RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-03379 COUNSEL: HEARING DESIRED: NO APPLICANT REQUESTS THAT: His non-selection for retention by the April CY2006 Line of the Air Force Shaping Board (FSB) be voided. His non-selection for retention by the July 2006 Special Selection Board (SSB) be voided. Any record relating to his involuntary release on 17 November 2006 be expunged. He be reinstated to Extended Active Duty in the Air Force Reserve. He be granted back pay offset by Air National Guard and Reserve pay and civilian earnings. APPLICANT CONTENDS THAT: Through counsel, the applicant contends that on 17 November 2006 he was released from active duty by the 2006 FSB, without separation pay. This presented a hardship for months while he found and proved reliability at a new civilian job. This included relocating and securing an active Reserve or Guard position in his Air Force Specialty Code (AFSC). The applicant deployed several times between 2007 and 2009 and between 2011 and 2013. He submitted two Freedom of Information Act requests for the FSB packages in 2010. His counsel was disabled for a period during2012 and 2013. Despite the FOIA denials, counsel secured the FSB package in 2013. However, the applicant’s multiple deployments and extended active duty tours should suspend the BCMR statute of limitations according to the Service Members Civil Relief Act. The applicant completed his four year degree and Reserve Officer Training Course program at the University of New Mexico. On 30 August 2002 he was commissioned as a second lieutenant in the Reserves. On 7 February 2003, he completed the Air and Space Basic Course at Maxwell AFB. His AF IMT 475, Education/Training Report (TR) comments that the minimum passing academic score for all graduates is 75% or approximately a "C" grade. However, the TR indicates that he exceeded that standard with an approximate "A" grade and graduated from ASBC having met the academic standards [and) scoring 90%. From May through September 2003, he completed the Initial Skills Training, Logistics Readiness Officer Course. He was informed that he exceeded minimum academic course standards with outstanding performance, leadership qualities and in motivation. However the required TR for this Initial Skills Training in 2003 was never prepared due to arbitrary reasons. Albeit later in June 2006, a generic AF Form 77, Letter of Evaluation (LOE) was substituted for the 21 graduates and stated that the TR "was unavailable for administrative reasons not the fault of the member." Before the first FSB in April 2006, his personnel files did not contain the LOE, the Certificate of Training, or notation in his FSB selection brief that he had otherwise completed the training. In 2006, it was revealed that in some cases the TR was not merely missing but with a few schools, never prepared; and instead the students were given generic Certificates of Training. An official statement implying a second chance for officers to provide the missing TR to the SSB was a superficial appeal. The Air Force was aware that in a few schools, no TR was ever prepared, let alone neglected to properly file them. It was unreasonable to ask certain graduates to replace a favorable but missing TR for the FSB 2006 SSB. They were told to provide a copy of their TR to their servicing Military Personnel Flight for inclusion in their officer selection brief. This also sets up a systemic inequity with the FSB 2006 SSB. Some reconsidered officers which were allowed to submit previously prepared but missing TRs (and missing presumably their fault), while those without prepared TRs were limited by the SSB reconsideration notice to the boilerplate IMT 77 LOE with its generic no fault language. The applicant also had several accomplishments that distinguished him from his peers. He was not merely successful; he was decorated for distinguished achievement in a combat environment. The applicant was coined with the Air Expeditionary Group Coin award that placed him within the top 10% of lieutenants during one of his combat deployments. In light of the Secretary's Memorandum of subtle guidance that the Air Force needs lieutenants who have decorated outstanding performance in combat, this alone presumed he was a stand-out above his peers towards FSB retention, absent some future unforeseen derogatory information. In sum, this decoration, along with a deployed Company Grade Officer of the month, established him as unequivocally ranked above of his peers in 2004. The Force Shaping Board convening mid-April 2006 which considered year groups 2002 and 2003. Retention Recommendation Forms (RRF) were prepared by units under rules that mirror PRFs for promotion boards, while the FSB will likewise closely mirror [the] central selection board process for promotions. Units were prohibited from using local boards or similar methods to score records or generate a priority list of eligible officers. By the end of March 2006, the applicant’s vulnerability of being non-selected for retention in his AFSC was calculated at 54%. Official FSB Board results for year group 2002 showed that for his Air Force Specialty Code (AFSC), the actual percentage of non-retention selects was about 53%. He should not have been in jeopardy because of the consistent recognition he received as performing well above his peers. The applicant’s draft and final recommendation form prepared by his unit ignored his prior rankings and other benchmarks that distinguished him as clearly above his peers from commissioning. Instead the recommendation stratification turned this all upside down, placing him at the lowest category and at the bottom of the heap. Arbitrary criteria to determine recommendation stratification, based on unit tenure and not merit, explains his upside down ranking at the bottom of the barrel. It also ignores the FSB policy intent that prohibited local scoring of records or generating a priority list of eligible officers. The same rules and principles apply when a derogatory promotion recommendation form or retention recommendation form are materially relied upon by the Boards to differentiate officers who have otherwise meritorious records. This voids a promotion non-selection or separation, requiring immediate reinstatement. As the upside down recommendation caused separation, there is no need for a Special Selection Board to rummage about his record. A reconstructed retention recommendation form is both impractical and impossible to assure fairness. The Board should void the separation and reinstate him. This is a simple, yet tragic case of inappropriate gaming the system by locally manipulating recommendation stratification. It derailed a promising active duty career. However, the applicant is doing his part to mitigate the damage in the Guard and active duty Reserves. The best interests of both the Air Force and this officer must be protected. Reinstate him, correct his records, and place his career back on the fast track. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant entered the Air Force on 30 August 2002. A review of the applicant's record shows that on 9 May 2006, he was notified by his commander that he was considered but not selected for retention by the Force Shaping Board that convened on 10 April 2006. As a result, his date of separation (DOS) was established as 29 September 2006. On 13 July 2006, the Air Force Personnel Center notified the applicant that a Special Selection Board who reconsidered his record for retention had not retained him on active duty. The applicant was subsequently separated from the Air Force with an honorable service characterization on 17 November 2006. 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 through E. AIR FORCE EVALUATION: AFPC/DPSOR recommends denial. The applicant met and was not selected for retention by the FY06 Force Shaping Board that was held on 10 April 2006. On 26 June 2006, a Special Selection Board for reconsideration was held for 192 lieutenants who met the Force Shaping Board and were not initially selected for retention. This Special Selection Board was held after the Air Force discovered a number of records were missing a required initial skills training report. The applicant was given the option to continue with separation or be reconsidered by the Special Selection Board of new members who provided a new records review. The applicant chose to meet the Special Selection Board for reconsideration. Based on documentation in the applicant's record, the applicant was afforded two opportunities to have his record reviewed for possible retention after an error was discovered upon completion of the Force Shaping Board. The Secretary of the Air Force decided that in order to ensure fairness and equity to the officers not selected for retention, all of the records would be screened a second time by a separate panel. The applicant's record was reviewed by two different sets of board members and was not selected for retention on both occasions. The Force Shaping Board and the Special Selection Board for reconsideration were conducted in accordance with the established guidelines. Based on the documentation in the master personnel file, there is no evidence of an error or injustice regarding the decision of the Boards and the applicant’s subsequent discharge processing. The complete AFPC/DPSOR evaluation is at Exhibit C. AFPC/DPSID recommends denial. The application was not submitted in a timely manner. The applicant did not file an appeal through the Evaluation Report Appeals Board (ERAB) under the provisions of AFI 36-2401, Correcting Officer and Enlisted Evaluation Reports, due to his separation from Active Duty. However, it is worthy to note the contested report has been a matter of record for over four years. The test to be applied is not merely whether the applicant discovered the error within three years, but whether through due diligence, he could or should have discovered the error. The applicant unreasonably and inexcusably delayed in asserting this claim. He has waited 4 years to file this appeal and offered no justification for the delay, as well as took no action on the claim before that. As a result of this delay, the Air Force no longer has documents on file, memories have either faded or are not available, and these factors seriously complicate any ability to determine the merits of the applicant's request. The applicant contends that his 17 November 2006 LOE should be removed due to the Initial Skills Training school house not properly issuing him a TR for training and him not being properly considered for promotion due to the LOE on file. The applicant did not provide a TR (AF 475) from the training course to be filed in his personnel file. AFI 36-2406 states: "For lost and/or missing evaluations in which all tracer actions have failed, use the AF Form 77 as a substitute for a missing evaluation." This office is not an investigative authority and therefore in order for the AF Form 77 to be substituted the applicant must provide the original AF 475. In this case the applicant did not provide the missing training report. The AF Form 77 that is currently on file was accomplished in accordance with the AFI. Consequently, we find this element of the applicant's appeal to be without merit. The applicant has provided insufficient documentation to prove the contested LOE was rendered unfairly or unjustly. It appears the report was accomplished in accordance with the applicable Air Force policies and procedures. Once a report is accepted for file, only strong evidence to the contrary should warrant correction or removal from an individual’s record. The applicant has not substantiated the contested LOE was not rendered accurately and in good faith based on knowledge available at the time. The complete AFPC/DPSID evaluation is at Exhibit D. AFPC/JA recommends denial. Through counsel, the applicant argues that his application filed in 2014 challenging the legal sufficiency of his November 2006 discharge is timely and should be considered in the interest of justice. AFI 36-2603, para 3.5, provides that an application for correction of records “ordinarily must be filed within three years after the error or injustice was discovered, or, with due diligence, should have been discovered by the applicant.” The law is well settled that with respect to the interpretation of statutes of limitation, the “discovery” of the claim relates to the awareness of the facts or event constituting the alleged claim of error or injustice. If an applicant files within three years of the date of “discovery” of his claim, the merits of the claim should be addressed. If he did not, however, the Board must determine whether the failure should be excused “in the interest of justice.” While statutes of limitation for courts and the Board differ in certain respects (time period for filing and the additional provision in 10 U.S.C. 1552 excusing a late filing “in the interest of justice”), their purpose is essentially the same: to establish as a matter of policy a reasonable time in which to file an action or present a claim. As noted in a previous Opinion of The Judge Advocate General (OpJAGAF): Statutes of limitations are passed in recognition that with the passage of time evidence is lost and destroyed, memories fade and, at some point in time, an ordered society has an interest in attaching finality to past events. Additionally, in the context of the Board’s powers of correction, equitable relief, other than money damages, becomes increasingly difficult if not impossible. Because of the similarity in underlying purpose, the Board should find the courts’ years of accumulated wisdom in interpreting and applying their statutes of limitations instructive. The applicant lists 17 November 2006, on the DD Form 149, as the date of discovery of the alleged error or injustice. However, his counsel argues that the actual effective date should be considered to be mid-2012. Either way, it is clear that the action complained of occurred more than three years prior to the date of filing whenever that date is considered to be; i.e., the contested FSB was conducted in 2006, some 5 to 7 years prior to the filing date. In the brief attached to his DD Form 149, the applicant attempts to excuse his tardiness in part by explaining that he made his first Freedom of Information Act (FOIA) request in 2011. There is no information presented, however, that the applicant ever attempted to inquire about the Force Shaping Boards at the time they were held or immediately thereafter, nor has he offered an explanation for this failure. He has failed to prove that he exercised the requisite due diligence in pursuing his alleged claims at the appropriate time. As a consequence, the statutory period began to run at that time. In his brief, the applicant’s counsel suggests that applicant’s numerous Air National Guard deployments beginning in 2007 precluded him from filing an application, yet, the applicant did not even begin his ANG service until several months after his discharge from active duty. This interim period provided more than enough time to have filed an application, if indeed he believed that a challenge of his discharge was warranted. This argument by counsel is without merit. Counsel next argues that he was not brought in to the case until 2011, and the resultant Freedom of Information Act (FOIA) requests and appeals, legal research, and counsel’s lengthy physical disability from 2012- 2013 all further delayed the filing of an application. This claim too is without merit. By 2011, the claim was already two years beyond the 3 year filing period, and the delays from that point on could have been avoided had applicant made a conscientious effort to file—even if that required hiring other counsel or filing on his own. Finally, applicant’s counsel argues that the holding of Detweiler V Pena, 38 F.3d 591 (DC Cir 1994), tolled the three years statute of limitations due to applicant’s multiple active duty tours and deployments, effectively “suspending” the statute of limitations until mid-2012 and rendering the application timely. Counsel misreads the Detweiler decision and has applied it improperly to this case. In Detweiler, the Court held that “Section 205 [of the Soldiers and Sailors Civil Relief Act (SSCRA)], on its face, tolls the BCMR's limitations period during a service member's period of active duty” (emphasis supplied). In the applicant’s case, his active duty ended on 17 November 2006. The periods of ANG duty alluded to do not represent a continuation of that active duty as counsel suggests. Again, applicant was not timely under the SSCRA, Detweiler, or otherwise. On the merits, the applicant’s claims also fail. His counsel reviews the applicant’s record of performance, noting that he was highly rated, in most cases “above his peers with decorated combat performance.” What counsel ignores, however, is the reality that in almost all cases where supervisors value their subordinates, they will rate them as high as honestly possible. Stratification statements will typically put most officers in the upper echelons of the rating groups, but ratings “above peers” mean little when the officer competes against an entirely different group at an FSB. Most importantly, when meeting an FSB, the individual officers are not competing against a standard which might have provided success if the officer had exceeded that standard. Rather, each officer like applicant is competing against other officers similarly situated, for a numerically limited number of retention slots. Neither the applicant, nor his counsel is privy to the other records of the officers against whom applicant competed. Therefore, it is impossible for counsel to state that applicant was among the best qualified officers who met the board and thereby should have been retained. This applies to both FSBs applicant met in 2006. In addition, counsel is in no position to challenge the Senior Rater’s stratification on applicant’s Promotion Recommendation Form (PRF), not having access to the records of the other officers rated by that Senior Rater. Before the applicant’s discharge, two boards comprised of disinterested senior officers reviewed the records of applicant and the other officers who met the board. Those board members are presumed to have followed their sworn duty to pick the best qualified officers; i.e., we can presume, in the absence of evidence to the contrary, that Air Force officials properly followed the designated procedures for conducting the FSB. There is generally a strong presumption in the law that administrators of the military, like other government officials, discharge their duties lawfully and in good faith. The presumption can only be rebutted by cogent and convincing evidence (emphasis added) that the officials’ actions were undertaken in bad faith. All that counsel has offered here is his own opinion, which is not supported by the evidence, that the applicant’s record was among the best qualified and warranted his retention. For the reasons stated above, this application should be denied as untimely. In addition, on the merits, applicant and his counsel have failed to prove any material error or injustice warranting relief. The complete AFPC/JA evaluation is at Exhibit E. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Through counsel, the applicant states the three advisory opinions only address the timeliness question, not disputing the substantive merits of the applicant’s LOE and RRF claims. The advisories dodge the merits with one sentence that his FSB and RRF stratification claims cannot go forward because all other officers’ records are secret. The untimely arguments are without merit. Also without merit is that the success of the FSB/RRF claims must rely on violating Privacy Act access to compare other officers’ RRF records and FSB. Counsel reiterates previous arguments and maintains relief should be granted. The applicant’s complete response, with attachments, is at Exhibit G. 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 an error or injustice. After a thorough review of the evidence of record and noting the applicant’s contentions to include counsel’s rebuttal, we find no evidence showing that the applicant’s separation was in error or contrary to governing policies and law. While we note there was a discrepancy with the applicant’s record when he was considered by the first Force Shaping Board, we believe the discrepancy was properly corrected. The applicant was afforded two opportunities to have his record reviewed for possible retention which ensured him fair and equitable relief. Unfortunately, the applicant was not selected from either the Force Shaping Board or the Special Selection Board. In the absence of evidence indicating he was treated differently than others who were similarly situated, we agree with the opinion and recommendation of the Air Force offices of primary responsibility and adopt their rationale expressed as the basis for our decision that the applicant has not provided sufficient evidence that he has been the victim of an error or injustice. The Board also noted the OPR’s discussion on timeliness; however, we consider the application timely as the applicant is still serving in the Armed Forces. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 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-2014-03379 in Executive Session on 17 December 2015 under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-03379 was considered: Exhibit A. DD Form 149, dated 13 Aug 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPSOR, dated 17 Oct 14. Exhibit D. Memorandum, AFPC/DPSID, dated 22 Sep 15. Exhibit E. Memorandum, AFPC/JA, dated 4 Nov 15. Exhibit F. Letter, AFBCMR, dated 5 Nov 15. Exhibit G. Letter, Applicant’s Response, dated 3 Dec 15, w/atchs.