RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2013-04767

  XXXXXXXXXX	COUNSEL:  XXXXXXXXXX

						HEARING DESIRED:  YES

APPLICANT REQUESTS THAT:

His separation from the Air Force be overturned and he be reinstated in the grade of major (O-4) until he is retirement eligible.

APPLICANT CONTENDS THAT:

In a 19-page statement the applicant’s counsel presents the following major contentions:

1.  The applicant should have been promoted to the grade of lieutenant colonel (O-5) in accordance with the Secretary of the Air Force (SecAF) Memorandum of Instructions (MOI), pertaining to Selective Continuation Boards.

2.  The SecAF violated DoDI 1320.08, Continuation of Commissioned Officers on Active Duty and on the Reserve Active Status List, and lacked the authority to change the six-year protective window to a five-year protective window.

3.  The applicant was denied adequate time to make any meaningful improvements to leadership and the morale of his staff.

4.  Discrimination based on his sexual orientation began a chain of events that wrongfully led to his non-selection for promotion to the grade of lieutenant colonel and ultimately served as grounds for his separation.

In support of his request, the applicant provides a personal declaration, copies of his Officer Performance Reports (OPRs), award citations, memoranda, electronic communiqués, and various other items related to his request.

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:

The applicant entered the Regular Air Force on 15 August 1996.

In a letter dated 27 January 2008, the applicant’s commander relieved him as commander of the services squadron effective immediately.

In a letter dated 14 June 2011, the applicant’s commander notified him that he was considered, but not selected for promotion by the Calendar Year (CY) 2011A Lieutenant Colonel Line of the Air Force (LAF) Central Selection Board (CSB).  Since this was his second nonselection to the grade of lieutenant colonel, the applicant was notified that he would be involuntarily separated on 30 November 2011.

On 30 November 2011, the applicant was discharged from the Regular Air Force in the grade of major.  His narrative reason for separation is “Non-selection, Permanent promotion.”  He was credited with 15 years, 3 months and 16 days of active duty.

On 30 October 2014, the Air Force Board for Correction of Military Records (AFBCMR) denied relief to numerous applicants seeking reinstatement to active duty alleging the SecAF lacked the authority to change the six-year protective window to a five-year protective window, thus violating DoDI 1320.08.  The AFBCMR stated in part that “the Secretary acted within the limits of his authority in the instructions he provided to the continuation board ...changing the timeframe for continuation from 6 years to 5 years in order to qualify for retirement was completely within the SecAF’s prerogative.”

On 2 March 2015, the AFBCMR staff forwarded the applicant’s counsel a redacted copy of the noted Record of Proceedings for review and comment within 30 days (Exhibit G).

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C and D.

AIR FORCE EVALUATION:

AFPC/DPSOR recommends denial indicating there is no evidence of an error or an injustice.  The separation was appropriately processed in accordance with AFI 36-3207, Separating Commissioned Officers, Chapter 3, “Officers who are twice non-Selected for Promotion.” Therefore his service characterization, reason for separation and separation code are correct as reflected on his DD Form 214, Certificate of Release or Discharge from Active Duty, and separation orders.  Officers who are twice non-selected for promotion to captain, major and lieutenant colonel are projected for mandatory separation based on Department of Defense directives.

A complete copy of the AFPC/DPSOR evaluation is at Exhibit C.

AFPC/JA recommends denial.  The operative facts concerning the applicant's allegations began with his being relieved of his duties as the commander on 27 January 2008.  Although stating that he was only relieving the applicant of his duties a few months early and was not “firing” him, the commander cited a loss of confidence in the applicant’s ability to effectively lead the military and civilian members of his unit and a need to improve the unit's morale.  The commander went on in his letter to fully explain the basis for his action, noting that the applicant's integrity and character were not in question.  In fact, the OPR he received for this time period was not referred and did not make reference to his having been relieved early as commander.  The applicant went from this assignment to become the Director of Protocol, during which time he also deployed as a Deputy Chief of Staff. It was while deployed that he received notice of his first nonselection for promotion to the grade of lieutenant colonel.  The second notification followed less than a year later.

The applicant's first allegation of error is that he was improperly passed over for promotion to the grade of lieutenant colonel.  His counsel argues that under the Air Force's “whole person” standard for promotion, he met or exceeded all of the factors for promotion listed in the SecAF MOI.  As such, he argues, the applicant should have been a candidate for promotion.  While counsel is correct that the applicant was fully qualified for promotion based on his record, promotion as an officer in the Air Force also requires that the officer be among the best qualified in the eligible population that can be promoted to lieutenant colonel.  Neither the applicant nor his counsel were privy to the all the records that competed against the applicant for promotion, and they are unable as a matter of fact and law to state that applicant was among the limited quota of those deemed best qualified for promotion.  AFPC/JA’s review of the applicant's performance reports reveal a solid record of performance, but not the very strong stratification and enthusiastic assessments usually found in the records of those selected for promotion to lieutenant colonel.

Counsel also argues that the real reason the applicant was probably not promoted was the revelation made that the applicant was a homosexual.  In fact, counsel states the applicant’s homosexuality is the reason he was relieved early from his duties as commander.  After having disclosed his sexual orientation to a few trusted individuals, the applicant states that his sexual orientation became the subject of an anonymous Inspector General complaint. That complaint, however, was subsequently dismissed.  Because his command knew of his sexual orientation, counsel believes this was the real reason the applicant was relieved as commander and thus was responsible in part for his ultimate nonselection for promotion.  Based on the information provided, this allegation is totally speculative and devoid of any substantiating evidence.  The applicant's commander, in his letter of explanation for relieving the applicant of his command, spelled out in detail the reasons for the action.  Those reasons did not mention anything to do with applicant's sexual orientation.  In the absence of evidence to the contrary the actions of the applicant's commander are entitled to the presumption that they were carried out lawfully and according to Air Force policy and regulation.

Counsel next argues that the SecAF violated DoDI 1320.08, which in turn denied the applicant his right to be selectively continued on active duty until he reached retirement eligibility (twenty years of active duty).  According to Title 10 USC § 632(a)(l), officers on active duty in the grade of major who are twice not selected for promotion to lieutenant colonel shall be discharged not later than the first day of the seventh calendar month in which the President approves the report of the board which considered him for the second time.  One of the exceptions to this requirement is found in Title 10 USC § 637(a) (l), which provides that an officer subject to discharge or retirement in accordance with 10 USC § 632 may, subject to the needs of the service, be continued on active duty if he is selected for continuation on active duty by a selection board convened under 10 USC § 61l (b).  Subsection (a)(3) of Section 637 provides that a major can be continued for up to 24 years (limited to 20 years by Air Force policy).  Selective continuation is governed by DoDI 1320.08, wherein is stated the general DoD policy to retain competent and effective commissioned officers through the selective continuation process as a cost-effective means of satisfying skill needs in the Military Services.  Authority is delegated to the Service Secretaries to convene selection boards based on the needs of the Military Service concerned for continuation of officers on the Active Duty List.  Thus, the Instruction makes clear at the outset that whether a continuation board is held and officers are continued is a discretionary matter based upon the needs of the particular service.  DoDI 1320.08, paragraph 6.3, provides in part that a commissioned officer on the Active Duty List in the grade of O-4 who is subject to discharge according to 10 USC 632 shall normally (emphasis added) be selected for continuation if the officer will qualify for retirement according to Title 10 § 8911 if within six years of the date of continuation.  The section goes on to provide that: The Secretary of the Military Department concerned may, in unusual circumstances such as (emphasis added) when an officer's official personnel record contains derogatory information, discharge an officer involuntarily in accordance with Title 10 § 632 of.  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 a continuation, the Secretary shall notify the USD (P&R) of the proposed course of action.

Based on the needs of the SecAF to size and shape the force to comply with Congressionally-mandated end strength, the SecAF notified USD (P&R) on 6 December 2010, of his intent to exercise his authority to not selectively continue officers who would otherwise qualify for retirement within six years.  The eligibility criteria established and his instructions to the continuation board met by the applicant were consistent with this decision; i.e., the Secretary advised the board members that majors who will qualify for retirement within five years of the convening date of the board shall normally be continued.  Officers not within five years could be recommended for continuation, but only if the board determined that continuation was clearly in the best interest of the Air Force.  The board was also advised that they normally should not continue any officer in this category, who does not have a Secretarially-identified critical skill, unless it is in the best interest of the Air Force to do so.  The applicant’s career field was not one that was identified as critical by the SecAF.  Thus, the decision by the SecAF to change the retirement eligibility window from six to five years based on valid force shaping/management requirements was a perfectly permissible exercise of the discretion provided for in DoDI 1320.08 and was not in violation thereof. As such, the applicant was properly discharged in accordance with Title 10 USC §632.

Counsel next alleges that the applicant was improperly denied an opportunity to make improvements to leadership and the morale of his staff.  However, the applicant had the entire period of his command to have exercised the requisite command authority and establish acceptable unit morale.  There is no requirement for a commander to provide any particular amount of time before exercising his discretion to relieve a commander of command.  The well-being of the organization is always the paramount factor in making this decision.  The applicant's commander obviously relied on this factor in making the proper decision that he did.  In this, as well as his final allegation of impropriety, applicant's counsel again suggests that news of the applicant's sexual orientation drove the early removal from command and a chain of events that wrongfully led to his nonselection for promotion and ultimate separation.  The applicant has offered no evidence of this theory, but merely speculation as to what he believes probably happened. This is not sufficient to establish an error or injustice.

A complete copy of the AFPC/JA evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The advisory opinions fail to fully address the arguments presented in the applicant’s case.  AFPC/DPSOR asserts that the applicant’s separation was processed in accordance with AFI 36-3207.  However, the applicant does not take issue with how his separation was processed; rather, he takes issue with the sequence of events leading up to and the Air Force's decision to arbitrarily reduce the selective continuation protective window from six years to five.  AFPC/JA states that “neither the applicant nor his counsel were privy to all the records that competed against the applicant for promotion.”  On the other hand AFPC/JA argues that their review of the applicant’s performance reports indicates that he lacked the “very strong stratification and enthusiastic assessments usually found in the records of those selected for promotion to Lieutenant Colonel.”  AFPC/JA’s logic on this point is contradictory and biased against the applicant as it uses information and records that the applicant would have no possible way of obtaining.  Counsel requests that the Board provide this information in accordance with Title 10 USC § 1552.  Nonetheless, the only viable conclusion is that based on the evidence of record the applicant met the standards set forth by the SecAF and should have been promoted. 

AFPC/JA suggests that the SecAF acted within his authority to change the Air Force's continuation policy for majors.  This assertion is based on an extremely loose interpretation of the regulation and does not sufficiently establish that the SecAF did not violate DoD policy.  Further, the alleged notification provided by the SecAF to USD (P&R) of the changes did not properly address the legal authority to reduce the selective continuation window of protection.  Had the SecAF properly adhered to DoDI 1320.08, the applicant would have almost certainly been continued as he had served just over fifteen years as an active duty Air Force officer.

AFPC/JA also wrongly maintains that that the applicant’s supervisor was fully justified in his decision to remove the applicant from command and that his commander was within his rights to terminate him from command as there is no requirement for a commander to provide any particular amount of time before exercising his discretion to relieve a commander of command. However, on 7 January 2008, the applicant was informed that he had until 31 March 2008 to improve the morale of his command, yet only 20 days later he was formally removed as commander.  His premature removal did not allow him to evaluate the problem, devise a course of action, implement it, and evaluate its progress.  The timing of his loss of command and the widespread knowledge of his sexual orientation were highly correlated and influenced his commander’s decision making.  The unofficial use of his sexuality as justification for his release from command left the applicant with little recourse as the now-repealed Don't Ask Don't Tell policy was in effect.  Contesting his removal would have brought up the issue of his sexual orientation, which would have then been grounds for separation.  Instead, he felt that it would be advantageous to accept his loss of command and try to move forward to another assignment.  The aforementioned series of events forced him to prematurely change stations, which severely limited his employment options and forced him to make hasty career altering decisions with incomplete information.  He was also not awarded the Meritorious Service Medal for his work as Squadron Commander.

On 31 March 2015, the applicant’s counsel requested his case be administratively closed until such time as they can prepare a response to the previous Air Force decision (Exhibit H).

On 11 January 2016, counsel requested the applicant’s case be re-opened and asked that the AFBCMR grant the applicant’s request.  In the provided decision regarding the SecAF’s authority to change the six-year protective window to a five-year protective window, the AFBCMR rules that the SecAF was within his right to not retain officers who were non-selected for promotion and within five years of retirement.  While this decision parallels the applicant’s case in so far that they both question the validity of the SecAF's authority to reduce the protective window from six years to five, that is where the parallel ends.  Significant to the applicant’s case, and lacking in the decision provided by the AFBCMR, is the fact that the applicant would have likely been promoted to the grade of lieutenant colonel had he not been removed from command following the disclosure of his sexual orientation.  The applicant’s performance, up until his loss of command, had been superb and in fact exceeded many of the characteristics deemed essential for promotion by the SecAF's MOI.  In fact, his personnel records clearly indicate that he was exactly the type of leader the Air Force hoped to retain within its ranks.  Despite his illustrious Air Force career, the applicant was unceremoniously removed from command when word of his sexual orientation spread beyond a trusted few.  His no nonsense leadership style may have led to the morale issues noted on his performance feedback worksheet; however, he was not given sufficient time to address the problem before being removed from command.  While the official explanation given was that his removal was “for cause,” the timing and investigation into the applicant’s sexuality, coupled with his premature removal from command, suggests that his sexual orientation played a significant role in his departure.  The prejudicial policies towards homosexuals serving in the armed forces have since been overturned.  Thus, the issue of the applicant’s sexual orientation and how it affected his promotability and ultimately his separation from the Air Force provides grounds for the AFBCMR to provide relief on the basis of correcting an error or injustice.  The previous AFBCMR decision notes that officers were properly notified of the, likelihood they would be separated as a result of their non-selection; however, this is a gross mischaracterization.  Those officers, including the applicant, who were facing their second non-selection for promotion, were given the same generic notification letter that previous cohorts had been provided with no warning to the affected officers.  As such, the applicant was not afforded enough time to explore alternative ways of remaining in the military.  Counsel reiterates the applicant is seeking relief on both procedural and equity arguments.  If the Board finds that the SecAF followed appropriate procedure, there is still ample evidence to suggest that relief should be granted on grounds that he was the victim of significant injustice.

In further support of his request, counsel provides a letter of support.

Counsel’s complete response, with attachment is at Exhibit J.

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force OPRs and adopt their rationale expressed as the basis for our conclusion the applicant has not been the victim of an error or injustice.  While counsel’s comments in response to the Air Force evaluations are duly noted, we do not find his assertions sufficiently persuasive to override the rationale provided by the Air Force OPRs.  Moreover, we note counsel’s request that the Board obtain all the records that competed against the applicant for promotion in accordance with Title 10 USC § 1552.  However, this request is outside of the Board’s purview.  It has been long-established that we are not an investigative body and we do not act as an advocate either for the Air Force or the applicant.  Conversely, we consider the evidence placed before us in reaching our final determination.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application.

4.  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 our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

The following members of the Board considered AFBCMR Docket Number BC-2013-04767 in Executive Session on Thursday, 12 May 2016, under the provisions of AFI 36-2603:

, Panel Chair
, Member
, Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2013-04767 was considered:

Exhibit A.  DD Form 149, dated 5 November 2013, w/atchs.
Exhibit B.  Applicant's Master Personnel Records.
Exhibit C.  Letter, AFPC/DPSOR, dated 26 November 2013.
Exhibit D.  Letter, AFPC/JA, dated 10 December 2013.
Exhibit E.  Letter, SAF/MRBR, dated 10 January 2014.
Exhibit F.  Letter, Counsel, dated 10 February 2014,   
  w/atchs.
Exhibit G.  Letter, AFBCMR, dated digitally signed 1 March 
  2015, w/atch
Exhibit H.  Letter, Counsel, dated 31 March 2015.
Exhibit I.  Letter, AFBCMR, digitally signed 3 April 2015.
Exhibit J.  Letter, Counsel, dated 11 January 2016.