RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-00089
		INDEX CODE:  131.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His records be corrected to show that his reserve promotion to captain was upon entry to active duty.

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APPLICANT CONTENDS THAT:

While in the Reserves (Educational Delay) his date of rank as first lieutenant was recorded incorrectly.  As a result, he was not considered for promotion to captain while in the Reserves, which has effected his appropriate rank upon return to active duty.  He requests ARPC to review his record and amend as necessary.

In support of the appeal, applicant submits a copy of his Reserve Order, AF Form 766, Extended Active Duty Order, and AF Form 973, Request and Authorization for Change of Administrative Orders.

Applicant's complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

The applicant was assigned USAFR, Obligated Reserve Section (ORS) while completing his education prior to completing his extended active duty (EAD) commitment.  He did not have an assignment that required any Reserve participation; therefore, he could not have any documentation of performance (Officer Performance Reports).  While in this status, he was eligible for and received promotion from second lieutenant to first lieutenant.  This promotion was effective on the second anniversary of his commission, 16 May 1999.

On 31 October 2002, he entered extended active duty in the grade of first lieutenant and promoted to the grade of captain on 31 March 2003.

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AIR FORCE EVALUATION:

ARPC/DPB states that the time-in grade (TIG) requirement for promotion eligibility to captain was changed December 2001 from 4 years TIG to 2 years TIG as a 1st lieutenant.  This change affected the FY03 Line and Health Professions Captain (other than Selected Reserve) Selection Board, which convened 24 June 2002.  The applicant’s promotion order was published October 2002, after the selection board adjourned.

The applicant is eligible for special selection board (SSB) consideration by the FY03 Captain (other than Selected Reserve) Selection Board. However, the applicant was assigned to ORS; no participation, no performance and therefore no performance reports.  His Officer Selection Folder would be blank.  There would be nothing for a selection board to use to judge potential to serve in a higher grade.  Historically, when presented with an empty selection folder, the selection board has not selected the officer for promotion.  Therefore, they recommend denial of the applicant’s request.

They further note that the USAF (all components) has changed the way 1st lieutenants will receive promotion.  Effective this calendar year, promotion to the grade of captain is by exception.  The lieutenant is promotable unless his/her senior rater believes the officer is not ready for promotion and prepares an AF Form 709, Promotion Recommendation marked “Do Not Promote” and the management level review board agrees with the senior rater’s recommendation.  If the DNP is not prepared, the officer is placed on the appropriate select list, pending approval by the President, and assigned a date of rank and effective date for assuming the higher grade.  The applicant will be evaluated by his active duty senior rater for promotion along with his USAF peers.

A complete copy of the evaluation is attached at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 14 February 2003, a copy of the Air Force evaluation was forwarded to the applicant for review and response within 30 days.  As of this date, no response has been received by this office.

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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 an error or injustice warranting applicant’s promotion to the Reserve grade of captain prior to his entrance on active duty.  Applicant is correct that due to his date of rank to the grade of first lieutenant being incorrect, he was not considered for promotion to the grade of captain prior to entering active duty.  He believes that he should be promoted to the Reserve of captain.  We disagree.  In this regard, we note that had the applicant’s date of rank to the grade of first lieutenant been correct, he would have been eligible for promotion consideration by the FY03 Captain Selection Board which convened on 24 June 2002.  Therefore, we recommend he be considered for promotion to the grade of captain by Special Selection Board (SSB) for the FY03 selection board.  While we note the comments provided by the Air Force concerning applicant having no participation and no performance reports, the fact remains that he was entitled to promotion consideration by the FY03 selection board.  We believe that recommending his direct promotion to the grade of captain is not justified since no documents have been added or deleted from his records.  The only change is his date of rank to the grade of first lieutenant.  His record will appear before the SSB as any other officer’s record similar situated.  Therefore, his request for promotion to the grade of captain through the correction of records process is not favorably consideration.  However, as stated above, he is entitled to SSB consideration by the FY03 selection board.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that he was promoted to the Reserve grade of captain effective and with a date of rank of 1 October 2002, and he was voluntarily ordered to enter active duty on 31 October 2002 in the grade of captain, rather than in the grade of first lieutenant.

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The following members of the Board considered this application in Executive Session on 9 July 2003, under the provisions of AFI 36-2603:

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

   Exhibit A.  DD Form 149, dated 10 Jan 03, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, ARPC/DPB, dated 30 Jan 03.
   Exhibit D.  Letter, SAF/MRBR, dated 13 Feb 03.

                                   

AFBCMR BC-2003-00089
INDEX CODE:  131.00

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to, be corrected to show that he was promoted to the Reserve grade of captain effective and with a date of rank of 1 October 2002, and he was voluntarily ordered to enter active duty on 31 October 2002 in the grade of captain, rather than in the grade of first lieutenant.

                                                                        
MEMORANDUM FOR	THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
SUBJECT:	AFBCMR Case of, Docket No. BC-2003-00089
I have carefully reviewed all the circumstances of this case and do not agree with the panel’s view that the applicant would be provided proper and fitting relief by placing his Officer Selection Record (OSR) before a Special Selection Board (SSB) for promotion consideration by the FY 2003 Line and Health Professions Captain (other than Selected Reserve) Selection Board.  Rather, after a careful review of the available records, I believe a Secretarial promotion is warranted in this case.
I have previously asserted the belief that, in order to justify a Secretarial promotion, there must be evidence the officer has suffered an error or an injustice, and there is persuasive evidence the officer’s record cannot be fairly considered by a duly constituted selection board.  My analysis of this case leads me to conclude the applicant’s case is so exceptional, an SSB cannot reach a fair decision, and the extraordinary solution of a directed promotion is warranted.  My belief is based on the fact that the applicant would have no record of performance for an SSB to review.  Because of this, and the high select rate for officers before the FY 2003 Air Force Captain Selection Board, and in view of the fact that the applicant was selected for promotion shortly after his entry on active duty, I believe any doubt in this matter should be resolved in his favor.  Therefore, the applicant’s records should be corrected to show he was promoted by the subject board and entered active duty as a captain, rather than as a first lieutenant.
In arriving at my decision, I am aware that the courts have held that the Board has an abiding moral sanction to determine, insofar as possible, the true nature of an alleged injustice and to take steps to grant thorough and fitting relief.  I am also aware that this case has been reviewed by the Office of the General Counsel.  In addition to having no legal objection to the relief being granted, that office believes this is an appropriate case for direct promotion.