THIRD ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-01061 

XXXXXXXXXXXX	COUNSEL:  NONE
	
	HEARING REQUESTED:  NO

APPLICANT’S REQUEST

The Board reconsider his request to correct his military record to reflect:

1.  He was continued on active duty in the rank of lieutenant colonel (O-5), until Aug 91, when he would have reached 28 years active duty service; or as an alternative,

2.  He was directly promoted to the rank of colonel (O-6) and continued on active duty, until Aug 93, when he would have reached 30 years active duty service.

APPLICANT’S CONTENTIONS

There was a serious error in his records for reasons beyond his control that took years to correct.  Then, an incomplete correction by the Air Force Board for Correction of Military Records (AFBCMR) and Air Force Personnel Center (AFPC) brought on another and longer lasting error and injustice that remains today.

The Board originally approved correction to his record in AFBCMR Docket Number BC-1979-02340, to include removal of Officer Effectiveness Reports (OER).  A Special Selection Board (SSB) selected him for retroactive promotion to lieutenant colonel several years late. He subsequently withdrew his retirement application so he could continue his career.  

The delay in correcting the first errors resulted in new, follow-on errors.  As a result of the long-delayed retroactive promotion to lieutenant colonel, his new date of rank placed him in the zone for promotion to colonel; therefore, he had no chance to build a record as a lieutenant colonel.  Despite having only records as a major (O-4), AFPC immediately put his records before the colonel promotion board, causing the more serious error.  With no record or OERs as a lieutenant colonel, he had no chance for selection and promotion by the board.  He sought advice from the best experts at base level and Headquarters, Air Force on how to resolve this issue, and was told there was no resolution.  He could not build a competitive record as a new lieutenant colonel and then compete for promotion to colonel.

He was also advised  based on his non-select status to colonel he could not/would not compete for promotable jobs and his career would now be managed as a non-select.  He reluctantly retired with just over 20 years service and lost what should have been a 28 year or longer competitive career.

Additionally, he later learned of the “time to build a record policy” and immediately requested the AFBCMR give him the same chance to build a record that they had routinely done for others, so he could continue his career.  Although the AFBCMR had routinely done the same for others, they denied his request and advised him to go to civil court to resolve this issue.  The process took years, and the court denied any injustice, stating the statute of limitations had expired and no action was possible.  The applicant requested the court remand the case back to the AFBCMR, as the AFBCMR is not bound by the statute of limitations and could take any action they deemed necessary “in the interest of justice.”  The court declined to remand the case back to the AFBCMR.  

He has now returned to the AFBCMR for resolution.  He is requesting the AFBCMR follow their own rules and precedent by removing the injustice to him, as they should have done years earlier, and have routinely done for others.  Further, he asked that the AFBCMR continue his active duty as a lieutenant colonel to allow him to build his record and compete several times for promotion to colonel, as he could have continued his career to a full 28 years as provided by law.  Or, based on his record as a fast track officer, his direct promotion to colonel and service on active duty for 30 years.

RESUME OF THE CASE

The applicant is a retired Air Force lieutenant colonel (O-5).  

On 17 Sep 03, 27 Jun 06, and 19 Aug 11, the AFBCMR considered and denied the applicant’s request to retroactively approve his continuation on active duty in the rank of lieutenant colonel until he reached 28 years active duty service in Aug 91, or alternatively, direct promotion to the rank of colonel, with continuation on active duty until he reached 30 years active duty service in Aug 93; finding the applicant had provided insufficient evidence of an error or injustice to justify relief.  For an accounting of the facts and circumstances surrounding the applicant’s original requests and the rationale of the earlier AFBCMR decisions, see the ROPs at Exhibit AD.

By virtue of a letter, dated 9 Jun 12 (Exhibit W), the applicant responded to the AFBCMR’s denial of his request for reconsideration, dated 19 Aug 11, contending the Offices of Primary Responsibility (OPR) that provided advisory opinions did not have the opportunity to review his new evidence presented in rebuttal.  He further contended, via correspondence with AFPC, the OPRs indicated they would like to review the new information presented so they could resubmit revised advisories.  The applicant reiterated his position that his record was in error as he was not able to build a lieutenant colonel selection record that mirrored the majority of his peers, and requested mitigation of this injustice through credit for time not served – through 28 or 30 years active duty service, to restore his career to where it likely would have been but for the errors.  In response, the AFBCMR notified the applicant, via letter, dated 27 Jul 12 (Exhibit X), that they found his request did not meet the criteria for reconsideration.

By virtue of a letter, dated 20 Mar 13 (Exhibit Y), the applicant rebutted the AFBCMR’s finding and contended the AFBCMR may be incorrectly influenced by advisories that contain errors, and consequently, he conducted additional research and sought new evidence in support of his case.  The applicant stated he requested review of the advisories by members of his previous leadership chain and they found numerous inaccuracies, found new pertinent facts, and clarified other evidence.  The applicant detailed sections of their letters of support, provided as attachments, which specifically call out perceived errors in the applicant’s promotion consideration process, as well as the advisory opinions.  He finalized his letter with a request for the AFBCMR to review this information in reconsideration of his case.  The AFBCMR responded, via letter, dated 20 Feb 14 (Exhibit Z), stating the applicant’s request was essentially the same as his 23 Mar 02, 6 Sep 05, and 5 Feb 10 requests, which were previously considered and denied by the AFBCMR.  As the applicant had not provided any new, relevant evidence, it did not meet the criteria for reconsideration.  More specifically, the AFBCMR informed the applicant that reiteration of facts previously addressed by the AFBCMR, uncorroborated personal observations, or additional arguments on the evidence of record were not grounds for reopening his case.  Finally, the AFBCMR notified the applicant that absent judicial action, the Air Force considered his AFBCMR decision final, and any future correspondence from him on this issue would be filed without action.

By virtue of a letter, dated 21 May 14 (Exhibit AA), the applicant responded to the AFBCMR’s statement regarding judicial action, stating he had been advised the courts had already ruled on this issue and directed the Boards to refrain from being arbitrary and/or capricious in considering corrections to nearly identical military correction cases.  The applicant provided in support a copy of Wilhelmus v Geren, Civil Action No. 09-662 (JEB), as well as copies of Records of Proceedings from previously adjudicated AFBCMR cases he contended were similar to his own.  Specifically, the applicant detailed the findings of applicants permitted to build a record in their new higher rank, and when not possible, direct promotion to the next highest grade.  The applicant contended he was not offered either of these solutions and should not have to individually go to the court for relief when the court had already directed the Boards to treat similar cases alike.  The applicant reiterated the circumstances of his case and possible solutions to remedy his perceived errors and injustice.

By virtue of a letter, dated 20 Aug 20 (Exhibit AB), the applicant requested reconsideration of his case.  He reiterated the circumstances of his promotion to lieutenant colonel by special selection board and his lack of opportunity to build a record prior to meeting the colonel promotion selection board, resulting in non-selection.  Believing he had no chance to progress in his career, he retired with just over 20 years active duty service.  Upon learning of the “time to build a record policy,” the applicant requested the AFBCMR provide him the same chance to build a record as they had routinely done for others, but was denied and advised to take his case to civil court for resolution.  The applicant contended the court denied any injustice, stating the statute of limitation had expired and no action was possible.  The applicant requested the court remand the case back to the AFBCMR, as the AFBCMR is not bound by the statute of limitations and could take any action they deemed necessary “in the interest of justice.”  The court declined to remand the case back to the AFBCMR.  The applicant concluded his request was reasonable, justified, and a logical resolution to reflect a correction that should have been made years earlier.  The AFBCMR’s removal of the initial error in his record resulted in unintended consequences and a follow-on injustice that put an end to his normal career progression and promotion opportunity.  On 7 Oct 20, the AFBCMR notified the applicant by letter (Exhibit AC) that his correspondence was returned without action.  If he wished to have his request considered, he would have to submit a DD Form 149, Application for Correction of Military Record.

On 24 Oct 20, the applicant requested reconsideration of his request to correct his military records to reflect he was continued on active duty as a lieutenant colonel until he reached 28 years active duty service, or alternatively, his direct promotion to colonel and continued on active duty until he reached 30 years active duty service.  He again contended he was denied the opportunity to compete for promotion to the rank of colonel.  In support of his reconsideration request, the applicant submitted his previous letter to the Board, dated 20 Aug 20.  (Exhibit AE)

On 10 Mar 21, the AFBCMR notified the applicant his request for reconsideration was denied as it contained essentially a similar request, which was previously considered and denied by the AFBCMR, and the applicant did not provide new, relevant evidence. (Exhibit AF)

In view of the applicant’s contentions and concerns expressed in his 24 Oct 20 application for correction, and subsequent letters, dated 14 Aug 21 and 10 Nov 21 (Exhibits AG and AI, respectively), and upon review of similar case outcomes, the AFBCMR agreed to reconsider the applicant’s request on their own motion. (Exhibit AJ) 
STATEMENT OF FACTS

On 7 Nov 79, under Docket Number BC-1979-02340, the AFBCMR adjudicated the applicant’s request for correction to his military record to reflect removal of OERs with closeout dates of 31 Dec 75 and 30 Apr 76, correction to verbiage in OERs with closeout dates of 31 Dec 76 and 1 Sep 77, retroactive promotion to lieutenant colonel, with associated pay and benefits, and deletion of any documentation regarding pass over of promotion to lieutenant colonel.  The AFBCMR partially granted his request and directed removal of his OERs with close out dates of 31 Dec 75 and 30 Apr 76, set aside of his previous non-selections to lieutenant colonel, and consideration as a first-time eligible for promotion to lieutenant colonel by the next regularly scheduled selection board, and if selected, given the date of rank he would have received had he been selected by the 21 Aug 78 selection board.

On 14 Feb 83, according to an AFPC/DPPRRP advisory, dated 30 Oct 02, the applicant was considered by an SSB and selected for promotion to lieutenant colonel by the Calendar Year 1978 (CY78) Lieutenant Colonel Selection Board, with an effective date of rank of 1 Oct 79.

On 15 Aug 83, according to an AFPC/DPPPO advisory, dated 4 Oct 02, the applicant was non-selected for promotion to colonel by the CY83 central temporary colonel selection board.

On 24 Aug 83, according to an AFPC/DPPPO advisory, dated 4 Oct 02, the applicant was non-selected for promotion to colonel by an SSB for the CY81 central temporary colonel selection board.

On 22 Feb 84, according to an AFPC/DPPPO advisory, dated 4 Oct 02, the applicant was non-selected for promotion to colonel by an SSB for the CY82 central temporary colonel selection board.

According to an AFPC/DPPRRP advisory, dated 30 Oct 02, due to the applicant’s non-selection for promotion to colonel, and in accordance with Title 10, United States Code, Section 633 (10 U.S.C. § 633), the applicant’s mandatory separation date of 1 Dec 91 was established, for completion of 28 years total active federal commissioned service. 

On 31 Mar 84, the applicant was voluntarily relieved from active duty and retired, effective 1 Apr 84, in the rank of lieutenant colonel.  He was credited with 20 years, 7 months, and 29 days of active service.

The applicant cites the following AFBCMR cases as precedent to grant his request. 

BC-2001-01181: The applicant was involuntarily separated due to being twice-passed over for promotion to lieutenant colonel; AFBCMR action resulted in promotion to lieutenant colonel and reinstatement to active duty creating a gap in his records.  The Board concluded, “…Retroactive dating to establish new dates of rank and pay dates to rectify errors or injustices is an integral part of the correction process.  Yet, the downside of that process is that the officer qualifies for promotion consideration without having had the opportunity to build the record of performance that has been an ongoing process for his contemporaries.  Nevertheless, when it becomes necessary to effect corrections involving the establishment of retroactive dates of rank, once made, those correction must be accepted as final and conclusive for all purposes.  Just as importantly, the process must end.  Not every potential contingency or byproduct of the correction process can be remedied.”  The applicant is this case sought relief via the AFBCMR process within 18 months of the error/injustice.
 
BC-2004-02317: The applicant was involuntarily separated due to being twice-passed over for promotion to major; AFBCMR action returned the applicant to active duty and removed three officer performance reports, leaving a gap in his records, so the Board removed his previous non-selections and gave him time to build his record before his next board.  The applicant sought relief via the  AFBCMR within 5 months of the error/injustice.

BC-1996-02325:  The applicant’s request for direct promotion to colonel is the only similarity with this current applicant, with very different circumstances (to include a remand by the court).  It was included to demonstrate the AFBCMR’s ability to approve a direct promotion to colonel.

BC-2002-00938: The applicant was directly promoted to lieutenant colonel due to the inability to fairly compete with other eligibles due to limited OERs in his record.  This applicant states he also had “no” OERs as a lieutenant colonel in his record to compete.  However, the difference is his OERs existed with the erroneous rank of major (which could be administratively corrected) while the applicant in the cited case had only two OERs due to a five-year break in service.  The applicant in this the cited case sought relief via the AFBCMR within 3 years of retirement from active service.

APPLICABLE AUTHORITY/GUIDANCE

10 U.S.C. § 633, Retirement for years of service: regular lieutenant colonels and commanders,  mandates retirement for lieutenant colonels not on a promotion list to colonel after 28 years of active commissioned service, except for certain officers in the Navy or Marine Corps who are either limited duty officers or permanent professors at the United States Naval Academy.

10 U.S.C. § 634, Retirement for years of service: regular colonels and Navy captains, mandates retirement for colonels not on a promotion list to brigadier general after 30 years of active commissioned service, except for certain officers in the Navy or Marine Corps who are either limited duty officers or permanent professors at the United States.

FINDINGS AND CONCLUSION

1.  The application was not timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After an extensive review of the entire case and all Exhibits, to include the cited AFBCMR cases, the Board remains unconvinced the evidence presented demonstrates an error or injustice.  The applicant contends the corrections the Board previously made to his record failed to provide him full and fitting relief.  While the Board can agree the relief previously granted by the Board may not be perfect, the ability of the Board to craft relief that will make an applicant completely whole is often times limited by the very circumstances of the case.  The applicant requested records correction in 1979, which resulted in an SSB and subsequent promotion to lieutenant colonel.  In 1984, he voluntarily retired in the rank of lieutenant colonel, knowing he could have served until 1991.  The Board in 2003 conceded the applicant’s retroactive promotion to lieutenant colonel and subsequent consideration for promotion to colonel without sufficient time to build an adequate record of performance as a lieutenant colonel precluded him from being able to fairly compete for promotion to colonel against his peers.  Nevertheless, that Board found no evidence the applicant timely sought any additional relief from the Board prior to his retirement in 1984, and had he done so, the Board may have afforded him some equitable form of relief.  However, in the Board’s view, the applicant’s lack of due diligence regarding this matter mitigated against any such action for relief.  
The applicant cites Wilhelmus v. Geren and contends Courts have ruled the Board must treat similarly situated applicants equally.  He then cites four AFBCMR cases he asserts are similar to his case.  The Board, which serves on behalf of the Secretary of the Air Force, is charged to review each case independently based on the facts and evidence of the specific case. Each case before this Board is considered on its own merits.  While the Board strives for consistency in the manner evidence is evaluated and analyzed, they are not bound to recommend relief in one circumstance simply because the situation being reviewed appears similar to another case.  Accordingly, the Board reviewed the cited cases and determined that although the cited cases do deal with similar issues, such as  applicants in the cited cases were permitted to build a record in their new higher rank, and when not possible, direct promotion to the next highest grade.  However, the circumstances and timing are different.   Specifically, unlike the applicants in the cited cases who submitted their applications within 3 years of the error or injustice, the applicant waited 18 years after his retirement to submit his first series of applications to address his non-selection to the rank of colonel.    The applicant contends his submission was not timely because he only became aware the Board granted relief for similar cases after his former leadership informed him of the precedent.  However, the applicant was aware of the Board process, as evidenced by the relief he received in 1979, and he had ample opportunity to request any additional relief  he deemed necessary prior to his voluntary retirement in 1984. Accordingly, the Board finds insufficient evidence to grant any relief based on precedent. 

Regarding the applicant’s request for direct promotion to the rank of colonel, it appears he is primarily arguing for promotion as restitution for the injustice the Board had previously validated he suffered when the Board panel recommended his OERs be voided, his nonselection to the rank of lieutenant colonel be set aside, and he be considered for promotion to lieutenant colonel via the SSB process. The Board would point out that the relief granted by the Board in 1979 was to provide the applicant, as far as possible, fair and equitable consideration for promotion to the rank of lieutenant colonel.  This was done through the SSB process where the applicant was subsequently selected for promotion to lieutenant colonel based on the strength of his record of performance. The Board normally only substitutes its judgment and authority for that of a duly constituted promotion Board in the most egregious of circumstances where it has been established that an applicant did not and cannot receive fair and equitable promotion consideration and the applicant has strong support validating their qualification for promotion to the higher grade. The Board does not find this to be the case. 

Finally, while the applicant’s case did not meet the criteria for reconsideration, the Board reconsidered the applicant’s request on its own motion and after an exhaustive review of the case file, determined the applicant has not provided any new or relevant evidence to support granting his request. The Board also notes the applicant did not file the application within three years of discovering the alleged error or injustice, as required by Section 1552 of Title 10, United States Code, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  The Board does not find it in the interest of justice to waive the three-year filing requirement.  Therefore, the Board finds the application untimely and recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the application was not timely filed; it would not be in the interest of justice to excuse the delay; and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2002-01061 in Executive Session on 16 Jun 22:

, Panel Chair 
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit AD:	Records of Proceedings, w/ Exhibits A-AC.
Exhibit AE:	Application, DD Form 149, w/atch, dated 24 Oct 20.
Exhibit AF:	Letter, SAF/MRBC, dated 10 Mar 21.
Exhibit AG:	Applicant’s Response, w/atchs, dated 14 Aug 21.
Exhibit AH:	AFBCMR Case Analysis Summary, dated 14 Oct 21.
Exhibit AI:	Applicant’s Response, dated 10 Nov 21.
Exhibit AJ:	Notification of Reconsideration, SAF/MRBC, dated 27 Apr 22.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.