ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2005-01103-2
INDEX CODE: 110.02
COUNSEL: Dale Saran
HEARING DESIRED: Yes
_________________________________________________________________
APPLICANT REQUESTS THAT:
His ordered/coerced discharge be documented as an illegal constructive
termination, he receive back pay and allowances, plus lost rank/promotion
and points caused by the illegal constructive discharge, and that an
Officer Performance Report be changed to more accurately reflect his
accomplishments.
_________________________________________________________________
STATEMENT OF FACTS
On 21 February 2006, the Board considered and denied his request but
because of ongoing litigation (Doe v. Rumsfeld) surrounding the Anthrax
Vaccination Program (AVIP) the Board provided a caveat that should the
plaintiffs in the aforementioned case prevail against the Secretary of
Defense, the Board would reconsider the applicant’s request. For an
accounting of the facts and circumstances surrounding the applicant’s
request and the rationale of the earlier decision by the Board, see the
Record of Proceedings at Exhibit E.
On 8 September 2006, Lieutenant Colonel Tom Rempfer submitted a request for
reconsideration wherein he indicated his request was to be used as a
request for reconsideration for Lieutenant Colonel Dingle’s widow as well
(Exhibit F). On 9 February 2006, the US Court of Appeals for the DC
Circuit had provided a decision in the aforementioned case (Exhibit G). On
13 September 2006, the Board asked HQ USAF/JAA for an advisory on the Court
of Appeals judgment. On 18 September 2006, Counsel for Lieutenant Colonel
Rempfer indicated he was performing as counsel for the estate of Lieutenant
Colonel Dingle in the person of his widow (Exhibit H). JAA provided an
advisory on 19 September 2006 that recommended denial of the applicant’s
reconsideration (Exhibit I).
_________________________________________________________________
THE BOARD CONCLUDES THAT:
1. The authority to reinstate an ANG member without the consent of the
Governor lies outside the purview of this Board and is therefore moot. We
originally agreed that should the plaintiff’s in Doe v. Rumsfeld prevail we
would reconsider the applicant’s request to change an OPR to more fully
represent his accomplishments. After careful and deliberate review of the
HQ USAF/JAA advisory dated 19 September 2006, we conclude that the
plaintiffs in Doe v. Rumsfeld, did not in fact prevail against the
Secretary of Defense. 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.
_________________________________________________________________
THE BOARD DETERMINES THAT:
The applicant be notified that the evidence presented did not demonstrate
the existence of probable material error or injustice; 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 this application in Executive
Session on 20 February 2007, under the provisions of AFI 36-2603:
Mr. Thomas S. Markiewicz, Chair
Mr. Michael K. Gallogly, Member
Mr. James W. Russell, III, Member
The following documentary evidence was considered:
Exhibit E. Record of Proceedings, dated 31 Mar 05,
with exhibits A through G.
Exhibit F. Applicant, Email, dated 7 Sep 05.
Exhibit G. US Court of Appeals, Judgment, dated 9 Feb 06.
Exhibit H. Assignment of Counsel, Email, dated 18 Sep 06.
Exhibit I. HQ USAF/JAA, Memorandum, dated 19 Sep 06.
THOMAS S. MARKIEWICZ
Chair
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