RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-05134 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His Mandatory Separation Date (MSD) be extended to 1 Jun 17. 3. He be allowed to complete 26 years of participating military duty. 4. He be given an Individual Mobilization Augmentee (IMA) billet for which he was recruited hired and uniquely qualified to perform. ________________________________________________________________ APPLICANT CONTENDS THAT: He was retired because of an administrative error which was overturned by a previous case, AFBCMR (BC-2010-01313). Because of the lengthy process to correct the errors; he missed promotion consideration by the Calendar Year 2009 (CY09), CY10 and CY11 Colonel Central Selection Boards (CSBs). The error that caused him to miss these promotion opportunities is without dispute. He would have met the latter two boards while on Extended Active Duty (EAD) when he had his best chances at getting promoted. He was inadvertently retired before returning to EAD under the rated recall program. Consequently, he entered EAD as a retired officer and was not allowed to compete for promotion. In AFBCMR BC-2010-01313, the Board corrected the applicant’s record to remove him from retired status; changed his recall to EAD under a different program since he was no longer retired, and directed that he be considered by a SSB for the CY10 CSB. However, because of the time it took to correct his records, the system did not reflect him as being eligible for promotion until Jan 12, after his EAD tour had ended. By this time he had missed the CY09, CY10, and the CY11 Colonel CSBs. He met the CY12 CSB as a non-participant because he had been released from EAD. The promotion quotas for the Nonparticipation Promotion Boards are one (1) and the candidate selected is normally in the Above the Promotion Zone (APZ) category. He was selected for a participating position as a Reserve Individual Mobilization Augmentee (IMA); however, because of his Mandatory Separation Date (MSD) of 1 Jun 13, his assignment was cancelled. Had he been promoted that would have precluded the need for an MSD extension. The Special Selection Board process is not adequate. By extending his MSD, he will again be able to compete as a participating Reserve member. In support of his appeal, the applicant provides copies of AFBCMR Case BC-2010-01313, EAD orders with amendment, nonparticipant promotion statistics, email communiqués, MSD extension and various other documents associated with his requests. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 12 May 85, the applicant was commissioned as a Reserve of the Air Force. On 18 Aug 85, the applicant entered EAD. On 1 Oct 04, the applicant was promoted to the grade of lieutenant colonel. The applicant’s MSD was established as 1 Jun 13, based on 28 years of commissioned service. On 1 Oct 09, the applicant was transferred to the Retired Reserve awaiting pay at age 60. On 1 Dec 09, the applicant was recalled to EAD under the Retired Rated Officer Recall Program (RRORP), for a period of two years, In Accordance With (IAW) the provisions of Title 10, United States Code (USC), § 688a. On 2 Dec 10, the Board (AFBCMR BC-2010-01313) recommended that the applicant’s records be corrected to reflect that he was not released from the Air National Guard (ANG), and that competent authority approved his request to withdraw his retirement. His records were also corrected to show that he was recalled to active duty under the Limited Period Recall Program (LPRP) effective 1 Dec 09, and his records be considered by a SSB CY10 United States Air Force Reserve (USAFR) Line and Non-Line Colonels Promotion Selection Board. For a more detail accounting of the facts surrounding the applicant’s previous request and the rationale of the Board's earlier decision, see the Record of Proceedings at Exhibit B. On 8 Mar 11, the Air Reserve Personnel Center (ARPC) notified the applicant that his records had been corrected removing his retirement, effective 30 Sep 09. In addition, his record was corrected to reflect that, on 1 Dec 09, he was recalled to EAD under the LPRP, in accordance with Title 10, USC, §12301(d). On 1 Jun 13, the applicant was transferred to the Retired Reserve awaiting pay at age 60. ________________________________________________________________ THE AIR FORCE EVALUATION: ARPC/DPTT recommends denial. The applicant was commissioned 12 May 85. In accordance with Title 10, USC § 14507(a), the officer must be removed on the first day of the month after the month in which the officer completes 28 years of commissioned service. The applicant's MSD was established as l Jun 13. He requested an exception to policy waiver but it was not approved. He was transferred to the Retired Reserve on l Jun 13, with 28 years of commissioned service and 25 years of satisfactory service. The Board has already ruled in his favor by revoking his retirement and changing his recall from the RRORP to the LPRP. The advantage of the LPRP is that he remains promotion eligible. Per AFI 36-2504, Officer Promotion, Continuation and Selective Early Removal in the Reserve of the Air Force, Section 2.7.3, all ANG/USAFR officers serving on a Limited Recall to Extended Active Duty (LEAD) tour under Title 10 USC § 12301(d) will meet USAFR promotion boards when In the Promotion Zone (IPZ) or APZ eligible. LEAD officers fill active duty positions (not Reserve positions) and are not part of the Selected Reserve. However, the Secretary of the Air Force (SecAF) has directed that these officers will compete for Reserve I/APZ promotion with officers in the Selected Reserve. This achieved his goal of allowing him to meet promotion boards. The applicant's promotion opportunities can be made up through SSBs. In this case, the applicant requests "to meet actual competitive promotion boards with my peers". ARPC's Promotion Board Directorate stands by their original decision in Jan 12, that he is entitled to two SSBs the CY0610A, and CY0611A. He was first notified in Jan 12, not Jul 12 as stated, that in order to have the best opportunity for promotion, a Promotion Recommendation Form (PRF) from his senior rater during those time periods must be obtained. After receiving no word about the SSBs, the promotion board reached out to the member again in Jul 12 for the PRFs. Meeting the SSBs with the PRFs will provide a complete record and provide the best opportunity to be fairly compared amongst his peers. Thus, meeting his expectations and fulfilling his request. The applicant agrees an SSB is a solution but believes it to be “inadequate due to the senior raters at the time no longer being in government service and inaccessible.” AFI 36-2406, sections A2.5.23 and A2.6.l, states if an evaluator cannot be located, evidence must be submitted of all attempts to locate the missing evaluator (i.e. certified mail receipts, emails, postal service, etc). An evaluator will not be substituted or bypassed simply because they will not support an application or because the person does not believe they will have time to locate or contact them. No such evidence was provided by the applicant. Lacking proof of any attempt to locate the appropriate senior rater, no other senior rater can substitute. If proof of attempt to locate is provided, a more current senior rater could be used to write the appropriate PRFs. The applicant's statement claiming the promotion quota for a nonparticipating promotion board is "typically awarded to someone already passed over" is inaccurate. The promotion zone is masked on USAFR Promotion Boards, ensuring both IPZ and APZ have an equal chance for promotion. It is by a 50 percent chance that the one select from the CY12 Nonparticipating Reserve Board was APZ. The result of the applicant being nonselect on the CY12 Nonparticipating Board does count as a one-time pass over. The complete DPTT evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: He agrees the information in para 1 and 2a - 2c are correct with one exception; while Title 10, USC § 14507(a) does characterize the limit of commissioned service; ARPC/DPTT omits USC § 14701(a)(4) “(a) reserve officer holds the grade of lieutenant colonel or commander who is subject to separation under USC § 14514 may not be continued in the Reserve beyond the last day of the month which the officer completes 33 years of commissioned service. He contends that SSBs are not a fair remedy for the circumstances under which he missed promotion opportunities. He missed the CY09 – CY11 boards; while he can certainly substantiate his claim that the raters cannot be found, he does not know how a rating chain that does not know him can give him a “fair shake,” when putting together a Promotion Recommendation Form (PRF). He missed three consecutive boards from 2009 – 2011. He did not receive the Jan 12 notification, so the Jul 12 notification was his first announcement about the board. ARPC’s recommendation to deny an MSD extension is because they believe the SSB process fits better in the administrative remedy structure. The applicant’s complete response, with attachments, is at Exhibit E. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The application was timely filed. 2. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. In this respect, we note this Board is the highest administrative level of appeal within the Air Force. As such, an applicant must first exhaust all available avenues of administrative relief provided by existing law or regulations prior to seeking relief before this Board, as required by the governing Air Force Instruction. The Air Force Office of Primary Responsibility has reviewed this application and indicated there is an available avenue of administrative relief the applicant has not first pursued. Specifically, the applicant has not provided proof of his attempts to locate the missing evaluator. In view of this, we find this application is not ripe for adjudication at this level, as there exists a subordinate level of appeal that has not first been depleted. Therefore, in view of the above, we find no basis to recommend granting the relief sought in this application. 3. 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 issue involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the all available avenues of administrative relief of appeal within the Air Force have not been taken. The application was denied without a personal appearance; and the application will only be reconsidered upon the submission if administrative relief failed to correct the alleged error or injustice. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2013-05134 in Executive Session on 9 Sep 14, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 30 Oct 13, w/atchs. Exhibit B. Pertinent Excerpts from Personnel Record. Exhibit C. Letter, ARPC/DPTT, 30 Dec 13. Exhibit D. Letter, SAF/MRBR, dated 10 Jan 14. Exhibit E. Letter, Applicant, dated 4 Feb 14, w/atchs.