RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-02549
            INDEX CODE:  131.05

            COUNSEL:  NONE

            HEARING DESIRED: YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His date of rank (DOR) to the Reserve grade of captain be  changed  to
reflect March 2002 rather than 9 December 2003.

_________________________________________________________________

APPLICANT CONTENDS THAT:

In the summer of 2001 he joined the  Connecticut  Air  National  Guard
(CTANG) as a JAG officer.  In the fall of  2001,  a  new  Staff  Judge
Advocate (SJA) was assigned to the unit.   The  new  SJA  expressed  a
discriminatory attitude by way of making various verbal statements  to
him in the presence of others.  In January 2002, the SJA took arguably
improper action(s) to delay a prospective promotion to  captain  based
on his participation in the weight management program.   Further,  the
SJA threatened his career should he decide to take any appeal  up  the
chain of command.  He appealed and a deal was struck between  himself,
the SJA and the Wing Commander (WG/CC) that he  would  meet  the  next
scheduled promotion board in March 2002 and, if selected,  and  if  he
made progress in the weight  management  program,  his  DOR  could  be
changed to reflect an earlier DOR.  He did not  meet  the  March  2002
board.  He did however continue to meet  expectations  on  the  weight
management program and was eventually  removed  from  the  program  in
October 2002.

In early 2002, he represented two clients who both requested alternate
counsel.  The SJA queried him on the reasons for the alternate counsel
requests.  He refused to tell the SJA the reasoning  based  on  client
confidentiality.  The SJA was furious  and  issued  him  a  letter  of
counseling (LOC) asserting numerous alleged  wrongful  behaviors.   He
appealed the LOC to the WG/CC (on the advice of counsel)  arguing  the
validity of the charges in the  LOC  and  defended  his  reasoning  of
client confidentiality regarding the  question  of  alternate  counsel
requests.  Another deal was  struck  between  the  same  parties  that
stipulated he attend JAG “basic training”  and  then  leave  the  unit
within a couple of years.
During late summer 2002, he attended the JAG school.  Upon his return,
his SJA asked what his plans for moving  to  another  unit  were.   He
thought he had two years remaining as per the deal so he had no  plans
to transfer anytime soon.  On 19 October 2002, his SJA began  to  take
several actions designed to destroy his career (including his transfer
to another unit).  He received a referral Officer  Performance  Report
(OPR) that effectively ended his career and was intended to  make  him
request retirement immediately or  prevent  any  promotion,  including
mandatory promotions.  He was able to get promoted however,  prior  to
the referral being placed in his record.  He was promoted  to  captain
in December 2003.  He notes his record has no record  of  a  promotion
order.  Additionally, the  eventual  inclusion  of  the  referral  OPR
effectively stopped him from transferring.

After being warned several times to reverse course,  he  filed  ethics
complaints and requests for ethics opinions.  The HQ JAG found the SJA
had acted unethically but delayed any action pending the results of an
Independent Review Panel in Washington DC.

In support of his  appeal,  the  applicant  has  provided  a  personal
statement.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant began his military career by enlisting on 24  January  1990.
He received his law degree in 1994.  He was commissioned on  21  March
1999.  He was appointed as a JAG intern in the CTANG on 9  June  2001.
He was promoted to the  Reserve  grade  of  captain  via  the  Reserve
Officer Promotion Act (ROPMA) with a date of rank (DOR) of  1  October
2003 and an effective date of 9 December 2003.  On 18 May 2004, he was
transferred to the non-affiliated Reserve Section and has served  over
11 years of satisfactory service.  He  is  currently  serving  in  the
Kentucky Army National Guard.

________________________________________________________________

AIR FORCE EVALUATION:

ANG/DPFOC recommends denial.  DPFOC states it  is  not  a  requirement
that States submit members for position vacancy (PV) promotion.  DPFOC
notes he was  considered  for  mandatory  (ROPMA)  promotion  and  was
selected by the  fiscal  year  2004  (FY04)  ANG  Captain’s  Mandatory
Promotion  Board.   It  appears  even  though  his  promotion   flowed
automatically to the Military Personnel Data System (MilPDS), that his
unit  never  recommended  him  for   federal   recognition.    Federal
recognition is being sought of the CTANG by the OPR ANG/DPFOO.

DPFOC cites an advisory  from  the  CTANG  dated  12  September  2005,
wherein the issue of the referral  OPR  is  addressed.   The  advisory
indicates, along with arguments supporting the issuance  of  the  OPR,
the applicant has failed to exhaust all other administrative  remedies
regarding the referral OPR prior to asking the AFBCMR for relief.   He
should, at a minimum, seek relief via Air Force Instruction (AFI)  36-
2401, Correcting Officer and Enlisted Evaluation Reports as a starting
point.

DPFOC’s complete evaluation, with attachments, is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant contends he  was  forced  out  of  the  CTANG  for  improper
reasons.  Regarding the referral OPR  and  other  issues  besides  his
request to backdate his DOR he notes he qualifies  for  the  requested
remedies from the AFBCMR without actually appealing the OPR.   Further
he states a DOR is not wholly dependent upon the status of an OPR.  He
contends outright dismissal (of his case) upon the merit (or even with
an option for  later  resubmission)  is  inequitable  at  this  point.
Therefore he requests the AFBCMR  immediately  direct  a  DOR  to  the
Reserve grade of captain of no later than 9 December 2003 and that the
rest  of  his   case   be   withdrawn   until   he   submits   further
evidence/argument.

_________________________________________________________________

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.  After a thorough review  of  the
evidence of record and applicant's submission, we are not persuaded by
the applicant’s assertions that there was an  agreement  made  between
him and his Wing Commander that he would  be  submitted  for  position
vacancy promotion in March 2002, in and  by  themselves,  sufficiently
persuasive to override the  rationale  provided  by  the  ANG  Officer
Program Section and the Connecticut Air National  Guard  Headquarters.
Therefore, we agree with the opinions and recommendations of  the  Air
National Guard offices  of  primary  responsibility  and  adopt  their
rationale expressed as the basis for our decision that  the  applicant
has failed to sustain his burden of having suffered either an error or
injustice.  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.

_________________________________________________________________

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-
2005-02549 in Executive Session on 26 April 2006, under the provisions
of AFI 36-2603:

      Mr. Jay H. Jordan, Panel Chair
      Mr. James A. Wolffe, Member
      Mr. Michael V. Barbino, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated, 8 Aug 05 w/atch.
    Exhibit B.  Letter, ANG/DPFOC, dated 9 Feb 06, w/atchs.
    Exhibit C.  Letter, SAF/MRBR, dated 24 Mar 06.




                                   JAY H. JORDAN
                                   Panel Chair