RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-00050 INDEX CODE: 131.10, 135.00 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His two non-selections for promotion to the grade of major be removed. 2. He be reinstated into the US Air Force Reserve (USAFR). 3. His USAFR inactive service from 13 Dec 98 to 7 April 2004 be removed. ________________________________________________________________ APPLICANT CONTENDS THAT: After his separation from active duty in Dec 98, he was never notified of his first in-the-promotion zone (IPZ), Fiscal Year 2001 (FY01) Major Promotion Selection Board consideration, either before or after the board, and was not afforded an opportunity to review his officer selection brief (OSB) for accuracy, or transfer to the Inactive Status List Reserve Section (ISLRS), so that he would not be considered for promotion. Following a short break in service, he was assigned as an United States Air Force Academy Admissions Liaison officer (USAFA ALO), a Category E (a points only program- no pay) reservist. He met the FY07 Other Than Selected Reserve (OTSR) Line and Health Professions Major Promotion Selection Board; however, due to the Program Budget Decision 720 (PBD 720), the promotion rate on the Cat E officers was only 9th percent while the promotion rate for Cat B (participate for pay and points) officers was 80 percent. He was not selected in the 9 percentile of those selected and had plans of competing at the next promotion board. He was shocked to find out that this was his second nonselection and was never aware that he had obligated service that caused him to be previously considered for promotion. The irony of it all was his high level of motivation to work with the Academy Liaison program is what led to his second nonselection. He misunderstood the details of his separation documents and did not realize that he had an obligation to serve after his separation, or that by not serving there would be negative consequences affecting his future potential for promotion and his military career. The applicant has several senior members who have provided letters of support in his behalf; the 12th Air Force Commander (12th AF/CC), the Adjutant General for the State of Colorado (TAG CO), the vice commander of the Air Reserve Personnel Center (ARPC/CV), and others. In summary, he believes it was a combination of a lack of appropriate notification and counseling and adherence to established Air Force Instructions (AFI’s) and clerical errors that led to his unceremonious discharge from the USAFR. He is a decorated F-15 pilot; with both ground and air combat tour experience. His letters of support illustrate his ability and sincerest desire to continue his service to his country in support of the Global War on Terror with the Arizona Air National Guard (AZ ANG). In support of the appeal, the applicant submits a personal statement, with letters of support from senior members of different components of the Air Force, service and performance history documents and other supporting information. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant entered active duty on 1 June 1988. He was progressively promoted to the grade of captain, with an effective date and date of rank of 1 June 1992. He was discharged from active duty on 13 December 1998 and credited with 10 years, 6 months and 13 days of active duty service. The applicant was commissioned as a Reserve of the Air Force officer, on 14 December 1998, when he took the oath of office. He was considered but not selected for promotion by the FY01 Major Promotion Selection Board and the FY07 USAFR Other than Selected Reserve Line and Health Professions Major Promotion Selection Board, on 6 March 2000 and 6 March 2006, respectively. The applicant was discharged from all appointments in the USAF, on 1 November 2006, in accordance with (IAW) Title 10, United States Code (USC), Section 14505. ________________________________________________________________ AIR FORCE EVALUATION: ARPC/DPB recommends denial and states, in part; the applicant voluntarily entered a commitment with the USAFR. There were no errors in his record as it met the boards. He was discharged IAW current laws and directives and provides no evidence the promotion board’s recommendations were in any way unfair or unjust. The applicant was voluntarily discharged from active duty; however, once he signed the Oath of Office, to enter the USAFR, he was committed. The record reflects the applicant was assigned to the Nonobligated Nonparticipating Ready Personnel Section (NNRPS). These documents were sent to the applicant’s address on file and it is his responsibility to ensure his address information is kept up to date. Although members in this Reserve section are not in a participating status, IAW Title 10, USC, Section 14301, all officers on the Reserve Active Status List (RASL) must be considered for promotion when eligible. An Officer Selection Brief (OSB) and a promotion letter were sent to all eligible officers in this status approximately 90 days prior to the board convening date. The applicant’s nonselection letter would have also been sent to this address. After two years in the NNRPS, the applicant was assigned to the Inactive Status List Reserve Section (ISLRS) on 14 December 2000, and not eligible for promotion consideration. In April 2004, the applicant was assigned to the USAFA ALO program, and was sent orders concerning each personnel action. He was eligible for and met the FY07 OTSR Major Promotion Selection Board, on 5 March 2006. His unit of assignment was responsible for notifying the applicant of his upcoming promotion board. The applicant cites PBD 720 as a factor in the low promotion rate on the FY07 board; however, PBD 720 was a force shaping program which was not in effect until the fall of 2006, after the applicant was considered the second time. The National Defense Authorization Act (NDAA) 2011, not 2010, contains a change in the law which would allow the Service Secretaries to determine whether members in a nonparticipating status would meet mandatory promotion boards. At this time, NDAA 2011 has not been passed. The complete ARPC/DPB evaluation is at Exhibit B. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant maintains his position that while he signed the AF Form 133, Oath of Office, he never received official notification of his entrance into the USAFR, no orders, a Reserve Identification card, a phone call, or correspondence at either of his addresses. Even after his appointment, he did not receive any correspondence indicating that he would be considered for promotion, nor was he aware of the different inactive Reserve sections or the ramifications of being assigned to these sections. As he understands it, depending on which inactive Reserve status determines whether a member is eligible or ineligible for promotion consideration. Particularly, a review of the promotion package for his first promotion board for FY01, it appears gave individuals the opportunity to transfer to the ISLRS prior to their board convening, or within 90 days after the board met. By utilizing this option, he would not have been considered for promotion. This would have allowed him, either to not meet the board, and/or not have been eligible for promotion consideration. By not receiving vital promotion board information prior to the board convening, he was denied his basic rights. In summary, he believes it is a gross injustice to put officers up for promotion boards without their knowledge and input. He believes if proper procedures had been followed he would not be in his current situation. The applicant’s complete response 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 error or injustice in regard to the applicant’s request to have his USAFR inactive service from 13 Dec 98 to 7 April 2004 removed. Based on the evidence of record, it appears the applicant was properly assigned to NNRPS with a subsequent assignment to ISLRS. Therefore, we agree with the opinion and recommendation of the Air Force Reserve office of primary responsibility and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. In view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this portion of his application. 4. Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice warranting corrective action. We note the comments of the Air Force Reserve OPR that current law requires officers on the Reserve Active Status List (RASL), including those in a nonparticipating status on the RASL, to be considered for promotion, even though they are not afforded an opportunity to demonstrate their potential to serve in the next higher grade. The applicant asserts that he was not aware that he was considered for promotion shortly after being commissioned in the Air Force Reserve and did not even realize that his nonselection during the FY07 OTSR Line and Health Professions Major Promotion board was his second. Based on the applicant’s submission, including the letters of support submitted in his behalf, we find it reasonable to believe the applicant was completely unaware of his promotion consideration during the FY01 Major Promotion Board, particularly since it appears he had not received any correspondence from the Air Force Reserve. While we cannot determine with any certainty the reasons surrounding why the applicant was not properly notified of his Reserve status, we believe had the applicant been aware of his eligibility for promotion consideration, he would have ensured his records reflected his potential as best as possible or as an option he could have requested a transfer to ISLRS prior to being considered for promotion. Therefore, we are persuaded based on the available evidence of record and that provided in the applicant’s behalf that any doubt should be resolved in his favor. In addition, the applicant requests reinstatement in the Air Force Reserve. In this respect, we believe based on the aforementioned rationale, the applicant should be reinstated in the Air Force Reserve. Reinstatement should be contingent upon the needs of the service and their ability to effectively gain the applicant in the system at the earliest possible date. In view of the above, we recommend the applicant’s record be corrected to the extent indicated below. 5. The applicant noted several error’s on his DD Form 214, which was not a part of his request. If the applicant still believes his DD Form 214 to be in error, he should submit a separate DD Form 149, Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552 to have these issues addressed. 6. 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(s) involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that: a. He was not considered for promotion to the Reserve grade of major by the Fiscal Year 2001 Reserve of the Air Force Major Promotion Board. b. He was not discharged on 1 November 2006 from all appointments, but on 6 April 2006, he resigned his commission and was discharged from all appointments. By competent authority, his name be removed from the Fiscal Year 2007 Other Than Selected Reserve Line and Health Professions Major Promotion Selection Board Nonselect list. c. He be reinstated in the Air Force Reserve and transferred to the Inactive Status List Reserve Section. Any nonselections for promotion to the Reserve grade of Major prior to receiving three Officer Performance Reports with at least 250 days supervision, in the grade of captain, be set aside. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-00050 in Executive Session on 14 June 2010, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence pertaining to AFBCMR Docket Number BC-2010-00050 was considered: Exhibit A. DD Form 149, dated 5 Dec 09, w/atchs. Exhibit B. Letter, ARPC/DPB, dated 19 Feb 10. Exhibit C. Letter, SAF/MRBR, dated 26 Feb 10. Exhibit D. Letter, Applicant, dated 2 Mar 10. Panel Chair