RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2014-01420
		COUNSEL: NO
		HEARING DESIRED: NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be retired as a first lieutenant from the Air Force with all 
pay and benefits.  

_________________________________________________________________

APPLICANT CONTENDS THAT:

Per Title 10, USC, Section 628, he should have been retired as a 
first lieutenant, after meeting two SSBs in Nov 94, because he 
had to be on the Active Duty List (ADL) for those two SSBs.  

Prior to 1998, the law indicated that an officer being 
considered for promotion had to be on the ADL.  Therefore, his 
records should have been reconstructed up to the date of the 
SSBs.  

Since he fell under the law prior to the 98 change, he is 
entitled to retirement as a first lieutenant with all the rights 
and benefits.

He had enough service time to retire from active duty and 
receive all of the benefits and rights as an officer of the Air 
Force.  

In 1994, the AFBCMR recommended he be given two additional 
opportunities for promotion to the grade of captain due to the 
removal of his Officer Evaluation Report (OER) and Letter of 
Evaluation (LOE).  Because he was passed over again, he should 
have retired effective 31 May 95.  Adding 9 years, 10 months and 
3 days to his total prior active service would equal 22 years 
and 2 months of active duty service time in accordance with the 
law at the time.  

The Chief Justice, the Department of Justice and Air Force 
attorneys collaborated to change the language of the statute to 
ensure future officers were unable to appeal their cases to the 
Federal Circuit.  The language within the statute and 10 USC was 
changed in 98; however, it was not retroactive to his case but 
as a result of his case. 

In support of his request, the applicant provides copies of his 
DD Forms 214, excerpts from 10 USC 628 and United States Court 
of Federal Claims, Number 91-1008C. 

The applicant's complete submission, with attachment, is at 
Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 22 Jun 70, the applicant enlisted in the Regular Air Force.  
He was credited with eight years, one month and seven days of 
active enlisted service.

On 5 Mar 81, the applicant was appointed a second lieutenant, 
Reserve of the Air Force.  

On 26 Sep 84, he submitted a DD Form 149, requesting his OER 
ending 2 Jan 84 be declared void and removed from his records 
and he be reconsidered for promotion to the grade of captain by 
the Calendar Year (CY) 84B selection board.  On 22 Aug 85, the 
Board approved his requests.  For a full accounting of the facts 
surrounding his request and the rationale of the Board’s 
decision, see the Record of Proceedings at Exhibit B.

On 24 May 85, the applicant was honorably discharged from the 
Air Force in the grade of first lieutenant under the provisions 
of AFR 36-12, Administrative Separation of Commissioned 
Officers, with a narrative reason for separation of Involuntary 
Release-Failed Promotion or Removed from List.  He was credited 
with 4 years, 2 months and 20 days of active service (officer).

On 24 Mar 86, the CY84B and CY85A SSBs convened; however, the 
applicant was not selected for promotion to the grade of captain 
by either board.  

On 12 Mar 91, the applicant filed a complaint in the United 
States Court of Federal Claims.  On 31 Dec 92, the court issued 
an order remanding the case to the AFBCMR for further 
proceedings.  

Pursuant to the remand, on 1 Jul 93, the Board reviewed the 
applicant’s request and recommended that the AF Form 77, 
Supplemental Evaluation Sheet for the period 3 Jan 84 through 
11 Mar 84, be declared void and removed from his records, and 
corrected his duty titles on his AF Form 707, Officer 
Effectiveness Report for the period 3 Jan 83 through 2 Jul 83, 
and his Officer Selection Brief (OSB).  He was also provided SSB 
consideration to the grade of captain for the CY84B and CY85A 
CSB.




On 15 Nov 93, the applicant was again considered and not 
selected for promotion to the grade of captain by the CY84B and 
CY85A selection boards. 

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/JA recommends denial of the applicant’s request.  The 
applicant has failed to prove any error or injustice in his 
case.  He was properly discharged in 85 and he is not entitled 
to any constructive service or retirement.

In 95, the Board concluded that the 93 SSBs conformed to the law 
and regulation, and that the non-selections were supported by 
substantial evidence.  In addition, the Board disputed the 
court’s conclusion that referring the applicant’s case to SSBs 
in 86 and 93 constructively reinstated the applicant to active 
duty until he incurred two valid passovers.  

In 96, after extended litigation, the Court of Claims held that 
the Board acted arbitrarily when it referred the applicant’s 
case to SSBs without also voiding his initial passovers, with 
the stated consequences of reinstatement with entitlement to 
back pay and related benefits.  Applicant v United States (US), 
No. 91-1008C (Fed.Cl. May 24 & Aug 6, 96).  It is this court’s 
decision that the applicant is primarily relying on in his 
current application.  What the applicant omits in his 
application; however, is that this Court of Claims decision was 
overturned on appeal by the United States Court of Appeals, 
Federal Circuit in 98.  Applicant v US, 163 F.3d 1304.  
Subsequently, a writ of certiorari filed on behalf of the 
applicant was denied by the US Supreme Court in 99.  Applicant v 
US, 528 US 809, thereby leaving intact the US Court of Appeals, 
Federal Circuit’s decision as the controlling law for the 
applicant’s case.

The Court of Appeals stated “must the Board in every instance 
couple a recommendation to convene an SSB with voidance of 
previous passovers, and, if not, was the Board’s recommendation 
in the applicant’s case to convene an SSB without voiding his 
two previous passovers arbitrary, capricious, unsupported by 
substantial evidence or contrary to law.”  The court responded 
no, thus reversing the lower court’s determination (relied upon 
by applicant).  The Federal Circuit held that the Court of 
Federal Claims erred in its assessment of the legal authority of 
the Board, stating that because the Board was authorized to 
correct the applicant’s record and recommend use of SSBs to 
consider the applicant’s promotion prospects in light of the 
corrections without also recommending voidance of the 
applicant’s previous discharge-mandating passovers, the 
applicant is not entitled to back pay and related benefits (to 
include retirement).  In short, the Court held that the 
applicant’s discharge in 85 was lawful.  

The applicant provides no new material matter in his new 
application that alters the holding by the Federal Circuit.  
Much of what he relies upon now is language quoted from a court 
opinion that was overturned on appeal.  Additionally, he now 
argues that the version of the law that governed SSBs (10 USC 
628) in effect at the time his case was considered (85-98) 
mandated that he be on the ADL in order to be considered by an 
SSB; that his record be “reconstructed” up to the time of the 
November 94 SSBs (also requiring that the applicant be 
constructively reinstated to active duty back to 85, with back 
pay and related benefits); and that his record reflect he was 
retired as a first lieutenant not later than six months after 
those SSBs.  The Federal Circuit rejected these arguments, 
determining that with respect to 10 USC 628, Congress intended 
1) an SSB’s decision to relate back to the date of the original 
selection board’s decision; and 2) for the SSB’s decision to 
stand in place of the earlier selection board decision.  
Applicant v US, supra, at 1315.  Likewise, the Court determined 
that the pre-Defense Officer Personnel Management Act (DOPMA) 
“harmless error rule” court decisions relied upon by the 
applicant (the same court cases relied upon now by the applicant 
in his brief) were not applicable or dispositive of his case.  

In 99, the Federal Circuit court discussed the applicant’s 
current argument in its decision, noting the Court of Claims—
like the applicant today-maintained that because the statute 
(10 USC 628) affords access to an SSB to “an officer who is 
eligible for promotion who was considered for promotion by a 
selection board but was not selected,” the BCMR is required to 
actually or implicitly void the two passovers that forced the 
discharge-and that, “to be eligible” for promotion, the officer 
must be on the ADL, which in the applicant’s case would have 
required actual or constructive reinstatement.” Porter v US, 
supra, at 1320.  The Federal Court noted the applicant continued 
to defend before that court (as he does in his current 
application) “the view of the Court of Claims that only officers 
on the ADL are eligible for consideration by an SSB.”  Citing 
the first part of its opinion, the Federal Circuit rejected that 
reading of the statute.  Applicant v US, supra, at 1322.  The 
Federal Circuit considered in its 98 decision virtually all of 
the arguments the applicant raises in his present application 
and firmly rejected them.  

Finally, the last argument by the applicant, that was not raised 
before the Court, but was nevertheless answered by the Court-is 
his unsupported contention that the Chief Judge of the Federal 
Circuit, along with the Department of Justice (DOJ) and Air 
Force attorneys “collaborated to change the language of the 
statute to ensure future officers were unable to appeal their 
cases before the Federal Circuit.”  The applicant contends that 
the change in the law in 98, was not retroactive to his case, 
but was the result of his case.  He believes that because he 
fell under the law prior to the 98 change (which he incorrectly 
believes required that an officer must be on the ADL to meet an 
SSB), he was entitled to be retired as a first lieutenant with 
all rights and benefits associated therewith.  First, the law 
that was interpreted by the Federal Circuit in reaching its 
holding that ruled against the applicant was the proper version 
of 10 USC 628 that applied to him (before it was amended in 98).  
Second, the persons cited by the applicant as having 
“collaborated to change the language of the statute” did no such 
thing; the amendment to the law in 98-which essentially 
substituted the word “person” in the law for the word “officer” 
(it did not strike the word “former” as suggested by the 
applicant) was the result of proper amendment of the law by 
Congress, not the claimed actions of the Chief Judge of the 
Federal Circuit, the Department of Justice and the Air Force.  
While the amendment may have well been prompted by the 
applicant’s litigation and the desire to clarify what the law 
meant all along, it did not signal or otherwise evidence that 
the previous version of section 628 meant anything different 
than the amended version.  

The complete JA evaluation, with attachments, is at Exhibit F.

AFPC/DPSOR recommends denial.  Based on the applicant’s current 
service, he does not meet the legal requirements to be retired 
as a Regular officer.

To retire as an officer, the applicant must have completed a 
minimum of 20 years Total Active Federal Military Service 
(TAFMS), of which at least 10 years as an active commissioned 
officer.  10 USC 08911 states that “The SAF may, upon the 
officer’s request, retire as Regular or Reserve commissioned 
officer of the Air Force who has at least 20 years of service 
computed under section 8926 of this title, at least 10 years of 
which have been active service as a commissioned officer.

The applicant did not have the required active military service 
to retire under this provision of law.  As of his release date, 
he completed 12 years, 3 months and 27 days of TAFMS.  In 
addition, he only had 4 years, 2 months and 20 days of Total 
Active Federal Commissioned Service (TAFCS).  To retire as an 
officer, the applicant required a minimum of 10 years TAFCS and 
20 years TAFMS.

The complete DPSOR evaluation is at Exhibit H.

_________________________________________________________________

APPLICANT’S REVIEW OF THE AIR FORCE EVALUATION:

On 23 Jul 96, the DOJ and the Air Force recognized he would be 
eligible for retirement and benefits, but instead of placing it 
in the court order as he requested, they stated he could ask the 
SECAF to be retired.   

In his Defendant’s Status Report and Stipulation submitted on 
behalf of both parties, No 91-1008C, dated 23 Jul 96, Retirement 
Status and Benefits the following was discussed:  He sought a 
declaration from the court that he be entitled to retirement pay 
and benefits and requested that the order of retirement be 
placed in the final order for two reasons:

First, as noted in 10 USC, Section 8911 “The SECAF  may upon the 
officer’s request, retire a regular or reserve commissioned 
officer of the Air Force who has at least 20 years of service.”  
This statement is not final and gives the Air Force an option as 
the work [sic] used is “may.”  In Evensen v. United States, 
6454 F.2d 68, 72, 73, 75, Number 111, the court ordered retired 
pay as well as pay and benefits.

Second, he asked the court to specify that he was entitled to 
all benefits from the date of the judgment or upon finalization 
of the appeal, if consummated.  This would protect those 
benefits entitled to within one year from the date of 
retirement, i.e. final move.

However, the government took the position that had he remained 
on active duty from 1 Sep 85 through 1 Aug 94, he would now be 
eligible to apply to the AFBCMR for retirement pay and benefits.  
In addition, the government saw no reason why the court should 
decide whether he was entitled to retirement pay and benefits 
rather than allowing the SECAF to exercise the discretion 
provided in 10 USC, Section, 8911.

The government never addressed the “retirement and back pay” 
issues under appeal regarding the stipulation at all throughout 
his period of carrying his case forward.  

The 1993 SSB non-selections were upheld for the purpose of 
denying him retroactive promotion and for the purpose of 
prospectively separating him—but not for the purpose of proving 
“harmless error” or defeating his right to back pay under 
Sanders.  The order granting relief to him was based on the 
application of the “casual nexus” test and was firmly grounded 
in the language and purpose of Sections 1552 and 628 and in 
Sanders and Engels.  

The application of the “casual nexus” test required that his 
non-selections be voided by the Board at the conclusion of their 
deliberations in 1993.  The Board has a mandate to afford full 
relief to applicants and lacks the discretion to withhold the 
full relief to which an officer is entitled Sanders, 594 F.2d at 
812, 818; Debow v. United States, 434 F.2d 1333 (Ct. Cl. 1970).  
The subsequent non-selection determinations of his 1993 SSB did 
not related [sic] back to deprive him of an already vested right 
to constructive reinstatement and back pay.  Nor did it 
establish harmless error.  Section 628 SSBs were intended by 
Congress to determine the promotion rights of current active 
duty officers.  The statute did nothing to change the well-
established law applicable to former officers.  It contains no 
provision for revoking the vested back pay rights of reinstated 
officers or for giving retroactive effect to SSBs where an 
officer’s original selection board was voided.  Nor are SSBs 
authorized to render “harmless error” advice in Board 
proceedings.  

The Board’s conduct in his case was an unlawful attempt to 
substitute an SSB remedy for the back pay remedy afforded under 
37 USC, Section 204.

In further support of his appeal, the applicant provides a seven 
page brief, copies of the Defendant’s Status Report and 
Stipulation, Number 91-1008C, dated 23 Jul 96; memorandums to 
Commercial Litigation Branch, Civil Division; Brief of Amicus 
Curiae Urging Affirmance, DoD National Defense Authorization Act 
of 1996, Section 554 Report; Record of Proceedings, Air Force 
Times newspaper article and various other documents associated 
with his requests.

The applicant’s complete submission, 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 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 an error or injustice warranting 
constructive service or a retirement in the grade of first 
lieutenant.  We took notice of the applicant's complete 
submission in judging the merits of the case and do not find 
that it supports a determination that the applicant was 
improperly discharged in 1985.  The applicant's numerous 
assertions are duly noted; however, he has provided no evidence 
which, in our opinion, successfully refutes the assessment of 
his case by the Air Force Offices of Primary Responsibility 
(OPRs).  As pointed out by AFPC/JA, the holdings in the 
applicant's case before the Court of Appeals for the Federal 
Circuit is dispositive of the allegations raised by the 
applicant in this new application.   Therefore, we agree with 
the opinions and recommendations of the Air Force OPRs and adopt 
their rationale expressed as the basis for our decision that the 
applicant has failed to sustain his burden of establishing he 
has suffered either an error or an injustice.   In view of the 
above, we find no equitable basis to grant the relief sought in 
this application.  Given the final Board action in this case, 
the applicant has exhausted all available administrative 
remedies and further administrative action on this application 
is not appropriate.  

_________________________________________________________________

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-2013-01420 in Executive Session on 26 Jun 14, under 
the provisions of AFI 36-2603:

	 		Panel Chair
      Member
			Member

The following documentary evidence was considered pertaining to 
AFBCMR Docket Number BC-2014-01420:

		Exhibit A.  DD Form 149, dated 9 Feb 13, w/atchs.
		Exhibit B.  Applicant’s Available Personnel Records.
		Exhibit C.  Letter, AFPC/JA, dated 11 Apr 14, w/atchs.
		Exhibit D.  Letter, SAF/MRBR, dated 16 Apr 14.
	 	Exhibit E.  Letter, AFPC/DPSOR, dated 20 Apr 14.
	 		Exhibit F.  Letter, SAF/MRBR, dated 23 Apr 14.
	 	Exhibit G.  Letter, Applicant, dated 11 May 14, w/atchs.




		
		Panel Chair