RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-01336
            INDEX CODE:  113.01, 128.02,
                              134.01
            COUNSEL:  MR. EUGENE R. FIDELL
            HEARING DESIRED:  NO

      MANDATORY CASE COMPLETION DATE: 22 Oct 07

_________________________________________________________________

APPLICANT REQUESTS THAT:

1. His Letter of Reprimand (LOR), dated 7 April 2001, be  removed  from  his
records.

2. His records be corrected to show he obtained  20  years  of  satisfactory
Federal service; or, in the alternative, he be provided  an  opportunity  to
achieve retirement eligibility.

3. He be paid per diem and lodging for his tour of duty served from  12  May
2000 through 30 Sep 2000.

_________________________________________________________________

APPLICANT CONTENDS THAT:

In November 2000, during his last set of active  duty  orders  at  SOUTHCOM,
applicant began seeking employment.  He obtained authorized  leave  for  the
month of December 2000 and advised his supervisor, Mr. S---,  he  might  not
return to SOUTHCOM.  His supervisor verbally  approved  his  leave  request.
Applicant coordinated his leave with MSgt S--- who told him to call  at  the
end of December if he decided not to return to SOUTHCOM for  termination  of
his orders.  On 4 December 2000, he was offered  a  position  in  Key  West,
Florida.  On 19 December 2000, he  received  a  call  from  Major  G---  who
congratulated him on his new job and threatened to retroactively  amend  his
military orders to the date he accepted civilian employment in  an  apparent
attempt to recoup the military salary he  received  on  what  he  considered
terminal leave.  On 20 December 2000, he received a  call  from  Major  G---
who related Colonel C---, Commander, JIC,  had  expressed  displeasure  with
applicant's job situation.  Applicant, not understanding the purpose of  the
call told Major G--- that he needed to speak with  an  attorney.   Believing
that his civilian job was threatened,  he  faxed  a  resignation  letter  to
Major G---.  On 21 December 2000, he faxed  another  letter  to  Major  G---
stating if the military decided  to  decline  his  resignation  request  and
ordered him back to duty, he would obey that order.  On that same  date,  he
received a faxed letter from Colonel C--- ordering him back to  SOUTHCOM  no
later than December 22.  Applicant returned to SOUTHCOM on December 22.
Upon his  return  to  SOUTHCOM  an  investigation  was  conducted  into  the
circumstances surrounding his leave and employment  in  Key  West.   It  was
determined that he had intentionally misled officials regarding his new  job
and had also failed to obey a supposed order by  Colonel  C---  on  December
20, to return to SOUTHCOM.  At the conclusion of the  investigation  he  was
issued an LOR for allegedly falsifying information on  his  leave  form  and
disobeying a direct  order  to  return  to  SOUTHCOM  on  December  20.   He
submitted a rebuttal to the LOR.   General  S---determined  that  there  was
insufficient evidence to establish intentional falsification  on  the  leave
form and deleted any reference to it on the LOR.  As a  result  of  the  LOR
and subsequent UIF, he was involuntarily  transferred  to  non-participating
status in the Individual Ready Reserve (IRR).

Applicant  filed  a  complaint  with  the  DoD  Inspector  General  (DoD/IG)
contending the actions taken against him  constituted  reprisal  for  having
made protected communications in  1994  to  his  commander  and  Members  of
Congress  in  2000/2001.   The  DoD/IG  found   his   reprisal   allegations
unsubstantiated, but recommended the Secretary of the Air Force  review  his
Reserve status and "consider such action  as  necessary  to  provide  him  a
reasonable opportunity to achieve retirement eligibility."

During his  first  active  duty  tour  he  received  per  diem  and  lodging
allowances because his home  of  record  was  Niceville,  Florida  which  is
approximately 700 miles from SOUTHCOM.  Toward the end of that tour Major L-
--, Chief of the Air Force Reserve Affairs Office, suggested he  change  his
home of record to Miami because he "...had had per  diem  and  lodging  long
enough."  He declined her suggestion.   When  he  received  orders  for  his
second active duty tour he discovered there were no allowances for per  diem
and lodging.  When he inquired to MSgt S--- about the missing funds  he  was
told "If he did not like it, he could go someplace else."  Major  L---  told
him he could not receive per diem and lodging because  of  SOUTHCOM  policy.
Despite his efforts,  he  could  not  obtain  any  written  SOUTHCOM  policy
justifying the denial of per diem and lodging allowance.  His per  diem  and
lodging were reinstated during  his  third  tour,  15 October  2000  through
April 2001.

The  DoD/IG  opined  that  the  applicant's  "...misconduct  was  adequately
addressed  administratively  through  the  letter  of  reprimand,  UIF,  and
referral Officer Performance Report (OPR).   His  removal  from  the  active
Reserve was therefore, not a 'last resort' disciplinary measure and did  not
comply with the regulatory intent..."  In a letter dated 1 April  2004,  but
not received until August 2004, the ARPC  commander  advised  the  applicant
that the letter of notification dated 28 June  2001  stated  he  was  denied
taking part  in  pay  or  point  gaining  activities  pending  the  approval
authority's decision on  his  involuntary  reassignment.   The  decision  to
reassign him to the IRR was made on 27  July  2001  and  was  not  effective
until 15 September 2001.   Between  11  April  through  28  June  2001,  his
inactive duty training requirements could have been completed.  On  16  July
2004, the Assistant Inspector General wrote  to  Senator  McConnell  stating
that a review  found  "conflicting  verbiage"  in  two  memoranda  from  the
SOUTHCOM Reserve Program Manager that may have led the applicant to  believe
he could not accrue the necessary points to obtain a  satisfactory  year  of
Reserve participation for retirement.

Despite the DoD/IG's  finding  that  the  various  personnel  actions  taken
against the applicant evidenced a "balanced  and  objective"  approach,  the
LOR itself was in fact  unwarranted.   The  amended  LOR  is  based  on  his
alleged failure to obey a direct order to return to SOUTHCOM on 21  December
2000.  However, he never  disobeyed  a  direct  order.   In  a  nutshell,  a
miscommunication on 20 December 2000 was entirely blown  out  of  proportion
and should not have been the basis for an  LOR.   The  Defense  Intelligence
Agency  (DIA)  addressed  this  matter  and  determined  that   it   is   an
insufficient  ground  to  deny  the  applicant's  security  clearance.   The
applicant  never  understood  Major  G---'s  conversation  with  him  on  20
December 2000 to be an order  emanating  from  Colonel  C---  to  report  to
SOUTHCOM on any specific date.  Major G--- was confusing, antagonistic,  and
threatened to take potentially illegal actions.   During  the  conversation,
Major G--- asked applicant when he could report back to  SOUTHCOM,  however,
he never ordered him to report on any particular day.  Major  G---'s  second
statement contradicted his statement the day before that  he  was  going  to
cancel applicant's orders retroactively.

In support of his request, counsel provided  a  brief,  applicant's  resume,
documentation  associated  with  his   security   clearance   certification,
documentation associated with his LOR,  documentation  associated  with  his
assignment  to  the  IRR,   documentation   associated   with   the   DoD/IG
investigation, documentation  associated  with  his  Congressional  inquiry,
documentation associated  with  the  adverse  actions  taken,  OPRs  closing
September 1999 and September 2000, and AFI 36-2115, Assignments  Within  the
Reserve Components.  Counsel's complete submission, with attachments, is  at
Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant, a former Air Force Category B (IMA) reserve  officer,  served
on the following Military Personnel Appropriation (MPA) manday  tours:   Per
special order (S.O.) R0-00-021, dated  8 November  1999,  from  15  November
1999 through 14 December 1999 (30 days); per amendment RO-00-021A,  dated  9
December 1999, from 15 December 1999 through 7 April 2000  (114  days);  per
S.O. R0-00-055, from 8 April 2000 through 11 May 2000 (34  days);  per  S.O.
R0-00-077, from 12 May 2000 through 29 September 2000 (142 days);  per  S.O.
JA-00364, from 31 October 2000 through 14 October 2000 (14 days);  and,  per
S.O. RO-01-008, from 17  November  2000  through  14 May  2001  (amended  to
reflect from 15 October 2000 through 10 April 2001).

On 3 January 2001, an investigating officer  was  appointed  to  conduct  an
informal investigation regarding the circumstances  surrounding  applicant's
December 2000 leave, his employment with a DoD contractor,  his  refusal  to
comply with an order to return  to  USSOUTHCOM,  and  his  attempt  to  have
classified  computer  files  moved  from  his  USSOUTHCOM  computer  to  his
computer in  Key  West.   The  investigating  officer  found  the  applicant
violated UCMJ Article 133 - Conduct unbecoming an officer and gentleman  and
UCMJ  Article  107  -  assaulting  or  willfully   disobeying   a   superior
commissioned officer.  The  investigating  officer  recommended  nonjudicial
punishment under Article 15 of the UCMJ to include an LOR  and  that  he  be
assigned  to   another   Reserve   unit/IMA   position   or   permitted   to
resign/retire.   On  28  February  2001,  applicant  was  notified  by   his
commander of his intent to recommend nonjudicial  punishment  under  Article
15 of the UCMJ for willfully disobeying a lawful order,  failing  to  report
that he accepted outside employment, and willfully submitting an  incomplete
or  inaccurate  leave  request.   Applicant  acknowledged  receipt  of   the
notification and after consulting counsel, demanded trial by  court-martial.
 On 7 April 2001, he was issued an LOR for  disobeying  a  superior  officer
and making a false official statement.

On 28 June 2001, he was notified by the  USAFR  Air  Force  Program  Manager
that action was being initiated to effect his  involuntary  reassignment  to
the IRR.  Effective 15 September 2001, he was involuntarily assigned to  the
IRR.  He completed 19 years, 7 months, and 21 days of  satisfactory  Federal
service.

_________________________________________________________________

AIR FORCE EVALUATION:

ARPC/DPRF recommends denial.  DPRF states in accordance  with  AFI  36-2115,
paragraph 3.5,  when  sufficient  grounds  are  determined  by  the  program
manager, the program manager will initiate the action.  In  the  applicant's
case, it was determined  that  there  were  legally  sufficient  grounds  to
involuntarily reassign him to the IRR.

DPRF states the LOR he received  meets  the  requirements  of  AFI  36-2907,
Unfavorable Information Program, and it is the opinion of ARPC/JA  that  the
LOR/UIF is legally  sufficient  and  sees  no  reason  to  second-guess  the
commander in this case.

Regarding his contention he was  improperly  denied  per  diem  and  lodging
during his  second  tour,  DPRF  states  he  was  on  a  Military  Personnel
Appropriations (MPA) manday tour from 12  May  2000  to  29 September  2000,
total duration of tour is 141 days.  Members are not entitled to travel  and
per diem for tours exceeding 139 days in accordance with the  Joint  Federal
Travel Regulation (JFTR) U7150-A3b and U7150-A4c1  and  are  considered  PCS
and are eligible for PCS entitlements.

The DPRF complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel states the advisory fails to address the critical argument that  the
DoD/IG found the Air Force's  removal  of  the  applicant  from  the  active
Reserve did not "comply with regulatory  intent"  and  their  recommendation
that his Reserve status be reviewed and "consider such action  as  necessary
to  provide  him  with  a  reasonable  opportunity  to  achieve   retirement
eligibility."  The Air Force has never provided  him  such  opportunity  and
the  Air  Force  fails  to  articulate  why  it  has  ignored  the  DoD/IG's
recommendation.

The advisory opinion regarding the LOR suggests the  office  generating  the
advisory opinion conducted no review of the merits of the  case.   Nor  does
the opinion credit the fact that the DIA after  conducting  such  a  review,
determined that the facts and circumstances did not  justify  revocation  of
his clearance.

The advisory cites a version of the JFTR which is  dated  after  the  period
which the applicant claims he was entitled to allowances.  While  suggesting
he was entitled to PCS allowances, the advisory does not identify  with  any
particularity what allowances he is entitled to and avoids the fact that  he
was denied any kind of allowance during this period even though his home  of
record was 700 miles from his duty station.  The advisory fails  to  explain
why he was paid per diem and lodging  for  his  first  and  third  tours  at
SOUTHCOM, but paid nothing for his middle tour.

Counsel's complete response is at Exhibit E.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

USAF/JAA reviewed applicant's request and recommends partial  correction  of
the applicant's record.  JAA recommends denial of his  request  for  removal
of his LOR and states seeking  to  satisfy  his  own  financial  needs,  the
applicant requested and received active-duty orders  to  perform  a  175-day
tour at SOUTHCOM.  Although active-duty orders are sometimes  curtailed  for
reservists' convenience, they nevertheless impose binding  obligations,  and
it is simply unreasonable for a reservist to accept such a lengthy  military
commitment with the expectation such orders can, or will  be,  curtailed  at
the member's convenience.  The applicant concedes he began seeking  civilian
employment outside SOUTHCOM and presumes he can  terminate  his  active-duty
orders at will for any reasons he deems  personally  appropriate.   Contrary
to his statement to  the  DoD/IG,  his  supervisor  was  frustrated  by  his
disclosure to him that "the  possibility  existed"  he  may  not  return  to
SOUTHCOM after taking his leave.  What became the  basis  for  the  LOR  was
that  on  19 December  2000,  Major  G---,  contacted  the  applicant,   who
indicated he was not planning on  returning  to  SOUTHCOM.   On  20 December
2000 Major G---, acting  on  the  direction  of  Colonel  C---,  called  the
applicant and ordered him back to SOUTHCOM by the  morning  of  21  December
2000.  According to Major G--- the applicant responded  that  he  could  not
return by the morning  of  21 December  2000  and  indicated  he  needed  to
consult a civilian attorney first, and if he  did  return  to  SOUTHCOM,  it
would be only  to  resign.   Applicant  states  he  found  the  call  to  be
contradictory and confusing but based on his statement to  the  DoD/IG,  the
order was of dubious legality because Major G--- was not part of  his  chain
of command and he recollects Major G--- asking whether he  could  return  to
SOUTHCOM on 21 or 22 December  2000.   From  Major  G---'s  perspective  the
order to the applicant to report 21  December  2000  was  clear.   From  the
applicant's perspective it was not.  Because he disobeyed the  verbal  order
to report to SOUTHCOM on 21 December 2000 and reported on 22 December  2000,
in response to a written order from Colonel C---, he  was  administered  the
LOR.

It was clear that Major G--- communicated to the applicant on  whose  behalf
he  was  making  the  call.   Applicant  stated  in  a  faxed   "Letter   of
Resignation" to Major  G---  and  two  Florida  Legislators:  "Colonel  C---
subsequently discovered that I had accepted this position  and  has  ordered
me to 'terminate my leave and report back to HQ, U.S.  Southern  Command  as
soon as possible'".  Applicant obviously  understood  both  the  source  and
nature of the order.  If the reporting date was as confusing as he  alleges,
he did nothing during or after the call to  seek  immediate  clarification--
conduct which is reasonable to expect of  a  major.   A  Naval  officer  who
witnessed  the  20  December  2000  conversation  testified  to   a   DoD/IG
investigator that the order was clear and unambiguous.

JAA recommends approval  of  that  portion  of  his  request  regarding  his
retirement eligibility.  JAA states under AFI 36-2131,  paragraph  4.5,  Air
Force Reserve Component Officers who are transferred from an  active  status
"for cause" are not eligible for reserve sanctuary.   JAA  agrees  with  the
DoD/IGs opinion (which is not binding on the Air  Force)  that  his  removal
from the Active Reserve penalized him out of proportion  to  the  nature  of
his misconduct (which JAA believes had been sufficiently  disposed  of  with
the LOR, UIF, referral OPR, and control roster action).   JAA  believes  the
language  in  AFI  36-2115,  Chapter  4,  paragraph  4.1   is   significant;
"[i]voluntary  reassignment  from  the  Selected  Reserve...for   cause   is
generally inappropriate. [It is to be used] as a  last  resort.   If  it  is
deemed  appropriate,  initiate  involuntary  reassignment   for   cause   or
derogatory  reasons  only  after   all   appropriate   disciplinary   and/or
administrative actions have been taken and documented.  Consider  exceptions
to these policies on a case by case basis."  Nothing in the  file  indicated
his lengthy time in service was carefully considered prior to imposition  of
this  far-reaching  decision.   Applicant  is  certainly  not  entitled   to
retirement  or  to  immunity  from  caused-based   administrative   actions.
Nevertheless, JAA believes the equities  of  this  case  suggest  the  Board
either correct the records to show completion of 20 years for retirement  or
require him to complete the time specified by ARPC to  qualify  for  Reserve
retirement.

The JAA evaluation is at Exhibit F.

APRC/DPA recommends denial.  DPA states orders and amendments are looked  at
independently when determining per diem  or  PCS  entitlements.   The  first
period of active duty was from 15 November 1999 to 14 Dec 99, for  30  days.
He was authorized per diem because he was on orders for less than 140  days.
 An amendment was cut to the 8 November 1999 order.  This  amendment  placed
him on orders from 15 December 1999 to 7 April  2000,  114  days.   Although
this was an amendment per diem was authorized since  the  amended  tour  was
less than 140 days.  The next set of orders he was  placed  on  covered  the
period 8 April 2000 to 11 May 2000, 34 days.  Per Diem was  authorized  once
again because the tour was less than  140  days.   The  following  order  in
question was from 12 May 2000 through 29 September 2000, 142 days.   He  was
not authorized per diem because the order exceeded the 140-day threshold.

The DPA evaluation is at Exhibit G.

_________________________________________________________________

APPLICANT'S RESPONSE TO ADDITIONAL AIR FORCE EVALUATION:

In response to the JAA evaluation counsel reiterated his  previous  argument
regarding the LOR and states the advisory opinion simply disregards many  of
the facts set forth  in  applicant's  submission  including  Colonel  C---'s
animus, General S---'s unfounded effort to court-martial him  and  the  fact
that his SCI clearance was reinstated.  The  advisory  also  seeks  to  make
much of his  20 December  2000  letter  of  resignation  which  is  entirely
consistent with his submission and does not  support  the  advisory  opinion
because  it  clearly  describes  Colonel  C---  as  having  ordered  him  to
terminate his leave and  report  back  as  soon  as  possible,  rather  than
setting a precise date or time.  The fact that Colonel  C---  felt  impelled
to send his 21 December 2000 memorandum strongly suggests he  understood  no
effective  order  had  been  communicated  before  then.   If  the   message
communicated by Major G--- was as clear  as  the  advisory  states,  counsel
asks how come the witnesses  cite  a  variety  of  different  report  dates,
ranging from 19 to 22 December.  The assertion by Lieutenant S---  that  she
overheard applicant's part of his conversation  cannot  be  credited.   Both
she and Major G--- were in Miami and he was in Key West.  Speakerphones  are
not permitted for security reasons so how  then  could  she  have  overheard
what the applicant was saying?  Counsel notes that the  advisory  recommends
favorable action with respect to his involuntary transfer  to  the  IRR  and
states it is their continued belief that the Board  should  grant  the  full
relief requested.

In response to the DPA  evaluation  counsel  states  the  record  should  be
corrected to show approval of per diem notwithstanding  the  fact  that  the
order calling him to active duty exceeded the 140-day limit.  Per  Diem  can
be  authorized  if  there  are  (1) unusual  circumstances,  (2)   emergency
circumstances, or (3) exigencies  of  the  service.   Waivers  are  commonly
granted, so the bar is not a high one in  this  respect.   Authorization  is
warranted under either the first or third of  these  alternatives.   It  was
wrong to deny him per diem for the disputed period.  He served  as  required
and was treated most unfairly  in  the  process.   Counsel  appreciates  the
opinions that he could submit another application  asking  authorization  of
PCS entitlements for the period in question by deeming him to have  received
PCS orders.  He would have happily accepted such orders at the  time.   This
would have had to be a period of extended active duty that  would  have  led
to his reaching  active  duty  sanctuary  and  entitlement  to  active  duty
retirement  on  the  completion  of  20 years  of   active   service.    Re-
characterizing his orders as PCS orders would also entail a  host  of  other
downstream changes that might not serve the Air Force's interests and  would
require substantial effort to implement in order  to  leave  his  record  in
anything approaching coherent condition.  He would  be  entitled  to  moving
expenses, a dislocation allowance, BAS, BAH,  and  a  COLA  for  Miami.   It
would also require recalculation of his allowances  and  travel  claims  for
subsequent periods.  Rather than taking that complicated effort,  the  Board
should address this part of the error and injustice in the  simpler  fashion
previously discussed.

Counsel's complete responses are appended at Exhibit I.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing  law  or
regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of error or injustice that would warrant some  corrective  action.
Applicant requests numerous corrections be made  to  his  military  records.
He requests his LOR be removed from his records, his  records  be  corrected
to show he obtained 20 years of satisfactory  Federal  service,  and  he  be
authorized per diem and lodging entitlements for his  tour  served  from  12
May 2000 through 30 September 2000.   In  his  response  to  the  Air  Force
evaluations, counsel additionally requests removal of his  referral  Officer
Performance Report (OPR) and direct promotion to  the  grade  of  lieutenant
colonel.  After a  thorough  review  of  the  evidence  of  record  and  the
applicant's submission, we  believe  corrective  action  is  warranted  with
regard to the decision to involuntarily  assign  him  to  the  IRR  and  the
denial of per diem and entitlements during the contested tour.  As noted  by
the findings of the DoD/IG during its  investigation  into  the  allegations
made by the applicant, the  decision  to  assign  him  to  the  IRR  appears
inconsistent with the guidance and intent  of  the  applicable  instruction.
It is our opinion that his assignment to the IRR was excessively  harsh  and
the decision seems to have been made without taking the significant  adverse
impacts into consideration.  We note that the Air Reserve  Personnel  Center
advised the applicant that he had a  window  of  opportunity  to  accumulate
sufficient points for a satisfactory year  of  service  prior  to  placement
into the IRR; however, he was not advised of this  opportunity  until  three
years after the fact.  In  view  of  the  above,  it  is  our  opinion  that
reasonable doubt has been established as to whether or not he  was  unjustly
placed on the IRR and  we  believe  any  doubt  in  this  matter  should  be
resolved in his favor.  Accordingly we recommend his record be corrected  to
reflect he completed a satisfactory year of Federal  service  and  that  his
name was placed on the Retired Reserve List.

4.  Further, we believe reasonable doubt has been established as to  whether
or not  an  injustice  exists  with  respect  to  his  request  that  he  be
authorized per diem and lodging allowances for his tour of duty served  from
12 May 2000 through 30 September  2000.   In  this  respect,  the  applicant
served on numerous manday tours beginning in November 1999.  His first  tour
orders for a period of 30 days were amended for an additional period of  114
days.  He was issued subsequent orders for a period of 34  days,  141  days,
14 days, and a tour from 17 November 2000 through  14  May  2001  which  was
amended to reflect  15  October  2000  through  10  April  2001.   Applicant
contends he was paid per diem and  lodging  allowances  during  all  of  his
tours except the 142-day tour.  The Air  Force  in  its  evaluation  of  the
applicant's requests states  that  per  diem  is  not  authorized  for  tour
lengths exceeding 140 days.  The Air Force argues  that  he  was  authorized
per diem for the 30-day tour and the 114-day amendment to the  tour  because
the tour lengths  were  less  than  140  days  (apparently  considering  the
amendment as a separate and distinct tour).  The Air  Force  further  states
he was not authorized per diem for the tour in  question  because  the  tour
length exceeded 140 days; however,  they  failed  to  address  that  he  was
inexplicably authorized per diem  for  his  subsequent  tour  which  clearly
exceeded 140 days.   As  such,  it  is  our  opinion  that  because  of  the
inconsistent manner in which his per diem entitlements were  determined  and
being  aware  of  recent  policy  authorizing  per  diem  rather  than   PCS
entitlements in cases such as this one, we believe an  injustice  exists  in
this case and recommend his records be corrected in  a  manner  which  would
authorize per diem for the tour in question.

5.  Notwithstanding the above, we find insufficient relevant evidence of  an
error or injustice with respect to his remaining requests.  His  contentions
regarding the LOR are duly noted; however, after a thorough  review  of  the
documentation presented we find no evidence of an error  or  injustice.   In
cases of this nature, we are  not  inclined  to  disturb  the  discretionary
judgments of commanding officers absent a strong showing of  abuse  of  that
authority.  We are not persuaded  that  such  is  the  case.   We  carefully
considered the evidence of record along with the applicant's submission  and
given  the  circumstances  of  this  case,  do  not  believe  the  LOR   was
administered erroneously, inappropriately or unjustly.  Persuasive  evidence
has not been presented which would lead us to  believe  the  LOR  was  based
upon anything  other  than  the  inappropriate  actions  of  the  applicant.
Therefore, we agree with the opinions of the Air Force  offices  of  primary
responsibility and adopt their rationale as basis for  our  conclusion  that
he has not been the victim of an error or injustice.  Accordingly, since  we
find no basis upon which to recommend removal of the LOR from  his  records,
we find  no  reason  to  favorably  consider  counsel's  requests  that  his
referral OPR be removed or that he be directly  promoted  to  the  grade  of
lieutenant colonel.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

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

a.  Competent authority authorized per diem entitlements in accordance  with
paragraph U7150-A4d1 of the  Joint  Federal  Travel  Regulation  during  his
active duty tour served from 12 May  2000  through  30 September  2000,  per
Reserve Order RO-00-077 dated 11 May 2000.

b.  On 15 September 2001, he  was  not  transferred  to  Non-Obligated  Non-
Participating Ready Reserve Status, but on that date, he continued to  serve
in the Selected Reserves.

c.  He was credited with an additional 35 non-paid inactive duty points  for
Retention/Retirement year 1 May 2001 through 30 April 2002, resulting in  50
total points; and, that the period 1 May 2001 through 30  April  2002  is  a
year of satisfactory Federal service.

d.  On 1 April 2004, he was not  discharged  from  the  Air  Force  Reserve;
rather, on 1 May 2002, he was relieved from the Air Force Reserve and  on  2
May 2002, he was assigned to the Retired Reserve Section, and, his name  was
placed on the Retired Reserve List, eligible  for  retired  pay  at  age  60
under the provisions of Title 10, USC, Section 12731.

_________________________________________________________________
The following members of the Board considered AFBCMR Docket Number  BC-2005-
01336 in Executive Session on 1 Jun 06 and 6 Jul 06,  under  the  provisions
of AFI 36-2603:

      Mr. James W. Russell III, Panel Chair
      Mr. Alan A. Blomgren, Member
      Mr. Charles E. Bennett, Member

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

    Exhibit A.  DD Form 149, dated 1 Nov 04, w/atchs.
    Exhibit B.  Applicant's Available Master Personnel Records.
    Exhibit C.  Letter, ARPC/DPRF, dated 14 Dec 06, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 16 Dec 05.
    Exhibit E.  Letter, Counsel, dated 4 Jan 06.
    Exhibit F.  Letter, USAF/JAA, dated 28 Feb 06.
    Exhibit G.  Letter, ARPC/DPA, dated 12 Apr 06, w/atchs.
    Exhibit H.  Letter, SAF/MRBC, dated 21 Apr 06.
    Exhibit I.  Letter, Counsel, dated 1 May 06, w/atch.
    Exhibit J.  IG Report of Investigation - WITHDRAWN



                             JAMES W. RUSSELL III
                                             Panel Chair
AFBCMR BC-2005-01336




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.  Competent authority  authorized  per  diem  entitlements  in
accordance with paragraph U7150-A4d1 of the Joint Federal Travel  Regulation
during his active duty tour served from 12  May  2000  through  30 September
2000, per Reserve Order RO-00-077 dated 11 May 2000.

            b.  On 15  September  2001,  he  was  not  transferred  to  Non-
Obligated Non-Participating Ready Reserve  Status,  but  on  that  date,  he
continued to serve in the Selected Reserves.
            c.  He was credited with an additional 35 non-paid inactive
duty points for Retention/Retirement year 1 May 2001 through 30 April 2002,
resulting in 50 total points; and, that the period 1 May 2001 through 30
April 2002 is a year of satisfactory Federal service.

            d.  On 1 April 2004, he was not discharged from the Air Force
Reserve; rather, on 1 May 2002, he was relieved from the Air Force Reserve
and on 2 May 2002, he was assigned to the Retired Reserve Section, and, his
name was placed on the Retired Reserve List, eligible for retired pay at
age 60 under the provisions of Title 10, USC, Section 12731.

      e.  He be provided the opportunity to make an  election  under  the
Reserve Component Survivor Benefit Plan (RCSBP).









                                        JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency