RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-02738
            INDEX CODE:  131.00, 136.00

      XXXXXXXXXXXX     COUNSEL:  NONE

            HEARING DESIRED: NO


MANDATORY CASE COMPLETION DATE:  13 MAR 2008


___________________________________________________________________

APPLICANT REQUESTS THAT:

His retirement date of 1 Aug 98 be adjusted to 1 Nov 06 (or on  the
first day of the month after the Board corrects his  record);  back
pay and allowances in the grade of colonel since 1 Feb  98;  refund
of monies paid into the Survivor Benefit Plan since  his  1 Aug  98
retirement; payment of accrued leave of 60 days for a colonel  over
26 years of service, and any other entitlements, or benefits  which
should have accrued as a result of promotion to colonel on 1 Feb 98
and subsequent service through retirement in 2006. In the event the
Board  is  not  disposed  to  grant  his  request  to  correct  his
retirement date to 1 Nov 06, he proposes  three  alternative  dates
for consideration, in order of preference: 1 Aug 03,  1 Jan 03  and
1 Jul 02.

___________________________________________________________________

APPLICANT CONTENDS THAT:

As a result of his previous AFBCMR (BC-2004-01231) application,  he
was considered and selected for promotion to colonel by  a  Special
Selection Board (SSB) which met in Jun 06.  His  date  of  rank  to
Colonel was determined to be 1 Feb 98.

He now states that he would have served to his Mandatory Retirement
Date (MRD) in the grade of colonel.

In support of his appeal, applicant submitted a copy of his package
notifying him of his selection to colonel, with a date of  rank  of
1 Feb 98.

Applicant’s complete submission, with attachment, is at Exhibit A.

___________________________________________________________________

STATEMENT OF FACTS:

Applicant was considered and not  selected  for  promotion  to  the
grade of colonel by the CY95B, CY96B,  and  CY97B  Colonel  Central
Selection Boards.

On 18 Nov 96, he was considered and not selected for  promotion  to
the grade of colonel by an SSB for the CY95B board.

On 1 Aug 98, he voluntarily retired  in  the  grade  of  lieutenant
colonel.  He completed 21 years, 9 months, and 16  days  of  active
service.

In  a  previous  AFBCMR  application,  applicant  requested  he  be
considered for promotion to the  grade  of  colonel  by  a  Special
Selection Board (SSB) for the Calendar Year 1995B  (CY95B)  Central
Selection Board (CSB), with his record as it  appeared  before  the
original CY95B board; if he is not selected for  promotion  by  the
SSB, his records as corrected by the  Air  Force  Personnel  Center
(AFPC) on 1 Nov 96, be considered for promotion  to  the  grade  of
colonel by an SSB for the CY95B Colonel Central Selection Board; if
his request for two reconsiderations cannot be granted, his records
be placed before the Board as they met the SSB he  was  granted  in
1996, and if he is selected for promotion, his records be corrected
to show that he  retired  on  1 Jan  03,  with  all  back  pay  and
allowances.

On 28 Jun 05, the AFBCMR approved the  applicant’s  records  to  be
considered for promotion to the grade of colonel  by  SSB  for  the
CY95B, CY96B, and CY97B Colonel  Central  Selection  Boards.   They
noted since the applicant’s record  that  met  the  original  CY95B
board had been  corrected,  they  found  no  basis  upon  which  to
recommend an SSB with the uncorrected record that met the  original
CY95B board.  With respect  to  his  request  that  his  record  be
corrected to show  that  he  retired  on  1  Jan  03,  rather  than
1 Aug 98, they advised, if he is selected for promotion by the SSB,
he should submit that request at that time.

On 5 Jun 06, the applicant was retroactively promoted  to  colonel,
effective 1 Feb 98, with Senate confirmation on 29 Sep 06.

___________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPRRP reviewed the application, stating, in part,  if  the
applicant had been promoted to colonel on 1 Feb 98, his  MRD  would
have been 1 Nov 06.  However, because  a  colonel  must  serve  for
three years time-in-grade (TIG) to retire in the grade  of  colonel
(10 USC Section 1370(a)(2)(A)), the earliest he could have  retired
in the grade of colonel would have been 1 Feb 01.

The applicant, as a lieutenant colonel,  voluntarily  requested  an
earlier date to retire (1 Aug 98)  than  his  mandatory  retirement
date (1 Nov 04).  It can be reasoned that,  if  the  applicant  had
remained on active duty, having been promoted to colonel  effective
1 Feb 98, he would not have necessarily  remained  on  active  duty
until his mandatory retirement date of 1 Nov 06 any  more  than  he
actually remained on  active  duty  until  his  previous  mandatory
retirement date of 1 Nov 04.

They recommend if the Board grants an adjustment to the applicant's
retirement date,  considering  his  SSB  promotion  to  colonel  on
1 Feb 98, that adjustment should be to allow a retirement  date  of
1 Feb 01 at which time the applicant would have had 3 years TIG  to
retire in the grade of colonel.  The applicant's retired pay  plan,
by virtue of his 3 Jul 72 Date Initially Entered Uniformed  Service
(DIEUS), is Final Basic Pay which,  if  the  Board  allows  him  to
retire on 1 Feb 01, would  allow  the  applicant  over  $4200/month
retired pay, not to mention the retroactive 0-6 pay from 1  Feb  98
to 31 Jan 01 of over $225,000 plus non-taxable allowances  of  over
$34,000.

If the Board permits the applicant to retire as a  colonel  on  his
MRD (1 Nov O6), as he has requested in his AFBCMR, considering that
he voluntarily requested retirement well before his previous MRD as
a lieutenant colonel (1 Nov 04),  the  monthly  retired  pay  would
increase to over $6600/month along with retroactive active duty 0-6
pay from 1 Feb 98 to 1 Nov 06 of nearly $790,000  plus  non-taxable
allowances of about $126,000.

HQ AFPC/DPPRRP’s  complete  evaluation,  with  attachments,  is  at
Exhibit C.

HQ AFPC/JA reviewed this application and recommended denial of  the
applicant’s stated request.   They  noted,  notwithstanding  having
been  selected  for  promotion  to  colonel,   applicant   has   no
entitlement to be  retired  in  that  grade.   Federal  law  places
discretion in the service secretary  to  determine  if  a  member’s
request to retire should be granted.  Moreover, the federal law  in
effect in the 1998-2001 time period required that a member serve at
least three years of active duty in  the  rank  of  colonel  before
retiring in that grade, reduced to two years at the  discretion  of
the  Secretary  of  the  Air  Force.   10   U.S.C.   1370(a)(2)(A).
Obviously, this applicant has not served any active  duty  in  that
grade, nor has he  served  on  active  duty  in  any  grade  beyond
1 Aug 98-a date that marks only six months of  active  duty  beyond
the effective date of promotion to colonel awarded by the SSB.

Thus, because of the unique facts of this case, we  recommend  that
applicant be given the requisite constructive active  duty  service
credit to be retired  in  the  grade  of  colonel  (0-6)  effective
1 Feb 00—the earliest date that will afford  him  the  minimum  two
years time in grade required by law.  We cannot,  however,  support
the applicant's request that he be given a full 30-year  retirement
in the grade of colonel given  that  he  only  served  22 years  of
actual active duty time.   Such  an  action,  in  our  view,  would
constitute an unearned windfall.  For the reasons stated above,  we
recommend that applicant's  record  be  corrected  to  reflect  his
retirement in the grade of colonel (0-6) effective 1 Feb 00.

HQ AFPC/JA’s complete evaluation is at Exhibit D.

___________________________________________________________________


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the evaluations, applicant  states  the  central
issue in the DPPRRP advisory opinion is that he voluntarily retired
as a lieutenant colonel years before his MRD, and therefore, should
not be granted an adjusted retirement date equal to his  MRD  as  a
colonel.  He disagrees, and submits that he would  have  served  to
his MRD had he been promoted to colonel.

The AFPC/JA advisory opinion notes the Secretary has the  authority
to retire colonels after only two years in grade, vice the normally-
required three, and recommends accordingly that his retirement date
be adjusted to 1 Feb 00.  The advisory  fails  to  state  that  the
earlier retirement is granted only upon the request of the officer.
 There is nothing in my record that would indicate  he  would  have
requested an early retirement, and he did not seek  waiver  of  any
active duty service commitment when he retired in 1998.

He states, it is, of course, impossible for him to  prove  that  he
would have remained on active duty until 31 Oct 06 if he  had  been
promoted to Colonel.  However, it is a further injustice to him  to
presume that he would not have because he did not serve to his  MRD
as a Lieutenant Colonel.  The circumstances that culminated in  his
decision to retire as a Lieutenant Colonel would not  have  existed
had he been  promoted  to  Colonel,  but  rather  would  have  been
replaced with great motivation to remain for  a  full  thirty  year
career.

The applicant’s complete review is at Exhibit F.

___________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

HQ AFPC/JA states they cannot support the applicant's request  that
he be given a full 30-year retirement in the grade of colonel given
that he only served 22 years of actual active duty time.   In  this
regard, they  are  not  unmindful  of  the  statement  implicit  in
applicant's present request that he would have  served  that  long,
but for the error ultimately rectified by SSB  that  precluded  his
having had that opportunity.  At the same time, applicant  did  not
serve on active duty for any of those years, and the notion that he
would have is entirely speculative.  Further, they cannot help  but
note that in his  last  BCMR  application,  applicant  requested  a
retirement date of 1 Jan 03 if  he  were  selected  for  promotion.
DPPRRP in its advisory also points out that applicant retired as  a
0-5 some six years short of what  would  have  been  his  mandatory
date.  They believe these factors weigh even  heavier  against  the
applicant being awarded what can only  be  viewed  as  an  unearned
windfall.  Regrettably, the business of record correction is seldom
a perfect one, and compromises are sometimes necessary to effect  a
proper and equitable result.  They believe the  equities  are  best
balanced here by the retirement of applicant as  an  0-6  effective
1 Feb 00, and recommend the  applicant's  record  be  corrected  to
reflect his retirement in the  grade  of  colonel  (0-6)  effective
1 Feb 00.

HQ AFPC/JA’s complete evaluation is at Exhibit G.

HQ AFPC/DPPRRP  states,  the  applicant  requested  to  voluntarily
retire on 1 Aug 98 rather than continuing to provide service to the
Air Force and his country until his MSD of 1 Nov 04.  There was  no
coercion on the part of the Air Force to make  him  retire  at  any
earlier date than 1 Nov 04.  The act of requesting retirement is  a
voluntary act and no amount of regret on the applicant's  part  can
change this fact.  DPPRRP amended their original recommendation  to
coincide with that of HQ AFPC/JA; that the applicant be  given  the
requisite constructive active duty service credit to be retired  in
the grade of colonel (0-6) effective  1 Feb  00—the  earliest  date
that will afford him the minimum two years time in  grade  required
by law.  The Board must consider  that  the  applicant  voluntarily
requested  retirement  (1  Aug  98)  well  before   his   mandatory
retirement date of 1 Nov 04.  Taking this into  consideration,  the
Board should not grant any more than a 1 Feb 00 retirement date  to
allow the applicant to retire in the grade of colonel.

HQ  AFPC/DPPRRP’s  complete  evaluation,  with  attachment,  is  at
Exhibit H.

___________________________________________________________________

ADDITIONAL APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states that DPPRRP and JA's proposed retirement  date  of
1 Feb 00 is inappropriate, as it would  not  allow  him  the  three
years time in grade normally required to retire  as  a  colonel-the
argument that the Secretary may waive that time  to  two  years  is
flawed, as that waiver is granted only upon request of the retiring
officer.  In the event the  Board  is  not  disposed  to  grant  my
request to correct my retirement date to  1  Nov  06,  he  proposes
three alternative dates for consideration, in order of  preference:
1 Aug 03 would  coincide  with  his  entry  into  federal  service;
1 Jan 03 is the absolute earliest he would have considered retiring
as a colonel, as he would have achieved his last pay fogey and  the
following year's pay raise; and 1 Jul 02 would gain  him  his  last
pay fogey.  However, he asserts that correction of  his  retirement
date to 1 Nov 06, is appropriate, fair, and just.

Applicant’s complete response is at Exhibit P.

___________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing
law or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to  demonstrate
the existence of error  or  injustice  warranting  partial  relief.
Because of the circumstances of the applicant’s  early  retirement,
i.e.,  failure  to  be  promoted  to   colonel   because   of   the
unconstitutional Memorandum of Instructions (MOI), and subsequently
being selected to colonel by  an  SSB,  we  believe  he  should  be
allowed to retire in the higher grade.  The applicant has requested
he be retired in the grade of colonel with an effective date  of  1
Nov 06, (or on the first day of the month after the Board  corrects
his record).  Additionally, the applicant  offered  some  alternate
dates  if  his  original  request  is  not  favorably   considered.
Specifically, he  proposes  three  alternate  dates,  in  order  of
preference, 1 Aug 03 (which would  coincide  with  his  entry  into
federal service; 1 Jan 03 (the  absolute  earliest  he  would  have
considered retiring as a colonel; and  1  Jul  02  (he  would  have
gained  his  last  pay  fogey).    The   Board   also   noted   the
recommendation from HQ AFPC DPPRRP and JA that he be retired at the
earliest possible date, with a waiver  of  one  year  time-in-grade
effective 1 Feb 00.  However, we do not agree with the applicant or
the Air Force.  The Air Force  believes  the  applicant  should  be
retired at the earliest date by law, because he did not  originally
serve on active duty to his mandatory retirement date and  to  give
him unearned service credit beyond the earliest date possible would
give him an unearned windfall.  The applicant wants  the  Board  to
believe that had he been faced with these  circumstances  prior  to
retirement, he would have decided to serve the maximum of 30  years
of service.  Notwithstanding the above, we believe  both  of  these
determinations are only speculative.  In view of this and based  on
the totality of the circumstances surrounding the applicant’s case,
we are of the opinion, he should be  allowed  to  retire  effective
1 Feb 01, the date he would have had to serve to  meet  the  normal
three years TIG to retire in the grade of  colonel.   We  found  no
compelling  reason  to  grant  the  applicant  additional  unserved
service beyond this date.  The applicant will be entitled  to  back
pay and  allowances,  and  any  other  entitlements  as  determined
appropriate by the Defense Finance and Accounting Service based  on
the correction to his record.  Therefore, we recommend his  records
be corrected to the extent indicated below.

___________________________________________________________________

THE BOARD RECOMMENDS THAT:

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

            a.  He was not voluntarily retired on 1 August 1998  in
the grade of lieutenant colonel, but on that date was continued  on
active duty in the grade of colonel.

            b.  He was relieved from active duty on 31 January 2001
and retired for length of service on 1 February 2001, in the  grade
of colonel.

___________________________________________________________________

The following members of the Board considered AFBCMR Docket  Number
BC-2006-02738 in Executive Session on 17 January  2007,  under  the
provisions of AFI 36-2603:

      Mr. Thomas S. Markiewicz, Chair
      Mr. James W. Russell III, Member
      Ms. Kathleen Graham, Member

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

     Exhibit A.  DD Form 149, dated 6 Sep 06, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, HQ AFPC/DPPRRP, dated 11 Oct 06, w/atchs.
     Exhibit D.  Letter, HQ AFPC/JA, dated 23 Oct 06.
     Exhibit E.  Letter, SAF/MRBR, dated 27 Oct 06.
     Exhibit F.  Letter, Applicant, dated 31 Oct 06.
     Exhibit G.  Letter, HQ AFPC/JA, dated 9 Nov 06.
     Exhibit H.  Letter, HQ AFPC/DPPRRP, dated 9 Nov 06, w/atch.
     Exhibit I.  Letter, AFBCMR, dated 13 Nov 06.
     Exhibit J.  Letter, Applicant, dated 30 Nov 06, w/atchs.




                                   THOMAS S. MARKIEWICZ
                                   Chair



AFBCMR BC-2006-02738




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 XXXXXXXX, XXXXXXX, be corrected to show that:

            a.  Having been selected for promotion to colonel by a
Special Selection Board (SSB), he was promoted to the grade of colonel
on 1 February 1998.

            b.  He was not voluntarily retired on 1 August 1998 in the
grade of lieutenant colonel, but on that date was continued on active
duty in the grade of colonel.

            c.  He was relieved from active duty on 31 December 2002
and retired for length of service on 1 January 2003, in the grade of
colonel.





            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency



MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR
                 CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  XXXXXXXXXXXX

      I have carefully considered all the circumstances of this case and do
not agree with the recommendation of the panel that the applicant be
relieved from active duty on 31 January 2001 and retired for length of
service on 1 February 2001, in the grade of colonel.

      The applicant was retroactively promoted to the grade of colonel
effective 1 February 1998 based on previous corrections to his record.  In
his initial request for correction to his records, he had requested that,
“if he is selected for promotion, his records be corrected to show that he
retired on 1 Jan 03, with all back pay and allowances.  However, after
selection for promotion to colonel, the applicant subsequently requested a
retirement based on the date he would have been mandatorily retired with 30
years of service.

      Based on speculation, the panel concludes the appropriate corrections
to the applicant’s records based on the totality of the circumstances
surrounding the applicant’s case can be made by allowing him to retire
effective 1 February 2001, the date he would have had to serve to meet the
normal three years time-in-grade to retire in the grade of colonel.  I
choose not to resolve the applicant’s case based on nothing more than
speculation.

      In order to maintain consistency with prior actions of this nature, I
would normally be predisposed to grant the applicant’s instant request.  On
the other hand, however, I note that in his original application, the
applicant requested a retirement date of 1 January 2003 should he be
selected for promotion to colonel by a Special Selection Board.  He also
asks for the aforementioned date should his current request not be acted on
favorably.  Therefore, since we have no way of conclusively determining
when he would have retired had he been treated fairly and promoted to
colonel on time, it is my decision that he be given the retirement date he
originally requested.





                                                                        JOE
G. LINEBERGER

Director
                                                                        Air
Force Review Boards Agency