RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2010-00051
COUNSEL:
HEARING DESIRED: YES
________________________________________________________________
APPLICANT REQUESTS THAT:
1. Retroactive reappointment as a career Reservist (CR) to
May 07.
2. Void nonselections for promotion to lieutenant colonel (O-5)
as a Regular officer.
3. Promote to Reserve O-5 effective and with a date of rank
(DOR) of 16 May 09.
4. Retroactive back pay as O-5 from 16 May 09 to present.
5. Direct promotion to O-5 or in the alternative Special
Selection Board (SSB) consideration for promotion to O-5 with a
letter to the Board President.
6. Change her date of separation (DOS) to allow her to achieve
an active duty (AD) retirement.
________________________________________________________________
APPLICANT CONTENDS THAT:
Although, she entered AD in her late forties she was assured
that she would be able to extend or reach sanctuary to achieve a
20-year retirement.
Due to the Fiscal Year 2005 National Defense Authorization
Action (FY 05 NDAA) (aka DOPMA) she was involuntarily converted
to Regular status. She was not properly advised by Air Force
personnel regarding her ability to obtain status as a CR. She
submitted a request for CR status but it was not processed due
to her being converted to a Regular officer and would be
receiving an indefinite DOS. She was eligible for CR status
from 2004 through 2006. CR status is still available, nothing
in DOPMA has barred it.
AFI 36-2008, Voluntary Extended Active Duty (EAD) for Air
Reserve Commissioned Officers, sets forth a safe haven for
Reserve officers who come on AD for three years or less.
According to Table 2 of the AFI, she should have served on EAD
for three years before becoming eligible for promotion to
Lieutenant Colonel (Lt Col) and should not have been transferred
to AD until she had served more than three years of service.
Due to being converted to a Regular officer, she was considered
for promotion too early and passed over for promotion, thus,
subjecting her to unfair treatment as a passed over and non-
promotable Regular officer.
Her opportunities to receive an AD or Reserve retirement were
limited due to her being converted to a Regular officer.
Individuals in similar situations have received equitable relief
from other corrections boards when the applicant relied on the
advice and guidance of the services which was misleading.
The applicants complete submission, with attachments, is at
Exhibit A.
________________________________________________________________
STATEMENT OF FACTS:
On 31 Mar 89 the applicant entered the Air National Guard (ANG).
She was discharged from the ANG on 1 Nov 93, and transferred to
the Air Force Reserve (USAFR).
On 16 May 02, the applicant was promoted to rank of major (O-4).
On 4 Jun 04, the applicant commenced a tour of voluntary AD for
a period of 36 months.
On 5 Sep 06, the applicant applied for a Specific Period of Time
Contract (SPTC) to extend her DOS to 28 Feb 11 to complete a
permanent change of station (PCS) move to a short tour
assignment and three-year follow-up CONUS assignment.
The applicant was considered and nonselected for promotion to
the grade of O-5 by the Calendar Year 2007A (CY 07A) Central
Selection Boards (CSBs), CY 08A, CY 09A, CY 09D, CY 10D, CY 11C
and CY 12C.
On 22 Apr 10, the applicant requested her case before the AFBCMR
be administratively closed. By DD Form 149, dated 22 Jun 13,
the applicant requested the Board resume the processing of her
application.
According to documents submitted by the applicant, she filed an
Inspector General (IG) complaint against her supervisor, Chief
Nurse, Commander and others. She alleged downgrade of her Air
Force Specialty Code (AFSC), failure to recognize her Medical
Surgical Nursing Unit (MSNU) orientation completion, hostile
work environment, denial of DEROS Extension, denial of Incentive
Specialty Pay (ISP), denial of additional convalescent leave,
disruption of mental health care treatment, Medical Evaluation
Board (MEB) package, erroneous PCS notification, abuse of
authority, discrimination, and inadequate performance feedback.
By memorandum dated9 Sep 13, XX FW/CC notified the applicant
that there was sufficient evidence to substantiate the unjust
downgrade of her AFSC, DEROS extension, denial of ISP, abuse of
authority, and inadequate performance feedback. The
investigation also found discrepancies in the creation of the
applicants Officer Performance Report and failures to comply
with procedures required by the Air Force Instruction.
On 19 Dec 13, the applicant requested her case before the AFBCMR
be administratively closed. By application dated 22 Jun 14, the
applicant requested the processing of her resume.
On 28 Nov 14, the applicant was permanent disability retired in
the grade of major with a 70 percent disability rating. She was
credited with 12 years and 9 months of active service.
________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPAMN recommends denial for SSB consideration indicating
there is no evidence of an error or injustice. There were no
errors in the calculation of the applicants promotion board
eligibility.
The applicant was not involuntarily ordered or recalled to AD.
She voluntarily requested accession to EAD through the Air Force
Recruiting Service (AFRS). She maintained the grade of major
(04) she held in the Reserve. Her DOR was 16 May 02.
The applicant required and was approved for a waiver for EAD.
She was counseled on several occasions regarding being
competitive for promotion to Lt Col. The applicant met her in-
the-promotion-zone (IPZ) Lt Col board on CY 07A and met
subsequent Lt Col boards in 2008 and 2009.
Many of the paragraphs and tables the applicant references from
AFI 36-2008 do not apply to her as a member on EAD.
A complete copy of the AFPC/DPAMN evaluation, with attachments,
is at Exhibit C.
________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the
applicant on 6 Aug 10 for review and comment within 30 days
(Exhibit D). As of this date, no response has been received by
this office.
ADDITIONAL AIR FORCE EVALUATION:
AFPC/DPSOO recommends denial of the requested relief. The
applicant was brought onto AD and was properly considered for
all promotion boards. Therefore, there is no basis to remove
her nonselections or change her DOR. When the applicant entered
AD, she was not a Reservist but an AD officer with a Reserve
commission and fell under Title 10, Chapter 36 for promotion
eligibility. There is no basis to change her service component
as the transition to Regular status was implemented by law and
there are no CR or any Reserve officers on the active duty list
(ADL). The applicant was not brought onto AD under the Limited
Period Recall Program (LPRP) as that is used for Line of the Air
Force (LAF) officers. Regardless of whether she had a Reserve
or a Regular commission, she would have met the same promotion
boards as all AD officers who are eligible based on DOR not
time-in-service or time-in-grade.
At the time the applicant entered AD, all ADL officers with
Reserve commissions met an AD board, not Reserve board.
Reservists who are on the Reserve Active Status List (RASL) met
Reserve promotion boards. If the FY 05 NDAA had not required
the Services to transition Reserve commissioned officers on the
ADL to Regular status, the applicant would have been able to
apply for CR status. She would have been able to continue her
career with a Reserve commission, but would have still met the
same promotion boards that she did as a Regular officer. All
officers on the ADL, regardless of whether they had a Reserve or
a Regular commission would have competed at the same promotion
boards.
The FY 05 NDAA required the Services to transition Reserve
commissioned officers currently on the ADL to Regular status by
1 May 06. Due to this change in law, the CR status program for
AD officers no longer applied. When the applicant applied for a
SPTC, she was already a Regular officer. She was ineligible to
apply for CR status because she was a Regular officer. Even if
the applicant had been eligible to apply for CR status and it
had been approved prior to the conversion, the law would have
still required her to revert to Regular status.
The applicant was not brought onto AD under the LPRP, and the
LPRP is only used to bring LAF officers onto AD. She was
brought onto the ADL and fell under AD eligibility for meeting
promotion boards and not the Reserve promotion boards.
The service members were provided instructions informing them
that their DOS will not change, but that some will have their
DOS adjusted depending on their grade at the time of the
transition. Furthermore, Medical, Dental and Nurse Corps
officers to include those who may not be able to accrue 20 years
of service to receive an AD retirement by age 62 or 68, were
transitioned to Regular status. The applicant will reach age 62
in 2019 but will not be retirement eligible until 2022. Her DOS
was updated to 2022 and she can retire at that time.
The applicant was not considered a Reservist while on AD. She
was an AD officer with a Reserve commission. The timing of
Reserve boards is different than AD boards so she should not
have been working off of a Reserve schedule. There are no CR
status officers on the ADL and at the time the applicant met her
IPZ board to Lt Col the select rate was 52 percent. All data
provided in this appeal applies to Reserve boards.
A complete copy of the AFPC/DPSOO evaluation is at Exhibit F.
AFPC/JA recommends denial indicating there is no evidence of an
error or an injustice. The advisory from AFPC/DPAMN indicates
the applicant was counseled on several occasions before entering
EAD about the risks of entering AD at the age of 47 and with a
DOR that would render her eligible for promotion sooner than her
peers. She was also counseled on things she needed to make her
competitive for an AD promotion. It seems the applicant viewed
entering AD as a career move and not a 36 month tour with a
return to the Reserves. The applicant was considered for
promotion to Lt Col in the Nurse Corps from 2007-2012, but was
not selected by any of these selection boards. As a result of
the FY 05 NDAA, she transitioned to Regular status on 27 Apr 06.
There was no provision in the law or the implementing DOD
guidance for an officer who was eligible to decline this
appointment. As a Regular officer on the ADL, the applicant met
the AD Lt Col (0-5) promotion boards beginning in 2007; she was
not eligible for any Reserve promotion boards. The applicant in
an effort to extend her DOS to complete a voluntary PCS Short
Tour completed a SPTC, however, it was determined to be
unnecessary due to her Regular status on 6 Sep 06.
Counsels contention that the applicants not being permitted to
achieve CR status in the Reserve versus being converted to a
Regular officer was erroneous and unfairly caused her to have to
compete for promotion on AD rather than as she had planned on in
the Reserve is faulty in law and is not supported by the facts
in evidence. The applicant was a volunteer for career AD; she
was not recalled pursuant to a LPRP or invoked sanctuary rights.
The provisions of AFI 36-2008 cited by counsel did not apply to
her, and CR status was no longer available to her as the law
required her to be converted to Regular status before the
expiration date of her AD tour and she had to be and was
converted to Regular status before the 1 May 06 statutory
deadline. It is unfair for the applicant to now argue that her
meeting AD promotion boards unfairly denied her the opportunity
for promotion. The applicant was warned and counseled on the
promotion risks when she applied for AD. However, she elected
to enter AD. Her voluntary acceptance of the overseas
assignment and extension of her 2007 DOS contradicts her
argument that she wanted CR status and not an AD career. The
applicant made a knowing and conscious decision to pursue an AD
career in the Air Force knowing the risks for promotion. The
evidence does not support the applicants argument that she was
planning for a non-AD Reserve career, and was unfairly thwarted
by bad advice and improper application of the rules.
The applicant has not proven a case of injustice. Injustice has
been consistently defined by the courts as an action that
"shocks the conscience." The applicant's chain of command did
not fail her; she did not rely on faulty advice; she volunteered
to extend her AD to serve overseas; and she is serving as an AD
critical care nurse. The applicants present claim that she
wanted CR status at the outset of her AD career is totally
inconsistent with these facts and her stated AD career plans.
She chose the course she took; she should not now be afforded
the Reserve career she voluntarily abandoned and whatever
promotion opportunities she now believes would go with it given
her knowing decision to pursue an AD career as an Air Force
critical care nurse. Finally, while not discussed in the other
advisories, the applicant is not without an AD retirement
opportunity. If she remains on AD until age 62 (or 68 if she
meets the statutory requirement for a waiver), she will be
retired pursuant to 10 USC 1251, notwithstanding that she will
have not reached 20 years of AD service and would not be
eligible for retirement pursuant to 10 USC 8911. Therefore, JA
finds the applicant failed to establish any material error or
injustice and her application should be denied.
A complete copy of the AFPC/JA evaluation is at Exhibit G.
________________________________________________________________
APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:
The applicant submits an eight-page response in which she
counters the advisory opinions point-by-point and indicates her
agreement or disagreement.
She states that while it was noted that her DOS was changed to
2019, the change did not occur until after Aug 08 and then only
after her previous DOS was changed three times. She further
contends that the advisory opinions failed to mention the
reasons for the varying changes to her DOS that occurred prior
and it was never addressed why her DOS was changed four times.
She contends that having a DOS that reflected minimal years of
service for retention negatively impacted the promotion boards
decision evidenced by her non-selection for promotion and, even
more important, negatively influenced the promotion
recommendation from her senior rater.
She was considered a Reservist by all management levels,
including AFPC. Her records did not reflect a service
component. She was erroneously informed that she must sign a
SPTC to obtain retention beyond her 36-month AD contract to
complete a PCS. She was wrongfully advised by all management
levels and AFPC.
The advisory writer indicated her submission of a specified
period of time contract (SPTC) was not required because she had
already been converted to Regular status, however, this was
accomplished without any notice that the conversion had occurred
and without an assignment of a DOS confirming the appointment to
Regular status.
She completed the SPTC because she was told that she was a
Reservist without career status that she must extend her DOS to
obtain retainability for the purpose of a permanent change of
station (PCS). She signed the contract believing she was
satisfying the mandatory retention requirements for a PCS. She
was also concerned with protecting her career and had she not
signed the contract she would have been subjected to being
separated due to failing to obtain the retainability required to
complete a PCS.
She believed extending her DOS and obtaining CR status, would
provide her the retainability she needed for promotion
consideration as a career Reservist while assuring her return to
full time Reserve duty after completing her EAD tour.
She planned and accomplished her promotion goals based on that
of a Reserve career officer. She completed her graduate degree
and Air Command and Staff College (ACSC) right on target with
Reserve promotion.
She further contends that while the law is law, her mandatory
conversion to the Regular AF is not only flawed and unfair, but
is prejudicial. Her opportunity to leave AD as a Reservist on
EAD and to resume her full time Reserve status after completing
her EAD tour has been grossly affected. Also, the conversion to
a Regular officer will likely subject her to incurring an Active
Duty Service Commitment (ADSC) for a PCS, Tuition Assistance,
Education and promotion.
She believed she was a Reservist on EAD, who would be able to
continue her career in the Reserve. She tried to preserve that
entitlement and sought to obtain CR status for promotion and
career progression purposes as a Reservist, while simultaneously
satisfying her AD retention requirement to complete a PCS
movement.
While the advisory noted she received proper and fair
consideration for promotion, she believes there are not any AD
commanders who would award a definitely promote recommendation
to an individual whose record lacked career status,
nonselections for promotion, intermediate PME, graduate degree,
with a history as a Reserve member competing for promotion on AD
with other Regular AF officers who are many years her junior by
service time, DOR, total service and age.
The XXX Fighter Wing (FW) Inspector General's letter affirms she
has been subjected to malicious and prejudicial treatment by
officials in her leadership chain.
Reservists on AD who were converted to Regular AF status had no
alternative other than to allow the law to prevail in order to
preserve their individual military careers and vested retirement
interests with little or no possibilities for promotion. She is
a victim of circumstances, numerous wrongful advisements, and an
unfair and faulty law, and therefore, appeals to the Board to
approve her request by promoting her to the grade of O-5.
The applicants complete response, with attachment, is at
Exhibit I.
________________________________________________________________
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 an error or injustice. We took
notice of the applicants complete submission, to include the
rebuttal response, in judging the merits of the case. The
applicant contends she was a Reserve officer on extended active
duty (EAD) who was involuntarily converted to Regular status and
this conversion prohibited her from maintaining her status as a
career Reservist (CR). We note the applicant entered active
duty as an officer with a Reserve commission and was
transitioned to Regular status in accordance with the provisions
of the Fiscal Year 2005 National Defense Authorization Act which
required all services to transition all active duty officers
with a Reserve commission to Regular status. The applicant
alleges she was misadvised on how to obtain CR status, however
she has not provided any evidence to support she was not
properly counseled. We note the applicant entered active duty
at the age of 47 and was counseled on the risks for promotion
and retirement for a member entering active duty at such a late
age. There is no evidence found or provided that indicates the
applicant was not properly considered for promotion by the
promotion boards. The applicant alleges that other corrections
board granted relief when the individual relied on faulty
information from the Air Force. However, other than her own
assertions, she has not presented any evidence that would
convince us she was treated differently than other similarly
situated officers. Further, the applicant contends the IG
investigation, FRNO 2013-07242, finding that she was victim of
malicious and prejudicial treatment by individuals in her rating
chain validates her claims for promotion and retirement.
However, we note, based on the finding of reprisal under the
Whistleblower Protection Act (10 USC 1034); the applicant has
been afforded corrective action in the form of retroactive
payment of Legacy Incentive Specialty Pay (ISP) for the period
2012 and 2013 from a separate Board. Therefore, we agree with
the opinions and recommendations of the Air Force offices of
primary responsibility and adopt their rationale as the basis
for our conclusion the applicant has not been the victim of an
error or injustice other than what has been resolved under the
provisions of the Whistleblower Protection Act. Therefore, in
the absence of evidence to the contrary, we find no basis to
recommend granting the requested relief.
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.
________________________________________________________________
THE BOARD DETERMINES THAT:
The applicant be notified the evidence presented did not
demonstrate the existence of material error or injustice; the
application was denied without a personal appearance; and 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-2010-00051 in Executive Session on 19 May 15, under
the provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
Although, chaired the panel, in view of his unavailability, due
to retirement, has signed as Acting Panel Chair. The following
documentary evidence pertaining to AFBCMR Docket Number BC-2010-
00051 was considered:
Exhibit A. DD Forms 149, dated 4 Jan 10, w/atchs and
22 Jun 13, w/atchs.
Exhibit B. Applicant's Master Personnel Records
Exhibit C. Letter, AFPC/DPAMN, dated 8 Jun 10, w/atchs.
Exhibit D. Letter, SAF/MRBR, dated 6 Aug 10.
Exhibit E. Letter, AFBCMR, dated 30 Aug 10.
Exhibit F. Letter, AFPC/DPSOO, dated 8 Oct 13.
Exhibit G. Letter, AFPC/JA, dated 6 Nov 13.
Exhibit H. Letter, SAF/MRBR, dated 6 Dec 13.
Exhibit I. Letter, Applicant, dated 19 Dec 13.
Exhibit J. Letter, AFBCMR, dated 20 Feb 14.
Exhibit K. Letter, Applicant, 27 Jan 14.
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