RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2012-05226

			COUNSEL:  NONE

			HEARING DESIRED: YES

________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His removal from the 2007 A508A Reserve Officer Personnel 
Management Act (ROPMA) O-5 selection list be expunged and 
“selected” be entered in his record.  

2.  He be reinstated into a flying billet in the Air National 
Guard (ANG) or Air Force Reserve (AFR) in an available 11FXX Air 
Force Specialty Code (AFSC).  

3.  His mandatory separation date (MSD) be adjusted to 
1 November 2014.  

4.  He receive payment of the Aviation Career Incentive Pay 
(ACIP)[sic] recouped by the Defense Finance and Accounting 
System (DFAS).  

________________________________________________________________

APPLICANT CONTENDS THAT:

1.  His appeal relates to a Class-A mishap that happened on 
15 May 2007, while he was a member of the New Jersey ANG.  He 
was the Range Control Officer (RCO) at a bombing range where an 
F-16 dispensed flares below minimum flare dispense altitude.  
The flares ignited a fire which spread rapidly.  The Class-A 
threshold was exceeded and the Air Force convened an accident 
investigation board (AIB) and a safety investigation board 
(SIB).  The AIB concluded that the cause of the mishap was pilot 
error by the Mishap Pilot (MP) who deployed flares that impacted 
the Warren Grove Range and ignited a fire, which spread beyond 
the boundaries.  Substantially contributing to this mishap were 
the failure of the Lead Pilot (LP) to communicate with the MP 
concerning the MP's intended use of flares and to properly 
coordinate the MP's intent to use flares during the flight on 
the range coordination sheet, the RCO's  failure to convey 
additional restrictions on flare use at the WGR, the MP's lack 
of information concerning additional restrictions on flare use 
at the WGR, and the unplanned show of force maneuver flown by 
the MP and requested by the RCO.  

2.  His initiating commander made a recommendation to delay-
with-intent-to-remove his name from the 2007 A508A ROPMA 
selection list.  In order to convince his chain of command that 
he was fit to assume the duties of the next higher grade, he 
submitted a response within the suspense provided, however, the 
initiating commander sent his intent to remove through the chain 
where it was received and endorsed even before receiving his 
response.  Additionally, there was no legal review.  He was 
unaware of these actions until he received evidence through a 
Freedom of Information Act (FOIA) package on 31 Oct 2009.  

3.  He was subsequently removed from flying status without 
consideration by a Flying Evaluation Board (FEB).  There were no 
reviews of his flight record, check rides or training folders.  
If any reviews were conducted he was not given an opportunity to 
present his case.  He was assigned a non-flying AFSC without his 
consent or prior consultation.  His Aviation Service Code was 
changed from 3A (active) to 3J (inactive restricted) and he was 
told to report to the Logistics Squadron.  

4.  In 2008, he resigned from the NJANG thereby resigning an AGR 
position, in sanctuary status, and transferred as a traditional 
guardsman to the Idaho ANG (IDANG).  During this time, he 
completed an active duty for work (ADSW) tour with the National 
Guard Bureau.  This was followed, with no break, by a deployment 
to the AOR.  Except for a two week period, necessitated by the 
transition from the NJANG to the IDANG, he served continuously 
on active duty.  These assignments took him through to 20 years 
of active duty service.  In May 2008, while he was a member of 
the IDANG, he filed two Inspector General (IG) complaints 
through the HQ USAF IG.  The complaints were for his removal 
from the 2007 A508A ROPMA selection list and flying status.  HQ 
USAF IG referred the complaints to the New Jersey ANG IG who 
concluded that the complaints were not justified.  

5.  In May 2009 he received an electronic Leave and Earnings 
Statement indicating a debt collection for ACP.  The debt was to 
be collected by means of an involuntary allotment.  He was told 
DFAS could not repay the involuntary allotment without the 
commander’s determination that the debt was unfair.  It seemed a 
fruitless quest to get the very same commander who ordered 
actions leading to his ineligibility for ACP to conclude that 
DFAS’ action to recoup it was unfair, so he chose to seek relief 
through the AFBCMR.  

6.  In 2009 during discussions with the Air Reserve Personnel 
Center (ARPC) they discovered an error of a break-in-service in 
his record.  This error made him eligible for a Special 
Selection Board (SSB) for the 1998 O-4 Board.  The NJANG 
erroneously gave him a 7-day break-in-service when he was 
accessed into the unit.  The discovery of that error resulted in 
his being considered by a SSB that changed his O-4 date of rank 
from 1 Oct 2000 to 1 Oct 1999.  This action triggered an O-5 SSB 
in the spring of 2012.  He  was selected and as a result, his O-
5 date of rank changed from 1 Oct 2009 to 1 Oct 2006.  He is 
currently working the back pay issue with DFAS and no BCMR 
relief is requested.  While he was pleased to be promoted as of 
2006, his promotion could be perceived as an insult, at the 
time, to senior New Jersey National Guard officers. He is 
concerned about actions the New Jersey National Guard might take 
to interfere with his 2006 promotion.

7.  Regarding his Mandatory Separation Date of 1 Jun 2012.  He 
does not even meet minimum Time-in-Grade requirements for O-6 
selection, prior to his mandatory retirement.  The entirety of 
his career; Bronze Star as an O-4; repeatedly stratified as 
number 1 as an O-5,etc., hopefully demonstrates that he has the 
potential to be a fine O-6.  But he does not have an opportunity 
to even compete, due to his removal from the A0507A ROPMA O-5 
list and other factors.  He hopes the Board will consider that 
should the removal from the A0507A ROPMA O-5 list was unjust, 
the resulting fallout of his being unable to even compete for O-
6 is also unjust.  

In support of his request the applicant submitted a personal 
statement, copies of the F-16 Mishap Report, administrative 
action memoranda and documents extracted from his Military 
Personnel Record (MPR).  

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

________________________________________________________________

STATEMENT OF FACTS:

According to documents extracted from his Military Personnel 
Record, the applicant is a former Air National Guard 
commissioned officer who is assigned to the Retired Reserve 
section awaiting pay at age 60, (24 February 2016).  

The remaining relevant facts pertaining to this application are 
contained in the letters prepared by the appropriate offices of 
the Air Force at Exhibit C through G.  

________________________________________________________________

AIR FORCE EVALUATION:

1.  NGB/A1PO does not provide a recommendation but states that 
the applicant’s removal from the fiscal Year (FY) 2008 promotion 
list was processed correctly by the National Guard Bureau and 
resulted in the Secretary of the Air Force’s approval of the 
action.  The action required legal reviews and therefore, they 
believe the process was accomplished properly and the removal 
should stand as an action that was part of the applicant’s 
record.  

2.  A1PO further states, action from the February 2012 SSB 
promoted the applicant to the grade of Lieutenant Colonel with an 
effective date prior to his removal from the FY 2008 promotion 
list.  Therefore, his promotion history indicates he was selected 
for promotion in 2006 which effectively voids the action of his 
removal from the FY 2008 promotion list.  

The complete NGB/A1PO evaluation is at Exhibit C.

NGB/A1PP recommends denial of the applicant’s request to extend 
his MSD.  A1PP states the applicant’s promotion issue was 
resolved prior to his retirement, based on his total federal 
commissioned service date (TFCSD) of 30 May 1984.  Per 10 U.S.C. 
§ 14507(a), the MSDs are established based on the member’s grade 
and 28 years from the TSFCD.  Therefore, the applicant’s MSD was 
established as 1 June 2012.  There is no basis in accordance 
with 10 U.S.C. for the applicant’s MSD to be extended to 
1 November 2014.  

The complete NGB/A1PP evaluation is at Exhibit D.  

NGB/A1PF does not provide a recommendation but states that upon 
review of the applicant’s debt generated against his Aviator 
Continuation Pay agreement, they have concluded that, as it 
currently stands, the debt is valid.  They determined that the 
debt was valid because the applicant resigned his AGR tour and 
thereafter his records do not show full time duty.  Through 
policy and statute, the ACP program was designed only for 
members on full-time duty.  The applicant separated from full 
time duty and became a Drill Status Guardsman (DSG) and only 
worked part-time, therefore, he was no longer entitled to ACP 
and the unearned portion of the payment he received should have 
been recouped.  

The complete NGB/A1PF evaluation is at Exhibit E.

NGB/A1P states they concur with the subject matter experts 
(SMEs) advisories and recommend denial of relief based on the 
governing directives.  Additionally, the applicant has not 
provided supporting documentation to establish a basis to extend 
his MSD or show that he was treated in an unjust manner with 
respect to his promotion and repayment of ACP.  

The complete NGB/A1P evaluation is at Exhibit F.  

NGB/A3OS recommends denial of the applicant’s request to be 
reinstated into a flying billet.  A3OS states the applicant has 
not provide any supporting documentation such as flying records, 
training reports, or record of flight physicals for their 
review.  

The complete NGB/A3OS evaluation is at Exhibit G.  

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

1.  In his response, the applicant states that he respectfully 
contends that NGB/A30S's advisory opinion does not explain, 
support or justify his removal from flying without an FEB, 
evaluation letter from command authority expressing a loss of 
confidence in his flying abilities, no-notice check ride, review 
of his records, or any other command or administrative reason or 
rationale of any type.  In total, NGB/A30S does not provide any 
information on how his removal from flying was a proper and just 
action.  Therefore, he respectfully asserts that NGB/A30S does 
not dispute his contention that he was removed from flying in an 
erroneous and unjust manner.  

2.  The applicant further states NGB/AlPO asserts that just 
prior to his mandatory retirement, he was promoted by a Special 
Selection Board for 2006.  This SSB promotion voids the action 
of his promotion removal from the FY 2008 list.  He respectfully 
states that this is completely irrelevant to what is right, and 
just.  The 2007 promotion removal had consequences, such as his 
resignation from his AGR position and the ACP debt which were 
not resolved by an earlier promotion effective date that 
happened just before he retired.  He challenges that NGB/A1PF 
does not dispute, that it was the NJANG who broke the spirit of 
the ACP agreement by:  

	a.  removing him from flying.  

	b.  assigning him to the Logistics AFSC with no intention of 
career-broadening.  

	c.  informing him that there was no chance for redemption in 
the NJANG.  

	d.  informing him that he would be retired, as an O-4, as 
soon as he had 20 years of service.  

He states that in fact, he was the one who maintained the ACP, 
in spirit and in effect, by finding positions wherein his 
experience as a combat aviator could be leveraged to provide 
value to the Air Force and to the nation.  

3.  Regarding his MSD; he argues that, due to his removal from 
the A0507A ROPMA 0-5 selection list, and the failure of the 
NJANG to provide a PRF for the subsequent board in 2008, he 
effectively had no opportunity to compete for promotion to 0-6.  

The applicant’s complete response is at Exhibit I.

________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was not timely filed; however, it is in the 
interest of justice to excuse the failure to timely file.  

3. Insufficient relevant evidence has been presented to 
demonstrate the existence of error or injustice.  We took 
careful notice of the applicant’s complete submission in support 
of his requests and the evidence of record in judging the merits 
of the case and believe that the applicant did not submit 
sufficient evidence to overcome the presumption of regularity 
concerning his removal from flying.  The applicant’s contentions 
are duly noted; however, we agree with the opinions and the 
recommendations of the Air Force offices of primary 
responsibility and adopt their rationale as the basis for our 
conclusion that the applicant has not been the victim of an 
error or injustice.  Therefore, in the absence of persuasive 
evidence to the contrary, we find no basis to recommend granting 
the relief sought in this application.  

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

________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified 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 this application 
in Executive Session on 22 August 2013, under the provisions of 
AFI 36-2603:

		, Panel Chair
		, Member
		, Member

The following documentary evidence was considered in AFBCMR 
Docket Number BC-2012-05226:

    Exhibit A.  DD Form 149, dated 25 Oct 2012, w/atchs.
    Exhibit C.  Letter, NGB/A1PO, dated 27 Nov 2012, w/atchs.
    Exhibit D.  Letter, NGB/A1PP, dated 14 Dec 2012, w/atch.
    Exhibit E.  Letter, NGB/A1PF, dated 28 Dec 2012.
    Exhibit F.  Letter, NGB/A1P, dated 28 Dec 2012, w/atch.
    Exhibit G.  Letter, NGB/A3OS, dated 23 Jan 2013.
    Exhibit H.  Letter, SAF/MRBR, dated 3 Feb 2013.
    Exhibit I.  Letter, Applicant, dated 15 Mar 2013, w/atchs.