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AF | BCMR | CY2007 | BC-2005-01103-2
Original file (BC-2005-01103-2.doc) Auto-classification: Denied

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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