RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2007-02544
		INDEX CODE:  110.02
	 	COUNSEL:  XXXXXX
		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

Her reenlistment (RE) code of 3E (second-term or career airman who refused to get retainability for training or retraining or declined to attend Professional Military Education (PME)) be corrected to allow her to reenlist and test for promotion.

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APPLICANT CONTENDS THAT:

Her current Air Force Specialty Code (AFSC) and rank made her subject to the Air Force Noncommissioned Officer Retraining Program (NCORP).  She was correctly notified during Phase I of the program and complied with its requirements.  She was then subject to Phase II of the program.  However, the Air Force failed to notify her of her selection under Phase II of the program until months after the deadline for her to comply with its requirements.

Despite the fact that the Air Force is aware that it failed to properly notify her in accordance with the program, her reenlistment status was changed to prevent her from reenlisting (or testing for promotion).  Although she made every effort through her military personnel flight (MPF) and her chain of command, she was directed to take her case to the AFBCMR.

In support of her request, the applicant provided a copy of a Letter of Appeal to AU/CC, dated 26 Jun 07 with attachments, and AU/CC’s response to the Letter of Appeal, dated 26 Jul 07, with attachments.

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 with the Air Force in the grade of technical sergeant.  Her total active federal military service date is 8 Feb 95.  

On 27 Jul 06, the applicant was notified she was a candidate under NCORP Phase I (voluntary) which started 26 Jul 06 and terminated 18 Sep 06.  The notification advised candidates that if voluntary targets were not met in certain AFSC’s, Phase II (involuntary) would be implemented.

NCORP Phase II was implemented on 3 Jan 07 and terminated on    31 Mar 07.  All NCOs identified as vulnerable were given until  15 Jan 07 to submit an initial request, followed by a suspense of 28 Feb 07 to submit a completed application.  

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AIR FORCE EVALUATION:

AFPC/DPPAE recommends denial of the applicant’s request.  As stated by the applicant’s legal counsel, the applicant was aware of the NCORP Phase I and chose not to apply during the voluntary phase because the career choices available were not in her best interest. Therefore, she elected to take a wait and see approach and wait for Phase II.  Contrary to the applicant’s position that she did not get notification from the CSS or other base officials, she actually received no less than two notifications.  On 8 Jan 07, the applicant’s Superintendent forwarded an e-mail, subject:  “FY07 NCO Retraining Program (NCORP) Phase II Implementation” to all CCAF/Enlisted personnel.  In the e-mail, the applicant was urged to take action.  The applicant disregarded the e-mail from her Superintendent.  The NCORP memorandum, dated Thursday, 27 Jul 07, was sent by the MPF, was received, and was disregarded by the applicant.  The applicant’s own supporting documentation states she received the NCORP program memorandum.  As such there is no error or injustice.  The applicant failed to submit her application in accordance with program guidance; therefore, the 3E RE code is correct.

The complete AFPC/DPPAE evaluation, with attachments, is at Exhibit B.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel states the DPPAE response added nothing of value and DPPAE elected not to address the Air Force’s uncontested failure to properly notify APPLICANT in accordance with Phase II of the NCORP guidance.  Additionally, DPPAE provided the Board with an erroneous summary of the applicant’s position regarding this action.   

The issue is not whether or not the applicant received “notice,” or whether or not she should have exercised her regulatory options.  It is whether or not the applicant received “notice” as defined in Phase II of the program.  The evidence is clear she did not.  The NCORP guidance reads in relevant parts…”CSS are charged to notify each individual identified under FY07 NCORP Phase II… Commander’s Support Staff (CSSs) must personally counsel each individual identified,” prior to the individual’s responsibility for action in accordance with NCORP guidance.  This guidance is clear and unequivocal; the Air Force failed to comply with said guidance.

The unit CSS did not notify the applicant of her enrollment in Phase II until long after the deadline for her to comply.  This fact is supported by her commander’s memorandum to DPPAE, and is acknowledged by DPPAE in it’s response to the Board.  The CSS could not advise the applicant because they never received the guidance that she needed to be notified, prior to the applicant’s deadline to respond.  

DPPAE’s position is that the applicant’s time in service, knowledge of NCORP, and a group e-mail from her unit’s CCC, combined to constitute personal counseling from a CSS.  This argument is without merit on at least two fronts.  First, it does not comply with NCORP directives.  Second, even if one were to consider this as a permissible alternative notification, the CCC’s group e-mail failed to comply with NCORP guidance, provided by HQ AFPC/DPSOOC.  

Despite its attempts to the contrary, the Air Force cannot be allowed to repeatedly ignore its own directives, and then advise this Board that the applicant, not the Air Force, had a duty to comply with the mandates of the program.  Such a result allows the Air Force to hold an airman responsible under a theory of lack of due diligence, while waiving its own gross negligence.

The applicant’s complete response is at Exhibit D.

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THE BOARD DETERMINED 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.  In this respect, we note the applicant was selected for involuntary retraining under the Noncommissioned Officer Retraining Program (NCORP) and was required to submit necessary documentation to determine her qualification/suitability for involuntary retraining to AFPC by 28 Feb 07, or be determined to have declined retraining and face mandatory separation.  Although DPPAE states the applicant was notified on two occasions, we are persuaded that proper notification procedures were not followed and that the applicant was not properly notified.  Accordingly, it is our opinion that her records should be corrected as indicated below.

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 issues involved.  Therefore, the request for a hearing is not favorably considered.

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THE BOARD RECOMMENDS THAT:  

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that on          28 February 2007, her reenlistment eligibility (RE) code was 1M.

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The following members of the Board considered AFBCMR Docket Number BC-2007-02544 in Executive Session on 27 February 2008, 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, w/atchs, dated 8 Aug 07.
     Exhibit B.  AFPC/DPPAE Memorandum, w/atchs, dated 21 Aug 07.
     Exhibit C.  SAF/MRBR Letter, dated 19 Oct 07.
     Exhibit D.  Applicant’s Rebuttal, dated 29 Oct 07.