ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-01668-5

XXXXXXXXXXXXX	COUNSEL: XXXXXXXXXXXXX
	 
  	HEARING REQUESTED: YES

APPLICANT’S REQUEST

1. He receive special board (SB) consideration for selective continuation pursuant to the Remand Order issued by the Court of Federal Claims (CoFC).  

2. In the alternative, he receive an early retirement per the response to the advisory opinions, dated 20 Apr 21.    

RESUME OF THE CASE

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

On 30 Sep 11, the applicant was honorably discharged in the grade of captain, with a narrative reason for separation of “Non-selection, Permanent Promotion.”  He was credited with 10 years, 3 months and 3 days of active duty service for the period and 4 years, 2 months and 22 days of prior active duty service.

On 18 Oct 12, in BC-2012-01396, the Board granted the applicant’s request that narrative statements on his AF Form 709, Promotion Recommendation Form (PRF), prepared for the CY2009C Major Central Selection Board (CSB) be changed and that he be granted special selection board (SSB) consideration for promotion to the grade of major (O-4).  The applicant was not selected for promotion by the SSB.    

On 13 Mar 13, ARPC/DPTT informed the applicant he was not selected for promotion to the grade of major in the Air Force Reserve and that he would be retained until 30 Sep 14, the date of expiration of his special separation benefit (SSB) program contract.  

On 27 Jan 14, 25 Jan 15, and 31 Aug 15 the Board denied the applicant’s request for change of his duty title to reflect “Flight Commander,” he be considered for promotion to the grade of major by a SSB, and he receive SB consideration for selective continuation.  

On 9 Mar 18, the CoFC granted the applicant’s motion to stay his case pending a petition he intended to file with the BCMR.  

On 3 Jul 18, the Board reconsidered and denied the applicant’s requests for change of his duty title to “Flight Commander,” he receive SSB consideration for promotion to the grade of major and he receive SB consideration for selective continuation.  The Board concluded his promotion recommendation form (PRF) and officer performance reports (OPR) from 2006 to 2009 were correct as reflected since the policy change for AFROTC Instructor duty titles to reflect “Flight Commander” was not effective until 30 Oct 10.  Therefore, the Board found no evidence he was not properly considered for promotion to the grade of major and noted he was not eligible for selective continuation based on the Secretary of the Air Force’s (SecAF) Memorandum of Instruction (MOI) and established criteria for selective continuation.     

For an accounting of the applicant’s requests and the rationale of the earlier decisions, see the Addendum to Record of Proceedings at Exhibit O, with Exhibits.  

On 9 Nov 20, the CoFC remanded the applicant’s case to the BCMR.  The Order reissued on 6 Nov 20 stated on 29 Oct 20, the applicant’s complaint was dismissed in part, as it pertains to the challenges of his duty title.  On remand, the BCMR was ordered to reconsider the applicant’s request for a SB for selective continuation per the decision in Baude v United States.     

APPLICABLE AUTHORITY

Baude v United States:

The plaintiff in this case was an officer in the grade of major who was twice non-selected for promotion to the grade of lieutenant colonel (O-5), not selected for continuation based on the SecAF’s MOI to the continuation board and subsequently discharged with over 15 years of service.  On 28 Jan 15, the BCMR denied the plaintiff’s, and 15 other officers in the grade of major, request that they be considered by a SB for continuation, they be reinstated into active duty or they be granted retirement benefits under the Temporary Early Retirement Authority (TERA).  On 12 Jan 16, the plaintiff filed a complaint with the CoFC.  The CoFC remanded the case to the BCMR for reconsideration.  His case was consolidated with several others and on 31 Mar 17, the BCMR denied the requests.  

On 9 Apr 20, the Court of Appeals for the Federal Circuit (CoAFC), Baude v United States, concluded the BCMR’s decision to deny the plaintiff SB consideration for continuation was arbitrary, contrary to law and unsupported by substantial evidence.  The CoAFC vacated the CoFC’s denial of the plaintiff’s cross motion for summary judgement and ordered on remand that a SB be convened for reconsideration of his non-continuation.  The CoAFC concluded the SecAF’s instructions to the selective continuation board violated DoDI 1320.08, Continuation of Commissioned Officers on Active Duty and on the Reserve Active Status List, because the SecAF lacked the authority to re-write the regulation or narrow the protective window or disregard the regulatory presumption in favor of continuation.  Further, even if the SecAF had the authority to declare any circumstances sufficiently unusual to justify rewriting other aspects of the regulation, which he did not, there were no “unusual circumstances identified.”  

An officer in the Air Force who holds the grade of major (O-4) must appear before a promotion board to receive further promotion per 10 U.S.C. §§ 611a and 628(k).  An officer who otherwise would be discharged for nonselection of promotion may nevertheless remain in active service if a continuation board selects them for continuation per 10 U.S.C. §§ 611 and 637.  A commissioned officer on the Active Duty List in the grade of major shall normally be selected for continuation if the officer will qualify for retirement within 6 years of the date of continuation.  The Secretary of the Military Department in unusual circumstances such as when an officer’s personnel record contains derogatory information may be discharged involuntarily.  

AIR FORCE EVALUATION

AFPC/DP2SP recommends denial for SB consideration by the CY10D Captain Selective Continuation Board.  To be eligible for an SB, the applicant would have had to be eligible for consideration by the board and he was not.  To grant relief would be unfair to the other 86 officers who were also not eligible and not offered continuation and were separated.  Therefore, there are no grounds for SB consideration.  

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 who failed selection to major two times, who were not retirement eligible or within two years of qualifying for retirement (sanctuary).  The applicant was a logistics readiness officer and therefore, was ineligible to be considered for continuation.  

The complete advisory opinion is at Exhibit R.  

AFPC/JA recommends denial.  Although the CoFC remanded the case to the Board to reconsider the applicant’s claims in light of Baude v United States, the applicant’s situation is distinguishable from the Baude claimants.  The Court in that case granted relief to one major who challenged the SecAF’s decision to change the presumption of selective continuation for majors from six years from retirement to five years.  DoDI 1320.08 offers no presumption of selective continuation for captains.  Furthermore, the SecAF’s instructions pertaining to captains made no mention of years from retirement, rather they were limited to possession of one of three specific Air Force Specialty Codes (AFSCs) based on the needs of the Air Force.  Consequently, the applicant does not benefit from the Baude ruling.  

The applicant met his first major promotion board on 2 Nov 09 and was not selected.  He met his second board on 6 Dec 10 and was again not selected.  Per the SecAF’s MOI, he was not eligible to meet the selective continuation board based on his AFSC and was not within two years of qualifying for retirement (sanctuary).  Consequently, he was involuntarily separated on 30 Sep 11, in accordance with 10 U.S.C. § 632, for his two time nonselection to major.  

Counsel contended the SecAF’s denial of continuation constituted a violation of DoDI 1320.08 and the MOI was illegal; however, it was within the SecAF’s authority per 10 U.S.C. § 638a.  It is clear from the verbiage of DoDI 1320.08 in effect at the time that the DoD policy differed for officers in the grade of captain versus major.  It stated the Secretary of the Military Department may when the needs of the service require, convene continuation selection boards to recommend commissioned officers in the grade of captain on the Active Duty List who are subject to discharge or retirement for continuation.  Further, it stated that the Secretary concerned may when the needs of the service require, convene continuation selection boards to recommend officers in the grade of major who are subject to discharge or retirement.  A commissioned officer in the grade of major shall normally be selected for continuation if the officer will qualify for retirement within six years of the date of continuation.  When the Secretary concerned intends not to continue larger pools of officers in the grade of major who would qualify for retirement within six years of the date of a continuation, the Secretary shall notify the USD P&R of the proposed course of action.  While DoD policy presumed selective continuation for majors who were within six years of retirement, there was no corresponding presumption for captains.  Likewise, Air Force policy has always differed for officers in the grade of captain versus major.  Officers in the grade of major have generally been selectively continued if they met specific eligibility criteria dictated by the SecAF’s MOI.  The SecAF’s instruction to only offer selective continuation to those captains possessing certain AFSC’s did not violate DoDI 1320.08.  It was based on the needs of the Air Force, which is the only requirement. 

The complete advisory opinion is at Exhibit S.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant on 23 Mar 21 for comment (Exhibit T), and counsel replied on 20 Apr 21.  Counsel requests the Board render a decision consistent with the CoAFC in Baude v United States, with regard to whether the SecAF had the authority to issue instructions to decrease the protective threshold for officers like the applicant.  While the applicant is not in the grade of major, it was universally accepted that an officer, either in the grade of captain or major, enjoyed the protection of the “six-year rule.”  

The advisory opinion goes on about different regulations and argues the applicant is misapplying certain regulations.  It fails to address that the CoAFC recently resolved the issue and determined that denying relief to similarly situated officers was arbitrary, contrary to law and unsupported by substantial evidence.  The Court made it clear that officers who put 14 or more years of their lives into serving their country deserved more than to be separated by one individual attempting to unilaterally rewrite policy and regulations.  The Court expressly stated that the SecAF does not have the discretion to re-write DoDI 1320.08 and went on to reverse the lower Court’s decision.

The Court in Baude v United States determined the SecAF’s instructions to the selective continuation board violated DoDI 1320.08.  The Court concluded that because the SecAF was obligated to follow DoDI 1320.08, corrective action is warranted and remanded the case to the BCMR to correct their previous error.  In this case, the applicant agreed to drop the issue of the Air Force failing to correct his duty title in order to have his case remanded.   

Congress and policy makers intended to have officers like the applicant continued until retirement and the CoAFC has ruled that denying the applicant’s requests would be arbitrary and contrary to law.   In the alternative, the applicant should be granted an early retirement.  The complete response is at Exhibit U.

APPLICANT’S ADDITIONAL REVIEW OF AIR FORCE EVALUATION

In an additional response dated 7 May 21, counsel states due to system issues they were unaware of the AFPC/DP2SP advisory opinion until made aware by the Government’s counsel and requests the Board review the additional response.  Counsel requests the Board disregard the advisory opinion and render a decision consistent with the CoAFC in Baude v United States, with regard to the question at issue, whether the SecAF had the authority to issue instructions to decrease the protective threshold for officers like the applicant.   

The applicant should be afforded the same protection and corrections the CoAFC remanded to the BCMR for the plaintiff in the Baude matter.  It was an established and accepted practice of the military branch to afford the same protections to captains that were afforded to majors with regard to continuation action.  While the applicant is not in the grade of grade of major, it was universally accepted as an established business practice that an officer, either in the grade of captain or major enjoyed protection of the “six-year rule.”  

In responding to the irredeemable comment that it would be unfair to do the right thing for the applicant because there were 86 other officers denied continuation, the Board should be more concerned with doing the right thing and correcting the errors forced upon all 87.   A senior officer in the Air Force cannot possibly make an argument that the BCMR should deny a request to correct an obvious error against the applicant because it does not want to fix the error that occurred with regard to others.  

Counsel requests the Board confirm their assertions that the case cited was overturned, that Air Force officers actually won the case and that the practice to provide the same six-year protections to captains was an established business practice until the SecAF made the change.  The advisory opinions do not properly address the overwhelming evidence submitted by the applicant and the litigation that has already taken place well above the BCMR.  The complete response is at Exhibit V.  

FINDINGS AND CONCLUSION

After reviewing all Exhibits, the Board remains unconvinced the evidence presented demonstrates an error or injustice.  The Board reconsidered the applicant’s request for SB consideration for selective continuation as remanded by the CoFC.  The Board notes counsel contends the applicant’s request should be granted per the decision in Baude v United States and that his case is similar to the plaintiff’s in that case; however, the Board disagrees.  The Board does not dispute the CoAFC ordered in Baude v United States that the plaintiff be considered by a SB for selective continuation.  However, the plaintiff in that case was in the grade of major when twice deferred for promotion to lieutenant colonel and not selected for continuation by the CY11A Major Selective Continuation board.  Although the plaintiff was within six years of qualifying for a length of service retirement, the SecAF’s modified MOI to the board stated officers within five-years of retirement eligibility as of the convening date should be retained.  The applicant in this case was in the grade of captain when discharged for his twice deferral for promotion to the grade of major.  Moreover, the applicant was not eligible and not considered for continuation by the CY10D Captain Selective Continuation board, as his AFSC did not meet eligibility criteria for selective continuation.  Consequently, counsel has provided insufficient evidence to show the applicant’s case is similar to the plaintiff’s case in Baude v United States.    

Counsel also contends per Baude v United States, the SecAF violated DoDI 1320.08 in excluding officers in the grade of captain within six years of qualifying for retirement eligibility selective continuation.    However, as pointed out by AFPC/JA, DoDI 1320.08 offers no presumption of selective continuation for officers in the grade of captain twice deferred for promotion to major.   Counsel further contends that all officers who serve 14 years should automatically be continued until retirement eligibility; however, this is not a matter of policy and there are no provisions in the regulation or law to guarantee a military retirement solely for reaching 14 years of service.  In view of the above, the Board concurs with the rationale and recommendations of AFPC/DP2SP and AFPC/JA and finds a preponderance of the evidence does not substantiate the counsel’s contentions.  With respect to counsel’s request that in the alternative the applicant be granted an early retirement, the Board finds no evidence the applicant was eligible for or approved for retirement under the TERA to warrant granting the requested relief.  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-2013-01668-5 in Executive Session on 28 Apr 21, 13 May 21 and 21 May 21:

 , Panel Chair
 , Panel Member
 , Panel Member

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

Exhibit O:	Record of Proceedings, w/ Exhibits H-N, dated 3 Jul 18.
Exhibit P:	Letter, CoFC, w/atch, dated 9 Nov 20.
Exhibit Q:  Baude v United States, CoAFC, dated 9 Nov 20.
Exhibit R:	Advisory opinion, AFPC/DP2SP, dated 13 Jan 21
Exhibit S: Advisory opinion, AFPC/JA, dated 19 Mar 21. 
Exhibit T:	Notification of Advisory, SAF/MRBC to applicant, dated 23 Mar 21.
Exhibit U:	Counsel’s response, w/atchs, dated 20 Apr 21.  
Exhibit V: Counsel’s response, w/atchs, dated 7 May 21.  

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.