ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-04214-3

XXXXXXXXXXXXXX	COUNSEL: NONE	 

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

The Board reconsider his request he be considered by a special board (SB) for selective continuation by the CY11A Major Selective Continuation Board.  

He also requests the following new requests:

1.	If selected for continuation, his status on active duty be restored with continuation until retirement with back pay and allowances, less appropriate offsets, and service credit.  

2.	 His promotion to the rank of lieutenant colonel (O-5) in the Air Force Reserve be recognized, if reinstated to active duty.

RESUME OF THE CASE

The applicant is a retired Air Force Reserve lieutenant colonel (O-5), awaiting retired pay upon age 60.  

On 30 Nov 11, the applicant was honorably discharged from the Regular Air Force in the rank of major (O-4) with a narrative reason for separation of “Non-selection, Permanent Promotion.”  He was credited with 15 years, 1 month and 29 days of active duty service.  

Per ARPC IMT 92, Appointment Order, dated 20 Nov 11, the applicant was appointed in the rank of major in the Air Force Reserve on 1 Dec 11.  

The applicant was promoted to lieutenant colonel in the Air Force Reserve with DOR and effective date 1 Aug 13.

On 30 Oct 14, the Board considered and denied the applicant’s request he be reinstated to active duty or in the alternative, he be granted retirement under the Temporary Early Retirement Authority (TERA).  The Board adopted the opinions of the advisory opinions the applicant was not the victim of an error or injustice.  The Board concluded the Secretary of the Air Force (SecAF) acted within the limits of his authority in the instructions provided to the continuation board.  The Board noted Air Force policy stated the SecAF could change criteria for continuation based on Air Force needs and it was within his authority to change the timeframe for continuation from 6 years to 5 years to qualify for retirement.  

On 10 Oct 16, the applicant was placed on the Reserve Retired List in the rank of lieutenant colonel, eligible for retired pay except for attainment of eligibility age.  

On 8 Feb 17, the Board reconsidered and denied the applicant’s request he receive SB consideration for the CY2011A Major Selective Continuation Board.  The applicant, through counsel, appealed to the Court of Federal Claims (CoFC).  The CoFC remanded the applicant’s request for SB to the AFBCMR for reconsideration.  After reviewing the application again, it remained the opinion of the Board it was within the SecAF’s authority to narrow the continuation window from 6 to 5 years. Therefore, absent a showing that the decision to not continue him until retirement eligibility was otherwise arbitrary, capricious, or an injustice, the Board found no further action was required.  

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

On 25 May 21, the applicant requested reconsideration of his request based on new evidence issued by the Court of Appeals for the Federal Circuit (CoAFC) in Baude v. United States, 9 Apr 20, which established the SecAF violated DODI 1320.08, Continuation of Commissioned Officers on Active Duty and on the Reserve Active Status List, when he failed to follow procedures in that regulation for continuing officers who met the CY11A Major Selective Continuation Board.  In addition to requesting SB for the CY11A Major Selective Continuation Board and reinstatement to active duty, the applicant also requests the Board recognize his promotion to lieutenant colonel in the Air Force Reserve.  

DODI 1320.08 in effect at the time of his continuation board stated “A commissioned officer on the active duty list (ADL) in the grade of O-4 who is subject to discharge according to section 632 shall normally be selected for continuation if the officer will qualify for retirement according to section 3911, 6323 or 8911, within 6 years of the date of the continuation.”

The applicant’s complete submission is at Exhibit Q.

APPLICABLE AUTHORITY/GUIDANCE

Baude v. United States:

On 9 Apr 20, the CoAFC issued an opinion  (Baude v. United States) that the named plaintiff demonstrated the AFBCMR’s decision in denying him SB for continuation in the rank of major was arbitrary, contrary to law and unsupported by substantial evidence. The plaintiff was not selected for continuation by the CY11A Major Selective Continuation Board.  He was within 6 years of qualifying for a length of service retirement; however, the SecAF’s modified memorandum of instruction (MOI) to the board narrowed the window for continuation to officers within 5 years of retirement instead of 6 years.  The CoAFC vacated the CoFC’s earlier opinion for judgment in favor of the Government and reversed the denial of the plaintiff’s cross-motion for summary judgment.  The CoAFC concluded the SecAF’s instructions to the continuation board did in fact violate 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.  It stated an officer in the Air Force who holds the grade of 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 (ADL) in the grade of O-4 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.  In this case there were no unusual circumstances.  The case was remanded to the AFBCMR to convene a SB for reconsideration of the plaintiff’s non-continuation through a process consistent with DODI 1320.08. On 23 Nov 20, the CoAFC informed the AFBCMR of the Order.  Due to the CoAFC Order directing the Air Force convene a SB for the plaintiff rather than remanding the plaintiff’s request for reconsideration by the AFBCMR, the applicant’s case was not considered by the AFBCMR.  Instead, on 25 Mar 21, the plaintiff was considered by a SB convened at AFPC for the CY11A Major Selective Continuation Board.  

DODI 1300.04, Inter-Service and Inter-Component Transfers of Service Members, paragraph 2.2(c) Secretaries of the Military Departments may approve transfers into their respective departments that are acceptable to both the gaining Military Service and the losing uniformed service and are in the best interests of both parties.

DODI 1300.04, paragraph 3.2(b)(1)(a) A commissioned officer transferring between the active duty list and the Reserve Active Status List (RASL) of the same Military Service will be processed
for an original appointment in accordance with DODI 1310.02, Original Appointment of Officers.
The officer’s appointment grade and DOR will be determined by the Military Service concerned.

DODI 1310.02, Original Appointment of Officers, Enclosure 3(a) All Regular and Reserve appointments for officers in the grade of lieutenant colonel are made by the President, by and with
the advice and consent of the Senate, unless otherwise authorized in law.

AIR FORCE EVALUATION

AFPC/JA states the AFBCMR has a choice.  If the AFBCMR believes the principles articulated in Baude v. United States apply to the applicant, they may grant his request and direct he meet another SB for continuation utilizing the standard of 6 years from retirement vice 5.  If on the other hand, the AFBCMR does not believe the principles articulated in Baude v. United States apply to the applicant, the Board may deny relief.

In 2013, the applicant, as well as most of the other 156 majors not selected for continuation by the CY11A Major Selective Continuation Board, filed for relief through the AFBCMR.  The Air Force position at the time was that the SecAF’s decision to modify the selective continuation window from within 6 years of retirement to 5 years was within law, DOD and Air Force boundaries.  The AFBCMR agreed and denied relief to all applicants.  In Apr 2018, the CoFC issued an opinion that the SecAF possessed the discretion to alter the continuation requirements and did so lawfully.  In Apr 20, the CoAFC issued its opinion (Baude vs. United States), rejecting the BCMR’s decision to deny relief.  Thus, the CoAFC issued an order that the plaintiff receive SB consideration utilizing the standard 6 years from retirement vice 5 years.  

The CoAFC opinion (Baude v. United States) specifically limited its opinion to the plaintiff in the case because as a non-attorney he was unable to represent or assert rights on behalf of other parties.  Thus, the AFBCMR is not bound to consider any other applicant for reconsideration.  The applicant argues he should be treated the same as the plaintiff based on several court opinions indicating agencies must treat like cases alike, unless there is a relevant distinction.  The case is in fact distinguishable since the CoAFC has not directed any action by the AFBCMR on behalf of the applicant.  With respect to the plaintiff in Baude v United States, there was no choice but to convene a board for reconsideration of his non-continuation.  

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 1 Feb 22 for comment (Exhibit T), and the applicant replied on 9 Feb 22. The plaintiff in Baude v. United States appealed the decision of the CoFC on behalf of himself and 16 others (including him) whose claims were consolidated with the plaintiff’s claim.  The CoAFC dismissed the claims for the 16 plaintiffs because it did not have jurisdiction since the plaintiff was not an attorney.  However, the CoAFC included the comment in their opinion that “While the military is given a wide berth with respect to its decision, its discretion is not wide enough to justify the process it employed in this matter. The Administrative Procedures Act demands more, and officers like the plaintiff deserve more.”  This statement speaks indirectly to the AFBCMR mandate to correct the error for officers who faced the same process as the plaintiff.  They were both considered for continuation by the CY11A Major Selective Continuation Board, which received a memorandum of instruction (MOI) from the SecAF that violated DODI 1320.08, as determined by the CoAFC.  

Although the AFBCMR is not bound by a court order to reconsider his application for SB, it is bound to address any request for a reconsideration that a service member requests when it is supported by materials not previously considered.  He presented the opinion of the CoAFC for Baude v. United States showing there was an error or injustice associated with his non-continuation and involuntary discharge.  The CoAFC’s opinion contradicts the original AFBCMR decision.  

The AFPC/JA opinion is that the AFBCMR is not bound to consider any other application for reconsideration; however this is inconsistent with the decision in Berkley v. United States.  This decision also opened the door for officers who were not participants in the Berkley lawsuit to use that case as a basis for requesting special selection boards (SSB) if their selection boards received equal opportunity instructions.  The AFPC/JA advisory also did not cite a single AFBCMR decision or court case in support of saying the cases are distinguishable.  The AFPC/JA advisory also states the Board may deny his request for SB if it did not believe the principles articulated in Baude v. United States apply to his case.  The underlying error is the same, they both met the CY11A Major Selective Continuation Board and the CoAFC concluded the SecAF’s instruction to that board violated DODI 1320.08.  Accordingly, the AFBCMR may grant his request for a SB that utilizes the standard of 6 years from retirement vice 5, as advised by AFPC/JA.  

The applicant’s complete response is at Exhibit U.

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 concludes the applicant is the victim of an error or injustice.  The Board notes AFPC/JA states the Board is not bound to consider any other applicant other than the plaintiff in Baude v United States; but also states the Board may grant the applicant’s request he meet another selective continuation board utilizing the standard six years from retirement vice five if the Board concluded the principles articulated in Baude v United States applied to the applicant.  In this respect, the Board finds the applicant is similarly situated to the plaintiff in Baude v United States.  Like the plaintiff, the applicant was considered but not selected for continuation by the CY11A Major Selective Continuation Board.  The CoAFC concluded the SecAF’s MOI to the CY11A Major Selective Continuation Board narrowing the continuation window from within six years of retirement to within five years of retirement violated DODI 1320.08.  Accordingly, the Board finds sufficient evidence has been presented to grant the applicant SB consideration for the CY11A Major Continuation Board.  However, for the remainder of the applicant’s request, the evidence presented did not demonstrate an error or injustice, and the Board therefore finds no basis to recommend granting that portion of the applicant’s request.   In this respect, the Board notes the applicant requests if selected for continuation and reinstated on to active duty his promotion to lieutenant colonel in the Air Force Reserve be recognized.  However, the request for recognition of his Air Force Reserve rank is dependent on his selection for continuation and thus, is not ripe for adjudication by the Board at this time.  Moreover, the Board does not find his selection for promotion to lieutenant colonel in the Air Force Reserve sufficient evidence to sustain he would have been selected for promotion to lieutenant colonel by an active duty board.  The Board concludes the recommended corrections of the applicant’s records are proper, fitting and in accordance with the CoAFC ruling in Baude v United States ordering the plaintiff be considered for a SB for continuation in the rank of major.  Therefore, the Board recommends correcting the applicant’s records as indicated below.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show:

a.	He be considered by a special board (SB) for continuation for the CY11A Major Selective Continuation Board.  

b.	The Memorandum of Instruction (MOI) language for the SB be as follows: Majors who will qualify for retirement within six years of the convening date of the board (7 Mar 11) shall normally be continued.  Officers not within six years of retirement may be recommended for continuation, but only if determined that continuation is clearly in the best interest of the Air Force. It will normally be in the best interest of the Air Force to continue officers with critical skills. The SecAF has determined that the following skills are critical to the Air Force: RPA Operators (18X, 11U, 12U); Fighter Pilots (11F); Bomber Pilots (11B); Special Operations CSOs (12S); Combat Rescue Officers/Special Tactics Officers (13D); Catholic Chaplains (52R); Clinical Psychologists (42P); Flight Nurses (46F); and Mental Health Nurses (46P).

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-2013-04214-3 in Executive Session on 25 Mar 22:

 , Panel Chair
 , Panel Member
 , Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit P:	Record of Proceedings, w/ Exhibits A-O, dated 28 Jan 15.
Exhibit Q:	Application, DD Form 149, w/atchs, dated 25 May 21.
Exhibit R:	Documentary evidence, including relevant excerpts from official records.
Exhibit S:	Advisory Opinion, AFPC/JA, dated 27 Jan 22. 
Exhibit T:	Notification of Advisory, SAF/MRBC to Applicant, dated 1 Feb 22.
Exhibit U:	Applicant’s Response, dated 9 Feb 22.

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.