ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2012-05978-3

XXXXXXXXXXXXXX	COUNSEL: XXXXXXXXXX

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

The Board reconsider his request to be reinstated in the Air Force.  In the alternative, he requests a Special Board be convened to reconsider him for retention. 

RESUME OF THE CASE

The applicant is a former Regular Air Force major (O-4), released from active duty on 1 Mar 12 with a narrative reason for separation of Reduction in Force (RIF).  

On 5 Nov 13, the Board considered and denied his request to remove his Unfavorable Information File (UIF) and Letter of Admonishment (LOA), from his records, remove the derogatory comment from his 3 Aug 11, referral AF Form 475, Education/Training Report (TR), or in the alternative, expunge the TR from his records, and reinstate him into the Regular Air Force at his previous rank and grade; finding that the applicant had provided insufficient evidence of an error or injustice to justify relief.

For an accounting of the applicant’s original request and the rationale of the earlier decision, see the AFBCMR Letter and Record of Proceedings at Exhibit P.

On 10 May 16, the applicant after appealing the prior Board’s findings to the United States Court of Federal Claims; the Court determined he had not exhausted all his administrative remedies and through a joint motion to stay the proceedings, the court remanded the case back to the AFBCMR. The Board was directed to determine whether the applicant should receive Special Board consideration for the Air Force’s previous decision to separate him through the Calendar Year 2011 (CY11) Major RIF Board.  In addition, on his new DD Form 149, the applicant requested back pay with his reinstatement.  After reviewing the applicant’s contentions and documentation submitted to support the request, and available evidence of record, the Board was not convinced the applicant had provided sufficient evidence to conclude he was the victim of an error or injustice.  

For an accounting of the applicant’s original request and the rationale of the earlier decision, see the AFBCMR Letter and Record of Proceedings at Exhibit Q. 

On 12 Jul 19, the applicant requested reconsideration of his request.  In a nine-page legal brief, through counsel, the applicant contends the RIF Retention Board improperly considered the applicant’s 3 Aug 11, referral TR; which was not and did not become part of his official military personnel file (OMPF).  Therefore, the RIF Boards decision should be vacated, and he be reinstated in the Air Force with back pay.

The applicant’s submission is at Exhibit R.

AIR FORCE EVALUATION

AFPC/DP3SP recommends denying the application, indicating that based on the analysis of the facts and documentation provided, and previous board decisions, the applicant has not provided new/relevant evidence in which an error/injustice occurred warranting the requested relief.  

The applicant requests reinstatement in the Air Force with back pay, due to an erroneous consideration of a 3 Aug 11 negative referral TR, containing derogatory comments, which, the applicant states is not a part of his OMPF.  The applicant was considered by the CY11 RIF Board, which the OMPF did contain the subject referral TR.  Based on their research, DP3SP opined the applicant discovered an Air Force administrative issue in which the subject referral TR was erroneously removed from his OMPF.  Since 2011, the Air Force’s automated records system has gone thru software upgrades and at times, some of the previous Air Force evaluations were not properly converted to the new software.  During their research, it was discovered that the subject referral TR may not have been converted properly, and an AF Form 77, Letter of Evaluation (gap evaluation) was erroneously placed in the applicant’s official record by HQ Air Reserve Personnel Center (ARPC) on 29 Aug 12.  In accordance with (IAW) DoDD 1332.41, Boards for Correction of Military Records (BCMRs) and Discharge Review Boards (DRBs), 4.2.1. The Secretary concerned shall prescribe procedures for the correction of military records and obtain approval of such procedures in accordance with this Directive.  Additionally, the Secretary concerned shall maintain a permanent record of each procedure approval.  DP3SP revealed no authorized removal of the referral TR from the applicant’s OMPF thru the Evaluation Report Appeals Board (ERAB) as established by the Secretary of the Air Force (SECAF), nor any directives from the AFBCMR.  If the ERAB or AFBCMR had previously removed the referral TR, the comments on the AF Form 77 would have been “removed by the Chief of Staff (CSAF)/SECAF” instead of “No report available.”  In fact, two previous AFBCMR proceedings denied the applicant’s request for removal of the referral TR.  Therefore, the 3 Aug 11, referral TR has been placed into the applicant’s OMPF, and the erroneous AF Form 77, dated 29 Aug 12, has been removed.  

The complete advisory opinion is at Exhibit S.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 26 May 20 for comment (Exhibit T), but has received no response.

FINDINGS AND CONCLUSION

After reviewing all Exhibits, the Board remains unconvinced the evidence presented demonstrates an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DP3SP and finds a preponderance of the evidence does not substantiate the applicant’s contentions. Specifically, the recent review of the applicant’s OMPF did not discover authority to remove the referral TR thru the ERAB as established by SECAF, nor any directives from the AFBCMR.  Thus the 3 Aug 11, referral TR was placed back into the applicant’s OMPF, and the erroneous AF Form 77, dated 29 Aug 12, removed.  Therefore, the Board recommends against correcting the applicant’s records.

The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2012-05978-3 in Executive Session on 3 Jun 20:

, Panel Chair 
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit P:	Original Record of Proceedings w/Instrument, dated 28 Jan 14
Exhibit Q:	RECON Record of Proceedings w/atchs, dated 16 Dec 16.  
Exhibit R:	Application, DD Form 149, w/atchs, dated 28 Nov 18.
Exhibit S:	Advisory opinion, AFPC/DP3SP, dated 25 May 20. 
Exhibit T:	Notification of advisory, SAF/MRBC to applicant, dated 26 May 20.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings pertaining to Docket Number BC-2012-05978-3, as required by AFI 36-2603, paragraph 4.11.9.