RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-04282

		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)1.  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 major.  His narrative reason for separation is “Non-selection, Permanent promotion.”  He served 15 years, 5 months and 21 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 Department 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)2; 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 retirement 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, with attachments, 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-2013-04282 in Executive Session on 30 October 2014, under the provisions of AFI 36-2603:


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 7 Apr 14, w/atchs.
      Exhibit G.  Letter, Counsel, dated 11 Apr 14, w/atchs.
      Exhibit H.  Letter, AFPC/JA, dated 29 May 14.
      Exhibit I.  Letter, SAF/MRBR, dated 6 Jun 14, w/atchs.
      Exhibit J.  Letter, Counsel, undated, w/atchs.


1 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.”
2 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.”
---------------

------------------------------------------------------------

---------------

------------------------------------------------------------

2