RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-02143 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected to reflect he was granted a four month time-in-grade (TIG) waiver and retired in the grade of colonel (0-6). ________________________________________________________________ APPLICANT CONTENDS THAT: 1. In Jun 97, his losing rater failed to complete a Change of Reporting Official (CRO) Officer Performance Report (OPR) on him as required by AFI 36-2402. This omission unjustly limited his promotability, and ultimately contributed to the fact that he was 122 days short of meeting the required TIG to retire as a Colonel a year earlier. 2. He served in a full colonel’s billet for six months prior to his date of rank to colonel, and as a frocked Colonel for two months prior to his official date of rank. This period of service should qualify him for a TIG waiver. 3. The challenging nature of the jobs he held as a deployed Colonel and commander should result in his being credited with more service as a Colonel than someone who held an easier Colonel’s job. 4. He submitted a 16 May 11 memo to AF/DPO for inclusion in his TIG waiver package which was not forwarded to the SAF Personnel Council (SAFPC) prior to their 24 May 11 disapproval of his waiver request. Due to his deployed status, and the limitation on the number of characters he could submit, he was not able to submit a more complete package with his initial submittal. In support of his appeal, the applicant provides an expanded statement and copies of documents relating to his TIG waiver request and disapproval, claim of a missing OPR; and retirement. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant was promoted to the grade of colonel, with a date of rank of 1 Jan 09. In Apr 11, the applicant declined a permanent change of station (PCS) assignment, requiring him to retire in the grade of lieutenant colonel (0-5) “not later than the first day of the fourth month after notification” under the Seven Day Option rules. On 24 May 11, SAFPC disapproved his request to waive the four additional months TIG he required to retire in the grade of Colonel. On 31 Aug 11, he retired in the grade of lieutenant colonel, having served in the grade of colonel for two years and eight months as a full colonel. The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force offices of primary responsibility (OPR) which are attached at Exhibits C, D, E, and F. ________________________________________________________________ AIR FORCE EVALUATION: HQ AFPC/DPSID recommends denial, indicating there is no evidence of error or injustice. While the applicant claims a new supervisor reported to duty in mid-Feb 97 and supervised him for approximately 130 days prior to the applicant’s PCS departure on 27 Jun 97 requiring an OPR to be accomplished, he did not provide any supporting documentation that shows the new supervisor had more than 120 days of supervision and that he should have written a CRO report prior to his own PCS departure. The information captured on the report in existence, which is the official record, is presumed, in the absence of other compelling evidence, to be correct. The application may also be dismissed under the equitable doctrine of Laches, which denies relief to one who has unreasonably and inexcusably delayed in asserting a claim. He waited 14 years to file his appeal. A complete copy of the AFPC/DPSID evaluation is at Exhibit C. HQ AFPC/DPSOO recommends denial. The applicant contends that an OPR for the period 16 Jan 97 thru 26 Jun 97 should have been accomplished and were it not for its omission from is officer selection record (OSR), he would have been promoted BPZ. However, based on the close out date of the OPR, it could not have been a matter of record for the Board as the close out date was after the CY97C Line BPZ panel close out (24 June 97). Since the OPR, that was not accomplished, could not have been included in the selection record for the CY97C Major Board, his contention that his not being promoted BPZ affected his TIG to Colonel is without effect. In addition, had he been promoted BPZ, there is no guarantee that he would have been promoted to Lt Colonel and Colonel any earlier. Given the unlikelihood of success on the merits, we strongly recommend the board find that it would not be in the interest of justice to excuse the delay, and deny the application as untimely. A complete copy of the AFPC/DPSOO evaluation is at Exhibit D. HQ AF/DPO recommends denial, indicating that disapproval of the applicant’s TIG waiver request was consistent with existing laws and Air Force guidance and the treatment of other officers in his situation. Disapproval of his waiver (by SAFPC) does not constitute an error or injustice and therefore should not be overturned. The applicant was selected for an assignment to Scott AFB, IL reporting in Jun 11. Because he elected to retire under the Seven Day Option, he was ineligible for the TIG waiver authorized in PSDM 10-18, Expanded FY10 and FY11 Force Management Program. Furthermore, TIG is determined by the amount of time served from the date of rank, not the intensity or quality of service. His service while frocked or in positions above his pay grade do not entitle him to additional “credit” towards time in grade per Title 10 §777. His 16 May 11 memo arrived subsequent to his TIG waiver package was forwarded to SAFPC and was therefore not included in his request. Ultimately, the applicant’s decision to retire in lieu of assignment made him ineligible for voluntary force management programs and resulted in a retirement date that fell short of the necessary time in grade to retire as a Colonel. Disapproving his waiver request was both consistent and fair with the treatment provided other colonels who retired with less than 3 years time in grade during the same period. A complete copy of the AF/DPO evaluation is at Exhibit E. SAF/MRBP states that when SAFPC considered this case on 24 May 11, the applicant’s 16 May 11 memorandum was not provided to them or considered by the Board. Although the Board did not have the opportunity to consider the applicant’s justification in his request for the TIG Waiver, the additional justification the applicant provided in his 16 May 11 memorandum would have had no bearing on the Board decision as he provided no exceptional circumstances or hardship which prevented him from accepting the assignment. Based on the documentation provided by the applicant in the AFBCMR case file, we find no evidence that the missing memorandum would have altered the SAFPC Board decision. A complete copy of the SAF/MRBP evaluation is at Exhibit F. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: AFPC/DPSID’s evaluation is based on a misunderstanding. It appears they believe the Jan 97 OPR is being contested—-it is not. He is claiming that an OPR is missing for the period 16 Jan - 26 Jun 97. He has no access to records or other evidence establishing his supervisors report date to Falcon AFB; if DPSID questions the accuracy of his assertion, he recommends retrieval of the portion of his supervisor’s record archive containing this information. DPO’s comments seek to obscure the fact that for no reasonable purpose, DPO refused to provide the supplementary justification he provided them for consideration. Those details, contained in his 16 May 11 memo, provided additional significant basis for his waiver request, and was received by DPO 2 duty days after they sent his package to SAFPC. A complete copy of the applicant’s response is at Exhibit G. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was untimely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We took notice of the applicant’s complete submission, including his response to the Air Force evaluations, in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. The applicant’s contentions are duly noted; however, we do not find his assertions or the documentation presented sufficient to convince us that he is the victim of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; 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-2011-02143 in Executive Session on, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 2 Jun 2011, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, APFC/DPSID, dated 22 Aug 11. Exhibit D. Letter, AFPC/DPSOO, dated 8 Sep 11. Exhibit E. Letter, AF/DPO, dated 31 Oct 11. Exhibit F. Letter, SAF/MRBP, dated 13 Feb 12. Exhibit G. Letter, Applicant, dated 2 Dec 11.