i 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

3UL  0 2  )998 

IN THE MATTER OF: 

DOCKET NUMBER:  97-02612 
COUNSEL:  NONE 

HEARING DESIRED: YES 

APPLICANT REOUESTS THAT: 
He be promoted to the rank of captain retroactive to his original 
ef.fective date of 13 January 1997. 

APPLICANT CONTENDS THAT: 
Propriety actions to remove his name from the promotion list were 
not brought  to his attention until 21 January 1997,  when he was 
verbally notified.  As  outlined  in Air  Force  Instruction  (AFI) 
36-2501,  paragraphs  5.3,  5.11,  12.4.1  and  Attachment  1,  the 
officer must  be  informed before effective date of promotion -and 
not the "pin-on" date or public release date as Legal has stated. 
In support of the appeal, applicant submits two statements from 
the  Circuit  Defense  Counsel  stating that  the plain  language of 
AFI  36-2501,  paragraph  5.11,  clearly  provides  an  exception  to 
what  is  normally  the  effective  date  of  promotion. 
In  the 
applicant's case it was not the date of the order that announced 
his  promotion,  but  the  planned  specified  earlier  date  of 
13 January 1997.  His commander's initiation of removal action on 
21 January 1997,  eight days after the planned  effective date of 
applicant's  promotion  to  captain,  was  tardy. 
The  AFI,  as 
currently  written,  may  make  it  impossible  for  commanders  to 
remove officers from promotion lists who have a date of rank and 
pay  date  specified  earlier  than  the  date  of  the  order  that 
announces the promotion,  but  that  is  a  concern that  should be 
addressed  in  re-writing  the  AFI. 
The  language  of  the  AFI 
prevented  the  applicant's  commander  from  initiating  action 
removing  applicant's name  from  the  promotion  list  because  the 
effective date of his promotion had already passed. 

Applicant  also  submits  a  staff  summary  sheet,  memorandum  for 
record, HQ AFPC message, and AFI 36-2501 extract. 
Applicant's complete submission is attached at Exhibit A. 

97-02612 

STATEMENT OF FACTS: 

Applicant was commissioned a second lieutenant in the Reserve of 
the Air Force on 18 May 1996 and entered extended active duty on 
11 June 1996. 
Applicant was selected for promotion to the grade of  captain by 
the CY96E Central Captain Selection Board. 
On  20 November  1996, applicant was notified of  his commander's 
intent  to  impose  nonjudicial  punishment  upon  him  for  (a) 
unlawfully and disgracefully touching a military subordinate in a 
sexual manner on or about 19 October 1996, and  (b) unlawfully and 
disgracefully  making  statements  of  a  sexual  nature  to  his 
military subordinates between on or about 1 July 1996 and on or 
about 19 October 1996. 
On  12  December  1996, after  consulting with  counsel, applicant 
waived  his  right  to  a  trial  by  court-martial,  requested  a 
personal appearance, and submitted a written presentation. 

On 16 December 1996, he  was  found guilty by  his  commander who 
imposed the following punishment: forfeiture of $1000.00 pay per 
month for two months, and a reprimand.  The forfeiture in excess 
of  $500.00 pay  per  month  for  two  months  was  suspended  until 
15 June 1997, at which time it would be remitted without further 
action, unless sooner vacated.  The suspension of the forfeiture 
was  contingent  on  his  completion of  Sensitivity Training  from 
Actions. 
The  Article  15  was  filed  in  his  Unfavorable  Information File 
(UIF) . 
The results of the promotion board were approved by the Assistant 
Secretary  of  Defense  (Force  Management  Policy)  (ASD/FMP) on 
13 January 1997, and public release of the results was 28 January 
1997. 
On  21  January  1997,  applicant  was  verbally  notified  by  his 
commander that action was being initiated to remove his name from 
the CY96E promotion list to captain. 

On 27 January 1997, applicant was provided written notification 
by  his  commander of  the  removal action being  initiated against 
him.  Specific  reason for this  action was  h i s   failure  to  meet 
prescribed standards of performance and conduct for an Air Force 
officer . 
Specifically,  he  made  inappropriate  comments  and 
touched  several  of  his  female  subordinate  enlisted  medical 
technicians. 

97- 02612 

Applicantls  projected  promotion  would  have  been  effective 
13 January  1997  (ASD/FMP approval  date).  The  CY96E  promotion 
list results were made public on 28 January 1997. 

On 22 May 1997, the Secretary of the Air Force directed that the 
applicant's name be  removed from the  list of  officers selected 
for promotion by the CY96E captain selection board. 

OPR profile since 1996, follows: 

PERIOD ENDING 

#  30 Aug 96 
##  31 Jul 97 

EVALUATION OF POTENTIAL 

Meets Standards (MS) 
MS rating in Blocks 1,4,6 
Does Not MS in Blocks 2,3,5 

(Referral) 

#  Top report at time of CY96E board. 
##  Top report at time of CY97D board. 
Applicant  was  considered  and  nonselected  for promotion  to  the 
grade of captain by the CY97D Central Captain Selection Board. 

Applicant  was  discharged  on  23  February  1998,  under  the 
provisions of AFI 36-3207  (Misconduct) , with a general discharge 
in the grade of  first lieutenant.  He had  completed  9 years, 2 
months, and 7 days of total active military service. 

- -  

AIR FORCE EVALUATION: 
The Chief, Officer Promotion &  Appointment Branch, Directorate of 
Pers Prog Mgt, AFPC/DPPPO, reviewed  the  application  and  states 
that based on the applicant's date of rank of 14 August 1994, his 
two-year  anniversary  for  promotion  t-o  captain would  have  been 
14 August 1996.  Since promotion to captain requires selection by 
a board and based on the date he entered active duty, the first 
board he was eligible to meet  was the  12 November  1996 Central 
Captain Selection Board.  Because  the  applicant was  considered 
Iloverdue for promotion," upon public release of the board results 
( 2 8   January 1997) , he could have been promoted immediately, with 
a  date  of  rank  and  effective  date  of  ASD/FMP  signature 
(13 January 1997).  This  is done  to ensure overdue officers do 
not lose out on pay and allowances for the new grade.  Promotion 
orders  were  published  for  all  overdue  officers  from  the 
12 November  1996  board  on  3  February  1997. 
This  allowed 
sufficient time for commander's to notify all officers of  their 
select/nonselect status, determine if officers were qualified for 
promotion and to allow the selected officers sufficient time to 
either  accept  or  decline  their  promotion.  The  applicant  was 

97- 02612 

never placed  on promotion  orders to effect  his promotion.  In 
instances where  officers  receive promotions with  dates  of  rank 
and effective dates backdated to specific dates, the only period 
of  time  when  promotion propriety  actions  can be  initiated,  is 
between approval of the board  results and public releaselpin-on 
date.  As in the applicant's case, he was verbally notified that 
action was being taken to remove his name from the promotion list 
prior to public release of the results.  The removal package was 
properly  documented  and  found  to  be  legally  sufficient. 
Therefore, they recommend denial of applicant's request. 
A  complete  copy  of  the  Air  Force  evaluation  is  attached  at 
Exhibit C. 
The Staff Judge Advocate, AFPC/JA,  reviewed the application and 
states  that  in  accordance with  10 U.S.C.  629(a),  an officer's 
name may be removed from a promotion list by the President  (such 
authority has been  delegated to  the  Service  Secretaries).  AFI 
36-2501 (the successor to AFR 36-89) is the Air Force Instruction 
that  implements  that  law  for  the  Air  Force  and  sets  out  the 
procedures for removal.  Consistent with the statutory procedures 
for  delaying  a  promotion  found  at  10  U.S.C.  624(d) ( 3 1 ,   the 
Instruction provides that an action to remove an officer's name 
from a promotion list must be initiated before the effective date 
of promotion.  AFI 36-2501, para 5.11.  The term "effective date 
of  promotion" is defined  in Attachment  1 of  the  Instruction as 
follows:  Effective Date of Promotion -  Also known as the current 
grade effective date of promotion, this is the date on which pay 
and  entitlements  are  effective. 
It  is  normally  the  date  of 
promotion;  i.e.,  the  date  of  the  order  that  announces  the 
promotion, unless announcement of a specified earlier date is in 
the order.  Initiate all promotion propriety actions before the 
effective  date  of  promotion. 
Normally  this  date  cannot  be 
earlier  than  the  officer's extended  active duty  (EAD) date  in 
that grade, ASD(FMP)  approval of  the selection board  results to 
the  grade  of  captain, or  Senate  confirmation  to  the  grades of 
major  through  colonel. 
Based  on  this  definition,  applicant 
argues that his promotion removal was improper; i.e., because the 
order  announcing  his  promotion  provided  for  an  effective  date 
that preceded the date he was notified of the removal, the action 
is without  effect.  They disagree.  Admittedly, the  definition 
cited above is potentially confusing.  The term  "effective date 
of  promotionlI is  not  defined  in  the  statute  (Defense Officer 
Personnel Management Act  (DOPMA)) or its legislative history.  In 
fact, in the Defense Officer Personnel Management Act  Technical 
Corrections Act Report, two different terms, Ileffective date"  and 
"projected date,  are seemingly used interchangeably to describe 
the term  "effective date of promotion," and they would appear to 
be  the  same  thing  -  the  date  the  promotion  is  actually made. 
This interpretation is consistent with opinions from this office 
dating back to the early 1 9 8 0 t s ,   that the requirement to initiate 

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97- 02612 

a  promotion  propriety  action  before  the  "effective  date  of 
promotionii (as provided  in Chapter 36, Title  10, United  States 
Code  and  AFI  36-2501) is  a  requirement  to  initiate  the  action 
before  the promotion is made  -  the date the Air Force actually 
intends to promote the individual, which may or may not coincide 
with the date the promotion will be made  effective for pay and 
allowances and time-in-grade purposes.  They have also concluded 
that as a general rule promotions are  Itmadell on the date of the 
order  announcing  them  -  again, recognizing  that  the  order may 
provide  for  an  earlier  "effective  date"  in  appropriate 
circumstances.  More importantly, this conclusion is supported by 
the sectional analysis of the legislative history of the removal 
statute itself  (10 U.S.C. 629):  Section 629 relates to removal 
from  a  promotion  list.  It  would  authorize  the  President  to 
remove  the  name  of  any  officer  from  a  list  of  officers 
recommended  for promotion.  It  is  intended  that  such  removal 
could  be  effected  by  the  President  at  any  time  prior  to  the 
promotion of the officer . . . .  H.R. Rep. No. 1462, 96th Cong. 2d 
Sess. (19801, at p. 74.  Having reached this conclusion, the next 
logical question  is:  When  is  a  promotion  made?  Because  the 
promotion  of  a  commissioned  officer is a  new  appointment  in  a 
higher  grade,  the  same  prerequisites  to  the  appointment  of 
officers, also apply to their promotion; i.e., (1) nomination by 
the President;  (2) confirmation by  the Senate  (except promotion 
to  first  lieutenant);  (3) tender  of  the  appointment; and  (4) 
acceptance of the tender.  Air Force Pamphlet  (AFP) 110-3, paras 
3-12,  3-5a. 
Acceptance  may  be  implied,  and  an  officer--is 
considered to have accepted the promotion  "on the date on which 
the  appointment  is  made  unless  he  expressly  declines  the 
appointment."  10 U.S.C. 626.  See also AFI  36-2501, para  3.16 
and  AFP  110-3, para  3-5c.  The  pre-DOPMA provisions predating 
Section 626  (Sections 8312  (regular) and 8394  (reserve) provided 
that a promotion was  considered to be  accepted  Iton the date of 
the order announcing it" unless the officer declined  it.  There 
is nothing  in  the  legislative history  of  DOPMA  to  suggest  any 
Congressional  intent  to  change  that  definition  of  "promotion 
acceptance."  Consequently, it seems clear that Congress intended 
"the date on which a promotion is made" to continue to coincide 
with  the  date  of  the  order  announcing  it. 
The  applicant, 
however, avers that the retroactive date for pay and allowances 
provided  for  in  the  order  announcing  his  promotion,  controls 
initiation of  a  promotion  propriety  action.  If  they  were  to 
accept  his  interpretation,  the  initiation  of  a  promotion 
propriety action in cases like his where the officer is 
could  never  occur.  Such a  result was  clearly never  intended. 
This  can  be  illustrated  by  an  example  involving  promotions 
generated  by  the  Air  Force  Board  for  Correction  of  Military 
Records  (AFBCMR)  that  involve  retroactive  effective  dates. 
Obviously, the prerequisites for promotion discussed above cannot 
all be met  (e.9. ,  acceptance of  the tender) if  the promotion is 
considered  "madef1 before  the  order announcing  it.  The  use  of 

97- 02612 

retroactive  effective  dates  is  therefore  permitted  as  an 
administrative act whose practical significance goes more to the 
entitlement to pay and allowances than to anything else.  Section 
628 of Title 18, dealing with promotions recommended by  special 
selection  boards  and  incorporating  the  delay  provisions  of 
Section 624(d) by  reference, provides another example.  As  the 
Board  is  aware,  virtually  all  of  these  promotions  involve 
retroactive effective dates.  Consistent with  these provisions, 
AFI  36-2501, para  6.7.2, provides that  an officer selected for 
promotion by a special section board is subject to review by his 
or her commander for delay of promotion or removal action.  This 
is so even if the officer is to be given a retroactive effective 
date  of  promotion.  Finally,  it  is  important  to  note  that  a 
military promotion is not a property right, nor does an officer 
otherwise  have  a  vested  interest  in  obtaining  a  promotion. 
Congress  has  made  clear  its  intention  that  officers  not  be 
promoted  where  there  is  reason  to  believe  the  officer  is  not 
mentally,  physically,  morally,  or  professionally  qualified  to 
perform  the duties of  the next  higher grade, notwithstanding a 
previous selection.  10 U.S.C. 624(d) (2); 10 U.S.C. 629(a).  The 
applicant fits into that category.  For the reasons expressed, it 
is their opinion that the applicant's removal from the promotion 
list was properly initiated, and that he has failed to establish 
an  error  or  injustice  warranting  relief.  Accordingly,  they 
recommend that the application be denied. 

A  complete  copy  of  the  Air  Force  evaluation  is  attached--at 
Exhibit D. 

~- 

~ 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 
The  applicant  reviewed  the  Air  Force  evaluations  and  has 
submitted  comments  in  response  to  each  paragraph  of  the 
evaluations.  In addition he states that an officer should not be 
promoted where  there are reasons to believe  the officer is not 
mentally,  physically,  morally  or  professionally  qualified  to 
perform  the  duties  on  the  next  higher  grade.  He  received  an 
article 15 over a year ago.  He made his share of mistakes and 
accepted responsibility for his actions.  He has learned from his 
past  and has paid his dues.  He is now ready to continue on in 
his military  career.  The  letter of  support  from  his previous 
temporary  supervisor  and  his  latest  Performance  Feedback  both 
show that he has the required qualities needed of an officer who 
is to be  promoted  to the next higher grade.  It  is his opinion 
that  his  removal  from  the  promotion  list  was  improperly 
initiated, and  that  he  has  succeeded  in  establishing  that  an 
error or injustice warranting relief. 

In further support of  his appeal, applicant submits a statement 
from  the  Circuit  Defense  Counsel  stating  the  applicant's 
commander  was  aware  of  the  allegations  made  against  him 
(applicant) since  October  1996.  He  could  have  informed  the 

6 

97- 02612 

applicant at any time in November or December that he would non- 
recommend him for promotion.  He did not, and the effective date 
of applicant's promotion had passed by the time the commander got 
around  to  doing  so.  Mr.  L---  himself  acknowledges  that  the 
Iteffective'' date  of  applicant Is  promotion  was  the  date ASD/FMP 
signed the promotion list  (13 January 1997).  However, Mr. L--- 
then  requests  that  the  AFBCMR  ignore the  plain  meaning  of  the 
language in AFI  36-2501  (and its definition of  "effective date" 
of promotions) because, "promotion propriety action in cases like 
his  where  the  officer  if  overdue  could  never  occur"  if 
applicant's  position  was  accepted. 
Mr.  L--- I s   concern  is 
misplaced and incorrect.  In paragraph 9 of his letter, applicant 
discusses why Mr. L--- I s   concern that promotion propriety actions 
"could never occur"  is incorrect.  Even if Mr. L---' s concern was 
correct, the  remedy  is  to  re-write  the  AFI.  The  AFI  may  be 
confusing, and may be written in a way not intended, however, the 
law requires  that  any  ambiguity  in  a  regulation or  statute be 
resolved in applicant's favor.  Applicant's promotion to captain 
was improperly denied after ASD/FMP had approved it on 13 January 
1997. 
Applicant's complete response, with attachments, is attached at 
Exhibit F. 

THE BOARD CONCLUDES THAT: 

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

2 .  

The application was timely filed. 

Insufficient  relevant  evidence  has  been  presented  to 
3 .  
demonstrate  the  existence  of  probable  error  or  injustice. 
Applicant's  contentions  have  been  adequately  addressed  by  the 
Staff  Judge  Advocate  and  we  agree  with  their  comments  and 
recommendations and  adopt  their rationale as  the  basis  for our 
conclusion that the applicant has not been the victim of an error 
or  injustice.  Therefore,  in  the  absence  of  evidence  to  the 
contrary,  we  find  no  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  issue(s) 
involved.  Therefore, the request for a hearing is not favorably 
considered. 

7 

97- 02612 

THE BOARD DETERMINES THAT: 

The  applicant  be  notified  that  the  evidence  presented  did  not 
demonstrate  the  existence  of  probable  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 this application in 
Executive  Session on 16  June  1998,  under the provisions of AFI 
36-2603: 

Mr. David W. Mulgrew, Panel Chair 
Mr. Frederick R. Beaman 111, Member 
Mr. Joseph G. Diamond, Member 

The following documentary evidence was considered: 

Exhibit A. DD Form 149, dated 24 Aug 97, w/atchs. 
Exhibit B. Applicant's Master Personnel Records. 
Exhibit C. Letter, AFPC/DPPPO, dated 16 Oct 97, w/atchs. 
Exhibit D. Letter, AFPC/JA, dated 3 Dec 97. 
Exhibit E. Letter, AFBCMR, dated 22 Dec 97. 
Exhibit F. Applicant's Response, dated 29 Dec 97, w/atchs-.- 

Panel Chair 

8