RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-5379

		COUNSEL:  NONE

		HEARING DESIRED:  YES 




APPLICANT REQUESTS THAT:

His records be corrected to reflect he was appointed in the grade of lieutenant colonel (O-5), instead of major (O-4), effective 5 Nov 13, the date the Senate confirmed his appointment as a lieutenant colonel in the Air Force. 



APPLICANT CONTENDS THAT:

He made the decision to accept a commission with the Air Force with the expectation that he would be appointed in the grade of lieutenant colonel (O-5).  The Air Force Recruiting Service (AFRS) negotiated his commission/entry to active duty (AD) Regular Air Force with the expressed understanding that he would be appointed in the grade of lieutenant colonel (O-5) based on the FY13 Constructive Service Credit (CSC) policy letter, dated 16 Aug 12, wherein he qualified for 16 years of constructive service credit (CSC).  However, he was commissioned in the grade of major (O-4) and, even though the Air Force made a commitment to appoint him in the higher grade, the Air Force did not honor its agreement, but appointed him the grade of major in accordance with the FY14 policy, which was released after his appointment with a retroactive effective date.  He would never have accepted a commission with the Air Force as a major (O-4) when he was already serving on active duty with the Army in the grade of lieutenant colonel (O-5) when he was approached by Air Force recruiters. 

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



STATEMENT OF FACTS:

On 27 Aug 13, according to the documents provided by the applicant, he received a letter from the Air Force Recruiting Service congratulating him on his pending appointment in the Air Force in the grade of lieutenant colonel.

On 5 Sep 13, the applicant’s appointment to the grade of lieutenant colonel (O-5) in the Reserve of the Air Force was approved by the Secretary of Defense (SecDEF).  

On 30 Sep 13, the applicant was honorably discharged from the Army in the grade of lieutenant colonel, and was credited with 16 years, 1 month, and 14 days of total active service.

On 1 Oct 13, the applicant was commissioned into the Air Force Reserve in the grade of major.

On 8 Oct 13, the applicant was accessed into the Regular Air Force in the grade of major and commenced a period of active service.

On 5 Nov 13, the Senate confirmed the applicant’s appointment in the grade of lieutenant colonel in the Air Force.    

The remaining relevant facts pertaining to this application are described in the letters with attachments prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C and D.    



AIR FORCE EVALUATION:

AFRS/RSOC recommends granting relief, indicating sufficient evidence has been presented to demonstrate the existence of error or injustice.  At the time the applicant and AFRS negotiated his transfer from the Army to the Regular Air Force, he was a lieutenant colonel with 16 years of active service and he met the current FY13 CSC policy criteria to be commissioned in the Regular Air Force as a lieutenant colonel.  Based on this information, the applicant agreed to separate from the Army and transfer to the Air Force.  AFRS processed his application for entry in the Air Force as a lieutenant colonel and submitted a regular scroll request on 13 May 13 for the grade of lieutenant colonel.  Due to the lengthy process in getting Senate confirmation of the regular scroll list (Senate confirmed 5 Nov 13), coupled with the expiration of the FY13 CSC policy on 1 Oct 13, the applicant was accessed into the Regular Air Force as a major on 8 Oct 13 in accordance with the more stringent CSC criteria in AFI 36-2005, Appointment in Commissioned Grades and Designation and Assignment in Professional Categories Reserve of the Air Force and United States Air Force.  The applicant was advised by both AFRS and AFPC that once the regular scroll was confirmed by the Senate, his rank would be adjusted to lieutenant colonel.  However, in accordance with the FY14 CSC policy, which was not signed until 29 Jan 14, but implemented retroactively on 1 Oct 13, the applicant only received a maximum of 14 years CSC, qualifying him for appointment in the grade of major, not lieutenant colonel.  Based on the aforementioned events, AFRS recommends the board grant an exception to policy appointing the applicant to the grade of lieutenant colonel and make adjustments to his pay accordingly.  

A complete copy of the AFRS/RSOC evaluation is at Exhibit C. 

AFPC/DPAN recommends denial indicating there is no evidence of an error or an injustice.  In accordance with the current FY14 CSC policy (effective 1 Oct 13 at the time of the applicant’s commission), and AFI 36-2005, the applicant did not meet the criteria (16 years CSC) to be commissioned as a lieutenant colonel in the Regular Air Force.  

A complete copy of the AFPC/DPAN evaluation is at Exhibit D.



APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant concurs with the statements and recommendation of AFRS/RSOC.  He opines that any instructions or policies approved after his commissioning should not be applied retroactively as unfairly argued by AFPC/DPAN.  His decision to transfer to the Regular Air Force was both financial (salary to cover financial obligations) and professional (remaining a lieutenant colonel).  Had he known he was not going to be a lieutenant colonel, he would have taken a job with the National Guard or another military service.    



THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of an injustice.  We took notice of the applicant’s complete submission in judging the merits of the case and we agree with the opinion and recommendation of AFRS/RSOC and adopt its rationale as the basis for our conclusion that corrective action is warranted.  We note the comments of AFPC/DPAN indicating that despite the fact the applicant was led to believe he would be accessed in the grade of lieutenant colonel, his appointment in the grade of major was procedurally correct and consistent with the constructive service credit (CSC) policy prescribed in AFI 36-2005, which was the policy in effect at the time of the applicant’s accession once the FY13 CSC policy expired on 30 Sep 13; however, we believe a preponderance of the evidence indicates the applicant is the victim of an injustice.  In this respect, we note that it is clear the applicant was led to believe that he was to be appointed in the higher grade and, in view of the fact that he was already serving in the higher grade with the Army, we find it reasonable to conclude that had he known that he was going to be appointed in the lower grade, he would not have pursued a commission with the Air Force.  Therefore, we recommend the applicant’s records be corrected as indicated below.

4.  The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.



THE BOARD DETERMINES THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show the following:

	a.  Competent authority approved his appointment in the grade of lieutenant colonel (O-5), Reserve of the Air Force, effective 1 Oct 13, as an exception to the Constructive Service Credit (CSC) policy.

	b.  On 8 October 2013, he commenced a period of extended active duty (EAD) in said grade.

	c.  On 5 November 2013, he was furnished a Regular appointment in the grade of lieutenant colonel (O-5).

It is further directed that AFPC Service Dates Verification Office (AFPC/DPSIPV) determine the applicant’s date of rank upon receipt of the approved directive.



The following members of the Board considered AFBCMR Docket Number BC-2013-5379 in Executive Session on 11 Sep 14, under the provisions of AFI 36-2603:

	



The following documentary evidence pertaining to AFBCMR Docket Number BC-2013-5379 was considered:

	Exhibit A.  DD Form 149, dated 15 Nov 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFRS/RSOC, dated 17 Mar 14.
Exhibit D.  Letter, AFPC/DPAN, dated 5 Jun 14, w/atchs.
Exhibit E.  Letter, SAF/MRBR, dated 23 Jun 14.
Exhibit F.  Letter, Applicant, dated 26 Jun 14, w/atchs.