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AF | BCMR | CY2008 | BC-1995-02688
Original file (BC-1995-02688.DOC) Auto-classification: Denied

                            RECORD OF PROCEEDINGS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-1995-02688
                                             INDEX CODE:  131.04

                                             HEARING DESIRED:  NO



His records be corrected to reflect that he was promoted  to  the  grade  of
major on 19 May 1995, instead of 29 February 1996.



He took a one-year deferment for a  Family  Practice  Obstetric  Fellowship.
Prior to his leaving,  he  was  notified  that  he  had  been  selected  for
promotion to the grade of major, effective  19 May  1995,  and  was  led  to
believe he would assume this rank when he returned to active duty  following
his Fellowship deferment.

Subsequent to his original request  being  disapproved,  the  Board  granted
relief in AFBCMR Docket Number BC-2005-2508, which was  the  same  situation
as his previous appeal which was denied.

In support of his appeal, he  has  provided  copies  of  his  previous  BCMR
application and denial letter, two letters attesting  to  his  promotion  to
the grade of major being effective 19 May  1995,  and  sanitized  copies  of
AFBCMR Records of Proceeding,  Docket  Numbers  BC-2003-02508  and  BC-2004-

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



For  an  accounting  of  the  facts  and   circumstances   surrounding   the
applicant’s previous application, and the rationale of the earlier  decision
by the Board, see the Record of Proceedings at Exhibit D.

On 25 October 2006, the applicant submitted a request  for  reconsideration,
contending that subsequent to his original request  being  disapproved,  the
Board granted relief in AFBCMR Docket Number  BC-2003-2508,  which  was  the
same situation as his previous application which was denied (Exhibit E).



AFPC/DPSOO recommends  denial,  as  no  additional  documentation  has  been
provided that would  warrant  a  change  to  their  recommendation.   If  an
officer is not on active duty at the time their  promotion  consummates,  it
is without effect and there are no provisions in policy or law to  allow  an
officer to keep a promotion once an effective date has passed.

The AFPC/DPSOO complete evaluation is at Exhibit F.

AFPC/JA  recommends  denial  of  the  request  for  reconsideration  as  the
applicant has suffered no error or injustice.  They concur with the  Board’s
initial decision that no error ever occurred  and  with  the  AFPC/DPSOO  20
December 2007 advisory.  Moreover, the provisions of the standard  governing
Statement of Understanding (SOU) would have put the applicant on  notice  he
would not be promoted if he left active duty and pursued  civilian  training
in a redeferred status.

As for the claim of injustice, they have provided several advisories to  the
Board in  similar  cases  subsequent  to  the  2003 decision  cited  by  the
applicant, in which they strongly maintained the 2003 decision was  rendered
improperly and contrary to law.  The Board  has  since  concurred  in  their
analysis  (AFBCMR  BC-2004-02413),  and  they  quoted  from  their  advisory
submitted in that 2004 case which the Board adopted  as  the  rationale  for
its decision.

With regard to a determination of “injustice” within the  meaning  of  Title
10, United States Code, Section 1552, the United  States  Court  of  Federal
Claims has repeatedly defined an injustice as behavior  or  an  action  that
rises to the level of “shocking the conscience.”  As previously noted,  this
is a tough standard which requires  more  than  merely  deciding  an  action
taken against an applicant is unfair.  In their opinion,  the  circumstances
in  this  case  clearly  should  not  be  characterized  as  “shocking   the
conscience.”  More importantly, such a conclusion runs directly  counter  to
Congress’ clearly expressed intent with respect to the award of  credit  for
such training.

Constructive service  credit  is  intended  to  be  a  recruiting  tool  for
bringing into service professionals with  specialized  skills  and  training
whom the military services might otherwise  be  unable  to  attract.   These
individuals have generally paid for their own medical school  and  training.
In the applicant’s case,  he  received  his  medical  degree  at  Air  Force
expense and was treated like  all  other  members  in  the  same  situation.
Moreover, in accordance with the applicable  regulations,  the  SOU  clearly
delineated that the applicant would not receive constructive service  credit
which is contrary to his claimed expectations.  If the Board granted him  an
earlier promotion solely for the reasons he espouses,  it  would  treat  him
differently from almost all other Air Force medical members who receive  Air
Force funded medical  education  and  subsequently  volunteer  for  unfunded
additional training.

Future medical members who volunteer for and accept these unfunded  training
opportunities may well view this Board’s granting of relief in  the  present
application as establishing some precedent for those members  to  renege  on
their clearly worded SOU agreements, and  to  circumvent  the  statutes  and
regulations  regarding   application   of   constructive   service   credit.
Essentially, it could create the  appearance  of  an  unorthodox  procedural
exception to the rules regarding application of constructive service  credit
and could nullify the express terms of the SOU.  They  believe  it  is  more
prudent to leave  extensive  changes  to  the  application  of  constructive
service credit to Congress and others charged  with  setting  the  governing
policy.  Likewise, they  believe  it  is  important  to  reaffirm  that  the
agreements contained in an SOU are binding and will only  be  set  aside  in
specific individual cases of clear injustice.  As  such,  the  Board  should
deny this application as there is no injustice in  this  case.   As  already
noted, the Board adopted the rational above  in  denying  the  BC-2004-02413
application.  Clearly, the  same  analysis  and  conclusion  are  applicable
today and controlling in this applicant’s case.

The AFPC/JA complete evaluation is at Exhibit G.



He is asking for the same consideration that was offered  to  the  physician
who  filed  BC-2003-02508,  as  their  cases  are  identical.   Before  they
separated and started their deferment, they were both advised they would  be
promoted to the rank of major and were subsequently not promoted upon  their
return to active duty.  The Board found in his favor because it was felt  an
injustice had occurred, and had that physician come onto  active  duty  with
similar credentials, he would have entered as a major.  The only  difference
between the two cases is  that  he  is  a  family  practitioner  and  not  a
cardiologist; however the specialty is irrelevant.  The Air Force  considers
the amount of time a doctor has been in practice when considering rank,  not
the specialty.   He  went  on  deferment  to  gain  additional  training  in
obstetrics, and had he entered the Air Force  with  the  same  training,  he
would have entered as a major.

The SOU he signed when he separated for his training did not  clearly  state
he would not be able to assume the rank of major when he returned to  active
duty.  It does state that if one is to  meet  a  promotion  board  while  in
redeferred status, they will not be considered for promotion.   However,  he
had  already  been  considered  and  advised  of  his  promotion.   The   JA
evaluation did not comment on his SOU because  it  was  not  sent  to  them,
although it was included in his package.

When he was signing  the  paperwork  for  his  deferment,  he  was  a  young
resident working 100-plus hours per week.  The individual assisting him  was
a young NCO.  He specifically asked this NCO if  he  would  be  promoted  to
major upon his reentry into the  Air  Force,  and  the  NCO  answered  “yes”
without hesitation.  Internet access and e-publishing was not  the  same  as
it is today.  He did not have time to consult  with  a  JAG  and  was  naïve
enough to take the NCO at his word.  He  has  seen  this  scenario  repeated
frequently – a young officer or enlisted member who is at  the  entry  point
of customer service giving misinformation – and  he  spent  a  lot  of  time
correcting these types of errors as a middle manager.

Since he completed his fellowship in obstetrics, he has used  the  knowledge
he gained on a regular basis, and feels he has  been  punished  for  getting
valuable additional training.  His obstetric training has allowed him to  do
more for his Air Force  patients  and  residents  than  the  average  family
practitioner.   Since  he  is  still  a  family  practitioner  and  not   an
obstetrician, he did not get the  obstetric  bonus,  which  is  considerably
more than that of a family practitioner.  When his initial  application  was
denied, he let it go; however, when he discovered  the  BC-2003-02508  case,
he reapplied and is only  asking  for  the  same  treatment  given  to  that

The applicant’s complete response, with attachment, is at Exhibit I.

On 5 May 2008, a copy of the AFBCMR Redacted Record of  Proceedings,  AFBCMR
Docket Number BC-2004-02413, which was referenced in the  AFPC/JA  advisory,
was forwarded to the applicant for review and comment within  30  days.   He
states that in this case, the provider left the Air Force  in  a  redeferred
training status as a captain, returned to active duty as a captain, and  the
Board denied his appeal.    By contrast, in BC-2003-02508, the  member  left
the Air Force in a redeferred training status as a  major  select,  returned
to active duty as a captain, and the Board approved his appeal.  Other  than
a difference in medical specialties, his case is  nearly  identical  to  BC-
2003-2508 which was approved.

The applicant’s complete response is at Exhibit K.



After again reviewing this application and the evidence provided in  support
of the appeal, we are not  persuaded  the  applicant  has  demonstrated  the
existence of an  error  or  injustice  and  find  nothing  in  the  evidence
provided that would overcome our earlier decision.  The  applicant  cites  a
case previously decided by this Board and  asserts,  in  essence,  that  his
case is so similar that relief is warranted using the  same  rationale.   We
disagree.  Each case before this Board is considered on its  own  merit  and
we are not bound by precedent.  While we do strive for  consistency  in  the
manner in which evidence is evaluated and analyzed,  we  are  not  bound  to
recommend relief in one circumstance  simply  because  the  situation  being
reviewed appears similar to another case.  Cases which  may  appear  similar
are  often  quite   dissimilar   and   require   a   different   conclusion.
Additionally,  there  are  occasional  shifts  in  our  basic  institutional
judgment of a situation; and what may  have  been  considered  an  error  or
injustice warranting relief is, upon further reflection  and  re-evaluation,
determined not to be the case.  In such a case, we are required to  distance
ourselves from  the  earlier  rationale  and  decide  the  case  on  today’s
analysis, rather than continuing to recommend unwarranted corrections  based
on faulty precedent.  We strive for consistency  in  our  decisions  but  we
have a greater interest in a right result.  After carefully considering  the
applicant’s request in this context, we do not find substantial evidence  of
either an error or injustice.  Although the  case  he  cites  was  favorably
considered by the Board in 2003 based on their finding of an  injustice,  in
subsequent cases of this nature the Board has accepted the  opinion  of  the
Staff Judge Advocate that a determination  of  an  injustice  runs  directly
counter to  Congress’  clearly  expressed  intent  to  limit  the  award  of
constructive  service  credit  to  officer  categories  requiring   advanced
education as a prerequisite  for  appointment  as  a  commissioned  officer.
Therefore,  in  the  absence  of  evidence  to  the  contrary,  we  find  no
compelling  basis  to  recommend  granting  the  relief   sought   in   this



The applicant be notified that the additional  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-1995-02688
in Executive Session on 3 June 2008, under the provisions of AFI 36-2603:

                       Ms. Kathleen F. Graham, Panel Chair
                       Ms. Patricia R. Collins, Member
                       Mr. Clarence R. Anderegg, Member

The following documentary evidence was considered:

    Exhibit D.  Record of Proceedings, dated 13 Feb 96.
    Exhibit E.  DD Form 149, dated 25 Oct 06, w/atchs.
    Exhibit F.  Letter, AFPC/DPSOO, dated 20 Dec 07.
    Exhibit G.  Letter, AFPC/JA, dated 18 Jan 08.
    Exhibit H.  Letter, SAF/MRBR, dated 1 Feb 08.
    Exhibit I.  Letter, Applicant, dated 10 Feb 08, w/atchs.
    Exhibit J.  Letter, AFBCMR, dated 5 May 08, w/atch.
    Exhibit K.  Letter, Applicant, dated 12 May 08.

                                   KATHLEEN F. GRAHAM
                                   Panel Chair

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