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AF | BCMR | CY2006 | BC-2005-03318
Original file (BC-2005-03318.doc) Auto-classification: Denied


                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-03318
            INDEX CODE:  110.01

      XXXXXXX    COUNSEL:  NONE

      XXXXXXX    HEARING DESIRED: NO


MANDATORY CASE COMPLETION DATE:  1 MAY 2007


___________________________________________________________________

APPLICANT REQUESTS THAT:

His DD Form 214, Certificate of Release or  Discharge  from  Active
Duty, dated 29 Feb 96, Block 12a, Date  Entered  Active  Duty  (AD)
should reflect 25 Jun 79, rather than 1 Jun 83.

___________________________________________________________________

APPLICANT CONTENDS THAT:

He entered the US Air Force Academy (USAFA) on 25 Jun  79  and  was
commissioned upon  graduation  on  1  Jun  83.   His  DD  Form  214
incorrectly lists the date of commission as  the  date  he  entered
active duty.  Per 10 USC 101 (d) (1): The term “active duty”  means
full-time duty in the active military service of the United States.
 Such term includes full-time training duty, annual training  duty,
and attendance while in the active military service,  at  a  school
designated as a service school  by  or  by  the  Secretary  of  the
military department concerned.  This term is consistent  throughout
relevant laws including 37 USC Sec 101, 26 USC Sec 3121, and 38 USC
Sec 101.  Since there was no break in active service, his  DD  Form
214, should reflect the date he entered active duty as the date  he
entered the USAFA.

Applicant’s complete submission is at Exhibit A.

___________________________________________________________________

STATEMENT OF FACTS:

Applicant was commissioned and entered extended active  duty  (EAD)
on 1 Jun 83.  He was progressively promoted to the grade  of  major
with an effective date and date of rank (DOR) of 1 Jun 87.  He  was
honorably discharged on 29 Feb 96 under the provisions of  AFI  36-
3207, with a reason  for  separation  of  Non-selection,  permanent
promotion.  He was credited with 12 years and 9  months  of  active
duty service.

On 10 Mar 06, his DD Form 214  was  administratively  corrected  to
reflect in Item 18, Remarks, “Attended USAF Academy in cadet status
25 Jun 79 to 1 Jun 83.  Service is not creditable for  any  purpose
in commissioned officer status.”

___________________________________________________________________

AIR FORCE EVALUATION:

HQ  AFPC/JA  reviewed  this  application  and  recommended  denial,
stating, in part, applicant’s request runs squarely in the specific
statutory prohibition of Title  10,  Section  971,  which  directly
prohibits using time cadets serve at a military academy from  being
use for any purpose in computing length of service.

The controlling provisions from Title 10, Section  971  provide  as
follows:

      “(a) Prohibition on Counting Enlisted Service Performed While
at Service Academy or in Naval  Reserve.   The  period  of  service
under an enlistment or  period  of  obligated  service  while  also
performing service as a cadet or midshipman…may not be  counted  in
computing, for any purpose, the length of service of an officer  of
an armed force…”

       “(b)  Prohibition  on  Counting  Service  as  a   Cadet   or
Midshipman.  In  computing  length  of  service  for  any  purpose,
service as a cadet or midshipman may not be credited to any of  the
following officers:…(2) A commissioned officer of the Army  or  the
Air Force…”

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

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to  the  applicant
on 17 Mar 2006 for review and comment within 30 days.  As  of  this
date, no response has been received by this office (Exhibit D).

___________________________________________________________________

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 found no evidence that  the  applicant’s  service
time was miscalculated or that it was not  computed  in  accordance
with the applicable laws and statutes.  Title 10  USC  Section  971
directly prohibits using time cadets serve at  a  military  academy
for the purposes of computing length of service.   The  appropriate
Air Force office has addressed the issue presented by the applicant
and we are  in  agreement  with  its  opinion  and  recommendation.
Therefore, we adopt the 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.  In  the  absence  of
persuasive evidence to the contrary, we find no compelling basis to
recommend granting the relief sought in this

___________________________________________________________________

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-2005-03318 in Executive  Session  on  24  May  2006,  under  the
provisions of AFI 36-2603:

      Mr. Michael J. Novel, Panel Chair
      Mr. Reginald P. Howard, Member
      Mr. James A. Wolffe, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 21 Oct 05, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ AFPC/JA, dated 13 Dec 05, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 17 Mar 06.




                                   MICHAEL J. NOVEL
                                   Panel Chair

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