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

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2005-01679
                                             INDEX CODE:  100.00
      XXXXXXX                           COUNSEL:  EUGENE FIDELL

                                             HEARING DESIRED:  YES

________________________________________________________________

APPLICANT REQUESTS THAT:

His separation be declared void, he be retroactively  reinstated  to  active
duty, he be promoted to the grade of  lieutenant  colonel,  and  allowed  to
remain  on  active  duty  until  he  became  eligible  for  retirement  upon
completion of 20 years of  service,  i.e.,  2  June  1996,  and  such  other
thorough and fitting relief.

________________________________________________________________

APPLICANT CONTENDS THAT:

Given his overall stellar record  as  well  as  his  status  as  an  Academy
graduate, his over 15 years of active duty service, and his  willingness  to
incur a three-year Active Duty Service Commitment (ADSC) in connection  with
the White House Fellowship Program (WHFP), there is  no  reason  to  presume
that he would not have remained on active duty through at least the time  he
became eligible for a 20-year retirement had it  not  been  for  the  damage
caused to his career as a result  of  the  unfounded  controversy  over  his
WHFP.  Further, his separation was involuntary since he was separated  prior
to the expiration of his ADSC without it being waived.  He was obligated  to
fulfill his ADSC and would have had to request a waiver,  which  would  have
required Secretary of the Air Force approval based on special  circumstances
such as hardship.  However, he never applied for such a waiver, nor  did  he
agree to  voluntarily  resign  in  lieu  of  further  adverse  action.   Any
official adverse  action  would  have  offered  important  due  process  and
evidence discovery rights.

His direct promotion is warranted since it is difficult to see how he  could
fairly compete for promotion before an  SSB  without  a  full  and  complete
record of actual, rated performance as  a  major  as  well  as  a  Promotion
Recommendation Form (PRF).

Counsel cites previous AFBCMR cases in which the Board adopted  a  realistic
approach to whether a resignation is truly voluntary, as opposed  to  having
been effectively coerced as a result of injustice.  Since the applicant  had
no effective forum  available  and  no  discovery  mechanism  to  learn  the
precise circumstances of the Air Force’s mishandling of the matter,  he  had
no reasonable alternative but to leave active duty and try to  salvage  some
form of retirement through the Air Force Reserve or the Air  National  Guard
(ANG) as recommended to him.

In further support of his appeal, the applicant submits a statement  from  a
former Air Force Noncommissioned Officer-in-Charge  (NCOIC),  a  former  JAG
WHF participant, and the former Judge Advocate General  (TJAG).   The  NCOIC
indicates that in 1992 the applicant made  efforts  to  affiliate  with  the
Reserve or ANG, and that all the efforts failed when the recruiters all  saw
the referral OPR which has now been removed from his  records.   The  former
JAG WHF states that he was told that people throughout  AF  department  were
okay with him as a  Fellow  but  they  had  problems  with  the  [applicant]
because he  had  disgraced  the  entire  JAG  department  and  obtained  the
Fellowship  through  deceitful  means.   He  further  states  that  if   the
applicant had been allowed to continue his Air Force  career  following  the
Fellowship, he would have faced a great deal of  resistance  and  difficulty
in an environment as intimate as the JAG corps.  The former TJAG states,  in
part, that the applicant’s decision to separate was his  only  option  under
the circumstances of a completely poisoned atmosphere; that his  career  was
inappropriately cut short by the overreaction of a few people  to  what  was
at worst a misunderstanding of his description of an  aspect  of  his  prior
duties; and that had his case been handled  with  something  less  than  the
coercive hysteria it was, he would have continued to serve  on  active  duty
with complete distinction until his retirement.

Applicant’s complete submissions, with attachments, are at Exhibit M.

________________________________________________________________

STATEMENT OF FACTS:

On 20 January 2007, the Board considered the  applicant’s  request  for  the
following:

      1.    The Field Grade Officer Performance Report  (OPR)  rendered  for
the  period  from  27 May  1990   to   31 July   1990,   and   any   related
correspondence, be removed from his records.

      2.    His 1991 separation from the  Regular  Air  Force  and  honorary
retirement from the Air Force Reserve  (AFRes)  be  set  aside,  and  he  be
retroactively reinstated into the Regular Air Force.

      3.    His corrected record be considered for promotion  to  the  grade
of lieutenant colonel by Special Selection Boards (SSBs) for the  first  two
selection boards he would have been eligible to meet.

      4.    He be retroactively retired from  the  Regular  Air  Force  upon
eligibility.
      5.    In the alternative to the above  requested  relief,  he  receive
retroactive constructive service credit in the Air National Guard  (ANG)  or
AFRes from 1991, he receive  SSB  consideration  to  the  Reserve  grade  of
lieutenant colonel by the first two boards he would have  been  eligible  to
meet, and be  placed  in  a  non-Judge  Advocate  General  (JAG)  Individual
Mobilization Augmentee (IMA), Category B position; or  in  the  alternative,
he receive  constructive  service  credit  in  the  AFRes  until  retirement
eligibility, and retired accordingly.

      6.    He receive such other thorough and fitting relief as  the  Board
determines just and proper.

The Board found sufficient evidence to warrant removing the OPR  closing  31
July 1990 from the applicant’s records  but  denied  the  remainder  of  his
requests. 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 L.

On 12 July 2007, the applicant, through counsel,  submitted  a  request  for
reconsideration,  providing  additional  documentation  in  support  of  the
request.  The applicant’s  complete  submission,  with  attachments,  is  at
Exhibit M.

________________________________________________________________

THE BOARD CONCLUDES THAT:

1.    After thoroughly reviewing the evidence of record, and the  additional
documentation provided by the applicant, we do not believe he  has  overcome
the  rationale  expressed  in  our  previous   decision.    The   additional
statements provided in his behalf are  duly  noted;  however,  they  do  not
overcome the fact that he voluntarily  chose  to  terminate  his  Air  Force
career.  Further, whether or not he was separated prior  to  the  expiration
of his ADSC is irrelevant, and does not render his  separation  involuntary.
In view of the fact that AF/JAG was intimately familiar with  his  situation
when they approved his separation, we see no reason to  believe  they  would
not have approved waiving any existing ADSC.   Therefore,  in  view  of  the
above, and in the absence of evidence to the  contrary,  we  find  no  basis
upon which to recommend favorable consideration of his request.

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 issues  involved.   Therefore,  the  request
for a hearing is not favorably considered.

________________________________________________________________






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 AFBCMR Docket Number  BC-2005-
01679 in Executive Session on 25 October 2007, under the provisions  of  AFI
36-2603:

            Mr. John B. Hennessey, Panel Chair
            Ms. Patricia R. Collins, Member
            Ms. Teri G. Spoutz, Member

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

     Exhibit L.  Record of Proceedings, dated 7 Mar 07, w/atchs.
     Exhibit M.  Letter, Counsel, dated 12 Jul 07, w/atchs.




                                   JOHN B. HENNESSEY
                                   Panel Chair