RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER: BC-2007-03998
            INDEX CODE: 135.02
      XXXXXXX    COUNSEL: NONE

            HEARING DESIRED: YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

1. Thirty five (35) points be added to each retention/retirement (R/R)
year 19 May 1995 through 18 May 1996 and 19 May 1996  through  18  May
1997 to ensure satisfactory years for retirement.

2. Adjustments be made to his date of rank for the grades of major and
lieutenant  colonel  as  he  would  have  been  promoted  if  not  for
unnecessary and lengthy transfer processes.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His transfer from the Army  Reserve  to  the  Air  Force  Reserve  was
hindered by both error and injustice.

In support of his application, the applicant has provided  a  personal
statement, and letters  pertaining  to  his  transfer  from  the  Army
Reserve to the Air Force Reserve.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving in the Air  Force  Reserve  in  the
grade of lieutenant colonel with a date of rank of 1 October 1999.

On 3 Jan 96, he applied for a Conditional Release (CR) from the United
States Army Reserve (USAR) that would give him six months to  complete
the process of being appointed in the Air Force  Reserve  (AFR).   His
reason for leaving the USAR  was  due  to  recent  downsizing  of  the
Individual Mobilization Augmentee (IMA) program,  which  affected  the
security of his position within the Office of the  Chief  Counsel,  US
Army Corps of Engineers. The terms of a CR do not allow him  to  serve
for the  purpose  of  accumulating  participation  points  as  he  was
effectively not a member of either the USAR  or  the  AFR  during  the
effective dates of the CR.  Consequently, and  also  during  the  time
spent between services, he was in fact prohibited from meeting time in
grade (TIG) and time in service (TIS) milestones; both  of  which  are
requirements of promotion eligibility.

On 8 April 1996, the applicant's CR from the Army Reserve was  granted
for the purpose of pursuing an appointment  in  the  AFR.  During  the
appointment process he indicated a history  of  peptic  ulcer  disease
(PUD).  On 14 June 1996, the Air Reserve  Personnel  Center’s  Surgeon
General (ARPC/SG) requested a  medical  evaluation  to  determine  his
eligibility for appointment in the AFR. Peptic Ulcer Disease is listed
as a disqualifying medical condition for commissioning.

On 6 August 1996, ARPC/SG determined the applicant was  not  medically
qualified for world wide duty  and  appointment  into  the  Air  Force
Reserve.   Meanwhile,  on  12  September  1996,  the   applicant   was
mistakenly discharged from the USAR. The USAR was not supposed to have
discharged him until they had been notified of his acceptance  by  and
his appointment into the  AFR.   The  discharge  from  the  USAR  also
terminated his commission.  Concurrently he had contacted  the  ARPC’s
waiver authority and was granted a waiver  for  appointment  into  the
AFR.  Unfortunately, when he applied for appointment in Jan 97, he was
told the AFR was not accepting appointments at  that  time  but  would
consider an application for transfer  (from  the  USAR)  instead.   He
applied for reinstatement into the USAR and  was  approved.   He  then
applied for another CR from the USAR that wasn’t granted until 25  Jun
97.  On 22 Jul 97, he was transferred into the AFR effective 13 Aug 97
and was assigned to the  Staff  Judge  Advocate’s  (SJA’s)  office  at
Bolling AFB.

On 14 Feb 98, he was advised that his Retention/Retirement (R/R)  year
was 19 May, the date of his USAR commission.

He was considered but not selected by the Fiscal Year 1999 (FY99) Line
and Nonline Reserve Major Promotion Selection Board, which convened in
March 1998. When considered by the board, the  applicant  had  been  a
member of the AFR since August 1997. His Army performance  evaluations
were in his records however, his officer selection brief (OSB)  showed
no decorations,  no  participation  since  1995  and  no  professional
military education (PME).

He was considered and selected by the FY00 Line  and  Nonline  Reserve
Major Promotion Selection Board, with a date of rank  of    1  October
1999. During that period, the applicant  had  completed  his  military
PME, received two decorations and his most recent  participation  year
was satisfactory.

He was considered and selected by the FY07 Line  and  Nonline  Reserve
Lieutenant Colonel Promotion Selection Board, with a date of rank of 1
October 2006.

_________________________________________________________________

AIR FORCE EVALUATION:

ARPC/DPB recommends denial and states the applicant was  a  member  of
the Army Reserve for participation years ending 18 May 1996 and 18 May
1997. The applicant will need to petition the Army Board of Correction
of Military Records to request participation credit for the time spent
waiting for his transfer from the Army to the Air Force Reserve.

If the applicant is  successful  in  petitioning  the  Army  to  award
participation credit, he will be eligible for special selection  board
(SSB) consideration in lieu of the FY99 Line and Nonline Reserve Major
Promotion Board. Further, SSB eligibility would depend on the  results
of the first SSB, if conducted.

ARPC/DPB's complete evaluation is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force advisory and states while  it  is
clear the Army made an error in discharging him  when  they  were  not
supposed to, that does not form the basis for  his  claim  and  likely
would not have  happened,  but  for  the  injustice,  he  believes  he
suffered  as  a  result  of  the  Air  Force's  application   of   its
regulations. He  should  not  have  had  such  a  difficult  and  time
consuming process to first  learn  about  the  ability  to  request  a
medical waiver and then to receive  the  waiver  that  was  ultimately
granted in a very  haphazard  manner.  Other  than  letters  regarding
ARPC/SG's need for more information and his attempts to  provide  that
information, he thinks all communications were oral.  In  seeking  the
waiver, he should not have had to speak with so many different  people
before he happened upon the decision-making authority who,  as  stated
in his request, granted a waiver in a very cavalier way. He wonders if
this Air Force approval authority  realized  that  he  was  indirectly
recommending him to falsify future official documents  about  the  PUD
when he stated "Your mistake was to tell  us  (that  you  had  had  an
ulcer)."

Applicant's complete response is at Exhibit D.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

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,  the  Board  does  not  find  these  assertions,  in  and  by
themselves, sufficiently persuasive to override the rationale provided
by the Air Force. In this regard, we note that  the  applicant  had  a
disqualifying medical condition which required a  medical  review  and
waiver by the ARPC Surgeon General prior to his  acceptance  into  the
Air Force Reserve. While we can appreciate his  frustration  with  the
length of time it took him to ultimately process the required  waiver;
during the time period in  question,  the  applicant  technically  was
assigned to the Army while on his conditional release.  Therefore,  we
agree with the opinion and recommendation of the Air Force  office  of
primary responsibility and adopt its rationale as the  basis  for  our
conclusion that the applicant has not been the victim of an  error  or
injustice. 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-
2007-03998 in Executive Session on 29 May 2008, under  the  provisions
of AFI 36-2603:

      Mr. Wayne R. Gracie, Panel Chair
      Mr. Garry G. Sauner, Member
      Mr. Vance E. Lineberger, Member
The following documentary evidence was considered in connection with
AFBCMR Docket Number BC-2007-03998:


    Exhibit A.  DD Form 149, dated 26 Nov 07, w/atchs.
    Exhibit B.  Letter, ARPC/DPB, dated 21 Dec 07.
    Exhibit C.  Letter, SAF/MRBR, dated 1 Aug 03.
    Exhibit D.  Applicant's response, dated 7 Feb 08.



                                   WAYNE R. GRACIE
                                   Panel Chair