ADDENDUM TO RECORD OF PROCEEDINGS

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

 	COUNSEL:    

 	HEARING: YES

APPLICANT REQUESTS THAT:

The Board reconsider his requests for change of his duty title to “Flight Commander” and he be considered for promotion to the grade of major by a special selection board (SSB).  

In an additional submission, he also requests the following:

	He receive special board (SB) consideration for continuation.  

	He be reinstated to active duty in the grade of captain with full back pay and benefits and be considered for promotion to major.  

	In the alternative, an opportunity to negotiate a favorable resolution.  

RESUME OF THE CASE:

The applicant is a former Air Force captain.  

He served a period of active duty as a commissioned officer from 26 Jun 01 to 30 Sep 11 and was honorably discharged with a narrative reason for separation of “Non-selection, Permanent Promotion.”  He served 10 years, 3 months and 3 days of active duty service this period.  He also served 4 years, 2 months and 22 days of prior active duty service.  

On 18 Oct 12, BC-2012-01396, the Board granted the applicant’s requests for correction of his promotion recommendation form (PRF) to reflect a change in narrative to show “Vital for #1 LRS & earned Warrior of Qtr” and that he be considered by a SSB for the CY09C Major Central Selection Board (CSB).   However, he was not selected for promotion.  

On 27 Jan 14, BC-2013-01668, the Board considered and denied the applicant’s request that his duty title on his OPRs and PRF while assigned to ROTC from 2006 to 2009 be changed and that he be granted SSB consideration for promotion to major.   The Board determined his duty title of AFROTC Instructor, OPRs and PRF were correct and in accordance with the policy in effect at the time.  The change permitting “Flight Commander” duty title for AFROTC Instructors was not effective until 30 Oct 10, well after the contested reports were finalized, and there was no intent to provide for retroactive corrections of records already a matter of record.  There was also no evidence the applicant was treated differently than others similarly situated.  

On 25 Jan 15, the AFBCMR denied the applicant’s request for reconsideration of his request.

On 31 Aug 15, the Board reconsidered the applicant’s appeal and again denied his request.  The Board determined that although he submitted new information, it was not relevant to warrant granting the requested relief.

On 8 Mar 18, the applicant filed an unopposed motion to stay his case pending the outcome of his petition to the AFBCMR for reconsideration of his application, to include a new request for special board consideration for continuation.  The Court of Federal Claims (CoFC) ordered the AFBCMR to reconsider his application.

In a new DD Form 149, dated 13 Apr 18, Counsel, on behalf of the applicant, asserts the refusal to consider him for continuation is a violation of Air Force instruction and an abuse of authority.  The applicant’s assignment team erred in keeping him assigned to the ROTC mission for too long, resulting in a lack of command time, which negatively impacted his potential for promotion.  

Counsel states on 8 Jul 10, AFPC issued a memorandum for the CY10D Major CSB indicating the Secretary of the Air Force (SecAF) denied continuation to any captains twice nonselected and not within two years of retirement eligibility, instead of the usual six years.   However, after not being selected for promotion the second time, the applicant was entitled and required to meet a selective continuation board.  The selective continuation board was convened, but only considered captains in defined critical skills.  The applicant was not in a critical skill; therefore, he was denied consideration by the selective continuation board.  He was involuntarily discharged on 30 Sep 11.  He was within six years of retirement eligibility on the date he was involuntarily separated but has not been considered for continuation in the grade of captain until retirement eligibility.  

The SecAF illegally denied him consideration by a continuation board when instructing board members to categorically preclude consideration of any captains who were not within two years of retirement eligibility.  The SecAF’s instruction 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, as it constituted an unauthorized force reduction measure and it contravened the DOD policy of continuing captains within six years of retirement.  The SecAF’s determination to reduce the force through the use of such boards is a violation.  He was afforded two SSBs to consider him for promotion to major, but these boards did not consider him for continuation.  The applicant’s complete submission is at Exhibit J.

AIR FORCE EVALUATION:

AFPC/DP2SP recommends denial of the request for special board consideration by the CY10D Captain Line of the Air Force (LAF) Selective Continuation Board.  To be eligible, the applicant would have had to be eligible for consideration by the board and the applicant was not.  To grant relief would be unfair to the other 86 officers who were also not eligible/offered continuation and separated from the Air Force.

On 6 Dec 10, the SecAF approved the convening package for the CY10D Major LAF CSB and the CY10D Captain Selective Continuation Board.  Those eligible to be considered for continuation were flight nurses, operating room nurses and remotely piloted aircraft operator captains on the active duty list who failed selection to major two times and were not retirement eligible or within two years of qualifying for retirement (sanctuary).  The applicant was a logistics readiness officer and was not within two years of qualifying for retirement; therefore, he was ineligible for continuation.  

The SecAF also exercised her authority at the CY11A Major LAF Selective Continuation Board.  On 6 Apr 18, the CoFC ruled that the Air Force had acted within its authority by releasing from active duty Air Force majors who were twice passed over for promotion.   The complete advisory is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 18 May 18 for comment (Exhibit L).   In response, Counsel states the advisory opinion centers around the fact the applicant was ineligible for consideration by the captain selective continuation board due to not being a flight nurse, operating room nurse or remotely piloted aircraft operator or being within two years of retirement.  The criteria given to the board is a primary basis for which the applicant is seeking relief.  Altering the “sanctuary” without formalizing it through proper procedural channels in advance of the board was a material error, which resulted in the applicant to be improperly omitted from consideration.  The Secretary’s decision to change the eligibility was done after the board made their selections.  It is entirely possible this would have affected their decision.  

The reference to majors being passed over to lieutenant colonel being upheld by the CoFC is distinguishable as there is no evidence in Baude v United States that the plaintiffs were prejudiced by their nonselection based on inaccurate records as is the case for the applicant.  Additionally, the guidance from the SecAF limiting eligibility to nonselected majors was issued three months prior to the promotion board and therefore the promotion board was aware that the nonselection would mean dismissal from service.  

Contrary to the advisory, the applicant has submitted new evidence to renew his request for correction of his duty title and SSB.  The applicant’s case is distinguishable from Baude v United States in that he suffered numerous injustices rather than just the change in eligibility for continuation.  The applicant provided evidence his package was handled differently than his peers.  He also provided evidence from a supervisor that the title was the only distinction between the applicant and his counterpart who was selected.  

The applicant was similarly situated to his peers for his first nonselection, as most ROTC instructors would have been improperly titled; however, few if any other instructors would have been in the position for four years.  This meant the applicant was prejudiced more by his title because all his performance reports leading up to the board were with this title rather than simply one or two as was the case with most other officers.  The guidance from the AFROTC commander was issued between the applicant’s first and second promotion boards; therefore, by not correcting his record, the Air Force ensured he was not similarly situated to his peers.  The complete submission is at Exhibit M.

In an e-mail dated 18 Jun 18, the applicant states that in addition to the response provided by his Counsel, his duty title was not listed per the regulation.  Per AFI 36-2406, the duty title should be the approved duty title as of the close out date of the report.  He was not informed of the changes until a year after the board via unofficial channels.  No one made these changes prior to the board and he was failed by leaders at all levels, especially for the second promotion board.  The complete submission is at Exhibit N.  

THE BOARD CONCLUDES THAT:

After reviewing all Exhibits, the Board remains unconvinced the evidence presented demonstrates an error or injustice and therefore finds no basis to recommend granting any of the requested relief.  In this respect, we agree with the Board’s earlier decision that the applicant’s duty title, OPRs and PRF were correct and in accordance with policy in effect at the time.  While it is unfortunate, the applicant was not selected for promotion to major and was required to separate, the evidence clearly shows the duty title structure for AFROTC Instructors was not changed until 31 Oct 10 and there was no intent for retroactive correction.  Counsel asserts his supervisor indicates the only difference between the applicant and his peer who was selected for promotion to major was their duty title; however, there is no evidence to substantiate this to be the case.  Air Force promotion boards consider many factors, to include OPRs, PRF and the OSB, in evaluating an officer’s potential for promotion and it is unlikely any two officers would be exactly alike, except for their duty title.  Moreover, while Counsel asserts the applicant was harmed as a result of his duty title and assignment as an ROTC instructor, we find no evidence he was treated unfairly or differently than his peers similarly situated.  In view of this, we find no reason to grant change of his duty title and SSB consideration for promotion to major.  With respect to Counsel’s request that the applicant be considered for selective continuation in the grade of captain until retirement, as pointed out by AFPC/DP2SP, the applicant was not in a critical skill or within two years of qualifying for retirement and therefore was not eligible to be considered by the selective continuation board.  While Counsel asserts the SecAF violated statute, DOD and AF instructions in denying the applicant continuation and his case is not similar to Baude v United States, we disagree.  In view of the CoFC ruling that the SecAF exercised her authority at the CY11A Major (LAF) Selective Continuation Board, it is our opinion it was also within the SecAF’s authority to release captains twice passed over for promotion to major.  Therefore, the Board recommends against correcting the applicant’s records.

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 the Board’s understanding of the issues involved.

THE BOARD RECOMMENDS THAT:

The applicant be informed the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

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-2013-01668-4 in Executive Session on 3 Jul 18:

 , Chair
 , Panel Member
 , Panel Member

All members voted not to correct the record.  The panel considered the following:

Exhibit H:	Record of Proceedings, w/ Exhibits A-G, dated 5 Feb 14.
Exhibit I:	CoFC Order, filed 9 Mar 18.
Exhibit J:	DD Form 149, dated 13 Apr 18, w/atchs.
Exhibit K:	Advisory opinion, AFPC/DP2SP, dated 11 May 18.  
Exhibit L:	Notification of Advisory, SAF/MRBC to applicant, dated 18 May 18.
Exhibit M: Counsel’s response, w/atchs, dated 15 Jun 18.
Exhibit N: Applicant’s response, dated 18 Jun 18.  

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