RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04553 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ _ APPLICANT REQUESTS THAT: 1. His record be corrected to reflect his discharge date from the Inactive Status List Reserve Section (ISLRS) as 20 January 2003 rather than 8 April 2004. 2. His accession rank be changed to major with a date of rank (DOR) of 9 April 2004 and he receive all pay and allowances. 3. His record be further corrected to account for his denied promotion opportunities to lieutenant colonel and colonel, in that he was not considered by promotion board for which he would have been eligible had he been accessed in the correct rank. (The applicant did not specifically state the relief he sought.) 4. His record be further corrected to account for his denied opportunity to timely complete Professional Military Education (PME), in that his incorrect accession rank affected his eligibility for PME. 5. By amendment at Exhibit E, he be directly promoted to the grade of lieutenant colonel and colonel with appropriate pay and allowances. 6. By amendment at Exhibit E, he be provided “missed pay” for March 2008 through April 2010 during which time he was reassigned from Category B to Category E status. ________________________________________________________________ _ APPLICANT CONTENDS THAT: 1. He was transferred to the Non-Obligated Ready Personnel Section (NNRPS) because the Air Reserve Personnel Center (ARPC) deleted his position due to a Reduction in Force (RIF) that was not his fault. Subsequently, he was transferred to the Inactive Status List Reserve Section (ISLRS); however, he should have been discharged from ISLRS after 3 years (Jan 03). He was erroneously kept in ISLRS until 8 Apr 04. Then, he was lucky enough to find a Selective Reserve (SELRES) position and assigned to it. However, he was reassigned from the ISLRS to the SELRES as a captain, but should have been discharged and brought back into the SELRES under the new accessions guidelines. He would have been accessed as a major due to his advanced graduate degree and professional work experience totaling over 15 years. 2. The following errors occurred: a. He was appointed to the incorrect rank of captain versus major. b. The inaccurate rank appointment resulted in years of inaccurate pay. c. He was ineligible to competitively gain promotions, which he would have been eligible for consideration under the Lieutenant Colonel (Lt Col) Position Vacancy (PV) promotion board in Jun 08 and subsequent promotion boards. He would have also been eligible for the mandatory promotion board in Jun 10 and subsequent promotion boards. Because the errors continued he was removed from competitive eligibility for PV promotion to colonel in Jun 11 and subsequent promotion boards. d. His current date of rank (DOR) of 1 Oct 07 would not have made him eligible for Lt Col PV promotion until Jun 13 and subsequent promotion boards, and the mandatory board until Jun 14, exceeding 21 and 22 years of service, respectively, thus placing him into retirement. e. By accessing him incorrectly, it limited his ability of completing the required Squadron Officer’s School (SOS) Professional Military Education (PME) instead of being eligible to complete Air Command and Staff College (ACSC), which he is currently enrolled in. In support of his request, the applicant provides copies of his reserve orders, an excerpt from AFI 36-2115, Assignments within the Reserve Components; AFI 36-2005, Appointment in Commissioned Grades and Designation and Assignment in Professional Categories – Reserve of the Air Force and United States Air Force; and DoDD 1235.13, Management of the Individual Ready Reserve (IRR) and the Inactive National Guard (ING). His 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 major (0-4) with a date of rank of 1 Oct 07. According to ARPC/DPTT, the applicant’s obligation expired and he was transferred to the NNRPS for three years beginning 31 Dec 97. Effective 20 Jan 00, he was transferred into the ISLRS where he remained until he found an assignment on 9 Apr 04. The governing AFI states that Reserve officers generally remain assigned to ISLRS for three years after which time they may be screened for discharge. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force, which is at Exhibit C. ________________________________________________________________ _ AIR FORCE EVALUATION: 1. ARPC/DPTT recommends partial approval. They recommend the applicant be discharged after three years in ISLRS, with an effective date of 20 Jan 03. Further, if the applicant is reappointed as a major with 13 years 2 days of constructive credit, his date of rank (DOR) to major will be 27 May 02; he would have been Position Vacancy (PV) promotion eligible by the FY07 and FY08 Line and Health Professions PV Lt Col Promotion Selection Boards (conducted on 12 Jun 06 and 11 Jun 07, respectively). In both instances, his senior rater of record at the time of each board should be given the opportunity to nominate the applicant for PV promotion using AF Form 709, Promotion Recommendation Form (PRF). However, if the senior rater chooses not to nominate, the applicant does not have PV promotion eligibility. 2. In addition, he would have been eligible to be considered by the FY09 and CY09 Line and Health Professions Lt Col Promotion Selection Boards (conducted on 9 Jun 08 and 1 Jun 09, respectively); the senior rater of record must complete a PRF. 3. The number of years of creditable service will not force the applicant into retirement. He will not have a mandatory separation date (MSD) until he is either twice deferred for promotion to lieutenant colonel, or he is promoted to the grade of lieutenant colonel, at which time his MSD becomes 28 years of commissioned service. The complete DPTT evaluation is at Exhibit C. ________________________________________________________________ _ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In a three page rebuttal, the applicant addresses ARPC/DPTT’s letter by amending his BCMR request to reflect: a. He be directly promoted to the grade of lieutenant colonel. He asserts that his chain of command would have appointed him in the correct rank of major and recommended him for PV promotion to the grade of lieutenant colonel. b. He be directly promoted to the grade of colonel, as an active Reservist or promote him to the rank of colonel upon retirement. c. His records be corrected to reflect the correct pay and allowances, to include missed pay during Category E years. Specifically, the Air Force Reserve Command, Pay Section, told him that a Category B, major, would be paid $19K and 22K as a lieutenant colonel. In support of his appeal, the applicant provides a personal letter, a copy of ARPC/DPTT’s letter and letters of support. The applicant’s complete submission is at Exhibit E. ________________________________________________________________ _ 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 error or injustice with regard to the applicant’s request to be directly promoted to lieutenant colonel and colonel, and to receive all pay and allowances associated with these promotions. While we can appreciate the applicant’s feelings with respect to the course of events he describes, we are not convinced these circumstances warrant his direct promotion to lieutenant colonel and colonel. In fact, while ARPC/DPTT agreed that some error or injustice occurred, we believe a direct promotion should be granted only under extraordinary circumstances; i.e., a showing that the officer’s record cannot be reconstructed in such a manner so as to permit him/her to compete for promotion on a fair and equitable basis or that had the original errors not occurred, the probability of his being selected for promotion would have been extremely high. We do not find the evidence to satisfy these factors in this case. We considered the applicant’s assertion that his incorrect accession rank delayed his opportunty to complete PME, but do not find this to be an extraordinary circumstance that precludes fair and equitable consideration at an SSB. Rather, these are circmustances that can be accounted for in an SSB. We also considered the applicant’s assertions regarding his outstanding performance and strong endorsements from members of the applicant’s rating chain, who indicated that they would have nominated the applicant for 2006/2007 lieutenant colonel PV Boards but for the error in his accession rank. However, we do not find this to be sufficient to establish an extrememly high probability that the applicant would have been competitively selected for promotion by the Promotion Boards in question. Therefore, we find no basis to recommend direct promotion. Rather, we find SSBs to provide the most appropriate releif by affording the applicant missed opportunities to fairly complete for promotion at properly convened special boards, designed to fairly address circumstances like the applicant’s. Finally, we find insufficient evidence that error or injustice caused the applicant to be reassigned from Category B to Category E from March 2008 to April 2010. We do not find the evidence sufficient to conclude that the applicant would have remained in a Category B position had he been accessed in the proper rank. Moreover, even if we found error or injustice in the applicant’s assignment to Category E, we do not find back-pay to be an appropriate relief because it would compensate the applicant at a higher Category B rate for a period of time in which he actually served in Category E. 4. Nothwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice warranting partial relief. After a thorough review of the evidence submitted we agree with the recommendation from the Air Force office of primary responsibility to correct the applicant’s record to show that he was discharged from ISLRS effective 20 January 2003 rather than 8 April 2004 in accordance with governing instructions. In addition, due to our recommended correction, we believe the applicant’s accession rank should be changed to major with a date of rank of 27 March 2002. The applicant should also be afforded Special Selection Board (SSB) consideration for all appropriate Line and Health Professions Position Vacancy Lieutenant Colonel Promotion Selection Boards. We note that SSB consideration for appropriate Colonel Selection Boards would depend on the results of Lieutenant Colonel SSBs. Therefore, we recommend that his records be corrected to the extent indicated below. 5. 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 RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that: a. He was discharged from the Inactive Status List Reserve Section effective 20 January 2003 rather than 9 April 2004. b. He was accessed as a major with a date of rank of 27 March 2002, rather than a captain with a date of rank of 21 March 1993. c. He be considered for promotion to the grade of lieutenant colonel by Special Boards (SB) for the FY07 (U0507A, 12 Jun 06) and FY08 (U0508A, 11 Jun 07) Line and Non-Line Lieutenant Colonel Position Vacancy Promotion Selection Boards, and Special Selection Boards (SSB) for the FY09 (V0509A, 9 Jun 08), and CY09 (V0509D, 1 Jun 09) Line and Health Professions Lieutenant Colonel Participating Reserve Promotion Selection Boards. ________________________________________________________________ _ The following members of the Board considered AFBCMR Docket Number BC-2012-04553 in Executive Session on 23 Jul 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the records, as recommended. The following documentary evidence for Docket Number BC-2012-04553 was considered: Exhibit A. DD Form 149, dated 13 Sep 12, w/atchs. Exhibit C. Letter, ARPC/DPTT, dated 3 Jan 13. Exhibit D. Letter, SAF/MRBR, dated 11 Jan 13. Exhibit E. Letter, Applicant, undated, w/atchs. Panel Chair 6