RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:	DOCKET NUMBER:	BC-2008-01119 INDEX CODE:	108.09
XXXXXXXXXXXXXX	COUNSEL: NONE HEARING DESIRED: NO

APPLICANT REQUESTS THAT:
He be promoted to the grade of colonel (O-6) with a date of rank of 1 October 2005 with all back pay and allowances due him by regulation. In addition, his mandatory separation date (MSD) be extended until his appeal is finalized by the AFBCMR.

APPLICANT CONTENDS THAT:
Due to an administrative error that was partially corrected by the AFBCMR (Docket Number BC-2006-03082), he was not allowed to compete for O-6 positions as they opened in his Air National Guard unit.

In support of his appeal, the applicant provides a personal statement, retirement order, promotion order, revocation of retirement order, AFBCMR notification, AFBCMR directive, Air Reserve Personnel Center (ARPC) notification of records correction, ARPC MSD notification letter, and four letters of support.

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

STATEMENT OF FACTS:
On 31 March 2004, the applicant retired from the New Mexico Air National Guard (NMANG) after being non-selected for promotion to the grade of lieutenant colonel (Lt Col) (O-5) by the 2001 and 2002 Lt Col promotion boards. After it was discovered that his Navy records and college transcripts were missing from his promotion packages that met the 2001 and 2002 promotion boards, his records were corrected and considered by a Special Selection Board (SSB). On 5 January 2006, the applicant was selected for promotion to the grade of Lt Col effective and with a date of rank of 1 October 2002.

On 2 October 2006, the applicant submitted an appeal to the AFBCMR to revoke his retirement orders in the Air National Guard with all back pay and allowances due him.  The National Guard Bureau (NGB)

office of primary responsibility administratively corrected the applicant’s request to void his retirement orders and recommended the Board approve his request for participation points for the time he spent in the Retired Reserve. On 15 August 2007, the AFBCMR considered and approved the applicant’s request to award him participation points for his Retention/Retirement years ending in 2004, 2005, 2006, and 2007.

The applicant continued to serve in the NMANG until 1 December 2008, when he was automatically transferred to the Retired Reserve upon reaching his MSD.

AIR FORCE EVALUATION:
NGB/A1PS recommends denying the applicant’s request for promotion to O-6 and for a MSD waiver. A1PS indicates that according to the Subject Matter Expert (SME), the applicant does not meet the requirements to be submitted or considered for the Fall 2008 Colonel Promotion Board. In addition, his current MSD cannot be waived to accommodate three years retainability for retirement and the position he is assigned to on the Unit Manning Document is an O-5 position; therefore, rendering him ineligible for submission for immediate promotion.

The complete DPSIDR evaluation, with attachment, is at Exhibit B.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant respectfully disagrees with the opinion of the NGB SME. On 10 August 2007, his retirement orders were revoked allowing him to return to the NMANG. Had he not been forced to retire in 2002, he would have had numerous opportunities for filling O-6  vacancies  between  his  promotion  effective  date (1 October 2002) and his MSD (1 December 2008). The officers that provided letters of support to his appeal, all indicate that he was qualified and was a prime candidate to fill an O-6 vacancy.

He is not sure the SME fully understands his request to the Board. He was not asking for his MSD to be extended in order for him to meet the eligibility requirements for the 2008 Colonel Promotion Board. He was asking that his MSD, as a Lt Col, be extended to allow time for the Board results and to avoid having to retire and then having his retirement orders revoked again, should the Board decide to grant his request. Unfortunately, the extension of his MSD is no longer applicable. Therefore, to clarify his request to the AFBCMR, he is requesting a direct promotion to the grade of O-6 with a date of rank in 2005. Had the earlier administrative error not occurred, which prevented his promotion to O-5 on time in October 2002, he would have had the opportunity to be eligible for O-6 positions in 2005. Furthermore, he believes he would have been selected for the O-6, Director of Operations position in

2005; therefore, allowing him to meet the criteria for promotion to O-6 in accordance with ANG Instruction 36-2504.

The applicant’s rebuttal is at Exhibit D.

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 an injustice with regard to the applicant’s request for a direct promotion to the grade of colonel. He further requests all pay and points and a date of rank (DOR) backdated to 1 October 2005 – the date he first became eligible for promotion consideration resulting from a prior SSB selection to LtCol. He has withdrawn his request for an extension of his MSD citing a lack of applicability due to his being placed on the RRL prior to this Board’s decision.

While we recognize the applicant’s delayed promotion to lieutenant colonel may have had an adverse impact on his subsequent opportunity for promotion to colonel, and can appreciate his feelings with respect to the course of events he describes, we are not convinced these circumstances warrant his direct promotion to the senior grade of colonel. In fact, while the ANG and the BCMR agreed that some error or injustice evidently contributed to his nonselection to Lt Col at the time, he has been made as whole as this Board and the ANG are able or willing to make him under the circumstances. He was granted an SSB by the ANG that led to his selection to Lt Col, he was returned to active status, and he was awarded points for those years he was not able to participate.

Considering his argument that his two non-selects were due to an administrative error only lends credence to our position that the applicant must bear some responsibility for the completeness of his record in that had he exercised some measure of due diligence he most likely would have noticed the absence of his Navy record and may not have been passed over twice as a result. His additional argument that his record may have been tampered with is without merit as he has provided no evidence to substantiate such a charge. Even so, we are again mindful that even slight due diligence on his part would more likely than not have brought to light any such tampering, or for that matter, any missing records.

Finally, we note that selection for promotion to a higher grade is best left to duly constituted promotion boards created and equipped solely for that purpose. While we are aware that the ANG does not hold SSBs to the grade of colonel, we note that

most, if not all,  promotion systems – including the ANGs position vacancy promotion system – assume a member is being promoted due to their demonstrated ability to assume the greater responsibility inherent of the rank and their demonstrated capability to perform the duties of the higher grade. In this regard we note that when promoted to Lt Col, the applicant was returned to service and performed at that grade. In this instance however, were he to be promoted to colonel and granted service credit at the grade of colonel from 2005 to 2008, he would never serve at the higher grade; the ANG would not benefit from any service as a result of his promotion to colonel. Therefore, in the absence of persuasive evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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.

The following members of the Board considered this application in Executive Session on 19 February 2009, under the provisions of AFI 36-2603:

Panel Chair 
Member
Member
The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2008-01119:

Exhibit A.	DD Form 149, dated 10 Mar 08, w/atchs. Exhibit B.	Letter, NGB/A1PS, dated 26 Nov 08, w/atchs. Exhibit C.	Letter, SAF/MRBR , dated 23 Dec 08.
Exhibit D.	Applicant’s Rebuttal, dated 10 Jan 09.