RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-00977
		INDEX CODE:  128.08
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

She be entitled to receive separation pay.

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APPLICANT CONTENDS THAT:

Upon applying for separation she was never informed that she would have to meet and not be selected by a second selection board for lieutenant colonel to be eligible for separation pay.  She was not informed about her potential eligibility for separation pay prior to meeting the board by her chain of command.  When she submitted her request for separation it was not her desire to meet a second lieutenant colonel board.  Because of her desire to remain in the Reserves, she did not want to have "twice passed over" on her records.  By forcing her to meet the board she was subjected to the negative repercussions of the board and not afforded the same benefit of other officers who were twice passed over.  She was offered continuation to 20 years but elected to separate for family reasons.  However, if she declined continuation, she was not entitled to separation pay although any other officer who was twice passed over who had not submitted separation papers was entitled.  

Had she been briefed of her eligibility to meet the lieutenant colonel board and potentially receive separation pay she would have waited to submit her request for separation.  Her date of separation (DOS) fell 5 months after the board met.  Applicant believes the intent of separation pay is to provide compensation to someone who served almost 18 years in the service and will not receive retirement pay due to other circumstances.  Although other officers may separate at the same time she does, because they knew to wait until the board results they are eligible for separation pay and she is not.  She realizes ignorance is no excuse; however, ignorance in this case was due to a failure in the system.  She received numerous briefings and counseling prior to her separation; however the Air Force should have done a better job in this area.  The mistake is costing her over $100,000.  Upon receiving the board results, she received a letter stating she was entitled to separation pay, yet she was later informed that she was not entitled to the pay because she submitted her separation papers prior to the board date.  

In support of her request, applicant provided a personal statement, documentation associated with her nonselection for promotion action, a memorandum from her commander, and a memorandum from a Military Personnel Flight technician.  Her complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant was appointed a second lieutenant, Reserve of the Air Force on 20 Dec 85 and was voluntarily ordered to extended active duty on 14 Apr 86.  She was progressively promoted to the grade of major, having assumed that grade effective and with a date of rank of 1 Nov 97.  

She was considered and not selected for promotion to the grade of lieutenant colonel by the Calendar Year 2001B (CY01B) and the CY02B lieutenant colonel selection boards.  She was offered continuation to the sanctuary by the CY02B selective continuation board.  She declined continuation on 17 Feb 03.  She voluntary separated from the Air Force on 1 Mar 03.  She served 16 years, 10 months, and 18 days on active duty.

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AIR FORCE EVALUATION:

AFPC/DPPPO states that applicant received her first nonselection and was provided a fact sheet indicating that provided she remain eligible she would be considered for promotion by the next lieutenant colonel board.  Eligibility for the 12 Nov 02 lieutenant colonel board was announced 150 days prior to the board convening.  She would have known o/a 14 Jun 02 she was meeting that board.  She was considered and not selected by the 12 Nov 02 board and was offered continuation to sanctuary.  She declined continuation on 17 Feb 03.  The mandatory date of separation for those officers who declined continuation is 31 Jul 03.  She voluntarily separated on 1 Mar 03.  The DPPPO evaluation is at Exhibit C.

AFPC/DPPRS recommends denial.  DPPRS states that in accordance with AFI 36-3207, officers who request voluntary separation are not entitled to separation pay.  She states she submitted her papers to separate because she did not desire to meet a second lieutenant colonel board.  Since her separation date of 31 Mar 03 was later than the CY02B board (12 Nov 02) plus 90 days, she was eligible to meet the board.  Based on separation policy and a legal opinion, along with controlling provisions and applicable laws, an approved voluntary separation takes precedence.  If an officer establishes, prior to announcement of selection board results or convening, a voluntary date of separation that is earlier than the mandatory date of separation resulting from the selection board results, then the earlier voluntary DOS is enforced and the officer is denied involuntary separation entitlements.  This is the intent of the law because the officer's separation has not been required or accelerated by the second nonselection.  The DPPRS evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states that during her counseling session there was no discussion about her vulnerability for future boards or continuation.  Her counseling session was to discuss what in her performance reports made her less competitive and what would be needed to make her more competitive for promotion.  When she was informed that she was meeting a promotion board she contacted the MPF to find out why she was meeting a board when she had an upcoming DOS.  She was informed that since her DOS was over 90 days from the board date, she was eligible to meet the board.  She could have changed her DOS in order to render her ineligible, but felt that for financial reasons she needed to keep working.  So she hoped the results of the board would not have a negative impact on her search for a Reserve position.  DPPRS is incorrect in stating that she submitted her request for separation because she did not desire to meet a promotion board.  She elected to separate for family reasons and did not accept continuation for those same reasons.  She provided letters from the MPF and her supervisor which confirmed that she was never informed of her potential eligibility for separation pay.  Given the nature of her voluntary separation status, she would have delayed submitting her separation papers had she known she would have been eligible for separation pay.  She should have been informed about the potential for meeting a board and receiving separation pay.  That is her assertion of an injustice.  

Her complete submission is at Exhibit F.

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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.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  After careful review of the evidence presented, the Board majority believes that relief is warranted in this case.  Applicant states that prior to making her decision to voluntarily separate from the Air Force, she was not informed about her eligibility to meet a second lieutenant colonel board or her potential eligibility to receive separation pay.  In support of her request she provided statements from her commander and from a Military Personnel Flight technician which state that they failed to properly counsel the applicant regarding her promotion board eligibility and the options and entitlements that were available to her.  The Board majority believes it is inconceivable that had she been properly counseled regarding her eligibility to meet a second lieutenant colonel selection board and that nonselection would render her eligible for separation pay, she would not have declined continuation and submitted her request for voluntary separation.  The Board majority believes that there is no other way to explain why the applicant elected to voluntarily separate and render herself ineligible for separation pay.  The Board majority believes that the applicant has demonstrated reasonable doubt exists in this matter, and further believes that any doubt should be resolved in her favor.  Accordingly, the Board majority recommends that her records be corrected as indicated below.  

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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:

a.  Her request for voluntary separation to be effective on 1 March 2003 be declared void.

b.  As a result of her second nonselection for promotion to the grade of lieutenant colonel by the Calendar Year 2002B Central Lieutenant Colonel Selection Board, a mandatory involuntary date of separation of 31 July 2003 was established.

c.  On 5 February 2003, she requested, and competent authority approved, an earlier involuntary date of separation effective 1 March 2003.

d.  On 1 March 2003, the applicant was discharged from active duty; and, upon her agreement to serve in the Ready Reserve for a period of not less than three years following separation from active duty, she be entitled to full separation pay.

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The following members of the Board considered AFBCMR Docket Number BC-2003-00977 in Executive Session on 21 Aug 03, under the provisions of AFI 36‑2603:

Panel Chair
Member
Member

By a majority vote, the Board voted to grant the applicant's request.  Ms. Romine voted to deny the request.  In her opinion, the applicant had ample time to determine what options were available to her and elected to decline continuation and voluntarily separate for personal reasons.  Her ineligibility to receive separation pay was a consequence of her decision and the applicant has not provided plausible evidence that she has suffered an injustice.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 14 Mar 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPPO, dated 11 Jun 03, w/atchs.
    Exhibit D.  Letter, AFPC/DPPRS, not dated, w/atchs.
    Exhibit E.  Letter, SAF/MRBR, dated 3 Jul 03.
    Exhibit F.  Letter, Applicant, dated 15 Jul 03, w/atchs

					
								Panel Chair

AFBCMR BC-2003-00977

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 APPLICANT, be corrected to show that:

		a.  Her request for voluntary separation to be effective on 1 March 2003, be, and hereby is, declared void.

		b.  As a result of her second nonselection for promotion to the grade of lieutenant colonel by the Calendar Year 2002B Central Lieutenant Colonel Selection Board, a mandatory involuntary date of separation of 31 July 2003 was established.

		c.  On 5 February 2003, she requested, and competent authority approved, an earlier involuntary date of separation effective 1 March 2003.

		d.  On 1 March 2003, the applicant was discharged from active duty; and, upon her agreement to serve in the Ready Reserve for a period of not less than three years following separation from active duty, she be entitled to full separation pay.

							
							Director
							Air Force Review Boards Agency