RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-00563
            INDEX CODE: 110.03, 131.00
            COUNSEL: MR. Gary R. Myers
            HEARING DESIRED: YES

      MANDATORY CASE COMPLETION DATE:

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His records be corrected to reflect that he served on active  duty  from
28 Jul 78 through 31 Jan 79 in the grade of technical sergeant.

2.  His promotion to the grade of master sergeant be changed to  reflect  he
was promoted 18 months prior to his actual promotion date.

3.  His records be changed to reflect  he  was  promoted  to  senior  master
sergeant and chief master sergeant.

4.  His records be corrected to show  he  retired  in  the  grade  of  chief
master sergeant with 27.5 years of service, and that  he  receive  all  back
pay and allowances.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was eliminated from Officer Training  School  (OTS)  12  hours  prior  to
graduation due to the subjective  claim  of  a  lack  of  officer  aptitude.
Following his disenrollment he was returned to the enlisted ranks as a  TSgt
but was not permitted to return  to  his  former  career  field  as  an  Air
Traffic Controller.  Instead he was assigned to the Base  Education  Office.
He was informed that he was barred  from  reenlistment  and  would  have  to
separate on his date of separation (DOS).  On 27 Jul 78, he  separated  from
the Air Force and the next day  he  joined  the  Texas  Air  National  Guard
(ANG).  On 1 Feb 79, he was allowed to reenlist in the Air  Force  where  he
served until his retirement in the grade of MSgt.

While not challenging the regulation which denied  him  reenlistment,  there
was no good reason not to keep a perfectly decent NCO on active  duty  after
disenrollment from OTS.  There was no misconduct.  Of significance  is  that
the Air Force waived the implementation of the regulation, AFR 35-16,  Table
6-4, item 12 (OTS Eliminee) by allowing him to reenlist.   Recognizing  that
an enlisted member has no right to reenlist at the expiration  of  his  term
of service, equity demands that relief be granted because  for  all  intents
and purposes the  Air  Force  granted  him  the  right  to  reenlist  as  an
exception to policy.  His commitment to the  Air  Force  was  unquestionable
and unassailable, but the 18-month gap left him at a disadvantage  with  his
peers.  By making an exception to policy and allowing him  to  reenlist  the
Air Force acknowledged that there was no appropriate  applicability  of  the
regulation.  This is particularly so because  the  time  between  separation
and reenlistment was a mere eight months.  During that period there  was  no
performance report,  no  credit  for  time  in  grade  and  no  active  duty
assignment.  It is inequitable to strictly apply AFR 35-16 to the  applicant
when there was clearly no actual, substantive reason for its application  in
the first instance and later disregarded by the Air Force.

In  support  of  his  request,  applicant  provided  his  counsel's   brief,
documentation associated with his previous AFBCMR request.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air Force  on  14
Jun 63.  After a brief break in active service, he reenlisted on 29  May  67
and again on 29 May 71.  He was progressively promoted to the grade of  TSgt
having assumed that grade effective and with a date of rank (DOR) of  1  Jul
73.  On 10 Feb 75, he extended his enlistment for a  period  of  38  months,
establishing a DOS of 29 Jul 78.

On 15 Aug 77, applicant  entered  OTS  in  class  78-01B  with  a  scheduled
graduation date of 9 Nov  77.   On  27 Oct  77,  a  Faculty  Board  convened
because of the applicant's "lack of aptitude for commissioned service."   On
2 Nov 77, the Faculty Board recommended the applicant  be  disenrolled  from
training,  the  recommendation  was  approved  on  8  Nov  77  and  he   was
disenrolled on that date.  After disenrollment, applicant  was  returned  to
duty in his enlisted grade.

On 13 May 78, applicant was notified that  he  was  ineligible  to  reenlist
because  of  his  declination  of  a   permanent   change-of-station   (PCS)
assignment.  He  was  honorably  discharged  on  28  Jul  78,  and  assigned
reenlistment eligibility (RE) code "3D"  which  denotes  "Second-term/career
airman declined PCS of TDY and oversea tour."

On 29 Jul 78, he enlisted in the Texas ANG and served  until  his  discharge
from the ANG on 31 Jan 79.  On 1 Feb 79, he reenlisted in  the  Regular  Air
Force.  He was selected for promotion to the grade of MSgt and assumed  that
grade effective and with a DOR of rank of  1  Dec  82.   On  1  Apr  90,  he
voluntarily retired for maximum years of  service  after  having  served  26
years and 9 days on active duty.

On 23 Feb 81, the Board considered and denied an  appeal  submitted  by  the
applicant.  In his previous submission, applicant requested  all  references
pertaining to his elimination from OTS be removed from his  records,  he  be
commissioned effective 9 Nov 77, he receive all  back  pay  and  allowances,
and he be credited with active service between 28 Jul 78 through 31 Jan  79.
 For an accounting of the facts surrounding his  appeal  and  the  rationale
for the Boards previous decision, see the Record  of  Proceedings  which  is
appended at Exhibit B.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPWB reviewed applicant's request and recommends the  case  be  time-
barred, if considered on  its  merits,  DPPPWB  recommends  denial.   DPPPWB
states because of his break in service, his DOR was  adjusted  to  1 Feb  79
when he  re-entered  active  duty.   Accordingly,  the  first  time  he  was
eligible to test for MSgt was cycle 82A7.  He was not selected  during  that
cycle but was selected for promotion in cycle  83A7.   If  his  record  were
corrected to show no break in service, the  additional  points  awarded  for
time-in-grade and time-in-service would not increase his  score  enough  for
him to become a selectee.   The  lack  of  a  performance  report  for  that
timeframe would not make a  difference  in  his  weighted  points  since  he
already had the  maximum  points  for  Airman  Performance  Reports  (APRs).
Since only the last five years  of  reports  are  used  in  the  senior  NCO
promotion process an APR from the contested timeframe would  not  have  been
included.

DPPPWB adds that there are no  provisions  for  automatic  promotion  as  he
requests.  He was considered and not selected for  promotion  to  SMSgt  six
times prior to his retirement.  Since he was not selected for  promotion  to
SMSgt, he was never considered for promotion of CMSgt.

The DPPPWB complete evaluation is at Exhibit C.

AFPC/JA states the application is inexcusably  untimely.   He  contends  the
AFBCMR  should  find  it  in  the  interest  of  justice  to  consider   the
application because  he  did  not  discover  the  "legal  argument"  he  now
presents until 2006.  He presents no  new  evidence  on  matters  previously
adjudicated by the AFBCMR.  The recent  "discovery"  of  a  potential  legal
argument that could have been used in  proceedings  that  occurred  over  20
years ago for an alleged injustice that occurred over 30 years ago fails  to
warrant even reconsideration of an AFBCMR petition with the same  facts  and
circumstances presented in 1979 and 1984.

The facts and circumstances in the context of the argument now presented  is
without merit.  The applicant  contends  that  by  making  an  exception  to
policy when he reenlisted in 1979, the Air Force "acknowledged there was  no
appropriate  applicability"  of  the  regulation  that   barred   him   from
reenlistment in 1978.  In essence, the applicant  contends  that  he  should
have been granted an "exception to policy" in 1978  so  that  he  would  not
have been declared ineligible to reenlist.  He was  rendered  ineligible  to
reenlist because he declined a PCS assignment and  because  he  was  an  OTS
eliminee.  The applicant never requested an exception to policy through  his
command or the AFBCMR prior to his separation.  If  such  an  exception  was
granted when he reenlisted in 1979,  the  exception  would  have  only  been
prospective.  JA finds no authority  to  support  his  contention  that  his
reenlistment in 1979 rendered him exempt from  the  reenlistment  regulation
in 1978.

The complete JA evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In response to the Air Force  evaluations,  applicant  provided  a  personal
statement and an eyewitness statement.  His complete response is at  Exhibit
F.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was not timely filed; however, it is in the interest  of
justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of  error  or  injustice.   We  took  notice  of  the  applicant's
complete submission in judging the merits of the  case;  however,  we  agree
with the opinions and recommendations of the Air Force  offices  of  primary
responsibility and adopt their rationale as the  basis  for  our  conclusion
that the applicant has failed to sustain his burden of  proof  that  he  has
been the victim of either an error or injustice.  Therefore, in the  absence
of evidence to the contrary,  we  find  no  compelling  basis  to  recommend
granting the relief sought in this application.

4.  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 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-2007-
00563 in Executive Session on 26 Jul 07, under the  provisions  of  AFI  36-
2603:

      Ms. BJ White-Olson, Panel Chair
      Ms. Josephine L. Davis, Member
      Mr. Alan A. Blomgren, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 11 Nov 06, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPPWB, dated 12 Apr 07.
    Exhibit D.  Letter AFPC/JA, dated 1 May 07.
    Exhibit E.  Letter, SAF/MRBR, dated 24 May 07.
    Exhibit F.  Letter, Applicant dated 8 Jul 07, w/atch.




                                   BJ WHITE-OLSON
                                   Panel Chair