RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-01371
            INDEX CODE:  110.03

            COUNSEL:  HARRY KONST

            HEARING DESIRED: YES

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APPLICANT REQUESTS THAT:

His record be corrected to reflect 20 years of active duty service,  a
subsequent active duty retirement, and a pilot  bonus  he  would  have
received had he been selected for any one of several positions he  had
applied for but not been selected.

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APPLICANT CONTENDS THAT:

He served 27 years of selfless military service,  23  years  of  which
were with the New York Air National Guard (NYANG).  Between  1993  and
2000, he had applied for a total of six Active/Guard  Reserve  (active
duty, Title 32) positions with the NYANG.  Five of  the  positions  he
applied for went to other applicants and a sixth  position  was  never
advertised and therefore lost to another unit.  He appealed  his  loss
of the final AGR position in  February  2000  to  the  State  Adjutant
General (TAG), for a 15-year active duty retirement.  He was aware  of
three other squadron members who had retired early  with  active  duty
retirements after 15 years of  service.   His  appeal  for  a  15-year
retirement was denied.  Then, in 2002, after many years  of  dedicated
service to his country with an impeccable  record  he  was  astonished
when he was non-retained.  He feels had he been retained he would have
reached the grade of colonel and possibly a squadron/group command.

In support of his  appeal,  the  applicant  has  provided  a  personal
statement and copies of his non-retention  package,  his  resume,  his
participation chart, and several Officer Performance Reports (OPR’s).

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

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STATEMENT OF FACTS:

Applicant a retired member of the NYANG began his military service  on
24  June  1975.   He  was  progressively  promoted  to  the  grade  of
Lieutenant Colonel with date of rank (DOR) of 8 December  1999  and  a
promotion effective date (PED) of 18 May 2000.  On  30 April  2002,  a
Federal Retention Evaluation Recommendation Board  was  held  and  the
applicant was non-retained.  He was notified of his  non-retention  by
memorandum on 5 September 2002.  On 2 January  2003,  he  was  retired
after serving for more than 27 years.  He is currently on the  Retired
Reserve List awaiting pay at age 60.

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AIR FORCE EVALUATION:

NGB/A1POF recommends denial.  A1POF states  his  non-retention  action
was accomplished in accordance with  Air  National  Guard  Instruction
(ANGI) 36-2606.  He received notification  from  the  NYANG  Chief  of
Staff (COS) who specifically state’s “You  should  not  consider  non-
retention as an unfavorable reflection on your military career; nor is
it a separation/discharge for cause.  In determining your  eligibility
for retention, I can assure you that  the  NYANG  Selective  Retention
Review Board carried out its duties in a most conscientious, thorough,
and impartial manner.”  A1POF states he has provided no evidence of an
error or injustice supporting his request.

A1POF’s complete evaluation is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel for applicant states the NGB advisory  is  incorrect  when  it
states his request to be credited active duty time is  invalid  as  he
cannot be credited active duty time that he did not perform.   Counsel
states it must be determined whether or not the applicant’s  treatment
was  fair  and   equitable.    When   decisions   are   made   without
substantiation, they expose possible underlying personal notice, which
is against Air Force codes and policies.   Counsel  contends  the  NGB
proffered no evidence of opposition to the  personal  motives  of  his
chain of command’s failure to select him for any of six AGR  positions
he applied for.

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THE 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.   We  took  notice  of   the
applicant's complete submission in judging the  merits  of  the  case;
however, we agree with the  opinion  and  recommendation  of  the  Air
National  Guard  office  of  primary  responsibility  and  adopt   its
rationale as the basis for our decision that the applicant has  failed
to sustain his burden of having suffered either an error or injustice.
 The ANG Selective Retention Review Board appears to have carried  out
its duties within the auspices  of  ANGI  36-2606  and,  all  argument
aside, Air Force personnel cannot  be  credited  and  compensated  for
service they did not perform.  With regard to  his  contention  other,
less qualified, individuals were selected for  AGR  positions  he  had
applied for, we note that  selection  of  applicant’s  for  advertised
position vacancies is the responsibility  of  the  selecting  official
with approval of  the  State  Adjutant  General.   Therefore,  in  the
absence of persuasive evidence to the contrary, we find no  compelling
basis to recommend granting the relief sought in this application.

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.

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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 AFBCMR Docket Number BC-
2005-01371 in Executive Session on 16 May 2006, under  the  provisions
of AFI 36-2603:

      Mr. Thomas S. Markiewicz, Panel Chair
      Ms. Janet I. Hassan, Member
      Ms. Kathleen F. Graham, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 22 Apr 05, w/atchs
    Exhibit B.  Letter, NGB/A1POF, dated 4 Apr 06
    Exhibit C.  Letter, SAF/MRBR, dated 7 Apr 06.
    Exhibit D.  Letter, Counsel, dated 27 Apr 06, w/atchs.




                                   THOMAS S. MARKIEWICZ
                                   Panel Chair