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 applicant’s 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 
applicant’s 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 applicant’s 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.  

Counsel’s contention that the applicant’s 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 applicant’s 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 applicant’s 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 board’s 
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 applicant’s 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 applicant’s 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.