RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2007-02328
						INDEX CODE:  131.00
    						COUNSEL:  
    						HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

He be given immediate promotion to lieutenant colonel.  

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APPLICANT CONTENDS THAT:

On 30 Nov 99, he separated from active duty and returned to active duty on 1 May 02 in the grade of captain.  On 1 Sep 04, he was notified that while on Inactive Ready Reserve status, he was promoted to major by a Reserve Special Selection Board (SSB) with a date of rank (DOR) of 16 Jun 01 and an effective date of 1 May 02.  As a captain, he was not allowed to enroll in Air Command and Staff college classes or hold the duty positions that are the basis for promotion.  His annual Officer Performance Report (OPR) was due just days after notification and the rank was simply changed from captain to major.  He met the in-the-primary-zone (IPZ) lieutenant colonel board with a captain’s OPR and was non-selected.  He requested and was granted the removal of that non-selection.  He was non-selected by the CY06 board and was again granted removal of that non-selection.  Expunging the non-selections does not correct the error since their removal does not erase his DOR or the discrepancies between his DOR and the dates/rank on his OPR.  He is currently meeting boards that are considering majors in the 2003-year group.  This error has affected his career opportunities, subsequent promotions, active duty compensation, retirement benefits and his lifetime financial earnings.  

The applicant’s counsel outlines the applicant’s career and summarizes by stating that as of July 2007, the applicant has over 20 years total active and reserve military service.  He will have three actual years in grade, following notification of promotion to major in September 2004.  Counsel states it is impossible to reconstruct the applicant’s OPR file in some fashion that can get him to a Special Selection Board (SSB) and get him promoted with his peer group.  Counsel recommends the Board exercise direct promotion authority.  

In support of his request, applicant provides a personal statement, counsel’s statement and copies of his OPRs for the period beginning 2 Apr 03 and ending 1 May 07.  

The applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant is currently serving on active duty in the grade of major, with a DOR of 16 Jul 01 and effective date of 1 May 02. 

The following is a resume of the applicant’s OPRs rendered in the grade of major.

	PERIOD ENDING	OVERALL EVALUATION

	 08 Sep 04	       MS
	 08 Sep 05	       MS
   08 Sep 06	       MS
   01 May 07	       MS

He was non-selected to the grade of lieutenant colonel by the CY05A and CY06A Lieutenant Colonel Central Selection Boards (CSBs).  The applicant requested removal of these non-selections which were approved per AFBCMR BC-2005-03054 and AFBCMR BC-2006-02116.  The applicant has one non-selection to the grade of lieutenant colonel by the CY06C CSB.  

The remaining relevant facts pertaining to this application, extracted from the applicant's military records, are contained in the letters prepared by the appropriate offices of the Air Force at Exhibit C and D.  

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AIR FORCE EVALUATIONS:

AFPC/DPPPO recommends denial.  DPPPO states the applicant was selected for promotion to major by the CY97C Major Central Selection Board (CSB).  Based on his sequence number he would have pinned on 1 May 98.  On 19 Sep 97, applicant signed a promotion declination statement.  The applicant met and was non-selected above-the-primary zone (APZ) for promotion to major by the CY99A Major CSB.  The applicant was selected for continuation by the CY99A Captain (Line) Selective Continuation Board and offered continuation to 20 years total active federal commissioned service.  The applicant failed to accept continuation and separated on the mandatory date of separation of 30 Nov 99, waiving all outstanding active duty service commitments and entitling him to separation pay.  On 17 Jan 02, the applicant requested to return to active duty under the Voluntary Recall Program.  His return was approved as an exception to policy as he was a twice deferred officer.  The applicant was returned to active duty on 1 May 02 as a captain with a date of rank of 26 Aug 90.  He met the CY03A and CY03B Major CSB as an APZ candidate and was non-selected for promotion.  DPPPO advises that in late Aug 04, the Air Reserve Personnel Center advised them that the applicant had met a Reserve SSB in 2003 and was promoted to the grade of major with a date of rank and effective date of 1 Oct 00.  Based on his DOR as a major, he was eligible to meet the CY05A Lt Colonel CSB as an IPZ candidate.  He was non-selected for promotion and subsequently requested removal of the non-selection which was approved per AFBCMR BC-2005-03054.  He was again eligible as an IPZ candidate for the CY06A Lt Colonel CSB and was non-selected.  He requested removal of the non-selection which was approved per AFBCMR BC-2006-02116.  The applicant met the CY06C Lt Colonel CSB as an IPZ candidate and was non-selected.  

DPPPO advises that not all officers have the opportunity to attend resident Developmental Education (DE).  Approximately 20% of major selects are also selected as candidates (selects) to attend a resident DE program and although their promotion selection rate to lieutenant colonel is high; it is not a 100% select rate.  DPPPO states there is no evidence to suggest had the applicant remained on active duty and competed with his peers for promotion to lieutenant colonel or returned to active duty as a major, that he would have been selected for promotion to lieutenant colonel.  The applicant’s situation and competitiveness for promotion are no different than many other officers who are promoted by an SSB with a retroactive backdated DOR and miss their primary promotion board.  Given the fact the applicant was able to compete IPZ twice after two non-selections provided him the time necessary to be competitive and earn a “DP” recommendation.  Additionally, advises DPPPO, the applicant wrote a letter to the CY05A and CY06C boards explaining the circumstances behind his record.  

The AFPC/DPPPO complete evaluation is at Exhibit C.

AFPC/JA recommends denial.  JA advises to the extent that the sequence of events surrounding his return to duty and promotion to major created unfairness in his competing for promotion, the Board appropriately addressed that problem and provided full and fitting relief by removing from his record his first two promotion non-selections and returning him to IPZ status.  JA states that in light of the applicant’s initial decision to leave the Air Force, his decision to return despite the full disclosure by the Air Force of the probable promotion hurdles he would face, and the actions taken by this Board heretofore to provide the applicant with a competitive opportunity, JA does not believe the applicant is the victim of any error or injustice warranting corrective action.  The AFPC/JA complete evaluation is at Exhibit D. 

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APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

Counsel states that the Air Force set the applicant up so that he could not possibly be promoted under the factual situation that he was in.  There is no sound way to correct the applicant’s case except to directly promote him and provide him an opportunity to compete with his peers for colonel.  Counsel’s complete response 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 an error or injustice.  Based on two previous applications, the Board removed two non-selections to the grade of lieutenant colonel.  The applicant contends, in essence, that by solely removing these non-selections, it does not correct the discrepancies in his record, but negatively affects his promotion opportunities.  Given the fact that he was subsequently able to compete for IPZ promotion after both non-selections were removed, it is our opinion that he has been provided the appropriate time necessary to build a competitive record.  Therefore, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their conclusions as basis for our findings that the applicant has failed to sustain his burden of proof of an error in this case.  Additionally, finding no evidence that he has been treated differently than similarly situated officers, we do not believe he has been the victim of an injustice.  In view of the above and in the absence of any evidence that the record placed before the selection board in question was erroneous or misleading, we have no basis upon which to favorably consider his request.

4.  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 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 Docket Number 2007-02328 in Executive Session on 10 Jan 08, under the provisions of AFI 36‑2603:

The following documentary evidence pertaining to Docket Number BC-2007-02328 was considered:

     Exhibit A.  DD Form 149, dated 16 Jul 07, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, ARPC/DPPPO, dated 1 Oct 07.
     Exhibit D.  Letter, AFPC/JA, dated 17 Oct 07
     Exhibit E.  Letter, SAF/MRBR, dated 19 Oct 07.
     Exhibit F.  Letter, Counsel, dated 20 Nov 07.