes this situation is more than a  simple  records  correction
and has learned this has affected nearly 1500 officers.

He states the effort to correct these records is a result  of  a  suit
brought on by another wronged former officer.

The applicant’s complete response, with attachments, is at Exhibit E.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

AF/JAA recommends partial grant.  JAA  states  applicant  should  have
been enrolled in the Inactive Ready Reserve (IRR) on 30 November 1996.


JAA recommends applicant’s  records  be  corrected  to  show  that  he
entered the Inactive Ready Reserve on 30 November  1996  and  that  he
remained in the inactive  Reserves  until  25  October  2004.   On  25
October 2004, the applicant was informed of his  selection  to  major,
and was provided  with  the  opportunity  to  join  the  participating
Reserves.  At that point, it became incumbent upon  the  applicant  to
elect whether to remain in the inactive Reserves,  separate  from  the
Reserves, or become a participating member of the Reserves.

JAA states if  the  applicant  chooses  to  become  a  member  of  the
participating Reserves and if he eventually qualifies  for  a  Reserve
retirement, he should be informed that in accordance  with  10  U.S.C.
section 1174(h)(1), his separation pay will be subject  to  recoupment
at such time as he begins to draw retirement pay.

A complete copy of the evaluation is at Exhibit G.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The applicant states the AF/JAA response is a reiteration of  his  own
comments and timeline presented to the Board in  his  first  response.
In taking a look at the timeline to date, it is  very  interesting  to
note that each opinion writer’s comments have fallen more inline  with
his position.  The original notification from ARPC attempted  to  take
the position that this was simply a paperwork error  and  required  no
action from  him.   That  simple  paperwork  correction  prompted  the
expenditure  of  valuable  time  and  money  by  various   Air   Force
departments in setting SSB’s to  hurriedly  correct  promotion  errors
that have undeniably, stalled, damaged, or ended military careers

He states that following his  promotion  notification  he  began  this
corrections  process.   The  first  opinion  that  he  received   from
SAF/MRBR, dated 25 March 2005, completely ignored  the  facts  in  the
case and attempted to ignore an  undeniable  timeline  of  errors  and
omissions on the part of the Air Force.  He answered,  and  corrected,
those opinion writers comments with facts  in  his  response  dated  5
April 2005.  It is apparent that that response had  a  great  deal  of
effect.  In reading the current opinion from  USAF/JAA,  there  is  an
apparent corroboration of the errors and timeline in his  response  to
SAF/MRBR.  A timeline and statement of facts that  SAF/MRBR  attempted
to white-wash and ignore over eight months ago.

He believes the correct opinion accurately describes the timeline, the
errors made, missed job and promotion opportunities, and circumstances
that led to him having to abandon his desire to continue his  military
career in an active Reserve capacity

The applicant states the JAA recommendation is  nothing  more  than  a
slap in the face.  Had his separation been handled correctly  in  1996
he would have been promoted in 1997.  He would have been able to  join
a flying unit from a list of choices.   He  would  have  continued  to
serve, promote, and earn points towards retirement, a retirement  that
he would have locked-up by now.  He is now 45 years of age and can  no
longer compete with those in his peer group because they  have  almost
all retired.  This mistake ended his career

The applicant states in 1996 the Air Force personnel  system  blew  it
and because of that error he could not continue to serve.  Because  of
that error he was improperly discharged and was not promoted  when  he
should have been.  If he had been promoted to major in 1997, he  would
have been guaranteed the ability to continue serving, earning pay  and
points, up to his 20-year point.  Because of that error  he  could  no
longer compete with his  peer  group.   Because  of  that  error,  his
aeronautical rating expired.  Because of that error,  he  wouldn’t  be
competitive even if he was able to find  a  unit  interested  in  him.
Because of that error, he is currently denied a  military  retirement.
It is the Air Force’s responsibility to make him whole, not the  other
way around.

He wants to make it very clear that he intends to pursue  this  matter
for as long as it takes.  He  has  been  in  close  contact  with  his
Congressman’s staff on this issue, and they are very interested in the
outcome of this matter.  He will not allow the  Air  Force  to  simply
acknowledge that a career ending error was made and then  simply  make
it his problem.

The applicant’s complete response is at Exhibit H.

_________________________________________________________________

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.    Sufficient relevant evidence has been presented  to  demonstrate
the existence of an error or an injustice warranting  partial  relief.
The board notes the applicant was discharged from active  duty  on  30
November 1996, for twice non-selection for permanent promotion to  the
grade of major.  He received  separation  pay  per  10  U.S.C  Section
1174(a), and by accepting separation pay agreed to serve  in  the  IRR
for  three  years.    After   thoroughly   reviewing   the   available
documentation,  we  believe  that  the  applicant  was  not   properly
processed into the Reserves and was denied the opportunity to  fulfill
his three-year obligation.  As a  result,  we  believe  he  should  be
credited with 35 non-paid points and 15 membership points for a  total
of 50 points per year for the period 1 December  1996  to  30 November
1999, the time he should have been assigned to the IRR to fulfill  his
agreed upon service obligation.  As for his request for restoration of
lost  points  for  additional  years,  lost  pay,  consideration   for
retirement   eligibility   and   compensation   for   lost   promotion
opportunities, we believe that it  is  purely  speculative  to  assume
that, had the applicant been properly processed into the  Reserves  he
would have continued his  career  beyond  the  three-year  obligation,
earning points, pay, and to  ultimately  become  retirement  eligible.
Therefore, his request for correction of these issues is  denied.   In
regards to the applicant’s request to correct his DD 214, after review
of the evidence of record the Board finds that the applicant’s DD  214
was in compliance with 10 USC Section 632(a) upon his separation  from
active  duty  and  his  request  for  correction  is   not   favorably
considered.  In view  of  the  above,  we  recommend  the  applicant's
records be corrected to the extent indicated below.

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  issue(s)   involved.
Therefore, the request for a hearing is not favorably considered.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that:

      a.  He was credited with 35 non-paid inactive duty  points,  and
15 membership points for retention/retirement years 1 December 1996 to
30 November 1999, resulting in 150 total points; and  that  1 December
1996  to  30 November  1999  are  3  retention/retirement   years   of
satisfactory Federal Service.

      b.  He was assigned to the Inactive Status List Reserve  Section
on 1 December 1999.

_________________________________________________________________

The following members of the Board considered Docket  Number  BC-2004-
03564 in Executive Session on 9 March 2006, under  the  provisions  of
AFI 36-2603:

                       Mr. Thomas S. Markiewicz, Chair
                       Mr. Gregory A. Parker, Member
                       Ms. Jan Mulligan, Member

All  members  voted  to  correct  the  record,  as  recommended.   The
following documentary evidence was considered:

      Exhibit A.  DD Form 149, dated 13 Nov 04, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, ARPC/DPR, dated 21 Mar 05, w/atchs.
      Exhibit D.  Letter, SAF/MRBR, dated 25 Mar 05.
      Exhibit E.  Letter, Applicant, dated 5 Apr 05, w/atchs.
      Exhibit F.  Letter, AFBCMR, dated 8 Nov 05, w/atch.
      Exhibit G.  Letter, AF/JAA, dated 27 Oct 05.
      Exhibit H.  Letter, Applicant, dated 13 Nov 05.




                             THOMAS S. MARKIEWICZ
                             Chair


AFBCMR BC-2004-03564




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air Force
Board for Correction of Military Records and under the authority of Section
1552, Title 10, United States Code (70A Stat 116), it is directed that:

      The pertinent military records of the Department of the Air Force
relating to APPLICANT , be corrected to show that:

            a.  He was credited with 35 non-paid inactive duty points, and
15 membership points for retention/retirement years 1 December 1996 to  30
November 1999, resulting in 150 total points; and that 1 December 1996  to
30 November 1999 are 3 retention/retirement years of satisfactory  Federal
Service.

            b.  He was assigned to the Inactive Status List Reserve Section
on 1 December 1999.









  JOE G. LINEBERGER

  Director

  Air Force Review Boards Agency