RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-01420 COUNSEL: NO HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: He be retired as a first lieutenant from the Air Force with all pay and benefits. _________________________________________________________________ APPLICANT CONTENDS THAT: Per Title 10, USC, Section 628, he should have been retired as a first lieutenant, after meeting two SSBs in Nov 94, because he had to be on the Active Duty List (ADL) for those two SSBs. Prior to 1998, the law indicated that an officer being considered for promotion had to be on the ADL. Therefore, his records should have been reconstructed up to the date of the SSBs. Since he fell under the law prior to the 98 change, he is entitled to retirement as a first lieutenant with all the rights and benefits. He had enough service time to retire from active duty and receive all of the benefits and rights as an officer of the Air Force. In 1994, the AFBCMR recommended he be given two additional opportunities for promotion to the grade of captain due to the removal of his Officer Evaluation Report (OER) and Letter of Evaluation (LOE). Because he was passed over again, he should have retired effective 31 May 95. Adding 9 years, 10 months and 3 days to his total prior active service would equal 22 years and 2 months of active duty service time in accordance with the law at the time. The Chief Justice, the Department of Justice and Air Force attorneys collaborated to change the language of the statute to ensure future officers were unable to appeal their cases to the Federal Circuit. The language within the statute and 10 USC was changed in 98; however, it was not retroactive to his case but as a result of his case. In support of his request, the applicant provides copies of his DD Forms 214, excerpts from 10 USC 628 and United States Court of Federal Claims, Number 91-1008C. The applicant's complete submission, with attachment, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 22 Jun 70, the applicant enlisted in the Regular Air Force. He was credited with eight years, one month and seven days of active enlisted service. On 5 Mar 81, the applicant was appointed a second lieutenant, Reserve of the Air Force. On 26 Sep 84, he submitted a DD Form 149, requesting his OER ending 2 Jan 84 be declared void and removed from his records and he be reconsidered for promotion to the grade of captain by the Calendar Year (CY) 84B selection board. On 22 Aug 85, the Board approved his requests. For a full accounting of the facts surrounding his request and the rationale of the Board’s decision, see the Record of Proceedings at Exhibit B. On 24 May 85, the applicant was honorably discharged from the Air Force in the grade of first lieutenant under the provisions of AFR 36-12, Administrative Separation of Commissioned Officers, with a narrative reason for separation of Involuntary Release-Failed Promotion or Removed from List. He was credited with 4 years, 2 months and 20 days of active service (officer). On 24 Mar 86, the CY84B and CY85A SSBs convened; however, the applicant was not selected for promotion to the grade of captain by either board. On 12 Mar 91, the applicant filed a complaint in the United States Court of Federal Claims. On 31 Dec 92, the court issued an order remanding the case to the AFBCMR for further proceedings. Pursuant to the remand, on 1 Jul 93, the Board reviewed the applicant’s request and recommended that the AF Form 77, Supplemental Evaluation Sheet for the period 3 Jan 84 through 11 Mar 84, be declared void and removed from his records, and corrected his duty titles on his AF Form 707, Officer Effectiveness Report for the period 3 Jan 83 through 2 Jul 83, and his Officer Selection Brief (OSB). He was also provided SSB consideration to the grade of captain for the CY84B and CY85A CSB. On 15 Nov 93, the applicant was again considered and not selected for promotion to the grade of captain by the CY84B and CY85A selection boards. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/JA recommends denial of the applicant’s request. The applicant has failed to prove any error or injustice in his case. He was properly discharged in 85 and he is not entitled to any constructive service or retirement. In 95, the Board concluded that the 93 SSBs conformed to the law and regulation, and that the non-selections were supported by substantial evidence. In addition, the Board disputed the court’s conclusion that referring the applicant’s case to SSBs in 86 and 93 constructively reinstated the applicant to active duty until he incurred two valid passovers. In 96, after extended litigation, the Court of Claims held that the Board acted arbitrarily when it referred the applicant’s case to SSBs without also voiding his initial passovers, with the stated consequences of reinstatement with entitlement to back pay and related benefits. Applicant v United States (US), No. 91-1008C (Fed.Cl. May 24 & Aug 6, 96). It is this court’s decision that the applicant is primarily relying on in his current application. What the applicant omits in his application; however, is that this Court of Claims decision was overturned on appeal by the United States Court of Appeals, Federal Circuit in 98. Applicant v US, 163 F.3d 1304. Subsequently, a writ of certiorari filed on behalf of the applicant was denied by the US Supreme Court in 99. Applicant v US, 528 US 809, thereby leaving intact the US Court of Appeals, Federal Circuit’s decision as the controlling law for the applicant’s case. The Court of Appeals stated “must the Board in every instance couple a recommendation to convene an SSB with voidance of previous passovers, and, if not, was the Board’s recommendation in the applicant’s case to convene an SSB without voiding his two previous passovers arbitrary, capricious, unsupported by substantial evidence or contrary to law.” The court responded no, thus reversing the lower court’s determination (relied upon by applicant). The Federal Circuit held that the Court of Federal Claims erred in its assessment of the legal authority of the Board, stating that because the Board was authorized to correct the applicant’s record and recommend use of SSBs to consider the applicant’s promotion prospects in light of the corrections without also recommending voidance of the applicant’s previous discharge-mandating passovers, the applicant is not entitled to back pay and related benefits (to include retirement). In short, the Court held that the applicant’s discharge in 85 was lawful. The applicant provides no new material matter in his new application that alters the holding by the Federal Circuit. Much of what he relies upon now is language quoted from a court opinion that was overturned on appeal. Additionally, he now argues that the version of the law that governed SSBs (10 USC 628) in effect at the time his case was considered (85-98) mandated that he be on the ADL in order to be considered by an SSB; that his record be “reconstructed” up to the time of the November 94 SSBs (also requiring that the applicant be constructively reinstated to active duty back to 85, with back pay and related benefits); and that his record reflect he was retired as a first lieutenant not later than six months after those SSBs. The Federal Circuit rejected these arguments, determining that with respect to 10 USC 628, Congress intended 1) an SSB’s decision to relate back to the date of the original selection board’s decision; and 2) for the SSB’s decision to stand in place of the earlier selection board decision. Applicant v US, supra, at 1315. Likewise, the Court determined that the pre-Defense Officer Personnel Management Act (DOPMA) “harmless error rule” court decisions relied upon by the applicant (the same court cases relied upon now by the applicant in his brief) were not applicable or dispositive of his case. In 99, the Federal Circuit court discussed the applicant’s current argument in its decision, noting the Court of Claims— like the applicant today-maintained that because the statute (10 USC 628) affords access to an SSB to “an officer who is eligible for promotion who was considered for promotion by a selection board but was not selected,” the BCMR is required to actually or implicitly void the two passovers that forced the discharge-and that, “to be eligible” for promotion, the officer must be on the ADL, which in the applicant’s case would have required actual or constructive reinstatement.” Porter v US, supra, at 1320. The Federal Court noted the applicant continued to defend before that court (as he does in his current application) “the view of the Court of Claims that only officers on the ADL are eligible for consideration by an SSB.” Citing the first part of its opinion, the Federal Circuit rejected that reading of the statute. Applicant v US, supra, at 1322. The Federal Circuit considered in its 98 decision virtually all of the arguments the applicant raises in his present application and firmly rejected them. Finally, the last argument by the applicant, that was not raised before the Court, but was nevertheless answered by the Court-is his unsupported contention that the Chief Judge of the Federal Circuit, along with the Department of Justice (DOJ) and Air Force attorneys “collaborated to change the language of the statute to ensure future officers were unable to appeal their cases before the Federal Circuit.” The applicant contends that the change in the law in 98, was not retroactive to his case, but was the result of his case. He believes that because he fell under the law prior to the 98 change (which he incorrectly believes required that an officer must be on the ADL to meet an SSB), he was entitled to be retired as a first lieutenant with all rights and benefits associated therewith. First, the law that was interpreted by the Federal Circuit in reaching its holding that ruled against the applicant was the proper version of 10 USC 628 that applied to him (before it was amended in 98). Second, the persons cited by the applicant as having “collaborated to change the language of the statute” did no such thing; the amendment to the law in 98-which essentially substituted the word “person” in the law for the word “officer” (it did not strike the word “former” as suggested by the applicant) was the result of proper amendment of the law by Congress, not the claimed actions of the Chief Judge of the Federal Circuit, the Department of Justice and the Air Force. While the amendment may have well been prompted by the applicant’s litigation and the desire to clarify what the law meant all along, it did not signal or otherwise evidence that the previous version of section 628 meant anything different than the amended version. The complete JA evaluation, with attachments, is at Exhibit F. AFPC/DPSOR recommends denial. Based on the applicant’s current service, he does not meet the legal requirements to be retired as a Regular officer. To retire as an officer, the applicant must have completed a minimum of 20 years Total Active Federal Military Service (TAFMS), of which at least 10 years as an active commissioned officer. 10 USC 08911 states that “The SAF may, upon the officer’s request, retire as Regular or Reserve commissioned officer of the Air Force who has at least 20 years of service computed under section 8926 of this title, at least 10 years of which have been active service as a commissioned officer. The applicant did not have the required active military service to retire under this provision of law. As of his release date, he completed 12 years, 3 months and 27 days of TAFMS. In addition, he only had 4 years, 2 months and 20 days of Total Active Federal Commissioned Service (TAFCS). To retire as an officer, the applicant required a minimum of 10 years TAFCS and 20 years TAFMS. The complete DPSOR evaluation is at Exhibit H. _________________________________________________________________ APPLICANT’S REVIEW OF THE AIR FORCE EVALUATION: On 23 Jul 96, the DOJ and the Air Force recognized he would be eligible for retirement and benefits, but instead of placing it in the court order as he requested, they stated he could ask the SECAF to be retired. In his Defendant’s Status Report and Stipulation submitted on behalf of both parties, No 91-1008C, dated 23 Jul 96, Retirement Status and Benefits the following was discussed: He sought a declaration from the court that he be entitled to retirement pay and benefits and requested that the order of retirement be placed in the final order for two reasons: First, as noted in 10 USC, Section 8911 “The SECAF may upon the officer’s request, retire a regular or reserve commissioned officer of the Air Force who has at least 20 years of service.” This statement is not final and gives the Air Force an option as the work [sic] used is “may.” In Evensen v. United States, 6454 F.2d 68, 72, 73, 75, Number 111, the court ordered retired pay as well as pay and benefits. Second, he asked the court to specify that he was entitled to all benefits from the date of the judgment or upon finalization of the appeal, if consummated. This would protect those benefits entitled to within one year from the date of retirement, i.e. final move. However, the government took the position that had he remained on active duty from 1 Sep 85 through 1 Aug 94, he would now be eligible to apply to the AFBCMR for retirement pay and benefits. In addition, the government saw no reason why the court should decide whether he was entitled to retirement pay and benefits rather than allowing the SECAF to exercise the discretion provided in 10 USC, Section, 8911. The government never addressed the “retirement and back pay” issues under appeal regarding the stipulation at all throughout his period of carrying his case forward. The 1993 SSB non-selections were upheld for the purpose of denying him retroactive promotion and for the purpose of prospectively separating him—but not for the purpose of proving “harmless error” or defeating his right to back pay under Sanders. The order granting relief to him was based on the application of the “casual nexus” test and was firmly grounded in the language and purpose of Sections 1552 and 628 and in Sanders and Engels. The application of the “casual nexus” test required that his non-selections be voided by the Board at the conclusion of their deliberations in 1993. The Board has a mandate to afford full relief to applicants and lacks the discretion to withhold the full relief to which an officer is entitled Sanders, 594 F.2d at 812, 818; Debow v. United States, 434 F.2d 1333 (Ct. Cl. 1970). The subsequent non-selection determinations of his 1993 SSB did not related [sic] back to deprive him of an already vested right to constructive reinstatement and back pay. Nor did it establish harmless error. Section 628 SSBs were intended by Congress to determine the promotion rights of current active duty officers. The statute did nothing to change the well- established law applicable to former officers. It contains no provision for revoking the vested back pay rights of reinstated officers or for giving retroactive effect to SSBs where an officer’s original selection board was voided. Nor are SSBs authorized to render “harmless error” advice in Board proceedings. The Board’s conduct in his case was an unlawful attempt to substitute an SSB remedy for the back pay remedy afforded under 37 USC, Section 204. In further support of his appeal, the applicant provides a seven page brief, copies of the Defendant’s Status Report and Stipulation, Number 91-1008C, dated 23 Jul 96; memorandums to Commercial Litigation Branch, Civil Division; Brief of Amicus Curiae Urging Affirmance, DoD National Defense Authorization Act of 1996, Section 554 Report; Record of Proceedings, Air Force Times newspaper article and various other documents associated with his requests. The applicant’s complete submission, with attachments 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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice warranting constructive service or a retirement in the grade of first lieutenant. We took notice of the applicant's complete submission in judging the merits of the case and do not find that it supports a determination that the applicant was improperly discharged in 1985. The applicant's numerous assertions are duly noted; however, he has provided no evidence which, in our opinion, successfully refutes the assessment of his case by the Air Force Offices of Primary Responsibility (OPRs). As pointed out by AFPC/JA, the holdings in the applicant's case before the Court of Appeals for the Federal Circuit is dispositive of the allegations raised by the applicant in this new application. Therefore, we agree with the opinions and recommendations of the Air Force OPRs and adopt their rationale expressed as the basis for our decision that the applicant has failed to sustain his burden of establishing he has suffered either an error or an injustice. In view of the above, we find no equitable basis to grant the relief sought in this application. Given the final Board action in this case, the applicant has exhausted all available administrative remedies and further administrative action on this application is not appropriate. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that 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-2013-01420 in Executive Session on 26 Jun 14, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered pertaining to AFBCMR Docket Number BC-2014-01420: Exhibit A. DD Form 149, dated 9 Feb 13, w/atchs. Exhibit B. Applicant’s Available Personnel Records. Exhibit C. Letter, AFPC/JA, dated 11 Apr 14, w/atchs. Exhibit D. Letter, SAF/MRBR, dated 16 Apr 14. Exhibit E. Letter, AFPC/DPSOR, dated 20 Apr 14. Exhibit F. Letter, SAF/MRBR, dated 23 Apr 14. Exhibit G. Letter, Applicant, dated 11 May 14, w/atchs.