RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-00024 COUNSEL: HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: His record be corrected to reflect a retirement effective date of 1 June 2011 and he be returned from a 179-day deployment to Iraq. _______________________________________________________________ APPLICANT CONTENDS THAT: In a legal brief with attachments, the applicant’s counsel makes a variety of assertions why the applicant is serving an unjust, 179-day deployment in Iraq since 7 November 2010. Upon notification of the 179-day deployment, he informed his previous commander that he would submit his request for retirement if selected. The previous commander informed him on several occasions that he would be removed him from the tasking and, thus, not have to submit a retirement application. Among his assertions are the following major points: 1. His retirement application was valid and should have precluded him from being deployed on a 179-day deployment to Iraq. The Air Force retirement eligibility requirements for non- disability retirement states officers and enlisted members must complete 20 years of total active federal military service (TAFMS). In accordance with AFI 36-3203, Service Retirements, he would have had the required years of active service to be eligible for retirement on 1 June 2011. His retirement application was not subject to any restrictions or prohibitions. He received two notifications that his retirement had been approved, with no restrictions. Neither the new commander nor the Secretary of the Air Force Personnel Counsel (SAFPC) cited any prohibitions or restrictions as justification to deny his retirement request. According to AFI 36-2110, Assignments, an airman will not be selected for temporary duty (TDY) if the person is assigned in the continental United States, has had time on station (TOS) or more than forty-five days and the TDY return date falls within thirty calendars days of the date of separation (DOS). The commander violated Air Force instructions by failing to review all available options prior to disapproving his retirement. 2. The SAFPC decision to deny his retirement application is erroneous because it was premised upon incorrect and misleading information from his commander and AFPC. The crux of the commander’s argument is that a manpower shortage necessitated his retirement be denied to fill a “need billet” in order to remain fully mission capable. The evidence indicates there was no manpower shortage and the commander was eligible for the deployment tasking. In fact, the applicant’s Air Force Specialty Code (AFSC) was overmanned at 122 percent. The commander submitted erroneous information to AFPC Retirements and SAFPC to substantiate a disapproval, which is clearly in error and must be corrected in the interest of justice. 3. The treatment by his commander, in addition to amounting to legal error, shocks the sense of justice. The commander abused his authority by forcing upon the applicant a de facto stop-loss based upon a fallacious lack of manpower argument. It would be a clear injustice for the applicant to remain on an unjust deployment. In support of his appeal, the applicant’s counsel provides a legal brief. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is presently serving in the Regular Air Force in the grade of major. He has an indefinite DOS from the Air Force. The applicant’s Total Active Federal Military Service Date is 28 May 1991 (TAFMSD) and his Total Active Federal Commissioned Service (TAFCS) date is 1 June 1999, making him eligible for retirement effective 1 June 2011. On 26 March 2010, the applicant was notified of a 179-day deployment to Iraq. On 16 September 2010, the applicant informed the new commander of his intent to proceed with his original plan to retire. On 17 September 2010, the applicant submitted a letter to AFPC/DPSOR and SAFPC, requesting retirement, with an effective date of 1 June 2011. On 17 September 2010, the commander recommended disapproval of the applicant’s 1 June 2011 retirement and approved his retirement effective 15 September 2011. The commander stated although the applicant knew his plan was to set his retirement date at 1 June 2011; he waited until 16 September 2010 to file his application for retirement, which created a situation detrimental to both the mission and morale. On 29 September 2010, AFPC/DPSOR recommended disapproval on the applicant’s retirement request to SAFPC. DPSOR states AFPC/DPAO recommended approval of the applicant’s retirement request based upon manning in KC-135 operational units. DPSOR stated that while the applicant had no active duty service commitment (ADSC) and DPOA stated the manning supported his request, it was imperative to support the commander and give credence to his position. The applicant stated his previous commander would remove him from the deployment; however, the previous commander did not submit a reclama. Once his commander told him he had to deploy, the applicant submitted his retirement papers. On 20 October 2010, SAFPC disapproved the applicant’s request for retirement effective 1 June 2011. On 22 October 2010, the applicant requested redress of grievance under the provisions of AFI 51-904, Complaint of Wrongs, Under Article 138 Uniform Code of Military Justice (UMCJ) regarding the commander’s decision to deploy him on the 179-day AEF tasking. On 27 October 2010, the commander reviewed and denied the applicant’s request for redress under Article 138, UCMJ as unwarranted. The commander stated if he desired to continue the Article 138 process, he could submit his package to the Air Mobility Command Commander (AMC/CC), General Court-Martial Convening Authority (GCMCA), within 90 days. On 1 November 2010, the applicant submitted an Article 138 Complaint to AMC/CC. On 7 December 2010, USAF/JAA concluded the denial rendered by AMC/CC was appropriate. On 8 November 2010, the applicant deployed to Iraq. The remaining relevant facts, extracted from the decedent’s available military service records, are contained in the Air Force evaluations at Exhibit C and D. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSOR recommends denial. DPSOR states the applicant submitted a retirement application to his commander less than two months prior to his deployment date. To honor his request would place another member in the position of being deployed on short notice. When submitting his application, he claimed neither extreme hardship uncommon to other members nor why it would be in the best interest of the Air Force to allow him to retire in lieu of deploying. The applicant was not relieved of the deployment tasking because he had an indefinite DOS and no approved retirement. The commander recommended denial for a 1 June 2011 retirement date so the applicant would have sufficient time to out-process after his deployment. DPSOR states under Title 10, USC, Section 8911, the Secretary of the Air Force (SecAF) may upon an officer’s request, retire a Regular officer of the Air Force who has at least 20 years of active service, at least 10 years, which have been active service as a commissioned officer. The law does not state the SecAF is obligated to retire an officer if the officer has at least 20 years TAFMS and 10 years TAFCS unless the officer has a mandatory retirement date under Title 10, USC, Chapter 36, Promotion, Separation, and Involuntary Retirement of Officers on the Active-Duty List. AFI 36-3203, allows a member to submit an application for retirement up to 12 months in advance of a requested retirement date. The applicant was eligible to submit an application on 1 June 2010. The complete DPSOR evaluation is at Exhibit C. AFPC/JA recommends denial. JA states there is no evidence that his commander or SAFPC violated any directive or otherwise abused their discretion in denying the applicant’s retirement request. The applicant argues that all available options to deployment were not considered, thereby constituting a cognizable error. There is no evidence to support a conclusion that the commander failed to consider other options. Certainly, his having recommended the result least favored by the applicant does not establish such proof. Nor does the fact that the applicant’s AFSC may have been over manned. Deployment tasks are specific to individual commands and the availability of qualified personnel. This is no evidence the commander violated any directive or otherwise abused his discretion in recommending the applicant’s deployment. In addition, there is no evidence SAFPC abused its discretion in denying the applicant’s retirement request. The applicant argues the principles of equity should compel the Board to grant relief; however, DPSOR has adequately addressed his contentions. The federal courts have defined injustice within the meaning of Title 10, USC, Section 1552 as that behavior or action that rises to a level that shocks the conscience. The fact the applicant had the opportunity to retire only a month after his requested date cannot be characterized as shocking the conscience. The complete JA evaluation is at Exhibit D. _________________________________________________________________ APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS: The applicant’s counsel states both advisory opinions ignore the crucial fact that SAFPC’s denial to the applicant’s retirement request was based on erroneous file information. The SAFPC vote sheet erroneously indicated the applicant had an ADSC when he did not. If true, an outstanding ADSC requirement would require a wavier and would likely have resulted in a denial of his retirement request on ADSC grounds; however, the applicant did not have an outstanding ADSC. Both advisory opinions contained inaccurate and misleading factual information. DPSOR fails to accurately convey that DPAO recommended approval of the applicant’s retirement because his AFSC was overmanned at 122 percent. This directly contradicts his commander’s rationale to deny the request. The Chief of Staff of the Air Force has acknowledged the Air Force is overmanned and has implemented system-wide force management measures to downsize by encouraging active duty officers to retire or separate. The JA opinion contradicts the evidence by suggesting the AFSC may have been overmanned when there are no reasonable grounds for disputing or otherwise diminishing the fact the AFSC was overmanned by 122 percent. Neither opinion addresses in any meaningful manner the questionable nature of the commander’s articulated, “over manning” rationale. Counsel states the DPSOR opinion incorrectly states the previous commander informed the applicant he would relieve him from the deployment because he intended to apply for retirement effective 1 June 2011. In fact the previous commander had intended to reclama the applicant from the deployment altogether and informed him not to submit a retirement application. While DPSOR incorrectly states his current commander’s compromise date was 1 September 2011, it was actually 15 September 2011. While not necessarily a material oversight, this factual error, when considered in combination with additional errors and omissions further suggests DPSOR did not sufficiently review the applicant’s case. The applicant violated no Air Force instruction and committed no wrongdoing in submitting his retirement application. His intentions to retire were made clearly, immediately after he was notified of the 179-day deployment in April 2010. The previous commander informed him he would reclama him from the deployment. The applicant did not silently wait months only to suddenly reveal his retirement intentions to the detriment of his command. But, the facts of this case do not support a negative implication as evidenced as early as 29 April 2010 with his DD Form 2648, Preseparation Counseling Checklist stating an anticipated date of separation of 1 June 2011. Throughout the process, the applicant has conducted himself professionally and openly despite being subjected to questionable command judgment and clear procedural error. Instead of objectively assessing the matter, the advisory opinions presented numerous factual errors, questionable omissions and baseless negative mischaracterization that do little more than obfuscate what is supposed to be a non-adversarial process designed to correct errors and injustices as a matter of fairness. The Board continues to have sufficient grounds to approve the applicant’s request relief. The counsel’s complete rebuttals, with attachments, are at Exhibit E. _________________________________________________________________ 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 injustice. After thoroughly reviewing the documentation provided in support of his appeal, we do not believe the applicant has suffered an injustice. Although the applicant asserts that his previous commander ensured him he would not be deployed, he has not provided any evidence from the former commander to support this contention. While erroneous information was used by the Air Force Personnel Board (AFPB) in making its recommendations, the evidence of record reflects the Air Force Personnel Board unanimously disapproved the applicant’s request to retire based on his chain-of-command’s recommendation. In this respect, we note that on 26 March 2010, the applicant was notified of a deployment tasking with a 6 November 2010 in place date. On 1 Jun 2010, the applicant was eligible to submit his retirement request; however, he waited until 17 September 2010. Consequently, his commander recommended denial of his retirement application and stated the applicant’s delay created a situation detrimental to both the mission and morale and we agree. If the applicant did not want to deploy he could have easily submitted his retirement request in June 2010 rather than waiting less than two months prior to the deployment start date. As such, we believe to honor his request would have placed another Air Force member in the position of being deployed on short notice. Therefore, we find the denial of the applicant’s retirement request was within the commander’s discretionary authority, and the rationale he provided formed a sound basis to deny his retirement application. Therefore, we agree with the opinions and recommendations of the Air Force office of primary responsibility and adopt their rationale, as the basis for our conclusion the applicant has not been the victim of an injustice. Accordingly, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 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(s) involved. Therefore, the request for a hearing is not favorably considered. _________________________________________________________________ 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 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 AFBCMR Docket Number BC-2011-00024 in Executive Session on 5 April 2011, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2011-00024 was considered: Exhibit A. DD Form 149, dated 7 Dec 2010, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSOR, dated 20 Jan 11. Exhibit D. Letter, AFPC/JA, dated 2 Feb 11. Exhibit E. Letter, SAF/MRBR, dated 11 Feb 11. Exhibit F. Letter, Applicant, dated 24 Feb 11, w/atchs. Panel Chair