RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-03913
		INDEX CODE:  107.00

		COUNSEL:  NONE

		HEARING DESIRED: YES


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APPLICANT REQUESTS THAT:

The Secretary of the Air Force forward his appointment as LtCol 
to the Secretary of Defense for his approval or that the 
recognition by the President of the United States of his 
promotion to colonel while he served in the USAF, be sufficient 
to reinstate him to the grade of lieutenant colonel (LtCol).

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APPLICANT CONTENDS THAT:

His commission to Lt Col was revoked on 9 November 2007 and no 
reason was given.

In support of his appeal, the applicant has a copy of an ARPC/JA 
advisory submitted for an earlier application dated 14 September 
2007 and a copy of the Reserve order rescinding his promotion to 
LtCol dated 9 November 2007. 

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

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STATEMENT OF FACTS:

On 5 November 2004, after serving for several years, in several 
grades, with military components of the Navy, Army and Air 
Force, he enlisted with the California Air National Guard 
(CAANG) in the grade of SSgt.  He served with the CAANG until he 
applied for Reserve retirement in May 2007.  During the 
retirement process it was found that because he had previously 
served for more than three years as an LtCol (05) in the Army 
Reserve, he was eligible for a Highest Grade Held (HGH) 
determination.  It was determined that he would be eligible for 
Reserve retired pay in the grade of 05 beginning on 30 April 
2010, his 60th birthday.  Pursuant to Air Force Instructions 
(AFIs), he was offered a commission for retirement purposes only 
and, on 22 May 2007, he was transferred to the Retired Reserve 
with the rank of LtCol. 

On 12 November 2007, HQ ARPC/DPP provided an advisory opinion 
with regard to an earlier application submitted by the applicant 
requesting that he be recalled to active duty and allowed to 
serve in an active status in the grade of Lt Col.  The ARPC 
advisory indicated that although the applicant was eligible to 
draw retired pay in the grade of LtCol, ARPC determined that 
their 2007 Reserve appointment to LtCol was without authority in 
accordance with a 2005 memorandum from the Department of Justice 
that removed ARPC’s officer appointment authority by prohibiting 
the redelegation of appointment authority below the Secretary of 
Defense.  Therefore the applicant’s appointment to LtCol was 
considered illegal even for the purpose of retirement and 
clearly for the purposes for which the applicant made 
application to the BCMR.  In late 2007, ARPC administratively 
corrected the applicant’s record to show he was retired in the 
grade of SSgt, but that he would draw Reserve retired pay in the 
grade of lieutenant colonel upon reaching the age of 60.  

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AIR FORCE EVALUATION:

HQ ARPC/JA recommends denial.  JA notes that in his current 
submission the applicant cites an earlier advisory from ARPC/JA, 
dated 14 September 2007, that was provided to the AFBCMR in 
response to an earlier case submitted by the applicant.  In his 
current submission, the applicant cites the earlier advisory and 
makes the comment that the earlier advisory stated he was 
legally retired in the grade of Lt Col.  JA states that the 
earlier opinion had been recalled shortly after it was issued.  
JA states the applicant is aware of the recall action as he made 
several phone calls to JA inquiring about a revised advisory.  
JA contends that ARPC does not have the authority to appoint an 
officer as the Department of Justice (DOJ) has opined that only 
the President or the Secretary of Defense can appoint officers 
pursuant to the United States Constitution.  JA contends the 
applicant was given every benefit provided by law and that no 
action take by the Air Force has harmed him legally or 
equitably.

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

Examiner’s note: On 31 January 2008, the applicant’s case was 
administratively closed in accordance with his undated request.  
On 3 June 2008, his application was reopened in response to an 
undated request from the applicant that he was ready to proceed.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant contends it is undisputed that he is in the 
Retired Reserve.  It is also undisputed that he is entitled to 
be commissioned as an LtCol and since he has properly executed 
the appointment which was tendered to him, he can see no reason 
why the AFBCMR could not order that his appointment be sent to 
the Secretary of Defense for approval.  He has requested a 
reason why this has not been done numerous times and has yet to 
receive a satisfactory answer.  

He asks why the confirmation of the President of the United 
States of his promotion to full colonel could not suffice as an 
approval by the President for his promotion to LtCol.  

Applicant’s complete response, with attachments, is at Exhibit 
D.

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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 Force office of primary responsibility and adopt its 
rationale as the basis for our conclusion that the applicant has 
not been the victim of an error or injustice.  The applicant is 
eligible to receive Reserve retired pay in the grade of LtCol, 
but for all other intents and purposes, he was transferred to 
the Reserve Retired list awaiting Reserve retired pay in the 
grade of staff sergeant – not LtCol - and is therefore not 
eligible for consideration by any plan or program that requires 
a member to be a commissioned Air Force officer.  Additionally, 
we note his contention that the President confirmed his 
promotion to colonel while he was serving in the USAF.  In fact, 
the President only nominated the applicant for promotion to the 
grade of colonel and forwarded his nomination to the Senate for 
actual confirmation.  He was not serving in the USAF at that 
time but in the CAANG (as a staff sergeant) and he was selected 
for confirmation by an Army Reserve promotion board that 
convened after he had left the Army Reserve and enlisted in the 
CAANG.  Consequently, any further action regarding an Army 
promotion board must be addressed to the Army BCMR as a matter 
falling under their purview.  Therefore, in the absence of 
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 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-2007-03913 in Executive Session on 11 March 2009, 
under the provisions of AFI 36-2603:

	XXXXXXXXXXXXXXX, Chair
	XXXXXXXXXXXXXXX, Member
	XXXXXXXXXXXXXXX, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 13 Nov 07, w/atchs.
    Exhibit B.  Letter, ARPC/JA, dated 21 Dec 07.
    Exhibit C.  Letter, SAF/MRBR, dated 11 Jan 08.
    Exhibit D.  Letter, Applicant, undated.
    Exhibit E.  Letter, SAF/MRBC, dated 31 Jan 08.
    Exhibit F.  Letter, Applicant, undated, w/atchs.




                                   XXXXXXXXXXXXXXXX
                                   Chair