RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBERS:  BC-2003-01747
		INDEX CODE 131.00
	 	COUNSEL:  None

	 	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

His promotion line number to technical sergeant (TSgt) be reinstated with a date of rank (DOR) of 1 Jun 02.

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APPLICANT CONTENDS THAT:

--- Military Personnel Flight (MPF) miscounseled him and did not provide the mandatory Enlisted Overseas Returnee Counseling Handout. If he had been properly informed he would have been aware of his three options: (1) obtain required service retainability to receive permanent change of station (PCS)/temporary duty (TDY)/training consideration, (2) decline retainability by completing an AF Form 964 or (3) apply for separation/retirement to coincide with his DEROS (Date Eligible for Return from Overseas). He unfortunately chose the second option when he should have chosen the third. According to AFPC, he could not start his separation process until six months before his DOS. This process would have started in mid-June or early July and he would need to sign an AF Form 964. The form would have had no affect on his promotion then since he would have been promoted on 1 June. The lack of the handout was the first mistake and set the events. In Feb 02, he read the line in the AF Form 964 indicating he would be ineligible for promotion. He specifically asked during the mass briefing if his signing the form would negatively affect his promotion and was told it would not. As a result, he marked and signed the form indicating he did not wish to PCS. It wasn’t until Oct 02, after his deployment and injury and when he was preparing to separate that he noticed the rank/pay problem on his leave and earnings statement (LES). He hadn’t thought there was a problem as he had a promotion ceremony at his deployed location and his MPF issued a new ID card.

The applicant provides a statement from a fellow attendee at the mass briefing. His complete submission, with attachment, is at Exhibit A. 

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STATEMENT OF FACTS:

If on or after the Promotion Eligibility Cutoff Date (PECD) for a particular promotion cycle a career airman applies for retirement in lieu of or declines to extend or reenlist to obtain service retainability for a controlled assignment, PCS, and retraining, he/she becomes ineligible for promotion consideration. AFI 36-2502, Table 1.1, Rule 3, stipulates that airmen who decline retainability to accept an assignment become ineligible for promotion consideration and are not eligible for promotion consideration until HQ AFPC/DPAAD withdraws the assignment declination. The member becomes eligible for promotion consideration for future cycles as along as he is otherwise eligible. 

The stated purpose of the AF Form 964, PCS, TDY, or Training Declination Statement, is to record a member’s declination to reenlist or extend to obtain retainability to satisfy the requirements for a reassignment, TDY or training for which selected and to acknowledge counseling on career impact of such action. In signing the form, the member further attests to his full understanding that he is “ineligible for promotion for the remainder of [his] enlistment including any extension already approved.”

The applicant enlisted in the Regular Air Force on 1 Dec 92, and was ultimately promoted to staff sergeant on 1 Aug 97. During the period in question, he was an F-15 avionics team leader at -----.

The applicant tested for promotion to TSgt for cycle 01E6 on 14 Mar 01 and was selected for promotion on 29 May 01 with a projected DOR of 1 Jun 02.

In Sep 01, the applicant received his DEROS Option RIP. He had a DEROS of 9 Dec 02 and a date of separation (DOS) of 27 Dec 02. 

On 26 Feb 02, after attending a mass briefing for people having a DEROS within a specific timeframe, the applicant signed an AF Form 964 declination statement. He also initialed his understanding at Items a. through e. This included Items b., b(1) and b(2), indicating understanding with regard to retainability and his ineligibility for reenlistment and for promotion for the remainder of his enlistment. (See Exhibit B.) As a result of his declination, the applicant’s projected promotion to TSgt by cycle 01E6 was revoked and he was rendered ineligible for promotion consideration by cycle 02E6.

On 11 Jul 02, the applicant requested separation effective 27 Dec 02 (his original DOS), with a terminal leave start date of 7 Nov 02. His request was approved.

On 7 Nov 02, the applicant apparently filed an inspector general (IG) complaint, alleging he specifically asked the briefer if his initials on the AF Form 964 would cancel his promotion and that her response was “No”. In a 15 Nov 02 letter to the applicant, the Superintendent of the --rd Wing IG with the Pacific Air Forces (PACAF) advised that, following an interview, the briefer denied having the conversation with the applicant and asserted she had briefed countless individuals regarding declination statements and was well aware of the ramifications. The IG added the conversation was irrelevant because the applicant initialed in two areas on the form, which outlines promotion ineligibility. Further, the IG asserted the applicant received a copy of the handout when he received his DEROS option RIP in Sep 01. The handout directed him to the MPF for counsel if his desire was to separate. As a result, his case was dismissed.

The applicant apparently retracted his original AF Form 964 and reenlisted on 27 Nov 02 for five years and one month, giving him a new DOS of 26 Dec 07.

On 2 Dec 02, the applicant requested his commanders that his promotion to TSgt be reinstated in accordance with AFI 36-2502, para. 3.3.3, but with his original DOR of 1 Jun 02.

On 23 Dec 02, the SAF/IG notified the applicant that the -- Wing IG had transferred his complaints and requested assistance in reinstating his rank through HQ AFPC. The SAF/IG suggested the applicant file an appeal with the AFBCMR.

On 4 Mar 03, HQ AFPC/DPP advised HQ PACAF/DP that they could not favorably support reinstatement of the applicant’s promotion sequence number because it would give him an unfair advantage over other individuals in the same position. At the time, there were 923 individuals who were ineligible for promotion consideration due to assignment declination for cycle 01E6.

The applicant again tested and was selected for TSgt in the 03E6 cycle and has an estimated DOR of around 1 Oct 03.

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AIR FORCE EVALUATION:

HQ AFPC/CD notes the applicant’s own statement indicates the AF Form 964 he signed indicated he would be ineligible for promotion for the remainder of his enlistment. Documents from the 3rd Wing IG reflect the briefer was interviewed and no miscounseling found. Further, the applicant received the Enlisted Oversea Returnee Counseling Handout when he received his DEROS Option RIP in Sep 01. Based on all the factors they are able to substantiate, it seems everything accomplished by the MPF was correct. The applicant read and signed the AF Form 964 and must bear personal responsibility in what has happened. Disapproval is recommended.

A complete copy of the evaluation is at Exhibit C.

HQ AFPC/DPPPWB contends that when the applicant signed the form, he acknowledged the loss of promotion eligibility and verified he read the rules in the applicable directives. The form clearly states it is not to be signed without a complete understanding of its effects on one’s career. He made a conscious decision to decline the retainability assignment knowing the consequences of his decision, i.e., loss of promotion and reenlistment eligibility. This action canceled his projected promotion to TSgt. Denial is recommended.

A complete copy of the evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant questions how the IG team determined the briefer did not miscounsel him when his witness was not contacted. Further, he did not receive a copy of the handout with his DEROS Option RIP and he asks how the briefer would know whether he got one or not as it was not her job to personally hand out either document. He challenges the IG to interview members of his former flight and see how many people actually receive the handout. He takes offense to the advisory’s personal responsibility statement when MPF personnel can counsel incorrectly or incompetently yet bear no responsibility whatsoever. If he had been given correct information, he would not have signed the form but would have proceeded to Separations instead, which was his intent in the first place. He also questions the outdated AFR referenced on the AF Form 964 as governing directives have been replaced by AFIs. It was his intention to separate at his 27 Dec 02 DOS, which he assumed an AF Form 964 would allow him to do. He submits his Stop Loss Member’s Statement of Intent, which was not signed sooner as he was deployed for approximately 180 days. He has retested and will be promoted to TSgt around 1 Sep 03. He hopes the series of mistakes leads to a favorable decision on his DOR.

A complete copy of applicant’s response, with attachment, 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.	Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. After a thorough review of the evidence of record and the applicant’s submission, a majority of the Board is not persuaded that his promotion to TSgt with a DOR of 1 Jun 02 should be reinstated. The statement from a fellow briefing attendee was noted. However, the -- Wing, HQ AFPC, and SAF IG offices apparently were satisfied the applicant was not miscounseled and understood his promotion ineligibility.  The Board majority allows that possibly the briefer may have misunderstood the applicant’s question or the applicant may have misunderstood the briefer’s answer. What is unmistakable to the majority of the Board is the applicant signed and initialed the AF Form 964 indicating he had “full understanding” that his declination made him ineligible for promotion for the remainder of his enlistment. When he signed this form, he acknowledged the loss of promotion eligibility and verified he read the rules of the applicable directives. In fact, the form states that it should not be signed without a complete understanding of its effect on one’s career. The Board majority believes the applicant made a conscious decision to decline retainability for the assignment, knowing the consequences would be loss of both promotion and reenlistment eligibility. He subsequently changed his mind, had the declination statement withdrawn, reenlisted, became eligible for future promotion cycles, and was selected for TSgt by cycle 03E6. To grant this appeal would give the applicant an unfair advantage over hundreds of other individuals ineligible for promotion consideration due to assignment declination for cycle 01E6. The Board majority believes the applicant must bear personal responsibility for his decision and therefore concludes the application should be denied.

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RECOMMENDATION OF THE BOARD:

A majority of the panel finds insufficient evidence of error or injustice and recommends the application be denied.

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The following members of the Board considered this application in Executive Session on 23 September 2003 under the provisions of AFI 36-2603:

By a majority vote, the Board recommended denial of the application.  voted to grant and has submitted a 
Minority Report at Exhibit G.  The following documentary evidence relating to AFBCMR Docket Number BC-2003-01747 was considered:

   Exhibit A.  DD Form 149, dated 14 May 03, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/CD, dated 29 May 03.
   Exhibit D.  Letter, HQ AFPC/DPPPWB, dated 20 Jun 03.
   Exhibit E.  Letter, SAF/MRBR, dated 3 Jul 03.
   Exhibit F.  Letter, Applicant, dated 15 Jul 03, w/atchs.
   Exhibit G.  Minority Report.

                                   Panel Chair

AFBCMR BC-2003-01747
 
MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD 
                                        FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  Minority Report on AFBCMR Application of SSgt       

	The applicant requests that his promotion to technical sergeant (TSgt) by cycle 01E6, with a date of rank (DOR) DOR of 1 June 2002, be reinstated. The applicant alleges the ---Military Personnel Flight (MPF) briefer erroneously told him at a mass DEROS (Date Eligible for Return from Overseas) briefing that signing the AF Form 964 Declination Statement would not adversely impact his line number. A fellow attendee provided a statement confirming both the applicant’s question and the briefer’s answer. Nevertheless, in Executive Session on 23 September 2003, my colleagues concluded the applicant’s request should be denied. 

	The Declination Statement does clearly bear the applicant’s initials and signature attesting to his supposed “full understanding” that he was ineligible for promotion and reenlistment for the remainder of his enlistment.  However, he apparently felt enough confusion to raise the question regarding his pending promotion.  Perhaps there was a misunderstanding with regard to the applicant’s question and the briefer’s answer, but I do not believe the witness’s statement can be disregarded.  The briefer was the resident “expert” and the applicant was reasonable in assuming that what she told him, or what he understood her to have told him, was reliable.  The applicant contends that, contrary to the assertions of the --- Wing IG and the Air Force advisory, he did not receive the Overseas Returnee Counseling Handout.  I also agree with the applicant, and find it disturbing, that the AF Form 964 being used in 2002 still referred individuals to nonexistent Air Force Regulations for guidance when, in fact, these directives had been superceded by Air Force Instructions.  Noting this, why wouldn’t anyone turn to the briefer for clarification?  

	I further believe consideration should be given to the fact that the applicant subsequently had his Declination Statement withdrawn, his promotion and reenlistment eligibility reinstated, and was promoted to TSgt by cycle 03E6. This young enlisted member obviously wants to continue his career in the Air Force.  I don’t believe his experience should be embittered by taking away a promotion he earned in 2001, lost through a misunderstanding, and regained through hard work and effort.  

	I urge that any doubt in this case be resolved in the applicant’s favor and his request be granted. 

						Board Member

AFBCMR  BC-2003-01747

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD 
                                        FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of            

	I have carefully reviewed the evidence of record and the recommendation of the Board members.  A majority found that applicant had not provided sufficient evidence of error or injustice and recommended the case be denied.  I concur with that finding and their conclusion that relief is not warranted.  Accordingly, I accept their recommendation that the application be denied.

	Please advise the applicant accordingly.

						Director
						Air Force Review Boards Agency