RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-03437
            INDEX NUMBER:  131.00
      XXXXXXXXXXXXXXXX COUNSEL:  Guy J. Ferrante

            HEARING DESIRED:  Yes


MANDATORY CASE COMPLETION DATE:  2 Oct 08


_________________________________________________________________

APPLICANT REQUESTS THAT:

Her retirement grade be  changed  to  colonel  (O-6)  vice  lieutenant
colonel (O-5).
_________________________________________________________________

APPLICANT CONTENDS THAT:

In a twelve-page brief of counsel, among counsel’s arguments  are  the
following:

        a.  The  applicant  was  denied  a  time-in-grade  waiver  for
undefined  (and  non-existent)  “manning  reasons”  resulting  in  her
retirement in the grade of lieutenant colonel, which was erroneous and
unjust.

        b.  The applicant made her decision in Sep 05  to  retire  not
because of any disenchantment with Air Force service,  but  due  to  a
confluence of personal factors:  (1) A reduction in the authorized  O-
6) strength of the Space and Missile System Center, and throughout the
Air Force, was underway; (2)  The  successful  accomplishment  of  its
mission led to the deactivation of the applicant’s material  wing  and
the termination of the O-6 positions she had held for the previous six
years; (3)  A reorganization of the Center left no meaningful  follow-
on jobs for the applicant to consider and none  were  offered  by  the
Colonel’s Group elsewhere.  Without a suitable position, the applicant
would effectively “have been  reduced  to  a  hanger  queen  or  table
decoration colonel.”

        c.  As a general proposition, an officer must serve for  three
years as a colonel before being able to retire in that grade.  Counsel
opines it makes perfect sense to  require  that  officers  demonstrate
competence in a grade before being bestowed the lifelong privilege  of
retiring in that grade.  Counsel argues, however, it makes no sense in
the applicant’s case since she more than ably demonstrated  competence
as a colonel for four  years  before  achieving  that  grade  and  for
another two years  thereafter.   Counsel  states  that  applicant  had
successfully filled two O-6 positions simultaneously while serving  as
a lieutenant colonel.

        d.  It appears from  data  on  the  AFPC  web  site  that  the
applicant’s core AFSC (062E4) was overmanned by  18  colonels  in  her
1981 year group at the beginning of FY06 and that it was overmanned by
5 colonels on or about the date of her retirement.   Similarly,  there
could have been no shortage of 062E4 colonels at the Space and Missile
Systems Center since its reorganization  eliminated  0-6  billets  and
created at least four  surplus  colonels.   According  to  information
obtained under the Freedom of  Information  Act,  two  062E4  colonels
requested and were granted time-in-grade  waivers  during  FY05  while
another six colonels in the  related  063A  AFSC  requested  and  were
granted waivers.  The  waivers  were  granted  because  the  AFSC  was
overmanned.  Therefore manning did not justify denying  the  applicant
retirement in the grade of colonel.

        e.  It was illogical for the Colonel’s Group,  after  offering
the applicant no 0-6 positions commensurate with  her  experience  and
expertise to deny her time-in-grade waiver for “manning” reasons,  but
approve her request to retire as a lieutenant colonel.  Counsel opines
that  if  there  was  a  legitimate  shortage  of  colonels  with  her
qualifications, her retirement would have been denied at any grade  so
that her services could be retained.

In support of the  applicant’s  appeal,  counsel  provides  supporting
statements from the applicant’s former rating  chain,  copies  of  her
original request for a waiver of time-in-grade,  messages  related  to
the Air Force Force Shaping program, and documents regarding Air Force
manning.

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

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 27  May  81  and
was promoted to the grade of colonel on 1 Nov 03.  On 14 Sep  05,  the
applicant submitted a request for voluntary retirement.  On 23 Oct 05,
the applicant submitted a request for retirement with two  years  time
in grade to AFSLMO, which was indorsed by the Commander,  Headquarters
Space and Missile Systems Center recommending approval.  On 10 Nov 05,
the applicant was notified by her mission support  squadron  that  her
request for retirement in the grade of colonel  had  been  disapproved
due to manning.  On 15 Nov 05, the applicant  signed  a  statement  of
understanding that because she would not have three (3) years time-in-
grade upon retiring she  would  retire  in  the  grade  of  lieutenant
colonel.  The applicant retired from the Air Force  in  the  grade  of
lieutenant colonel effective 1 Feb 06.

_________________________________________________________________

AIR FORCE EVALUATIONS:

AFPC/DPPRRP recommends denial of the applicant’s request.  As a result
of the Secretary of the Air Force (SecAF) Force Shaping policy,  time-
in-grade waivers for lieutenant colonels and colonels remained  at  2%
for each grade.  As a  result,  the  SecAF  directed  that  assignment
manning policy be considered before  time-in-grade  waivers  would  be
approved.

The applicant refers to the data published  on  the  AFPC  website  as
evidence  her  core  Air  Force  Specialty  Code  (AFSC),  62E4,   was
overmanned by 18 colonels in her 1981 year group  on  20  Oct  05  and
overmanned by 5 colonels on 31 Jan 06.  What these two charts show are
officers in all grades in the 1981 year group and not  just  colonels.
The applicant served in colonel positions as a lieutenant colonel  for
many years for the sole reason there were not enough colonels to  fill
the positions.  An officer in the 62E4 AFSC can be  cross-utilized  in
the 63A career field, which shows no overages for the 1981 year  group
as of 20 Oct 05 and 31 Jan 06  in  any  officer  grade.   HQ  USAF/DPP
message, dated 111805Z Jul 05, regarding the Air Force Shaping program
specifically excluded lieutenant colonels  from  the  “limited  Active
Duty Service Commitment) program because the career field was critical
and further stated that waivers for colonels would be  on  a  case-by-
case  basis.

Although an officer may serve in positions of a higher grade than  the
officer holds, it does not fulfill the 3-year  time-in-grade  required
by  10  USC,  Section  1370(a)(2)(A)  or  entitle  the  member  to   a
Secretarial waiver.

Had the applicant remained on active duty until 1 Jun 2011, she  would
not have been utilized as  a  “hangar  queen”  or  “table  decoration”
colonel but would have been reassigned  to  another  O-6  position  to
continue her career.  That she requested and insisted on a  1  Feb  06
retirement date in spite of the denial  of  the  time-in-grade  waiver
shows she had no further interest in continuing that career in another
location.

The complete evaluation is at Exhibit C.

AF/DPO recommends denial of the applicant’s request.  The  applicant’s
time-in-grade waiver was disapproved due to career field manning.   As
of Sep 05,  the  Developmental  Engineering  and  Acquisition  manager
career fields were manned at a combined 73% at the colonel grade.  The
applicant  was  qualified  to  serve  in  either  career  field.   The
applicant quotes manning figures  from  the  AFPC  website.   However,
colonels are managed by the Air Force Colonel Matters Office not AFPC.
  The  applicant’s  assertion  her  career  field  was  overmanned  is
incorrect.

The applicant served at her last duty station for six years.  This  is
highly unusual as colonels are normally moved every three years.   The
reason for the long period was to facilitate an assignment at the same
location as her active duty spouse.  The applicant was supposed to  be
reassigned in 2005,  but  a  waiver  was  granted  to  allow  her  one
additional year.  As the 2006 assignment cycle began, the  applicant’s
job had been deleted, her husband had retired and she  was  placed  in
the position of being put into the  cycle  for  a  new  assignment  or
electing to retire.  The applicant’s pursued  a  time-in-grade  waiver
for retirement, which was denied along with all other requests at that
time.  The applicant had the option to get a new assignment or retire.
 The applicant had all the information regarding her options and  knew
if she elected to  retire,  it  would  be  as  a  lieutenant  colonel.
Approximately 25-30 colonels a year retire in a  lower  grade  because
they do not have sufficient time-in-grade.

The applicant’s claim of having served in colonel jobs for  six  years
is inaccurate.  She was placed into a colonel’s position when she  was
promoted to colonel on the CY02 Colonel  Promotion  board.   Prior  to
that time, she was assigned to a lieutenant colonel billet.

Allowing  the  applicant  to  retire  in  the  grade  of  colonel   is
inconsistent  with  Air  Force  policy,  does  not  follow  Air  Force
Operating Instructions or governing guidance and would  be  unfair  to
all colonels who have retired  in  the  grade  of  lieutenant  colonel
because they did not have sufficient time-in-grade.

The complete evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel responded to the Air Force evaluations in a  seven-page  brief
with three attachments.

Counsel  states  that  the  Air  Force’s  view  that  the  applicant’s
retirement grade should not be changed because the  Air  Force  had  a
shortage  of  colonels  with  her  expertise  begs   two   fundamental
questions:

        a.  Did the applicant deserve to retire  as  a  colonel  after
having served  illustriously  for  more  than  six  years  in  colonel
positions?

        b.  If the Air Force was as desperate for  colonels  with  her
expertise as claimed, why was she permitted to retire?

Counsel discusses the issue of the  applicant’s  voluntary  retirement
and points out that the issue at hand  is  the  time  in  grade  (TIG)
waiver to allow the applicant to retire in the grade commensurate with
her last six years of active service.  Counsel states that neither  of
the Air Force advisories addresses the injustice  of  the  applicant’s
retirement as a lieutenant colonel after doing the work of  a  colonel
for more than twice as long as the statute  deems  necessary  and  the
arbitrariness  of  denying  retirement  as  a  colonel  but   allowing
retirement as a lieutenant colonel, thereby exacerbating the “manning”
crisis that ostensibly led to the denial of an 0-6 retirement  in  the
first place.  Counsel opines that this  case  is  not  about  the  Air
Force’s authority to grant and deny TIG waivers to  shape  the  force,
but concerns “that authority being arbitrarily and unjustly  exercised
in the applicant’s case.

Counsel  states  that  the  advisory  by   AF/DPO   is   “particularly
undeserving of belief”  for  standing  alone  in  disputing  that  the
applicant served in colonel positions before she was actually promoted
to that grade.  Counsel cites references that he believes substantiate
this fact.  Counsel states that AF/DPO ignores its own response to the
applicant’s  Freedom  of   Information   Act   (FOIA)   request   when
representing that the applicant’s request was denied with  all  others
at that time when the FOIA figures clearly show that  of  a  total  of
nine colonels in the Developmental Engineering and Acquisition Manager
career fields were granted TIG waivers at that time.  The  applicant’s
was only one of two denied.

Counsel states that one problem common to both advisories is the “lack
of  support  or  substantiation”   for   their   representations   and
assertions.  Counsel discusses, as  an  example,  how  the  advisories
attached the evidence presented to  show  the  applicant’s  Air  Force
Specialty Codes (AFSCs) were  overmanned.   Counsel  opines  that  the
advisory opinions offer no reason  or  basis  to  conclude  otherwise.
Also  unsubstantiated,  according  to  counsel,  is  AF/DPO’s  summary
representation that allowing the applicant  to  retire  as  a  colonel
would be inconsistent with Air Force policy, does not follow Air Force
Operating Instructions or governing guidance, and would be  unfair  to
all other colonels who have retired in the grade of lieutenant colonel
because they did not have  sufficient  time-in-grade.   Counsel  asks,
what policy and points out, according to AFPC/DPPPRP, that  Air  Force
policy was to handle colonel’s TIG requests on a  case-by-case  basis.
Counsel opines that to grant the  applicant’s  request  based  on  the
unique circumstances of her case would not be inconsistent  with  this
policy.  Counsel further opines that the applicant’s retirement  as  a
colonel would only be unfair to other colonels without sufficient  TIG
only in the unlikely event they had:

        a.  Also served in colonel positions doing colonels  jobs  for
more than three years while still a lieutenant colonel.

        b.  They were merely seeking  recognition  for  the  six  plus
years of colonel (O-6) duties they had actually performed.

Counsel states there is the matter of inconsistency in the applicant’s
case.  Counsel states that AFPC/DPPPRP seeks to  draw  analogies  from
the treatment of non-colonels in the applicant’s  career  fields,  but
AF/DPO’s position is that non-colonel  information  does  not  matter.
AFPC/DPPPRP also points out that colonels were “considered on a  case-
by-case basis,” yet AFDPO has taken the position the  applicant’s  TIG
waiver was not considered case-by-case, but was summarily denied along
with all other requests at that time.  Counsels states  that  they  do
not dispute that Developmental Engineers and Acquisition Managers were
in short supply throughout the  Air  Force.   However,  the  issue  is
whether their manning was so critical at the colonel level it  merited
effectively demoting the applicant when she retired  after  more  than
six years of O-6 service.

Finally,  counsel  addresses  what  he  considers   the   “matter   of
irrelevancies”  he  states  are  apparently  interjected  for   purely
emotional purposes.  Illustrative of this he states is AF/DPO’s  focus
on the circumstances of the applicant’s unusually long  six-year  tour
at one assignment, which he  believes  has  nothing  to  do  with  the
injustice of her retirement as a lieutenant colonel after six years of
colonel’s jobs while there.  Counsel states the problem is  compounded
by AF/DPO’s suggestion the applicant’s tenure at the assignment was to
facilitate an assignment at the  same  location  as  her  active  duty
spouse, which, to the best of the applicant’s knowledge,  is  “utterly
false.”  Counsel further discusses the issue of a waiver to allow  the
applicant one more year at her assignment.  According to counsel,  the
applicant has no recollection of any such waiver.

Counsel’s complete submission, with attachments, 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 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, we agree with the opinions and  recommendations  of  the  Air
Force offices of primary responsibility and adopt their  rationale  as
the primary basis for our conclusion that the applicant has  not  been
the victim of an error or injustice.  Additionally, we note  that  the
applicant’s decision to retire was completely voluntary and we are not
persuaded by the evidence provided  that  the  applicant  was  treated
unfairly.  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 Docket  Number  BC-2006-
03437 in Executive Session on 28 June 2007 under the provisions of AFI
36-2603:

      Ms. B. J. White-Olson, Panel Chair
      Ms. Mary C. Puckett, Member
      Ms. Patricia R. Collins, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 6 Mar 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memo, AFPC/DPPRRP, dated 16 Apr 07.
    Exhibit D.  Memo, AFPC/DPO, dated 2 May 07.
    Exhibit E.  Letter, SAF/MRBR, dated 11 May 07.
    Exhibit F.  Letter, Counsel, dated 9 Jun 07, w/atchs.




                                   B. J. White-Olson
                                   Panel Chair