RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 			DOCKET NUMBER: BC-2014-00409

   						COUNSEL:  NONE

						HEARING DESIRED:  NO 



APPLICANT REQUESTS THAT:

Her date of rank (DOR) to the grade of captain (O-3) be changed from 14 Jan 14 to 30 May 13. 


APPLICANT CONTENDS THAT:

Due to an error in calculating her constructive service credit, the DOR and grade in which she was accessed into the Air Force, were unjustly changed in violation of her commissioning contract.  She was initially accessed as a captain on 17 Aug 13 with a DOR of 30 May 13.  However, on 24 Nov 13, her grade was inappropriately changed to first lieutenant.  When she was subsequently promoted to captain, her DOR to captain became 14 Jan 14. 

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


STATEMENT OF FACTS:

Under Reserve EAD Order AH-115, dated 2 Aug 13, the applicant was ordered to extended active duty (EAD) on 17 Aug 13 to attend the Commissioned Officer Training (COT) course during the period 20 Aug 13 through 20 Sep 13. 

Under Reserve Appointment Order D-0719, dated 7 Aug 13, the applicant was appointed to the grade of captain with a date of appointment of 30 May 13, based upon the constructive service credit (CSC) she was awarded at that time. 

On 13 Jan 14, Reserve EAD order AH-115 and Reserve Appointment Order D-0719 were amended to change her grade from captain to first lieutenant (O-2), based upon a recalculation of her CSC.  Due to the recalculation, she was granted Special Selection Board (SSB) consideration for promotion to the grade of captain on the CY13 Captain selection process. 


The applicant was selected for promotion to the grade of captain by the CY14 Captain Selection Board, and promoted to captain on 9 Jul 14. 

The applicant was subsequently selected for promotion to the grade of captain by the CY13 Captain SSB.  The promotion list for the CY13 Captain SSB was approved on 14 Jan 14.  

Under Reserve Amendment Order SOJB-005760O, dated 12 Dec 14, the applicant’s date of rank and effective date of rank to the grade of captain were changed from 09 Jul 14 to 14 Jan 14. 

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


AIR FORCE EVALUATION:

AFPC/DPAN recommends denial indicating there is no evidence of an injustice warranting a correction.  The applicant was erroneously awarded dual or overlapping CSC for the period of time she pursued her Master’s in Nursing degree and her professional work experience.  The miscalculation resulted in the applicant being appointed to active duty in the inappropriate grade.  AFI 36-2005 states “in computing service; count a period of time or qualification only once.”  To be eligible for appointment in the grade of captain, the applicant’s awarded service credit must be at least four years but less than 14 years.  When the applicant’s CSC was computed, she was given double credit for a period of time during which she was both pursing her Master’s Degree and for her professional work experience, resulting in her receiving 4 years, 8 months, and 23 days CSC.  In Nov 13, DPAN realized she had been credited twice for the same period of time, and recalculated her CSC, resulting in her receiving 3 years, 8 months, and 23 days CSC.  Therefore, her appointment date/entry onto active duty was amended to reflect the correct grade of first lieutenant.  

A complete copy of the AFPC/DPAN evaluation, with attachments, is at Exhibit C.

AFPC/DPSOO recommends denial indicating there is no evidence of an injustice warranting correction.  Per Title 10 United States Code (USC) §531, the original appointment in the grade of captain in the Regular Air Force shall be made by the President alone.  This authority has been further delegated to the SECDEF under Executive Order 13384.  By law, an officer may not have a DOR or effective date prior to approval of their appointment by the SECDEF.  Based upon the CY14 Captain Selection process, the applicant was promoted to captain on 9 Jul 14, the date approved by the SECDEF.  She also met an SSB for the CY13 Captain Promotion process.  Upon approval of the SSB results, her DOR to captain was changed from 9 Jul 14 to 14 Jan 14, the date the CY13 SSB promotion list was approved by the SECDEF.  Had she initially been properly accessed as a first lieutenant, the DOR of 14 Jan 14 would have been her DOR to captain.  

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

AFPC/JA recommends partially granting the applicant’s request.  The applicant’s CSC was originally miscalculated.  AFPC/DPAN caught the error and made the mathematical recalculation.  However, AFPC/DPAN did not have the authority to change her appointment date and EAD DOR merely by issuing her an administrative amendment to her EAD orders.  In accordance with Title 10 USC §12203(a), original appointments of commissioned officers in the Reserve of the Air Force in the rank of lieutenant colonel and below are made by the President.  By Executive Order (13358) that authority has been delegated to the SECDEF.  To effect the appointment of a reserve officer, DODI 1310.02, Original Appointment of Officers, requires that a person must be appointed in the grade authorized (the applicant was appointed in the Nurse Corps, Air Force Reserve, in the rank of captain, on 30 May 13) and subscribe to the oath of office.  The date the oath of office is signed is the effective date of the appointment.  Once a commission is complete, distinct authority and regulatory guidance govern removal of a commissioned officer from office.  In this case, AFPC/DPAN effectively “voided” the applicant’s appointment to captain because the officer had insufficient CSC to have been appointed in that grade.  However, once the applicant had completed the commissioning process, AFPC no longer retained any authority to effectively nullify the appointment to captain and substitute an appointment to first lieutenant.  Thus, the amendment to the applicant’s EAD orders that changed her DOR and grade from captain to first lieutenant was null and void and without any lawful authority and it is, therefore, of no legal effect.  The original appointment remains valid, not having been terminated by proper authority.  The fact the applicant still has a valid Reserve appointment to captain on 30 Jul 13 (sic), however, does not mean her DOR should be corrected to that date.  Because the applicant was a Reserve officer who first entered EAD with a regular commission, her initial current grade date of rank (CGDOR) as a commissioned officer entering active duty is the date of that appointment.  In the applicant’s case, that date was 17 Aug 13.  Recommend the applicant’s record be corrected to show she had sufficient CSC as of the date of her initial reserve appointment to qualify for her appointment as a captain, that she was appointed as a reserve captain on 30 Jul 13 (sic), and she entered EAD on 17 Aug 13 as a captain, with a DOR to the grade of captain of 17 Aug 13, her EAD date.  

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



APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 23 Apr 15 for review and comment within 30 days (Exhibit F).  As of this date, no response has been received by this office.


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.  After a thorough review of the evidence of record and the applicant’s complete submission, we believe the applicant is the victim of an error or injustice.  While we note the comments of AFPC/DPAN and AFPC/DPSOO indicating relief should be denied because the applicant’s CSC was initially computed incorrectly, we agree with AFPC/JA’s position that once the applicant completed the commissioning process, AFPC no longer retained any authority to effectively nullify her appointment to captain, and her initial appointment is still valid, and the amendment to the applicant’s EAD orders which changed her DOR and grade from captain to first lieutenant is null and void and without any lawful authority, and it is, therefore, of no legal effect.  Therefore, we recommend the applicant’s records be corrected to reflect that she was credited with sufficient CSC as of the date of her initial Reserve appointment to qualify for her appointment as a captain.  This would make the original date she was appointment to the grade of captain, 30 May 13, correct, and her date of rank to captain would be the date she entered extended active duty.  However, while we are adopting the AFPC/JA rationale as the basis for our conclusion that the applicant has been the victim of an error and injustice, we believe the 30 Jul 13 effective date described in the AFPC/JA advisory is incorrect and that the effective date of the appointment is actually 30 May 13, the date the applicant signed her oath of office.  Therefore, we recommend the applicant’s records be corrected as indicated below.  


THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that competent authority approved sufficient constructive service credit to qualify her for appointment to the grade of captain in the Reserve of the Air Force on 30 May 2013, and she was accessed onto Extended Active Duty (EAD) in said grade on 17 August 2013.


The following members of the Board considered AFBCMR Docket Number BC-2014-00409 in Executive Session on 14 May 15 under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

All members voted to correct the records as recommended.  The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 11 Feb 14, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPAN, dated 6 Feb 15, w/atchs.
	Exhibit D.  Memorandum, AFPC/DPSOO, dated 2 Apr 15.
      Exhibit E.  Memorandum, AFPC/JA, dated 14 Apr 15.
      Exhibit F.  Letter, SAF/MRBR, dated 23 Apr 15.