RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBERS:  02-02047 #3
		INDEX CODE 131.10  131.05
	 	COUNSEL:  None

	 	HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

He be reinstated to Regular component active duty as if never separated with all entitlements based on a Regular component commission at his current Reserve grade of colonel.

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APPLICANT CONTENDS THAT:

Based on his selection for major by Special Selection Board (SSB), he should be reinstated to active duty in his current Reserve grade of colonel.

His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant was a captain (date of rank 23 Apr 82) assigned to the Air Force Office of Special Investigation (AFOSI) at McGuire AFB, NJ. While on active duty, he was considered in the promotion zone (IPZ) for major by the Calendar Year 1991A (CY91A) Major Central Selection Board Major board, which convened on 8 Jul 91. However, he was not selected.  He elected to separate on 31 Dec 92 under one of the AF’s incentive programs (Special Separation Benefit).

Following separation from active duty, the applicant was tendered an indefinite term of appointment as a Reserve of the Air Force captain, which he accepted. 

On 25 Jan 95, he was notified that the Secretary of the Air Force Inspector General (SAF/IG) had directed the AFOSI to review promotion recommendation processes used in preparing Promotion Recommendation Forms (PRFs) for the CY91A Major board, among others. A designated senior rater had been appointed for the review. The resultant PRF for the applicant reflected the following:  an essentially unchanged job description, a strongly rewritten promotion recommendation, a group size of “1” rather than “N/A,” an upgraded overall recommendation of “DP,” and a senior rater who was a colonel and the AFOSI Director of Resources rather than the brigadier general AFOSI commander. 

As a result of the amended and upgraded PRF, the applicant was considered IPZ by the CY91A SSB on 31 Jul 95. However, he was not selected and was so notified on 29 Sep 95.

In a 6 Feb 96 advisory pertaining to another applicant, HQ USAF/JAG advised, in part, that the group size “1” indicated on PRFs considered by SSBs did not reflect the actual group size of the management level in which the individual competed at his original promotion board. As a result, the SSB could possibly be prejudiced by this error and the group size should be amended to reflect the original “N/A.” 

The applicant submitted an AFBCMR appeal in Sep 98 requesting direct promotion to major by the CY91A board, citing in part the group size of his upgraded PRF.  On 6 Sep 00, the Board denied the applicant a direct promotion to major but did grant him SSB consideration for the CY91A board with his PRF reflecting a group size of “N/A” rather than “1,” in compliance with the HQ USAF/JAG 1996 opinion. A copy of the Record of Proceedings for that case is provided at Tab 1.

On 31 Aug 01, the applicant was notified that the CY01A SSB had selected him for promotion to major effective and with a date of rank of 1 Apr 92. He was advised that, as a result of his selection for retroactive promotion, he could request reinstatement to active duty.

On 9 Mar 02, the applicant was promoted to the Reserve grade of colonel.

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AIR FORCE EVALUATION:

HQ AFPC/DPPPO advised that the applicant separated from active duty as a captain on 31 Dec 92. He is currently a Reserve officer holding the grade of colonel. There are no provisions for the applicant to be reinstated to active duty in his current Reserve grade. If he desires reinstatement based on his promotion through the SSB, he should be reinstated in the grade of major. Once returned to active duty, the applicant will then be eligible to compete for active duty promotions.

A complete copy of the evaluation, with attachment, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant provides background regarding his earlier appeal. For two reasons, the Air Force compelled him to make the unwelcome decision to separate. As revealed by SAF/IG investigations, his command illegally used inappropriate information and procedures to determine his PRF recommendation, and at the time, the Air Force underwent significant personnel downsizing. If he had been promoted in 1991, as he should have been, there is no doubt that he would have remained in the active component rather than transferring to the Reserves. While he cannot state absolutely that he would have been promoted to colonel, the Board should consider his successful Reserve career, wherein he was promoted to that grade. With continued service in the active component and using his Reserve career as an indicator, the Air Force would have promoted him on time in May or Jun 97 to lieutenant colonel over a year earlier than within the Reserve system. A 10-year old retroactive promotion to major does not fully right the wrong done to him. To fully rectify the injustice done requires reinstatement into the active component with an active duty commission in his current grade and an on-time, IPZ active duty promotion to lieutenant colonel.  The recommendations of the Air Force hardly constitute a just result to circumstances over which he had no control.

A complete copy of the applicant’s rebuttal, with attachments, is at Exhibit E. 

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THE BOARD CONCLUDES THAT:

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

2.	The application was timely filed.

3.	Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice to warrant reinstatement in the Regular Air Force in the grade of colonel. Contrary to the Air Force’s assertion, provisions for granting the applicant’s requests exists if the Board recommended direct promotion to lieutenant colonel and colonel following his reinstatement. However, while clear that the applicant would have been selected for promotion to major had the CY91A PRF not been in error and he would have continued his career in the Regular Air Force, he has not proven that subsequent promotions to lieutenant colonel and colonel were guaranteed. His Reserve promotion to colonel is acknowledged, but this does not inherently signify that the same would have occurred in the Regular Air Force. Neither we, nor the applicant for that matter, can know with certainty what the criteria were for his Reserve promotions and whether he would have been competitive for Regular Air Force promotions. In this respect, the applicant has failed to sustain his burden of having suffered either an error or an injustice to the extent of warranting such extraordinary relief.  Therefore, his request for retroactive reinstatement on active duty in his Reserve grade of colonel is not favorably considered.

4.	Notwithstanding the above, we are acutely aware of the wrong done the applicant by the flawed promotion recommendation processes and sympathize with his present circumstances.  We note the applicant had 12 years, 8 months and 8 days of active service when he was discharged on 31 Dec 92 and that he would have had over 20 years of service when he was notified on 31 Aug 01 that he was eligible for reinstatement. While we do not believe the applicant has made his case that promotion to lieutenant colonel and colonel were guaranteed had he remained in the Regular Air Force, he should be aware that there are other options for relief. Specifically, he could request reinstatement in the Regular Air Force and retirement in the grade grade of major at the earliest practicable date. The applicant should also be aware that if he wished to be reinstated and considered for promotion beyond major, the Board has other options available that would allow him to build a record of performance in the grade of major before being considered for lieutenant colonel. 

5.	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.

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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.

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The following members of the Board considered this application in Executive Session on 11 February 2003, under the provisions of AFI 36-2603:

The following documentary evidence relating to AFBCMR Docket Number 02-02047 was considered:

   Exhibit A.  DD Form 149, dated 19 Jun 02, w/atch.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPPO, dated 2 Oct 02, w/atch.
   Exhibit D.  Letter, SAF/MRBR, dated 11 Oct 02.
   Exhibit E.  Letter, Applicant, dated 18 Dec 02, w/atchs.

                                   Panel Chair