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


IN THE MATTER OF:      DOCKET NUMBER:  94-03030
            INDEX CODES:  110.03, 131.09

            COUNSEL:  EUGENE R. FIDELL

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

He be restored to active duty as if he had not been retired under  the
Temporary Early Retirement Authority (TERA) Program.

He be promoted to the grade of major as of the date he was restored to
active duty in 1994; and, that he be promoted to the grade  lieutenant
colonel with the date of rank and effective date of promotion he would
have had had he been selected with his contemporaries.

He be awarded constructive active duty and back pay and allowances  in
accordance with the foregoing, less lawful offsets for retired pay and
interim civilian earnings.

Any other and further corrections as may in the circumstances be  just
and proper be made.

_________________________________________________________________

STATEMENT OF FACTS:

On  19  Dec  95,  the  Board  considered  and  denied  an  application
pertaining to the applicant, in which he requested that his records be
corrected to show he was not relieved from  active  duty  and  retired
because of physical disability; all documents and  references  to  the
misdiagnosis and evaluation/treatment for a  psychiatric  disorder  be
removed from all of his  medical,  personnel  and  security  clearance
records; he be promoted to the grade of major with his  peer  group  -
Calendar Year 1991 (CY91) Major Selection Board; his  last  Air  Force
Commendation Medal (AFCM),  awarded  on  10  Apr  91,  be  changed  to
indicate he received the award for completion of his tour of duty;  he
be credited with continuous active duty  service  retroactive  to  the
first day his name was placed on the Temporary Disability Retired List
(TDRL)(2 Feb 91); and, he be awarded full back pay and allowances,  to
include all leave he would  have  earned,  dislocation  allowance  for
relocation from Kadena  AB,  Okinawa  to  New  Braunfels,  Texas,  all
withholding from his retired pay for the Survivor Benefit Plan  (SBP),
and, all payments due to him be deemed nontaxable income.  A  complete
copy of the Record of Proceedings, is at Exhibit  V  (with  Exhibits A
through G).

On 1 Jul 99, the Board considered and again denied his application.  A
complete copy of the Addendum to Record of Proceedings is at Exhibit W
(with Exhibits H through L).

On 20 Sep 01, the Board considered and denied the applicant’s  request
that any reference to a diagnosis of conversion  disorder  be  removed
from his records; his discharge and the placement of his name  on  the
TDRL be voided; he be restored to active duty as if he had never  been
placed on the TDRL, or, he be retired by reason of  longevity;  he  be
promoted to the grades of major and lieutenant colonel with the  dates
of rank he would have had had he been selected with his contemporaries
instead of having been placed on the TDRL; he be awarded  constructive
active duty and  back  pay  and  allowances  in  accordance  with  the
foregoing, less lawful offsets for retired pay  and  interim  civilian
earnings; and that any further corrections as may in the circumstances
be just and proper be made.  A complete copy of the Second Addendum to
Record of Proceedings is at Exhibit X (with Exhibits M through U).

On 31 Dec 01, the applicant filed suit in the United  States  District
Court for the District of Columbia.

On 15 Mar 02, the Court ordered that the case be remanded to the Board
to review the issue of the applicant’s rank, specifically, whether  he
should have been restored to active duty from the  TDRL  at  a  higher
grade.

On 25 Mar 02, as a result of the Court’s remand of  the  case  to  the
Board in light of the government’s representation that  the  Secretary
had agreed to review again the applicant’s  claim  that  when  he  was
restored to active duty from the TDRL, he should have been restored at
a higher grade, counsel submitted a request for reconsideration of the
applicant’s appeal (Exhibit Y).

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/JA recommended that the Board determine that the failure  of  the
applicant to be given an opportunity to be promoted to major with  his
contemporaries as required by 10 USC 1211 was an error  and  that  the
applicant’s records be sent to a  “special”  special  selection  board
(SSB) for consideration by the CY91 Major Board.

AFPC/JA noted that 10 USC 1211(a) provides, and provided at  the  time
of the alleged error that with his consent, any member of the Army  or
the Air Force whose name is on  the  TDRL  and  who  is  found  to  be
physically fit to perform the duties of his  office,  grade,  or  rank
under section 1210(f) of this title which  reads  “if  a  commissioned
officer of a regular component be recalled to active duty and, as soon
as practicable, may be reappointed by the President, by and  with  the
advice and consent of the Senate,  to  the  active-duty  list  in  the
regular grade held by him when his name was placed  on  the  temporary
disability retired list, or in the next higher grade.”

Additionally, 10 USC 1211(f) provides that action under  this  section
shall be taken on a fair and equitable basis, with regard being  given
to the probable opportunities for advancement and promotion  that  the
member might reasonably have had if his name had not  been  placed  on
the temporary disability retired list.

AFPC/JA also noted that AFR 35-4, Physical Evaluation  for  Retention,
Retirement, and Separation, the regulation in effect at  the  time  of
applicant’s return to active duty, provided in  paragraph  7-26d  that
members removed from the  TDRL  as  fit  are  usually  reappointed  or
enlisted in the active duty grade in which they  were  serving  before
placement on the TDRL.  In  certain  cases,  the  law  (10  USC  1211)
permits advancement to the next higher grade  to  which  the  members’
contemporaries, at time of placement on the TDRL have  been  promoted.
Such advancement is at the discretion of  the  Secretary  of  the  Air
Force, and procedures are established by HQ AFMPC,  Officer  Promotion
Branch (HQ AFMPC/DPMAJB) and HQ AFMPC,  Airman  Promotion  Branch  (HQ
AFMPC/DPMAJW).

AFPC/JA indicated it would appear that at the time the  applicant  was
returned to active duty from the TDRL, the Air Force had no  procedure
established to effect the provision above—undoubtedly because of a  16
Apr 87 legal opinion issued by this office which the Officer Promotion
Branch  relied  upon  to  determine  whether  to  promote  an  officer
returning from the TDRL to the next higher grade.   In  essence,  that
opinion determined that Air Force regulations prohibited  promoting  a
member returning from the TDRL to a higher grade unless they had  been
selected by a promotion board  before  they  were  put  on  the  TDRL.
However, the ensuing events in this case have caused  this  office  to
fully review that interpretation and the policy that has been followed
in reliance thereon.   They  have  now  determined  that  the  earlier
opinion misinterpreted the spirit and intent of the governing statutes
and  regulations,  having   taken   a   snapshot   of   the   member’s
contemporaries  at  the  incorrect   time,   i.e.,   it   required   a
determination of whether the member’s contemporaries were selected for
promotion before the member was put on the TDRL, while the  regulation
focuses on whether the contemporaries were promoted while  the  member
was on the TDRL.  This being said, there are nevertheless no Air Force
regulations prohibiting or, for that matter  guaranteeing,  return  to
active duty at the higher rank.

In fact, that is  the  real  problem  here.   The  Air  Force  had  no
provisions in place to provide consideration for  a  member  like  the
applicant—who was on the TDRL but was subsequently returned to  active
duty—to be afforded  consideration  for  advancement  in  grade  “with
regard being given to the probable opportunities for  advancement  and
promotion that the member might reasonably have had if  his  name  had
not been placed on the temporary disability retired list,” as required
by 10 USC 1211.  In AFPC/JA’s view, the failure of the  Air  Force  to
have provided some mechanism to give the applicant this  consideration
constituted error.   Certainly,  his  having  been  offered  immediate
consideration for major by the next regularly scheduled  board  (where
his contemporaries had already been  selected  and  he  no  doubt  was
viewed above the promotion zone) did  not  provide  that  opportunity.
Yet, except for the promotion of second and first  lieutenants  (which
are based essentially solely on the officer’s time in  grade)  officer
promotions in the Department of Defense—by law—are made only after the
officer has met and been competitively selected by a promotion  board.
As a consequence, in their view, absent some  exigent  circumstance(s)
rendering  such  a  procedure  unfair  or  unworkable,  the  promotion
consideration contemplated by 10 USC 1211 and  AFR  35-4  should  have
been provided by means of a selection board to replicate the promotion
consideration given to the officer’s  contemporaries  in  the  primary
zone (IPZ), but denied to this officer because  of  his  ineligibility
due to his placement on the TDRL.

As a consequence, the remedy AFPC/JA  recommends  to  this  Board  now
(based on the unique  circumstances  of  this  case)  is  a  “special”
special selection board (SSB) ordered by this Board  to  replace  what
would have been the  applicant’s  IPZ  central  major’s  board.   This
special board would not technically be convened pursuant to 10 USC 618
and AFI 36-2501, Chapter 5,  nor  would  it  be  bound  by  the  rules
governing SSBs found in those directives.  Rather, such a board  would
be convened pursuant to the Secretary’s inherent  authority  under  10
USC 8013 to implement necessary procedures to run the Air  Force—which
in this circumstance, would be to implement  a  fair  and  appropriate
procedure to effect the requirement in 10 USC 1211 (and AFR 35-4) that
officers like the applicant be afforded consideration for  advancement
in grade within the Secretary’s  discretion  and  “with  regard  being
given to the probable opportunities for advancement and promotion that
the member might reasonably have had if his name had not  been  placed
on the temporary disability retirement list.”   Such  a  board  would,
nevertheless, follow the procedures for SSBs set out in  AFI  36-2901,
Chapter 5.

Undoubtedly, the applicant  would  prefer  that  this  Board  directly
promote him to major.  However, to do  so  would  ignore  the  obvious
preference that Congress has given to determining  officer  promotions
by the use of duly constituted boards, as discussed above.  Given that
the applicant’s separation occurred so near in time to  the  convening
of what would have been  his  central  0-4  board  (i.e.,  he  has  no
appreciable gap in his record), AFPC/JA believes that such an SSB will
provide a full and fair opportunity for the promotion to major that he
seeks.

As for the applicant’s additional request to be promoted to lieutenant
colonel (some of his contemporaries have met an 0-5 board IPZ and been
selected), AFPC/JA believes such  a  request  to  be  premature.   His
eligibility will be dependent on whether he is selected for  major  by
the SSB discussed above.  If that were to occur, he could then file  a
new application addressing the circumstances of a potential  promotion
to 0-5.

A complete copy of the AFPC/JA evaluation is at Exhibit Z.

AFPC/JA  provided  an  amended  advisory   opinion   which   contained
corrections to page four,  paragraph  two,  of  the  initial  advisory
opinion (Exhibit CC).

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel indicated that unlike other kinds  of  officer  promotions,  a
promotion to a higher grade upon recall from the TDRL is not, under 10
USC 1211(f), the result of selection board  consideration  or  action.
Therefore, there is no need for the AFBCMR or the  Secretary  to  feel
any compulsion to replicate what  happens  when  some  other  kind  of
promotion issue is involved.  According to counsel, the statute  makes
it clear that such a promotion is a matter of  secretarial  discretion
rather than the end-product of a “best qualified” board.  Since 10 USC
1211(f) has never before been thought to require  any  kind  of  board
process, and since the applicant’s record is obviously a  strong  one,
there is no reason to make him wait any longer  while  the  Air  Force
puts a new process in place.  Given the time he has had to  wait,  and
the fact that  the  Air  Force  Personnel  Center  has  at  long  last
recognized the error of this part of its processing of the applicant’s
case, the Department should  bite  the  bullet  and  do  what  justice
requires:  recommend direct promotions.   It  can  do  that  perfectly
well, and with no delay, without a “special” SSB.

In counsel’s view, direct promotion also makes sense because  whatever
the case may be with regard to the applicant’s retroactive advancement
to the grade of major,  it  is  completely  clear  that  it  would  be
impossible for him to receive fair SSB consideration for promotion  to
the grade of lieutenant colonel because he has  never  served  in  the
grade of major.  Because that aspect of  the  case  is  not  otherwise
reparable, the direct promote route is  required  in  any  event.   It
would make no sense at all to use a “special” SSB for  one  promotion,
only to have to rely on direct promotion authority anyway for another.

Counsel stated that even if the  AFBCMR  decides  against  the  direct
promotions they have suggested, before they could agree to a “special”
SSB (which he takes would be in  the  nature  of  a  standby  advisory
board),  he  would  need  to  know  precisely  what  the   membership,
procedures, and decisional standards were going to be.  For one thing,
he thinks it would be essential that  such  a  board  be  specifically
directed to employ the relaxed and generous remedial standard  set  in
10 USC 1211(f) (“fair and equitable, with due regard  being  given  to
the probable opportunities for  advancement  and  promotion  that  the
member might reasonably have had if his name had not  been  placed  on
the temporary disability retired list”).

Counsel’s complete response is at Exhibit BB.

On 18 Apr  02,  counsel  sent  an  electronic  mail  (e-mail)  message
acknowledging receipt of the amended advisory  opinion  from  AFPC/JA,
and indicated that it  required  no  further  comment  on  their  part
(Exhibit EE).

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  Sufficient relevant evidence has been presented to demonstrate the
existence of error or injustice to warrant corrective action regarding
the applicant’s request that he be promoted to the grade of  major  as
of the date he was restored to active duty in  1994  and  that  he  be
reinstated to active duty.

      a.  Applicant contends that pursuant to 10 USC 1211,  he  should
have been restored to active duty in the grade of  major  rather  than
captain,  and  that  the  Air  Force  erred  in  excluding  him   from
eligibility for return to active duty in the higher grade.  He further
asserts that his request for promotion  to  the  grade  of  major  was
apparently denied because the governing Air Force regulation (AFR  35-
4) provided for the recall of personnel on the TDRL in the next higher
grade only “in certain cases” and only if the member’s  contemporaries
had been promoted “at the time of placement on the TDRL.”  However, he
argues that neither the governing statute or the  current  version  of
the implementing regulation imposes any such limitation.  AFPC/JA  has
indicated that the policy prohibiting  promoting  a  member  returning
from the TDRL to the next higher grade appears to have  resulted  from
the office of primary responsibility’s (OPR) reliance on a prior legal
opinion from their office which misinterpreted the spirit  and  intent
of the governing statutes and  regulations.   AFPC/JA  also  indicated
that they believe the problem in this case was the Air Force’s failure
to have provisions in place to provide consideration for a member like
the applicant--who was on the TDRL but was  subsequently  returned  to
active duty--to be afforded consideration  for  advancement  in  grade
“with regard being given to the probable opportunities for advancement
and promotion that the member might reasonably have had  if  his  name
had not been placed on the TDRL,” as required  by  10  USC  1211.   In
their view, this constitutes error.  However,  they  believe  that  in
light of the unique  circumstances  of  this  case;  i.e.,  the  close
proximity of the applicant’s separation to the convening of a  central
major board, and the absence of an appreciable gap in his record,  the
most appropriate remedy would be to provide the applicant a  “special”
SSB to replace what would have  been  the  applicant’s  in-the-primary
zone (IPZ) central major board.

      b.  After a thorough review of all the facts  and  circumstances
of this case, we agree that the applicant should be  afforded  relief,
but we do not agree that it should be in the form of a “special”  SSB.
Based on our reading of the governing statute and regulation, we  find
nothing that would indicate that  the  applicant’s  consideration  for
advancement to the next higher grade upon recall from the TDRL  should
be the result of any selection board consideration, but should  be  at
the discretion of the Secretary  of  the  Air  Force.   Further,  such
action should be taken on a fair  and  equitable  basis,  with  regard
being  given  to  the  probable  opportunities  for  advancement   and
promotion that the applicant might reasonably have had if his name had
not been placed on the TDRL.  We believe, as confirmed by AFPC/JA, the
Air  Force  has  failed  to  provide  such  consideration  because  no
mechanism existed to do so.  In view of the foregoing, the applicant’s
excellent record of performance, as well as  the  recommendations  for
promotion to major contained therein, we  are  inclined  to  give  the
applicant the benefit of the doubt that had provisions been  in  place
to consider him for advancement to the  next  higher  grade  upon  his
removal from the TDRL and return to active duty, he would  have  been.
And had he been advanced to the grade of major, he would have, in  all
likelihood, continued on active duty until he was eligible for  length
of service retirement, rather than retiring under TERA.  Therefore, we
believe that thorough and fitting relief in  this  case  would  be  to
promote the applicant to the grade  of  major  and  reinstate  him  to
active duty.  Accordingly, we recommend his records  be  corrected  as
set forth below.

2.  Insufficient relevant evidence has been presented  to  demonstrate
the existence of error or injustice regarding the applicant’s  request
that he be promoted to the grade  of  lieutenant  colonel.   Applicant
contends that had he been restored to active  duty  in  the  grade  of
major rather than captain, he would have  subsequently  been  eligible
for promotion to the grade of lieutenant  colonel.   He  asserts  that
many of  his  contemporaries  have  been  selected  to  the  grade  of
lieutenant colonel and that but for the failure to restore him in  the
higher grade, he would have been promoted to the grade  of  lieutenant
colonel.  However, as indicated above,  our  recommendation  that  the
applicant be promoted to the grade of major was based on the fact that
he was not considered for advancement to the next higher  grade  on  a
fair and equitable basis, with regard  being  given  to  the  probable
opportunities for advancement and promotion that the  applicant  might
reasonably have had if his name had not been placed on  the  TDRL,  as
required by 10 USC 1211.  His advancement would have been  strictly  a
matter of Secretarial discretion, for which we choose to give him  the
benefit of the doubt.  However, such is not the case for his promotion
to the grade of lieutenant colonel.  His consideration  for  promotion
to the grade of lieutenant colonel would have been as a  result  of  a
duly  constituted  selection  board  on  a  “best  qualified”   basis.
Promotion to the grade of lieutenant colonel is very  competitive  and
no evidence has  been  presented  which  convinces  us  that  had  the
applicant been returned to active duty in the higher grade,  he  would
have been selected for promotion to the grade of  lieutenant  colonel.
Therefore, his request  for  promotion  to  the  grade  of  lieutenant
colonel is not favorably considered.  Notwithstanding this, we believe
that the applicant should be given every opportunity  to  compete  for
promotion on a fair and equitable basis.  In our  view,  this  can  be
accomplished by allowing him to build a record  of  performance  as  a
major prior to his IPZ consideration for promotion  to  the  grade  of
lieutenant colonel.  Accordingly, we recommend that any  nonselections
for promotion to the grade of lieutenant colonel  in-the-primary  zone
(IPZ) prior to receiving a minimum of two Officer Performance  Reports
(OPRs) with at least 250 days of supervision, in the grade  of  major,
be set aside.

3.  In arriving at our decisions, we are keenly aware that the  courts
have held that correction boards have an  abiding  moral  sanction  to
determine,  insofar  as  possible,  the  true  nature  of  an  alleged
injustice and take steps to grant thorough and fitting relief.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that:

      a.  On 14 Jan 94, the Secretary of the Air Force determined that
he would be recalled to extended active duty in the  higher  grade  of
major under the authority of Title 10,  United  States  Code,  Section
1211, and that action be taken to obtain Senate confirmation.

      b.  Upon confirmation by the Senate, he be promoted to the grade
of major effective 15 Jan 94, with date of rank as though he had  been
selected by the Calendar Year  1991  (CY91)  Central  Major  Selection
Board.

      c.  He was not retired under the  provisions  of  the  Temporary
Early Retirement Authority (TERA) on 1 Mar 96, but  on  that  date  he
continued on active duty and was ordered permanent change  of  station
to his home of record (home of selection) pending further orders.

      d.  Any nonselections for promotion to the grade  of  lieutenant
colonel prior to  receiving  a  minimum  of  two  Officer  Performance
Reports (OPRs) with at least 250 days of supervision, in the grade  of
major, be set aside.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number 94-
03030 in Executive Session on 9 May 02, under the provisions of AFI 36-
2603:

      Mr. Lawrence R. Leehy, Panel Chair
      Mr. James E. Short, Member
      Mr. Charlie E. Williams, Jr., Member

All members  voted  to  correct  the  records,  as  recommended.   The
following additional documentary evidence was considered:

      Exhibit V. Record of Proceedings, dated 3 Jan 96, w/atchs.
      Exhibit W. Addendum to Record of Proceedings, dated
            14 Sep 99, w/atchs.
      Exhibit X. Second Addendum to Record of Proceedings, dated
            18 Oct 01, w/atchs.
      Exhibit Y. Letter, counsel, dated 25 Mar 02, w/atchs.
      Exhibit Z. Letter, AFPC/JA, dated 10 Apr 02.
      Exhibit AA.      Letter, AFBCMR, dated 11 Apr 02.
      Exhibit BB.      Letter, counsel, dated 12 Apr 02.
      Exhibit CC.      Letter,  AFPC/JA,  dated  10  Apr  02  (revised
                    advisory).
      Exhibit DD.      Letter, AFBCMR, dated 16 Apr 02.
      Exhibit EE.      Electronic mail from counsel, dated 18 Apr 02.




                                   LAWRENCE R. LEEHY
                                   Panel Chair



AFBCMR 94-03030




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat 116), it is
directed that:

      The pertinent military records of the Department of the Air
Force relating to , be corrected to show that:

            a.  On 14 Jan 94, the Secretary of the Air Force
determined that he would be recalled to extended active duty in the
higher grade of major under the authority of Title 10, United States
Code, Section 1211, and that action be taken to obtain Senate
confirmation.

            b.  Upon confirmation by the Senate, he be promoted to the
grade of major effective 15 Jan 94, with date of rank as though he had
been selected by the Calendar Year 1991 (CY91) Central Major Selection
Board.

            c.  He was not retired under the provisions of the
Temporary Early Retirement Authority (TERA) on 1 Mar 96, but on that
date he continued on active duty and was ordered permanent change of
station to his home of record (home of selection) pending further
orders.

            d.  Any nonselections for promotion to the grade of
lieutenant colonel prior to receiving a minimum of two Officer
Performance Reports (OPRs) with at least 250 days of supervision, in
the grade of major, be, and hereby are, set aside.





    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency