FIFTH ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:                              DOCKET NUMBER: BC-2013-01668-7

XXXXXXXXXXX                                         COUNSEL: NONE	

                                                                      HEARING REQUESTED: NOT INDICATED

APPLICANT’S REQUEST

The Board reconsider his request for the following:  

1.	 His duty title be changed for the CY10D Major Line of the Air Force (LAF) Central 
       Selection Board (CSB).

2.	 He be granted special selection board (SSB) consideration for the CY10 Major LAF CSB.

3.	He be granted selective continuation in the rank of captain (O-3), in the alternative he be considered by a special board (SB) for continuation.  

RESUME OF THE CASE

The applicant is a former Air Force captain (O-3).

The applicant was deferred for promotion to the rank of major (O-4) by the CY09C and CY10D Major LAF CSBs.  He was not eligible for selective continuation by the CY10D Captain Selective Continuation Board due to the Air Force Specialty Code (AFSC) criteria established by the Secretary of the Air Force (SecAF) based on the needs of the Air Force.  

On 30 Sep 11, he was honorably discharged in the rank of captain for his twice deferral for promotion to major (O-4).  He served 10 years, 3 months and 3 days of active duty service for the period,  He was also credited with 4 years, 2 months and 22 days of prior active duty service (14 years, 5 months and 25 days combined).

On 27 Jan 14, the Board considered and denied the applicant’s initial request for change of his duty title on his promotion recommendation form (PRF) and officer performance reports (OPR) for the period 2006 to 2009.  The applicant’s duty titles on his OPRs from 2006 to 2009 reflect as “AFROTC Instructor/Unit Admissions Officer” and “AFROTC Instructor/Commandant of Cadets.” The applicant contended he performed duties as the “Flight Commander” and his OPRs and PRF should be changed accordingly.  The Board adopted the opinions and recommendations of AFPC/DPALS, AFPC/DPSID and AFPC/DPSOO that the applicant’s duty title was correct on his PRF and OPRs for the period 2006 to 2009 and there was no basis for an SSB.  In this respect, the AFROTC/CC email, dated 30 Oct 10 announced the policy changes regarding AFROTC officer duty title changes; however, there was no intention for retroactive correction of duty titles for AFROTC officers.  The Board concluded there was no evidence his duty title was incorrect  or that he was treated differently than similarly situated officers during the same timeframe.   

On 25 Jan 15 and 31 Aug 15, the Board denied the applicant’s request for reconsideration of his request for change of his duty title, SB consideration for continuation and SSB for promotion to major.

On 3 Jul 18, the Board considered and denied his request for change of his duty title to “Flight Commander,” he be granted SSB for promotion to major, SB for selective continuation, reinstatement to active duty in the rank of captain, or that he be given an opportunity to negotiate a favorable resolution.  The applicant again contended his duty title was incorrect.  The applicant also contended the Secretary of the SecAF violated 10 U.S.C. § 638a, DODI 1320.11, Special Selection Board, and DODI 1320.08, Continuation of Commissioned Officers on Active Duty and Reserve Active List, by contradicting DOD policy of continuing captains within six years of retirement.  AFPC/DP2SP recommended denial for SB since he was not eligible for selective continuation based on the continuation criteria that only flight nurses, operating room nurses and remotely piloted aircraft operators who failed promotion twice were eligible for continuation consideration (the applicant was a logistics officer).  He was also not within two years of qualifying for retirement.  The Board concluded the evidence clearly showed the changes to the AFROTC officer duty title structure were not effective until 30 Oct 10 and there was no retroactive correction for any AFROTC officer duty titles.  The Board also concluded the applicant was not similarly situated to the plaintiff in Baude v. United States.  The plaintiff in the case was in the rank of major and the court determined the SecAF violated DODI 1320.08 in narrowing the continuation window from within six years of retirement to within five years of retirement for the CY11A Major LAF Selective Continuation Board.  The Board found no evidence the SecAF violated DODI 1320.08 in the release of captains twice passed over for promotion to major.  

On 9 Nov 20, the Court of Federal Claims (CoFC) remanded the applicant’s case to the AFBCMR.  In an Order Reissued 6 Nov 20, the CoFC dismissed the applicant’s complaint as it pertained to his challenges of his duty title, with prejudice.  The CoFC ordered the AFBCMR reconsider the applicant’s claims for SSB for promotion and SB for continuation in light of Baude v. United States decision.  On 28 Apr 21, 13 May 21 and 21 May 21, the Board adjudicated the case.  The Board remained unconvinced the evidence demonstrated an error or injustice.  The Board concluded the applicant was not similar to the plaintiff in Baude v. United States since he was in the rank of captain when discharged for his twice deferral for promotion to major.  The Board agreed with AFPC/JA, DODI 1320.08 offered no presumption of selective continuation for officers in the grade of captain.  While counsel contended all officers with 14 years of service should be automatically continued until retirement, the Board noted there was no provisions in law or regulation that automatically entitled an officer to a 20-year retirement for having served 14 years.  

On 8 Apr 22, the Board reconsidered the applicant’s request.  In this case, he asked for reinstatement into active duty in the rank of captain, he be considered by an SB for continuation in the rank of captain; or in the alternative, his narrative reason for separation be changed to reduction in force rather than passed over twice for promotion.  Counsel expressed concern with a procedural error and regulatory violation with one of the panel members adjudicating his case retiring before his case was finalized.  Secondly, the SecAF provided a new Memorandum of Instructions (MOI) to the CY21A Selective Continuation Board, which was meant to correct the errors that took place in the CY11A Major Selective Continuation Board narrowing the window for continuation from within six years of retirement to within five years of retirement.  The applicant also contended that the Air Force’s argument that correcting the applicant’s records would require the correction of the records of 86 captains who were denied continuation was an unjust reason to not grant relief. The Board denied the request for change of his narrative reason for separation since his DD Form 214 was correct as reflected.  He was not discharged due to a reduction in force but for promotion failure.  The Board was also unconvinced any new evidence was presented to warrant SB consideration.  The fact remained he was never eligible for continuation and, as pointed out by AFPC/DP2SP, granting the applicant’s request would be unfair to the 86 officers who were also not eligible for the CY10D Captain Selective Continuation Board and subsequently separated.   The Board noted the applicant’s case was considered in three separate executive sessions and there was no requirement to reconvene for further consideration pending final certification of the case.   Further, should the Board have been required to reconvene, a new quorum would have been established in accordance with AFBCMR procedures.  A panel member’s post-Board retirement was neither a procedural error nor a regulatory violation.   The Board again found the applicant as a captain was not similarly situated as the plaintiff in Baude v. United States.  Counsel asserted the CoAFC nullified the SecAF’s 6 Dec 10 memorandum notifying the Office of the Secretary of Defense of his intent to temporarily suspend selective continuation for captains and majors within six years from retirement.  However, the Board disagreed.  The Board was persuaded the CoAFC ruling pertained to the MOI for the CY11A Major Selective Continuation Board, and not any other continuation board.  The Board found no evidence in the CY21A Selective Continuation Special Board Memorandum, DODI 1320.08 or AFI 36-2501 that the same protective window applied to captains and majors alike or that captains and majors were to be treated alike for selective continuation.  While majors would normally be continued if within six years of retirement, selective continuation for captains was based on the needs of the Air Force.  Accordingly, the Board found it was within the SecAF’s authority to establish eligibility criteria for continuation based on the needs of the Air Force.  Counsel also alleged the Board was reluctant to correct the applicant’s records to avoid potentially correcting the records of 86 other captains; however, the Board found the allegation unsupported by any fact or evidence.  

In BC-2013-00089, the Board, as an exception to policy, found it in the interest of justice to grant the applicant’s request his nonselection for promotion to the rank of major for the CY12 Individual Ready Reserve (IRR) Major Selection Board be removed from his record.  The applicant noted the nonselection would preclude him from serving in the Air National Guard.  While the Board noted there were no errors, it appeared due to the applicant’s medical condition and the waiver process, his application was delayed due to no fault of his own and was not processed until after his nonselection for promotion.  The applicant was considered by an SSB and nonselected for promotion. 

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

On 3 Oct 22, the applicant requested reconsideration of his request for change of his duty title, he be reinstated on active duty in the rank of captain or he be considered for an SB.  The issues he brought to the Board were not addressed by the Board in the Apr 22 decision.  The CoAFC ruled the SecAF’s 6 Dec 10 memorandum narrowing the continuation window was illegal.  This memorandum mentions captains but was not adequately addressed in the Board’s Apr 22 decision.  There was also no reply to his unique circumstances as a prior enlisted member.  The advisory misquoted the reference to the required correction of 86 captains’ records should his request be granted.  He provides a 2012 AFPC news release that states continuation was no longer business as usual.  AFPC did have a mindset for continuation prior to 2012.   Additionally, it is clear the AFROTC duty title change in Oct 10 should have applied to his Dec 10 promotion board. The Board stated there was no retroactive entitlement; however, the change in Oct 10 was in plenty of time before his Dec 10 Board. He completed two flight commander jobs and was entitled to the duty title.  

Time in service is the continuation factor, not rank.  The Board is relying on rank to deny his request; however, all past captains were accommodated who had over 14 years of service.  If rank is a discriminating factor, then every captain who was afforded continuation should have their entitlement rescinded.  Time-in service also separates him from the “86 captains” non-continued.  

In support of his request, he provides an AFPC news article dated 12 Jan 12 stating continuation was no longer usual.  He again provides the AFROTC 30 Oct 10 email changing policy on duty titles for AFROTC officers.  He also provides Chief of Staff (CSAF) Memorandum to All Airmen, Instructor Duty-Building Leaders is Everybody’s Business dated 18 Mar 12.  This memorandum states a successful career should include a tour of duty as an instructor.  

The biggest issue in the Apr 22 decision is that the Board failed to adequately address the CoAFC determination that the SecAF’s 6 Dec 10 memorandum notifying the SecDef of temporarily suspending selective continuation for larger pools of twice deferred officers in the rank of captain and major who would otherwise qualify for retirement within six years was illegal.  

The applicant’s complete submission is at Exhibit JJ.

APPLICABLE AUTHORITY/GUIDANCE

Baude v. United States. On 9 Apr 20, the United States Court of Appeals for the Federal Circuit (CoAFC) concluded the AFBCMR’s decision to deny the plaintiff, a former Air Force major, SB consideration for continuation was arbitrary, contrary to law and unsupported by substantial evidence. The CoAFC concluded the SecAF’s instructions to the CY11A Major Selective Continuation Board violated DoDI 1320.08, Continuation of Commissioned Officers on Active Duty and on the Reserve Active Status List.  The SecAF lacked the authority to re-write the regulation or narrow the protective window from six years from retirement to five years for continuation or disregard the regulatory presumption in favor of continuation.  In the ruling, the CoAFC noted the SecDef issued DODI 1320.08, the governing operation of selective continuation boards.  In relevant part, the regulation reads as follows:  A commissioned officer on the active duty list (ADL) in the grade of O-4 who is subject to discharge according to 10 U.S.C. § 632 shall normally be selected for continuation if the officer will qualify for retirement within six years of the date of continuation, absent “unusual circumstances.”  When the Secretary of the Military Department concerned intends not to continue larger pools of officers in the grade of O-4 who would qualify for retirement within six years of the date of continuation, the Secretary shall notify the Under Secretary of Defense for Personnel and Readiness (USDP&R).  DODI 1320.08, paragraph 6.3 states, an officer in a certain protective window, six years from retirement shall normally be selected for continuation.  The instruction requires a department secretary to notify the USDP&R before “larger pools” of officers within the six year protective window are not continued.  On 6 Dec 10, the SecAF notified USDP&R that in order to manage the officer corps and bring the Air Force within Congressionally mandated end strength, he intended to temporarily suspend selective continuation for captains and majors within six years of retirement.  The SecAF did not articulate any unusual circumstances that might warrant non-continuation of these officers.  

CY21A Selective Continuation Special Board Memorandum of Instruction (MOI) states “This special board will consider officers for selective continuation in place of the CY11A Major LAF Selective Continuation Board and will in addition to using the specific highlighted MOI used by the original board, the following guidance will apply:  Majors who will qualify for retirement within six years of the date of continuation (1 Dec 11) shall normally be continued.”  

According to DoDI 1320.08, Continuation of Commissioned Officers on Active Duty and on the Reserve Active Status List (14 Mar 07—the version in effect when applicant met his CSBs), para 6.2, “The Secretary of the Military Department concerned may, when the needs of the respective Military service require, convene continuation selection boards…to recommend commissioned officers in the grade of O-3 on the Active Duty List who are subject to discharge or retirement according to [10 U.S.C. § 632] for continuation on the Active Duty List…” 

APPLICANT’S ADDITIONAL RESPONSE

On 27 Jan 23, the applicant provided a BCMR summary.  He contends the following: (1) There were points not addressed by the AFBCMR in the 2022 reply; (2) He provided additional evidence; (3) AFPC news article showing promotion requirements eliminated for several years and policy changes; (4) AFPC Promotions and lessons learned to help captains; (5) His case involved two promotion boards, 2009 and 2010; (6) Past appeals proved rules and application were improper and the Court ruled the SecAF Dec 2010 memorandum was illegal.  

As a 14 year captain, he holds more privilege than 86 captains being defended.  Rank is not a factor for continuation and using it against him is wrong. Per the Court ruling, the SecAF memorandum should have allowed continuation for his CY10 board. Fair is not offering the same thing to all.  Fair is having what is needed for success.  He had more than two boards with problems.   

The applicant’s complete response is at Exhibit LL.   

On 14 Feb 23, the applicant provided an additional response stating the 12 Jan 12 AFPC news article supports his case. A year following the boards, congressional oversight, and Air Force leadership determined a course of action.  The news article essentially states continuation would be different in 2012.  

The applicant’s complete response is at Exhibit MM.  

The applicant provided an additional response dated 24 Feb 23.  In a bullet background paper titled Additional Background he contends the following required consideration: (1) A final revisit of the AFPC/JA advisory stating there were 86 officers also not promoted or selected for continuation. He states the numbers do not support there were 86 captains like himself with over 14 years of service; (2) The 2010 SecAF rules to the Board on continuation and why the rules were changed.  The SecAF memorandum and the board rules were signed at the same time making the timeline improper; however, this was not addressed by the AFBCMR;  (3) The SecAF memorandum mentioned both captains and majors to be separated, which was found illegal. The parity was an allowance for the time in service, not rank.  There were decades of allowing captains and majors to be continued; (4) AFPC/JA stated DODI 1320.08 offered no presumption of selective continuation; however, there was no denial of it either, except for this one board.  The custom of selective continuation was practiced for decades as evidenced by AFPC’s news article.  Additionally, DOD did presume captains for selection and DODI 1320.08 accommodates captains for continuation; (5) The Senate report about retention and logistics in May 11 stated the Air Force needed to retain logistics officers, yet a board in Jan 11 dismissed him; (6) The current DODI 1320.14 and AFI 36-2501 supports continuation of captains; and (7) He states in 2005 when he was assigned to the logistics readiness squadron (LRS) there were so many young lieutenants in the squadron, he was compelled to do more.  He did not feel he was contributing or growing and that an AFROTC assignment was an option.  On a personal note, his mother was not well and his assignment to AFROTC was a solution.  He did not know he would be held at AFROTC too long and that it would be career ending. 

The applicant’s complete submission is at Exhibit NN.  

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board remains unconvinced the evidence presented demonstrates an error or injustice.  The Board finds the applicant’s request for change of his duty title for the CY09C and CY10D Major LAF CSBs has been thoroughly considered in this and past applications.  The applicant contends the AFROTC/CC email dated 30 Oct 10 authorizing changes to the AFROTC cadre duty titles warrants correction of his records.  While the email states the changes to duty titles should be made immediately so they would be correct for upcoming boards, the change did not include retroactive or backdating duty title effective dates.  Accordingly, the Board finds the applicant’s duty title on his OPRs was correct as reflected.  Since the Board finds no rationale to warrant correcting the applicant’s duty title, there is no basis to grant the applicant an SSB for promotion consideration to the rank of major. The Board also notes the CoFC in the order dated 6 Nov 20 dismissed the applicant’s complaint for correction of his duty title, with prejudice.  

The applicant also requests he be reinstated into active duty in the rank of captain or be granted an SB for continuation.  The applicant contends the SecAF’s 6 Dec 10 memorandum to USD P&R notifying the SecDef of his intent to not selectively continue larger pools of twice deferred officers in the ranks of captain and major who were within six years of the date of continuation was found illegal and violated DODI 1320.08.  However, the Board disagrees.  Per DODI 1320.08, the SecAF was required to notify USD P&R of any intent to not retain larger pools of officers.  There is no evidence the CoAFC found this memorandum to have violated DODI 1320.08.  Rather, the CoAFC, in Baude v. United States, ruled the SecAF’s Memorandum of Instructions (MOI) to the CY11A Major Selective Continuation Board which narrowed the continuation window from within six years of retirement to within five years of retirement violated DODI 1320.08. There is no evidence to show the MOI to the CY10D Captain Selective Continuation Board was found to be in violation of DODI 1320.08.  Moreover, while the applicant contends that captains and majors are treated alike for continuation and that time in service rather than rank is the determining factor for selective continuation, this simply is untrue.  While DODI 1320.08 provided a protective window for majors within six years of retirement, selective continuation for captains was based on the needs of the Air Force.  The applicant also provides Air Force news articles on selective continuation and CSAF memorandums on the importance of instructor and special duty assignments. The Board does not find this information significant or relevant to the applicant’s request.  The news releases and memorandums to a wide and public audience were for general purpose information and did not include any policy that would have resulted in the applicant’s retention. 

The applicant also contends he has more privilege than the 86 officers not selected for continuation by the  CY10D Captain Selective Continuation Board; however, the Board finds no evidence he had any more privilege than his similarly situated peers who were required to separate due to their twice promotion deferral for the rank of major and were not eligible for continuation. In his latest rebuttal, he contends it was untrue there were 86 similarly situated officers with 14 years of service.  In this respect, the applicant was similarly situated to the 86 captains as they too were  required to separate due to promotion failure to major. The applicant contends the Board’s unwillingness to correct his records is to avoid correcting the records of 86 officers; however, there is no evidence to indicate this to be the case.  The  rationale for denying the applicant’s request is not based on the Board’s reluctance to correct any other record but because there is no error or injustice to warrant correcting the applicant’s record. The Board recognizes the applicant was a prior service officer and served over 14 years in the Air Force; however, 14 years of service in the rank of captain does not automatically entitle him to a 20-year service retirement.  

With respect to the applicant’s contention his case is similar to the plaintiff in Baude v. United States, while the Board is bound to treat similar cases similarly each case is adjudicated on the evidence in the case.  The Board finds the applicant is not similarly situated to the plaintiff in Baude v. United States.  Although both the plaintiff and the applicant had over 14 years of service, the plaintiff was in the rank of major when not selected for continuation by the CY11A Major Selective Continuation Board.  The MOI narrowed the continuation window and the CoAFC determined this MOI violated DODI 1320.08 and directed the Air Force to convene an SB for the plaintiff.  The applicant in this case was in the rank of captain and not eligible for continuation for the CY10D Captain Selective Continuation Board due to his AFSC and the needs of the Air Force.  As a result, he was discharged in the rank of captain for his twice promotion deferral.  There is no evidence the MOI for the CY10D Captain Selective Continuation Board was found to have violated DODI 1320.08 and no Court has ordered the applicant to be considered by an SB for continuation in the rank of captain.  Therefore, the Board recommends against correcting the applicant’s records.

4.  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-2013-01668-7 in Executive Session on 2 Feb 23, 7 Feb 23 and 3 Mar 23:

, Chair, AFBCMR
, Panel Member
, Panel Member

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

Exhibit II:     Record of Proceedings, w/ Exhibits A-HH, dated 11 Apr 22.
Exhibit JJ:	   Application, DD Form 149, w/atchs, dated 3 Oct 22.
Exhibit KK:  Documentary evidence, including relevant excerpts from official records.
Exhibit LL:   Applicant’s Additional Response, dated 27 Jan 23.   
Exhibit MM: Applicant’s Additional Response, dated 14 Feb 23.  
Exhibit NN:  Applicant’s Additional Response, dated 24 Feb 23.  

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.