ADDENDUM TO
                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-1993-00932
                                             INDEX CODE: 100.00
                                             COUNSEL:

                                             HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  23 June 2007

________________________________________________________________

APPLICANT REQUESTS THAT:

Validation of promotion and federal recognition to the rank of  colonel  and
such other relief that may be just and proper.

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APPLICANT CONTENDS THAT:

Despite the intent of The Adjutant General New Mexico (TAG-NM) to  recommend
him for promotion to colonel  and  to  manage  the  NM  Air  National  Guard
(NMANG) force pursuant to the New Mexico Force  Personnel  Management  Plan,
members of the NMANG failed to make a colonel  personnel  move  which  would
have “double slotted” him with another member who  had  less  than  6-months
from retirement.  Further, the National Guard  Bureau  (NGB)  delayed  their
responses to TAG-NM’s request for expeditious  processing  of  his  case  so
that appropriate corrections  could  be  made,  enabling  his  promotion  to
colonel prior to his Mandatory Separation Date (MSD).

In support of his request, applicant submits statements from the former  and
current TAG-NM.

Applicant’s complete submission is at Exhibit Q.

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STATEMENT OF FACTS:

On 25 May 1994, the Board considered applicant’s request that his  selection
for promotion to the grade of colonel be validated and  he  receive  federal
recognition by  the  state  Federal  Recognition  Board.   The  Board  found
insufficient  of  error  or  injustice  and  denied  his  request.   For  an
accounting of  the  facts  and  circumstances  surrounding  the  applicant’s
separation, and the rationale of the earlier decision by the Board, see  the
Record of Proceedings at Exhibit J.

In a letter to the Secretary of the Air Force, dated 30 September 1996,  the
applicant sought review of his case; however, on 18 November  1996,  he  was
advised it would be inappropriate for the  Secretary  to  intervene  in  his
behalf, and that the documentation provided, did not meet the  criteria  for
reconsideration (Exhibits K and L).

In an advisory opinion, dated 5 February  1997,  ANG/MPPU,  recommended  the
applicant’s 30 September 1996 submission be returned without action  because
it did not contain new evidence.  ANG/MPPU  noted  that  applicant  was  not
occupying a colonel (O-6) position at the time  the  promotion  package  was
submitted; a request to  place  the  applicant  into  an  O-6  position  had
previously been denied by the ANG Readiness Center, Director  of  Personnel;
and the structure of the ANG does not allow for promotion to  the  grade  of
colonel without a valid position vacancy (Exhibit M).

On 21 April 1997, the applicant was advised his request  did  not  meet  the
criteria for reconsideration (Exhibit N).

In  an  application,   dated   5   May   2005,   the   applicant   requested
reconsideration of his application.  The  applicant’s  complete  submission,
with attachments, is at Exhibit Q.

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AIR FORCE EVALUATION:

NGB/AIPOF recommends denial of the applicant’s request and concurs with  the
advisory provided by the Subject  Matter  Expert  (SME),  NGB/AIP.   NGB/AIP
states, in part, that while additional documents have  been  provided,  they
do not provide any new information that would  change  the  original  reason
for disapproval.  The applicant was not the sole incumbent  of  the  colonel
position at the time the Federal Recognition Board was  convened.   Further,
the promotion recommendation was not supported by the Unit Manning  Document
(UMD), since there  would  be  two  people  “double-slotted”  in  a  colonel
position.  It was, and is currently against  ANG  policy  to  downgrade  one
colonel position with a current colonel incumbent to allow for promotion  of
another.  The applicant contends that when  Col  V---  retired,  that  would
resolve  the  situation;  however,  Colonel  G---  would  still  occupy  the
position, leading to the same conclusion.  The request for a change  to  the
UMD was submitted the same day  the  State  Federal  Recognition  Board  was
held; thereby, invalidating it.  In addition, the  applicant  did  not  meet
the ANG Federal Recognition Review Board and thus has  never  been  selected
by the President, or confirmed by the Senate, for promotion to the grade  of
colonel.

The NGG/AIP evaluation, with attachment, is at Exhibit S.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The advisory is in error, inconsistent with the documentation provided,  and
does not address the intent of TAG-NM.  They did not consider that he was  a
dual-status technician and should have properly been given  the  opportunity
to continue as a military technician until  he  was  eligible  for  a  civil
service annuity, as was the case with  Colonel  V---,  who  was  allowed  to
continue as a military technician until he reached retirement age.   In  his
case, he was separated from service at the age of 49.  Had he  been  allowed
to do so, TAG-NM  would  have  timely  completed  the  promotion  activities
including correction of  the  OERs  and  proper  slotting  could  have  been
completed prior to Lt Col V---‘s retirement.   The  advisory  also  did  not
consider that he was qualified by virtue of its  failure  to  recognize  his
status as a technician under 10 USC 828(c) (1) which  would  have  qualified
him for continuation and promotion as a  dual-slotted  technician  under  10
USC 8853.

Applicant’s complete response is at Exhibit U.

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THE BOARD CONCLUDES THAT:

1.    Insufficient relevant evidence has been presented to  demonstrate  the
existence of an error or an  injustice.   In  this  respect,  we  note  that
although the TAG-NM recommended, and the  State  Federal  Recognition  Board
approved, the applicant’s Unit Vacancy promotion to the  grade  of  colonel,
NGB/DPG determined the applicant was ineligible for the promotion since  his
two most recent  OPRs  did  not  contain  top  block  ratings  supported  by
substantive comments, and returned the  package  without  action.   The  day
prior to the state board convening, the state had requested a  grade  change
to the Unit Manning Document (UMD) which was disapproved by NGB/DPG  because
projected losses could not be  used  to  promote  officers,  but  rather  to
provide recruiting the ability to focus on  the  actual  vacancy  available.
The OPRRB approved  the  applicant’s  request  to  void  the  1989  OPR  and
administratively correct the  1988  and  1990  OPRs  to  include  top  block
ratings  supported  by  substantive  comments.   In  1992,   the   applicant
petitioned the AFBCMR requesting validation and federal recognition  of  his
promotion to colonel,  contending  the  TAG-NM  intended  to  realign  grade
structure and recommend his promotion to  colonel.   The  AFBCMR  considered
his application, which included favorable recommendations from the  Governor
of NM and the current  and  former  TAGs-NM,  and  ultimately  accepted  the
opinion of the Air Staff that since  projected  losses  cannot  be  used  to
promote officers, the applicant had not been the victim of an  error  or  an
injustice.  We have thoroughly reviewed  the  evidence  of  record  and  the
additional documentation provided by applicant; however, we do not find  the
statements  from  the  current  and  former  TAGs-NM  either  singularly  or
collectively  sufficiently  persuasive  to  change  the   AFBCMR’s   earlier
conclusions  in  the  applicant’s  case.   To  the  contrary,  much  of  the
information contained therein is already a matter of record  and,  as  such,
was previously considered by the AFBCMR.  Regardless, the NGB  has  reviewed
the applicant’s entire submission,  to  include  the  TAG-NM’s  5  May  2005
report, with attachments, and finds no  new  evidence  to  warrant  changing
their original reason for disapproval.  The NGB further notes that  it  was,
and currently is, against NGB policy to downgrade one colonel position  with
a current colonel incumbent to allow for promotion of  another.   While  the
applicant takes issue with the applicability  of  NGR  (AF)  36-4,  dated  1
February 1992, in accordance with paragraph 3-3 of ANGR 36-4, dated  1  July
1986,  to  be  eligible  for  Federal  recognition  of  a  position  vacancy
promotion an officer, “Must be the only officer assigned to a  UMD  position
authorizing the grade, or a higher one, for  which  Federal  recognition  is
sought.”  The applicant also contends  that  as  a  dual-status  technician,
under 10 USC 8848(c)(1)  he  should  have  been  given  the  opportunity  to
continue to serve as a military technician  beyond  his  MSD  until  he  was
eligible for a civil service  annuity.   However,  the  evidence  before  us
indicates the applicant was not a dual-status technician, but  was  in  fact
serving an active duty (AGR) tour, which was curtailed on 22 November  1991,
due to his MSD.   As  such,  the  cited  statutory  provisions,  which  were
subsequently repealed  on  1  October  1996,  do  not  apply  in  his  case.
Further, we find no evidence that prior to his MSD, timely action was  taken
to request an  extension  of  his  MSD  in  sufficient  time  to  allow  for
processing of the request prior to  the  expiration  of  his  MSD.   To  the
contrary, the evidence before us indicates the TAG-NM  did  not  request  an
extension of the applicant’s MSD until 17 January 1992,  almost  two  months
after it had expired.  In view of  the  above,  we  are  not  persuaded  the
applicant has 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.

2.    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 additional  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-1993-00932
in Executive Session on 19 April 2007, under the provisions of AFI 36-2603:

                 Mr. Thomas S. Markiewicz, Chair
                 Ms. Maureen B. Higgins, Member
                 Mr. James A. Wolffe, Member

The following documentary evidence was considered:

    Exhibit J.  Record of Proceedings, dated 2 Aug 94, w/atchs.
    Exhibit K.  Letter, Applicant, dated 30 Sep 96.
    Exhibit L.  Letter, AFBCMR, dated 18 Nov 96.
    Exhibit M.  Memo, ANG/MPPU, dated 5 Feb 97.
    Exhibit N.  Letter, AFBCMR, dated 21 Apr 97.
      Exhibit O.  Letter, Applicant, dated 23 Sep 04.
      Exhibit P.  Letter, AFBCMR, dated 20 Oct 04.
      Exhibit Q.  DD Form 149, dated 25 Nov 05, w/atchs.
      Exhibit R.  Letter, AFBCMR, dated 28 Jan 06.
      Exhibit S.  Memo, NGB/A1POF, dated 22 Jan 07, w/atch.
      Exhibit T.  Letter, AFBCMR, dated 25 Jan 07.
      Exhibit U.  Letter, Applicant, dated 10 Apr 07, w/atch.






                                   THOMAS S. MARKIEWICZ
                                   Chair