RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-02899
            INDEX NUMBER:  136.00
      XXXXXXXXXXXX     COUNSEL:  George E. Day

      XXXXXXX    HEARING DESIRED:  No


MANDATORY CASE COMPLETION DATE:  19 Mar 07


_________________________________________________________________

APPLICANT REQUESTS THAT:

His retirement grade be  changed  from  lieutenant  colonel  (O-5)  to
colonel (O-6) with no change in his retirement pay.  He would like his
DD-214 and retired ID card to reflect that he achieved the grade of O-
6.

_________________________________________________________________

APPLICANT CONTENDS THAT:

In a two-page brief, applicant’s counsel requests that  the  applicant
be granted a waiver of time in grade and that his  previous  grade  of
colonel be reinstated:  A summary of the reasons put forth by  counsel
follows:

        a.  The applicant had an exemplary 23-year career with notable
achievements, including award of  the  Silver  Star,  4  Distinguished
Flying Crosses, 2 Purple Hearts, 26 Air Medals,  and  numerous  combat
missions.

        b.  The applicant is only requesting an administrative  change
in his records to reflect the grade of colonel.  He is not  requesting
an increase in retirement pay or benefits.

        c.  The applicant retired within the three-year  period  after
accepting his promotion to O-6  due  to  irregularities  in  his  last
assignment.  He was told through the military personnel center  system
to take an assignment or to take the seven-day option to retire.   The
applicant was selected for the assignment on 1 Mar 89, notified  on  9
May 89, and given a report date less than a month  from  the  date  of
notification.

        d.  Due to obligations beyond his control, the applicant could
not accept a 24-month tour to Korea.  He was  solely  responsible  for
the care of his disabled daughter and his  granddaughter,  neither  of
which qualified as dependents.   He  requested  time  in  grade  (TIG)
waivers immediately, but never received a response.

        e.  There were numerous  people  qualified  for  the  type  of
assignment the applicant received who  did  not  have  the  number  of
overseas tours the applicant had already  served.   They  should  have
been considered before him.

        f.  The whole process surrounding the  applicant’s  assignment
selection  was  inundated  with  confusing  irregularities.   He   was
notified by an airman about an  assignment  with  a  report  date  the
following month, two months after he had been selected.   His  request
for reasonable accommodation relating  to  his  family  problems  went
unanswered.

In support of  the  applicant’s  appeal,  counsel  has  included  nine
attachments that include a copy of the applicant’s promotion orders to
colonel, copies of requests for a waiver of time  in  grade,  DD  FORM
214, and other related documents.

The applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 16  Jul  66  and
was  promoted  up  to  the  grade  of  colonel.   On  16  May  89,  he
acknowledged on the  AF  Form  1160,  “Military  Retirement  Actions,”
placement on the Air Force Reserve Retired List as of 1  Sep  89.   It
appears the applicant had requested a retirement date  of  1  Jan  90.
The applicant signed a statement in the remarks section of the AF Form
1160 that indicated, “In lieu of a 2-year remote assignment and  under
the 7 day retirement option I will accept retirement in the grade of 0-
5 for the purpose of retirement pay.”

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPRRP  recommends  denial  of  the  applicant’s  request.    The
applicant did not have the three years’ TIG required by  law  and  has
not provided any proof that the President exercised his authority  and
granted him a waiver of the requirement.

The applicant’s recorded actions were for  personal  reasons  and  his
choice  to  retire  in  lieu  of  accepting  the  PCS  assignment  was
conclusive.  He served in the grade of colonel for 1 year,  11  months
when he was notified  of  his  assignment.   Rather  than  accept  the
assignment, he elected to retire.  The law in effect at the  time,  10
USC, Section 1370(a)(2)(A), stated, in essence, that to retire in  any
grade above major or lieutenant commander, a commissioned officer must
have served in that grade for not less than three years.

The law, 10 USC, Section 1370(a)(2)(B), allows the President to  waive
the required time in grade  “in  individual  cases  involving  extreme
hardship or exceptional or unusual circumstances.”  The  authority  of
the President cannot be delegated.

They note  that  the  applicant  submitted  documentation  showing  he
requested a waiver at two different times.   However,  those  requests
would not have come  to  their  office  so  they  have  forwarded  the
applicant’s current request to the office  of  primary  responsibility
(OPR), the Air Force Senior Leadership Management Office (AFSLMO)  for
their review and comment.

The complete evaluation is at Exhibit C.

AF/DPO recommends denial of the applicant’s request.  They  note  they
have made an administrative correction to the applicant’s DD Form  214
to reflect his active duty grade of colonel held at the  time  of  his
separation from service.  However, the rank held at separation is  not
the rank used  for  pay  or  on  the  identification  (ID)  card.   In
accordance with AFI 36-3026, Table 14.3, the grade entered on  the  ID
card is the official grade and rank the member is entitled to  receive
retired pay.

The applicant exercised his right to retire in lieu of an  accompanied
assignment to Korea.  Korean assignments are particularly hard to fill
and it is not unusual for Air Force members to retire in lieu of these
assignments.  The applicant states there were mitigating  factors  for
his decision not to take the Korea assignment  due  to  family  member
issues.  The Exceptional  Family  Member  Program  (EFMP)  exists  for
members to receive special  consideration  for  assignments  if  their
family members have documented issues  that  have  been  reviewed  and
approved by AFPC.  The applicant did not enroll his family members  in
the EFMP program.  They  also  note  the  applicant’s  assignment  was
“accompanied” and that policies exist to  get  “sponsorship”  for  his
daughter from a previous marriage if he  chose.   Finally,  they  note
that they are aware of no legal way to bestow the grade of colonel  on
the applicant after retirement and not pay him.  If the  applicant  is
granted a TIG waiver after the fact, he would be entitled to the  rank
and pay that goes with it.

The complete evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluations were forwarded to the applicant on
2 Dec 05 for review and comment within 30 days.  To date,  a  response
has not been received.

_________________________________________________________________

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.  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 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 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-2005-
02899 in Executive Session on 11 January 2006, under the provisions of
AFI 36-2603:

      Thomas S. Markiewicz, Chair
      Mr. Wallace F. Beard, Jr., Member
      Mr. James W. Russell, III, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 30 Aug 05, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFPC/DPPRRP, dated 4 Oct 05.
    Exhibit D.  Memorandum, AFPC/DPPO, dated 28 Nov 05.
    Exhibit E.  Letter, SAF/MRBR, dated 2 Dec 05.




                                   THOMAS S. MARKIEWICZ
                                   Chair