RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-04285
		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 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, 4 months and 21 days of active duty.

According to AFPC/DPSOR, the applicant is a former member of the 
Regular Air Force.  On 7 March 2011, the applicant met the CY11A 
(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 CY11A (Maj) LAF 
Selective Continuation Board.  The selective continuation board 
did not recommend the applicant for selective continuation to 
retirement eligibility.  The SecAF approved the results of the 
selective continuation board on 14 April 2011.  USD (P&R) 
approved the results of the CSB on 31 May 2011.  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-
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, 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 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-2013-04285 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 15 August 2013, w/atchs.
	Exhibit B.  Pertinent Excerpts from Personnel Records.
	Exhibit C.  Memorandum, AF/A1P, dated 12 December 2013.
	Exhibit D.  Memorandum, AFPC/DPSOR, dated 20 January 2014.
	Exhibit E.  Memorandum, AFPC/JA, dated 12 February 2014.
Exhibit F.  Letter, SAF/MRBR, dated 28 February 2014.
Exhibit G.  Letter, Counsel, dated 25 March 2014, w/atchs.
Exhibit H.  Memorandum, AFPC/JA, dated 29 May 2014.
Exhibit I.  Letter, SAF/MRBR, dated 6 June 2014.
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.”