RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-04281
		COUNSEL:  
		HEARING DESIRED:  NO 


APPLICANT REQUESTS THAT:

He be reinstated to active duty.

In the alternative, pro-rated retirement under the Temporary 
Early Retirement Authority (TERA).

By amendment at Exhibit J, he be allowed to recoup his retention 
bonus.


APPLICANT CONTENDS THAT:

In a 15-page brief, through counsel, the applicant contends the 
following:

The Secretary of the Air Force (SecAF) illegally violated 
Department of Defense Instruction (DoDI) 1320.08, Continuation 
of Commissioned Officers on Active Duty and on the Reserve 
Active Status List 6-year protective retirement window by 
erroneously applying a 5-year protective window; as a result, 
the continuation board erred using the incorrect date of 
continuation.  The properly measured date of continuation was 
not until 1 December 2011.  At that time, the applicant had 
served more than 15 years in the service and had fallen within 
the SecAF’s unlawfully restricted 5-year protective window for 
mandatory continuation.

Because the board did not approve its results until May 2011, 
the continuation board improperly found that the applicant fell 
beyond the 5-year protective window and approved the separation 
from service on that basis.  The continuation board for 2012 
used 30 November 2012 as the measuring date, by which time, the 
applicant had served well over 15 years.  The applicant was 
exposed to two wrongs: illegal 5-year window and the wrong 
measurement window.  If measured correctly, the applicant would 
have qualified for retention under the 5-year protective window.

According to DoDI 1320.08, section 6.3, officers within 6 years 
of retirement shall normally be continued unless they have 
derogatory information on their record.  The applicant does not 
have derogatory information and should have been continued by 
the subsequent Calendar Year (CY) 2011A Major (Maj) Selection 
Continuation Board.

On 6 December 2010, the SecAF sent a notification to the Under 
Secretary of Defense for Personnel and Readiness [USD (P&R)] of 
his proposal to not continue large pools of officers; however, 
USD (P&R) never responded with permission to perform the cuts.  
There was no approval or authority; therefore, the SecAF’s 
actions were in violation of the DoDI and Department of Defense 
(DoD) rules.  Even if the approval to deviate was authorized, 
arguably such authority is without legal justification given the 
plain language of the instruction to continue officers within 6 
years of retirement.

The SecAF failed to update critical specialty codes for 
continuation.  Air Force Functional Managers were still under 
the impression that the 6-year window of the DoDI applied and 
because of this, they did not supply the Air Force with an 
updated critical Air Force Specialty Code (AFSC) listing.  There 
is a disparity between the critical skills listed in the SecAF’s 
Memorandum of Instruction (MOI) and the critical skills for 
which a retention bonus is authorized and those identified to 
Congress as critical to the budget.  The failure to update the 
critically manned career fields was of consequence and 
subjecting the applicant to a number of defective processes 
including, but not limited to, process of material error, 
process of effectuated in an arbitrary and capricious manner and 
contrary to expressed rules and regulations.

The SecAF breached 10 United States Code (USC) 638a(d) (3) .  
When convening a selection board to consider for discharge 
regular officers on the active duty list in a grade below 
Lieutenant Colonel (Lt Col), the Air Force is limited by 638a(d) 
(3), which states “the total number of officers described in 
subsection (b)(3) from any of the Armed Forces who may be 
recommended during a fiscal year for discharge by a selection 
board convened pursuant to the authority of that subsection may 
not exceed 70 percent of the decrease, as compared to the 
preceding fiscal year, in the number of officers of that Armed 
Force authorized to be serving on active duty at of the end of 
the fiscal year.”

Additionally, 691(d) states “no funds appropriated to the DoD  
may be used to implement a reduction of the active duty end 
strength for any of the Armed Forces for any fiscal year below 
the level specified in subsection (b) unless the reduction in 
end strength for that Armed Force for that fiscal year is 
specifically authorized by law.”  The Air Force’s force 
management efforts were so aggressive that the actual end 
strength was less than the FY 2012 authorized end strength.

Incorporating all the facts, law and arguments raised, they 
illustrate the decision to involuntarily separate the applicant 
was arbitrary and capricious, not based on substantial evidence, 
and resulted in material error or administrative error.  The 
separation was contrary to the laws and regulations.

As recompense for the numerous errors, the applicant should have 
been offered incentives such as voluntary separation pay or 
delayed 30 days for TERA to be instituted and given an 
opportunity to retire under this authority.

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


STATEMENT OF FACTS:

On 30 November 2011, the applicant was discharged from the 
Regular Air Force in the grade of Maj.  His narrative reason for 
separation is “Non-selection, Permanent promotion.”  He served 
15 years, 4 months and 24 days of active duty.

According to AFPC/DPSOR, on 7 March 2011, the applicant met the 
CY 2011A Lt Col Line of the Air Force (LAF) Central Selection 
Board (CSB) and was nonselected for the second time.  His 
nonselection required him to meet the CY 2011A Maj LAF Selective 
Continuation Board.  The selective continuation board did not 
recommend the applicant for selective continuation to retirement 
eligibility.  On 14 April 2011, the SecAF approved the results 
of the selective continuation board and on 31 May 2011, USD 
(P&R) approved the results of the CSB.  The results of the board 
were released to the public on 14 June 2011.

The remaining relevant facts pertaining to this application are 
described in the letters prepared by the Air Force Offices of 
Primary Responsibility (OPRs), which are attached at Exhibits C 
through E and H.


AIR FORCE EVALUATION:

USAF/A1P recommends denial of reinstating the applicant into the 
Air Force.  The application is timely.

Selective Continuation Boards are convened under Title 10 USC 
637, DoDI 1320.08, Air Force policy and the SecAF’s guidance.  
This board is used to determine, which active duty members who 
have been twice nonselected for promotion (and who would 
otherwise be discharged or retired under Title 10 USC 632) will 
be retained based on the needs of the Air Force.  There is no 
entitlement to continuation.  The SecAF's decision to modify the 
MOI guidance to the CY 2011A Maj LAF Selective Continuation 
Board was made based on meeting Air Force needs and 
congressionally mandated end-strength levels, and was within 
law, DoD and AF boundaries.  There is no language in the DoDI or 
law regarding a protective window.

The Secretary of the Military concerned may deviate to meet the 
needs of their respective service.  On 24 November 2010, USD 
(P&R) was briefed on a number of planned measures to reduce 
officer numbers which included limiting selective continuation 
of various officers.  On 6 December 2010, the SecAF sent a 
notification memorandum to USD (P&R) of his intent to not 
selectively continue large pools of twice-deferred officers who 
would otherwise qualify for retirement within 6 years of the 
date of continuation.  The request was received and acknowledged 
by email on 7 December 2010, by the Office of the Deputy 
Undersecretary of Defense Military Personnel Policy on behalf of 
USD (P&R).  Congressional subcommittee professional staff 
members were briefed on 12 and 13 January 2011.  All concerns 
raised during that briefing were answered within the month.  
Finally, USD (P&R) was briefed on the final plan on 24 January 
2011. 

As previously stated, the SecAF modified his MOI guidance to the 
CY 2011A Maj LAF Selective Continuation Board to focus the board 
on retaining officers within 5-years of retirement as of the 
convening date of the board in lieu of "within 5-years of 
retirement as of the 1st day of the 7th month from approval of the 
board results."

Title 10 USC 632 states:  "Except an officer of the Navy and 
Marine Corps who is an officer designated for limited duty...and 
except as provided under section 637(a) of this title, each 
officer of the Army, Air Force, or Marine Corps on the active-
duty list who holds the grade of captain or major, ...who has 
failed of selection for promotion to the next higher grade for 
the second time and whose name is not on a list of officers 
recommended for promotion to the next higher grade shall:  (1). 
except as provided in paragraph (3) and in subsection (c), be 
discharged on the date requested by him and approved by the 
Secretary concerned, which date shall be not later than the 
first day of the seventh calendar month beginning after the 
month in which the President approves the report of the board 
which considered him for the second time."

Further, AFI 36-2501, Officer Promotions and Selective 
Continuation, paragraph 7.11.3 states: "Normally, the 
continuation period begins on the first day of the seventh month 
from the approval of the board results."  The "date of 
continuation" is "normally" the first day of the seventh month 
from the approval of the board results because without 
continuation, that is the date that an officer would otherwise 
be discharged under Title 10 USC 632.  It is the date that 
officers selected for continuation would have been continued.  
The SecAF, however, is not obligated under the law, DoDI 1320.08 
or Air Force policy to use this date in his MOI guidance after 
providing notice to USD (P&R) under DoDI 1320.08, paragraph 6.3.
The SecAF was not obligated under the law, DoDI 1320.08 or Air 
Force policy to list specialty codes that receive retention 
bonus in his MOI guidance to the CY 2011A Maj LAF Selective 
Continuation Board.  The critical skills tied to the MOI are not 
tied directly to those skills that receive retention bonuses.  
The MOI only addresses specialties that the SecAF feels are 
critical to the needs of the Air Force with regard to officers 
who are twice nonselected for promotion.  Retention bonuses are 
tied to retaining officers with skills deemed important to the 
Air Force.  Continuation decisions are not determined 
exclusively by skills receiving retention bonuses.

Selective Continuation Boards are convened under Title 10 USC 
637.  They are boards to retain members who have been twice 
nonselected for promotion on active duty based on the needs of 
the Service until they are retirement eligible.  They are not 
convened under Title 10 USC 638a and they are not early 
discharge boards.  The rules contained in Title 10 USC 638a are 
not relevant.  The selective continuation process is not a force 
shaping board, but a product of nonselection for the second time 
that can result in separation from the Air Force.  Therefore, 
voluntary separation incentives are not afforded to the members 
as they would be in a Reduction in Force board.  

Likewise, Selective Continuation Boards are not bound by 10 USC 
691(d).  The Air Force was not violating 10 USC 691(d) ; nor was 
it inappropriately using statutory authority to reduce end-
strength prior to the "active force drawdown period" as defined 
in the TERA.  The officers affected were notified of the 
possibility of not being selected for continuation after their 
first nonselection for promotion.  At that time, the officers 
received a letter stating "If you are not selected for promotion 
by the next board and are not retirement eligible or not within 
two years of being retirement eligible on the mandatory 
separation date for that board, you may be required to separate 
on the mandatory separation date.  Furthermore, the Chief of 
Staff of the Air Force sent an email to all airmen regarding 
force management in February 2011, prior to the selection board.  
The non-selects were given the maximum amount of time prior to 
the separation date of 30 November 2011, to consider all 
available options.  They were also provided involuntary 
separation pay, as long as they did not cause their nonselection 
through written communication to the board. 

The SecAF provided MOI guidance to the board that was based upon 
the needs of the Air Force which was permitted under 10 USC, 
DoDI 1320.08, and Air Force policy.  Selective Continuation is 
not an entitlement and is based on the needs of the Air Force, 
as determined by the SecAF.  The actions of the SecAF were legal 
and within the boundaries of his authority.

The complete A1P evaluation is at Exhibit C.

AFPC/DPSOR recommends denial of approving the applicant’s 
request for retirement under TERA.  The application is timely.  
TERA was reinstated into law on 31 December 2011, through Public 
Law 112-81, Division A, Title V, Subtitle A, §504(b).  TERA is a 
temporary force management tool used by the Service Secretary to 
target career fields with excess manning.  TERA allows members 
to retire with at least 15 but less than 20 years Total Active 
Federal Military Service (TAFMS).

TERA is used at the SecAF's discretion to manage the force and 
has only been made available to certain members periodically 
since reinstatement.  In July 2013, TERA was offered to certain 
officers and enlisted members in overage specialties, and 
members were required to retire on 1 November 2013.  Currently, 
the SecAF has approved certain members in overmanned 
specialties, and others with at least 19 years TAFMS, to apply 
for retirement under TERA with an effective retirement date of 
1 August 2014.

Since the TERA program is only available through the SecAF-
approved Force Management programs, members do not have the 
option of applying for retirement under TERA outside the 
established parameters.  Additionally, the law to reinstate the 
use of TERA was not effective until 31 December 2011, after the 
applicant separated.  Therefore, it was not a viable option for 
the SecAF to offer the applicant when he was non-selected for 
continuation.

The complete DPSOR evaluation is at Exhibit D.

AFPC/JA recommends denial.  The applicant is one of 157 majors 
who met and yet not selected for continuation by the CY 2011A 
Maj LAF Selective Continuation Board.  This followed his second 
nonselection for promotion to the grade of Lt Col by the CYllA 
Lt Col LAF CSB.

The first and primary argument the applicant offers is that the 
Air Force, in the form of the SecAF, violated the law by 
arbitrarily restricting DODI 1320.08, 6-year protective window 
to 5 years, and by inaccurately defining the protective window's 
start (the DoDI's "date of continuation") to exclude the 
applicant, in violation of Air Force regulations.  
Notwithstanding that counsel does not cite to a law that was 
violated in this portion of his brief, he nevertheless believes 
that the SecAF acted arbitrarily and without authority in his 
instructions to the Selective Continuation Board.

In accordance with the "normal" policy contained in the DoDI, 
the Air Force has traditionally continued officers who are 
within 6 years of retirement eligibility until 20 years of 
service, absent some other reason not to do so, such as where 
the officer's record contains derogatory information.  For the 
CY 20llA Selective Continuation Board, however, the SecAF, with 
DoD concurrence, modified the normal policy and instructed that 
officers within 5 years of promotion eligibility should be 
selected for continuation, absent derogatory information in 
their record.  Counsel argues that the governing DoDI 
1320.08 provision requires that officers within 6 years of 
retirement be offered continuation unless they have derogatory 
information in their record, which the applicant did not.  He 
goes on to argue that the SecAF’s change in policy was made 
arbitrarily and without authority.

In making his argument that the SecAF violated DoDI 1320.08, 
counsel first interprets the provision as if the word "normally" 
was not there.  The directive to continue officers within 
6 years of retirement was not an absolute requirement; 
"normally" means just what it says; i.e., a usual or typical 
action.  Deviation is authorized in "unusual circumstances." 
Basing a discharge decision on derogatory information in the 
officer's record is listed as an example of an unusual 
circumstance; it is not the sole basis for doing so.  Moreover, 
counsel omitted the words “When the Secretary of the Military 
Department concerned intends not to continue larger pools of 
officers in the grade of O-4 who would qualify for retirement 
within 6 years of the date of continuation, the Secretary 
concerned shall notify the USD (P&R) of the proposed course of 
action...., which was applicable to the CY 20llA Selective 
Continuation Board’s intent not to continue a larger pool of 
officers in the grade of O-4 who would qualify for retirement 
within 6 years.  Were "derogatory information" in the record the 
only basis to digress from the normal rule, the last sentence of 
the provision would be unnecessary.

Counsel also argues that the applicant nevertheless fell within 
the 5-year window used at his board because the Air Force used 
the wrong date in calculating that 5-year period, arguing that 
the first day of the seventh month from the date of approval of 
the continuation board results (1 December 2011) should have 
been used rather than the convening date of the board (21 March 
2011) used by the Air Force.  While the date of continuation 
would normally be the first day of the seventh month from the 
approval of the board results (based on 10 USC 632), the SecAF 
is not obligated under the law, DoDI 1320.08 or Air Force policy 
to use this date in his MOI if he notifies USD (P&R) in 
accordance with DoDI 1320.08, paragraph 6.3., that he intends to 
use a different date.  The rest of counsel's brief essentially 
just repeats these same arguments, citing to various provisions 
of law and regulation.

The applicant next argues that force management actions cannot 
constitute "unusual circumstances," as these types of actions 
are carried out routinely by the Air Force.  While the Air Force 
and the other services have had to use various force management 
tools to help attain Congressionally mandated end strength 
numbers, the requirement to add to the normal force management 
mix a change in the retirement window for twice nonselected 
majors to be selectively continued does represent an unusual 
circumstance indicative of the more drastic measures required at 
that time.  The SecAF acted with full authority, and his actions 
were in no way arbitrary.

To further bolster the applicant's repeated insistence that the 
SecAF acted without authority, counsel cites to the recently 
modified version of DoDI 1320.08, Incorporating Change I, April 
11, 2012, wherein the language of the previous paragraph 6.3 of 
"within 6 years of retirement" in the new paragraph 6.3.1 was 
changed to 4 years.  He argues that somehow this change bolsters 
his argument that the previous 6-year provision could not be 
changed as was done by the Air Force.  We totally disagree.  In 
our opinion, the new language strengthens the argument that the 
Air Force acted properly in 2011.  Of particular note in this 
regard is the explicit clarifying statement in the new version 
that "there is no entitlement to continuation."  In addition, 
while Congress in the Defense Officer Personnel Management Act 
(DOPMA) may have expressed a normal expectation that an officer 
who reaches the grade of major with 14 years of service will 
serve 20 years, that is an expectation that is subject to change 
as circumstances require.  It is not "a mandate born from 
federal law.”

Additionally, counsel argues that the applicant and others 
similarly situated were not offered voluntary separation 
opportunities because they were in high demand, thus presumably 
denying them the opportunity to be treated fairly.  In 
particular, counsel avers that programs such as TERA were not 
offered to the applicant.  First, while voluntary means to force 
shape will normally be used before involuntary measures, 
"normally" again means just what it says - typically, not 
always.  Moreover, TERA was not authorized at the time the 
applicant was involuntarily separated, having been implemented 
by Congress 30 days later.  There was no requirement for the 
SecAF to offer a retirement program that was not in existence, 
or wait until such time as one was authorized.  Again, the 
SecAF’s actions were not arbitrary, and the applicant suffered 
no injustice therefrom (as that term has been defined repeatedly 
in case law; i.e., action that "shocks the conscience").

Counsel further states that the SecAF violated 10 USC 638a and 
10 USC 69l(d) in approving the applicant's discharge.  Title 
10 USC 638a (which applies to force shaping boards) did not 
apply to the applicant's selective continuation board (which was 
conducted pursuant to 10 USC 637), nor did it apply in any way 
to the actions affecting the applicant.  Ergo, its provisions 
are irrelevant to the applicant or the others similarly 
situated.  Likewise, selective continuation boards are not bound 
by 10 USC 691(d).  The provisions of that law were not violated 
notwithstanding their inapplicability.

Finally, in the last part of his brief, counsel states that the 
"judicial standard of review" utilized under 10 USC 1558 to find 
in favor of the applicant was satisfied.  Specifically, he 
reiterates that the applicant's discharge was arbitrary and 
capricious, not based on substantial evidence, and a result of 
material or administrative error.  In essence, counsel 
summarizes all of his previous arguments.  For all of the 
reasons stated previously, those arguments are without merit.  
In conducting the CY 20llA Maj Line Officer Selective 
Continuation Board and affecting the applicant's discharge 
pursuant to 10 USC 632, the SecAF exercised his discretion in a 
proper and lawful manner.  The applicant has failed to prove any 
abuse of that discretion.  Accordingly, we recommend that the 
application be denied.

The complete JA evaluation is at Exhibit E.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Through counsel, the applicant reiterates the Air Force was 
bound by the language of DoDI 1320.08 and contrary to the 
recitations in the respective memorandums, could not deviate.  
The passage of DOPMA into law is littered with clear expressions 
by Congress of legislative intent to protect officers with over 
14 years of service.  The DOPMA passage states that an officer 
attaining the permanent grade of O-4 has a career expectation of 
20 years.  It further states it is the committee’s strong desire 
that these officers be continued to 20 years of service as a 
matter of course.  Thus, Congress, the lone body with plenary 
constitutional power to regulate the military expressed a belief 
that officers have a career expectation once that member reaches 
the grade of O-4.

In spite of this overwhelming evidence about Congress’ intent, 
the SecAF petitioned USD (P&R) for permission to violate this 
statutory requirement by separating O-4s even after those 
officers had served over 14 years.  In the SecAF’s request for 
permission, he did not ask for permission to alter the 6-year 
window to a 5-year window, nor did he ask to alter the 
definition of the date of continuation.  More importantly, he 
argues, the Air Force advisory did not provide any tangible 
evidentiary proof that USD (P&R) signed off on and gave 
permission to the SecAF to perform these actions. 

Counsel also maintains that the SecAF failed to update the 
critical career fields; as a result, he violated 10 USC 638a and 
10 USC 691.  The applicant received retention bonuses and was in 
a specialty code the AF stated they needed during budgetary 
hearings, yet, these codes were not included in the specialty 
codes listed the SecAF’s MOI to the continuation board.  The Air 
Force disagrees that 10 USC 638a is applicable to continuation 
boards; however, the plain language of that statute, 
specifically 10 USC 638a(b)(3), states that the selection boards 
under 611b are covered.

Furthermore, “unusual circumstances” are not just defined by 
DoD, but were further limited by the Air Force in fact sheets 
and letters to United States Senators that further circumscribed 
“unusual circumstances” to derogatory information, not to 
selective continuation or force drawdown.  The Air Force 
advisory would lead some to believe the statutory language 
involved actual end strength numbers.  The statutory language 
pertains to authorized numbers on active duty.  There was not a 
decrease but an increase in authorized end strength.  The Air 
Force takes the position they are not bound by law, 
specifically, 10 USC 691(d) which states “no funds appropriated 
to the DoD may be used to implement a reduction of the active 
duty end strength for any of the Armed Forces for any fiscal 
year below the level specified in subsection (b) unless that 
reduction for that fiscal year is specifically authorized by 
law.”  Congress’ clear statutory requirement and intent are not 
suggested guidelines, they must be followed.

The Air Force made substantial mistakes leading up to and 
including the applicant’s separation from active duty.  The Air 
Force does not stand on solid ground when the factual data 
illustrates the entire reason for separating the applicant was 
due to “over end strength.”  The continuation board looked at 
the files for about 48 seconds; that is a travesty considering 
the results of the board would end a person’s career, deny them 
from their protected expectation of retirement and upheave 
families.  Facts are facts, law is law and the applicant should 
have been continued on active duty.

Counsel’s complete response is at Exhibit G.


ADDITIONAL AIR FORCE EVALUATION:

AFPC/JA recommends denial.  As before, the crux of the 
applicants' latest brief is that the Air Force violated DoDI 
1320.08 by (1) violating Congressional intent; and (2) failing 
to obtain written permission from USD (P&R) to deviate from 
established policy.

As to the first of these arguments, JA has acknowledged that the 
intent of Congress as expressed in the directive was to 
prescribe normal career expectations.  Nevertheless, nowhere in 
the DOPMA does the law mandate that officers with 14 or more 
years of service must be continued until retirement eligibility.  
If indeed that were true, there would be no need to put these 
officers before a board to determine whether they should be 
continued (10 USC 637).

Various members of Congress in the Senate report accompanying 
DOPMA expressed the view of the Congress as to normal officer 
career expectations.  Again, however, they were discussing 
typical career expectations, not an absolute requirement.  This 
expectation was carried over to the DoDI 1320.08 in paragraph 
6.3, which states that "officers shall normally [emphasis added] 
be selected for continuation if the officer will qualify for 
retirement according to section 3911, 6323, or 8911 of Reference 
(d) within 6 years of the date of continuation." As noted 
previously, counsel has conveniently ignored that very 
significant word in the language of the Instruction. 

As for the second argument, counsel states that the SecAF failed 
to obtain permission in writing from USD (P&R) to change the 
established policy "as required."  As we noted in our original 
advisory, the governing DoDI did not require written permission 
or permission at all.  The requirement was to notify [emphasis 
added] the USD (P&R) of the proposed course of action ..." DoDI 
1320.08, dated 14 March 2007, paragraph 6.3. 

They also moot the tortured arguments that the force management 
requirements identified by the Air Force did not (or could not) 
in the eyes of DoD or Congress constitute the "unusual 
circumstance" that justified the actions taken.  And, that the 
applicant had no derogatory information in his record and 
therefore does not fall into the definition of “unusual 
circumstances.”  Thus, he should not have been continued without 
question.  Were "derogatory information" in the record the only 
basis to digress from the normal rule, the last sentence of DoDI 
1320.08, para 6.3, would be unnecessary. 

In response to counsel's repeated contention that the Air Force 
"illegally and inequitably" altered the date of continuation "in 
order to surreptitiously separate officers," we note again that 
while the date of continuation would normally be the first day 
of the seventh month from the approval of the board results 
(based on 10 USC 632), the SecAF is not obligated under the law, 
DoDI 1320.08 or Air Force policy to use this date in his MOI if 
he notifies USD (P&R) in accordance with DoDI 1320.08, paragraph 
6.3., that he intends to use a different date.  In short, the 
SecAF acted openly and with full authority; his actions were in 
no way arbitrary or "surreptitious."

With respect to the rest of counsel's latest brief, 
determination of what constitute critical career fields, 
appropriate manpower needs, and the type of force management 
policies that the Air Force requires are discretionary decisions 
that belong to the SecAF.  Contrary to counsel's belief, the 
needs and actions of the other services are irrelevant in 
assessing those decisions.  In exercising his discretion, the 
SecAF complied fully with the law and governing DoDI.  Counsel, 
who bears the burden of proof, has failed to establish that the 
SecAF abused his discretion or acted arbitrarily or contrary to 
law.

The complete JA advisory is at Exhibit H.


APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Through counsel, the applicant states the view put forth by the 
Air Staff opinions boils down to this: The SecAF is in charge of 
Air Force personnel and may, at his discretion, despite federal 
law and military regulation, terminate whomever, whenever, 
however, and for most any reason - at least so long as the DoD 
was notified by PowerPoint.  This cold, mechanical view is 
inaccurate, unfair and illegal.  

The Air Force paints this case as a simple matter and satisfies 
itself that termination without cause or authority, without due 
process, and without retirement is a routine exercise of the 
SecAF's discretion.  The SecAF, to be sure, has some discretion 
to shape the force.  But the relevant question here is whether 
he had unfettered discretion to do so in this way.  On the facts 
of this case, the SecAF absolutely did not.  Congress and DoD 
have enacted laws and regulations to carefully restrict service 
Secretaries' authority to arbitrarily reduce force numbers; they 
have acted to standardize retirement procedures across all 
service branches to ensure that service members' right to a 
guaranteed lifetime pension not hinge on the color of their 
uniform; and they directed that the Air Force spend extra funds 
to prevent force reductions Congress had not authorized or 
wanted.

The Air Force opinions justified these actions by asserting that 
DoD was notified of the Air Force's plans in a PowerPoint 
presentation, of which the Air Force has not produced any 
evidence or detail, and in a two-sentence "Notification 
Memorandum," which made no mention about the procedures or 
standards the Air Force intended to employ or the pool of majors 
it intended to terminate.  Actual notification, this was not.

AFI 36-2501, section 7.5.2, in effect as of August 2009, 
required the Air Force to notify DoD "when majors within 6-years 
of retirement are not selected for continuation" for any reason, 
including the case of derogatory information specified in DoDI 
1320.08.  The Air Force has not produced any evidence or 
information thus far showing that DoD was substantively notified 
that the pool of majors selected for termination would be high-
performing majors with critical skills.  The Air Force seems to 
prefer that this Board simply accept its unsupported assertions 
about the propriety and necessity of termination.  That is not 
due process.  The Board should require the Air Force to support 
its theory of the case with substantive evidence, documentation, 
and an actual rationale.  Therefore, the applicant’s request to 
be reinstated into the active Air Force; or to receive a pro-
rated retirement for years served should be granted.  In 
addition, those applicants who received retention bonuses to 
remain in service recoup those bonuses in full.  The applicant 
fulfilled his end of the bargain whereas it is the Air Force 
that did not fulfill their obligations.  The Air Force unjustly 
punished the applicant for its own breach by severing its 
contract and requiring the airman to repay. 

In Perry v. Sinderman the U.S. Supreme Court held that both 
explicit and implicit guarantees of continued employment create 
legally enforceable property interests.  The Air Force created a 
legally enforceable property interest in the applicant’s 
retirement by making explicit and implicit guarantees and by 
continuing 30 years of de facto practice to continue majors with 
14 years of service until retirement, absent carefully 
restricted circumstances.  The applicant remained in service and 
forewent other career opportunities in reliance on the Air 
Force's guarantees.  Therefore, the Air Force was doubly 
obligated to follow laws and regulations that protected its 
guarantees of retirement and reinforced the applicant’s' 
property interest in that guarantee.  The applicant served this 
country with honor and distinction only to be callously 
disregarded by the Air Force in violation of the rule of law and 
decades old precedent.  We strongly urge this Board to consider 
and take all other necessary measures to redress the Air Force's 
errors and injustices.

Counsel’s complete response, with attachments, is at Exhibit J.


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 responses to the advisory opinions, in judging the 
merits of the case; however, we agree with the opinions and 
recommendations of the Air Force OPRs and adopt their rationale 
as the primary basis for our conclusion the applicant has not 
been the victim of an error of injustice.  While we note the 
argument of counsel that the intent of Congress in passing the 
DOPMA was that officers attaining the permanent grade of O-4 be 
continued to 20 years of service and, possible retirement, we 
also note that Congress anticipated that under unusual 
circumstances this may not be possible.  Based on the evidence 
before us, we conclude the Secretary acted within the limits of 
his authority in the instructions he provided to the 
continuation board.  Counsel opines that under Air Force policy 
unusual circumstances is limited to derogatory information, 
which the applicant does not have.  We disagree with counsel’s 
view that only O-4s with derogatory information cannot be 
continued and further note that Air Force policy states that the 
Secretary of the Air Force determines, based on the needs of the 
Air Force, eligibility criteria for continuation.  Air Force 
policy also states the SecAF determines the length of the period 
of continuation.  In our view, changing the timeframe for 
continuation from 6 years to 5 years in order to qualify for 
retirement was completely within the SecAF’s prerogative.  
Although counsel seeks to challenge the need for the Air Force 
to reduce Air Force end strength during the period in question, 
we are satisfied based on the explanation provided by USAF/A1P 
that the Secretary had a reasonable basis to pursue the course 
of action he determined necessary.  The Board finds the 
applicant’s situation regrettable, however, does not find that 
an error has occurred or that circumstances of this case rise to 
the level of injustice.  The applicant and others similarly 
situated were given sufficient notice that their non-selection 
for promotion could result in separation rather than 
continuation to retirement.  Additionally, as noted above 
regarding his response to the additional advisory prepared by 
AFPC/JA, counsel has requested that those applicants he 
represents who received retention bonuses to remain in service 
“recoup those bonuses in full.”  The Board understands this to 
mean that he is requesting the applicants be allowed to keep the 
unearned portion of any retention bonus received.  Counsel 
argues that these applicants fulfilled their end of the bargain, 
whereas the Air Force did not.  However, counsel has presented 
no information on the contractual obligations that exist under 
the retention agreements that the various applicants he 
represents may have signed.  Absent such information, the Board 
is unable to determine whether such agreements represent an 
injustice for any such applicant.  As such, we find the evidence 
submitted in support of this new request insufficient to 
recommend granting the requested relief.  Therefore, we find no 
basis to grant any of the relief requested in this appeal.


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 AFBCMR Docket 
Number BC-2013-04281 in Executive Session on 30 October 2014, 
under the provisions of AFI 36-2603:

      , Panel Chair
      , Member
      , Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 3 Aug 13, w/atchs.
	Exhibit B.  Applicant's Available Master Personnel Records.
	Exhibit C.  Letter, USAF/A1P, dated 12 Dec 13.
      Exhibit D.  Letter, AFPC/DPSOR, dated 20 Jan 14.
      Exhibit E.  Letter, AFPC/JA, dated 12 Feb 14.
      Exhibit F.  Letter, SAF/MRBR, dated 4 Apr 14.
      Exhibit G.  Letter, Counsel, dated 11 Apr 14.
      Exhibit H.  Letter, AFPC/JA, dated 29 May 14.
      Exhibit I.  Letter, SAF/MRBR, dated 6 Jun 14.
      Exhibit J.  Letter, Counsel, undated, w/atchs.


  Applicant’s counsel cites to “§638a(d)(B)(3)”.  There is no such section.  The text they quote is actually from the 
2013 version of 10 U.S.C. § 638a(d)(3), which is in all substantive respects identical to the law as it was in 2011.  
The 2011 text is as follows:  “The total number of officers described in subsection (b)(4) from any of the armed 
forces (or from any of the armed forces in a particular grade) who may be recommended during a fiscal year for 
discharge by a selection board convened pursuant to the authority of that subsection may not exceed 70 percent 
of the decrease, as compared to the preceding fiscal year, in the number of officers of that armed force (or the 
number of officers of that armed force in that grade) authorized to be serving on active duty as of the end of that 
fiscal year.”
  Contrary to assertions of applicant’s counsel, USAF/A1P states that, “[t]he congressionally mandated end-
strength numbers for FY10 were 331,700 and for FY11 were 332,200.  The actual inventory, however, for each year 
was 334,188 and 333,370 respectively—both above authorized levels.”  In their March 25, 2014, rebuttal, counsel 
cite somewhat higher numbers for actual end strength, but since neither the numbers provided by USAF/A1P nor 
the numbers provided by counsel are below authorized end strength, counsel’s argument fails.  Finally, in their 
undated second rebuttal, counsel note that the applicant was not separated “until November 2011, during FY 
2012, in which the Air Force was below its mandated end strength ceiling [sic] in every single month of the year.”  
Counsel provided no evidence for the assertion that the Air Force was below end strength during “every single 
month of the year.”
 
 
 
 




15