RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-03515 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: 1. His separation due to the Quality Force Review Board (QFRB) be withdrawn so that he can remain in the Air Force. 2 His Date of Separation (DOS) be changed from 29 Sep 14 to his original DOS of 23 Nov 15. (Moot) 3. In an undated letter, the applicant amended his request to be returned to active duty after his contractual obligations as a contractor was fulfilled in Dec 15. (Moot) 4. In the same undated letter noted above, the applicant also requests the Article 15 and its consequential actions (forfeiture of $1,152.00 pay per month for two months; reprimand, referral EPR and non-recommendation for promotion to the grade of staff sergeant (E-5)) be rescinded or vacated prior to his reentry on active duty. APPLICANT CONTENDS THAT: In Jan 14, the list of airmen eligible to meet the QFRB was sent to the Force Support Squadrons (FSS). He was not on the list because he was not eligible. However, his first sergeant assumed he was eligible and sent copies of his Article 15, Unfavorable Information File (UIF), and non-recommendation for promotion letter to the FSS and requested his name be added to the list. Subsequently, it was discovered that he was not eligible to meet the QFRB. He was advised to submit a package to the AFBCMR to correct the error. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On or about 4 Oct 13, the applicant operated a vehicle to wit a passenger car, while drunk. For this misconduct, he was given NJP under Article 15, forfeiture of $1,152.00 pay per month for 2 months, 14 days extra duty, a reprimand and a UIF. On 29 Oct 13, the applicant’s commander notified him he was non- recommending him for promotion to the grade of E-5 in accordance with AFI 36-2502, Airman Promotion/Demotion Programs. The specific reason for this action was the applicant’s failure to demonstrate he was prepared for increased leadership and/or responsibility. According to PSDM-13-125, dated 19 Dec 13 (amended 24 Apr 14), any airmen who had a negative quality force indicator identified in the Military Personnel Data System (MilPDS) as of 18 Dec 13, would meet the QFRB unless they separated or retired prior to the board. On 5 May 14, the QFRB convened. According to the applicant’s DD Form 214, Certificate of Release or Discharge from Active Duty, on 29 Sep 14, he was honorably discharged in the grade of senior airman with a DOR of 18 Dec 10. His narrative reason for separation is “Reduction in Force.” He was credited with 6 years, 9 months and 11 days of active service. According to the applicant’s DD Form 4/1, Enlistment/Reenlistment Document Armed Forces of the United States, on 24 Jan 13, the applicant reenlisted for 2 years and 10 months establishing a DOS of 23 Nov 15. According to the Weighted Airman Promotion System (WAPS) Eligibility Chart, dated 20 May 15, the Mandatory DOS/Retirement Date must be on or after 1 Sep 16, to be eligible for promotion to the grade of E-5 for the 16E5 test cycle. According to AFPC myPers, the High Year of Tenure (HYT) for the grade of SrA (E-4) is eight years of Total Active Federal Military Service (TAFMS). The applicants TAFMSD is 18 Dec 07 and his HYT date is 18 Dec 15. AIR FORCE EVALUATION: AFPC/DPSOR recommends approval of the applicant’s request to overturn the decision made by the QFRB to separate him from the Air Force. The QFRB conducted a comprehensive review of the applicant’s entire record IAW the proper procedures; however, an error occurred in the applicant’s case. While the applicant received an Article 15 which established a UIF, the punishment phase did not match any of the qualifying factors for the QFRB. The punishment would have needed to result in a suspended reduction or reduction in grade. Since neither of these punishments was administered to the applicant, he should have not been added to the QFRB roster for consideration. In addition, the applicant received a referral EPR with a closeout date of 17 Aug 14. Although a referral EPR would have been a qualifying indicator to add to the QFRB, the closeout date of the EPR prevented the applicant from being eligible for this QFRB. Specifically, PSDM 13-125 states “the QFRB will review reports closing 1 Dec 13 or earlier; therefore, for an airman to be added to/removed from the QFRB, the closeout date MUST be 1 Dec 13 or earlier and the Change of Reporting Official (CRO)/Commander Directed report had to be initiated prior to 18 Dec 13.” The applicant’s EPR closed out after the mandatory closeout date as reflected in PSDM 13-125 and; therefore, it could not be considered. However, it could be considered in the event there is a QFRB in the future. Therefore, the Board should approve the applicant’s request in the interest of justice and overturn the decision made by the QFRB to separate him from the Air Force. Furthermore, since the applicant has separated, the Board should approve the applicant for reinstatement in the Air Force through the accession process. Should the Board approve the applicant’s request, his records will be corrected to show that he was erroneously placed on the QFRB and subsequently selected for separation effective 29 Sep 14. The decision of the QFRB to discharge the applicant should also be reversed and he be allowed to immediately reenter the service via the accession process. A complete copy of the AFPC/DPSOR evaluation is at Exhibit B. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: By letters (undated and 29 May 15), the applicant states he is humble and grateful for the opportunity to reenter the Air Force. However, he requests permission to remain in Afghanistan as a contractor until his contract expires in Dec 15 and then reenter active duty status. Regarding the events surrounding his separation from the Air Force; such as receiving an Article 15, being placed on the QFRB, forfeiture of pay $1,152.00 for two months, a reprimand, a referral 3 EPR and the redlining of his E-5 stripe, the applicant is asking if consideration will be taken and these events vacated or rescinded, prior to his reentry. He is coming up on his HYT as a SrA and would not be able to test again for E-5 with the QFRB error which makes him ineligible to continue to serve his country. Further, the applicant questions whether he will be afforded the opportunity to get his “redlined” E-5 stripe back, due to the fact it was unjustly taken from him and will all the consequential actions following the Article 15 be vacated. Returning to the Air Force in the grade of E-4 will limit his ability to prosper, consequently ending in separation due to him approaching his HYT. Without the opportunity to reenter the Air Force in the grade of E-5, he will end up separating from the Air Force. The applicant’s complete responses are attached at Exhibits D and E. ADDITIONAL AIR FORCE EVALUATION: AFPC/DPSID makes no recommendation indicating there is no action required by their office. Specifically, should the Board grant the applicant’s request to be reinstated to active duty; an AF Form 77, Letter of Evaluation, will be accomplished to cover the gap in the applicant’s record with a start date from the closeout of his last EPR through the date he is reinstated to active duty. The AF Form 77 will state “No evaluation available for the period (date) through (date). Officer [sic] restored to active duty by direction of the Secretary of the Air Force.” This will correct his record to reflect a report on file and therefore, correcting his promotion eligibility status code and removing the assignment availability code that makes him ineligible for promotion and testing. A complete copy of the AFPC/DPSID evaluation is at Exhibit F. APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 17 Sep 15, for review and comment within 30 days (Exhibit G). As of this date, no response has been received by this office. ADDITIONAL AIR FORCE EVALUATION: By letter (undated) the applicant requests permission to remain in Afghanistan as a contractor until his contract expires in Dec 15. On 1 Apr 15, AFPC/DPSOR informed the Board staff that the applicant’s request was not within their purview; however, they would consult with the Separations Policy Manger for action. Per the Separations Policy Manager, if the Board approved the applicant’s request, it must be included in the SAF instrument to allow the applicant to reenter active duty once he fulfilled his contract obligations in Afghanistan. In addition, it was noted the applicant should be advised of the ramification of contract pay versus military pay. In an email dated 22 Oct 15, SAF/MRBC informed the applicant that if he were reinstated into the Air Force retroactive to when he separated, the amount he has received from his civilian wages would be offset by his military pay and allowances for the same time frame. In addition, if he was paid by a contractor, the most the Defense Finance and Accounting Service (DFAS) would offset would be an amount equal to his military pay. However, if he is paid directly by a government agency, DFAS would offset all of his civilian wages earned as a contractor, and if he earned more as a contractor than had he stayed in the military, DFAS would process a debt. As required by 10 U.S.C. 1556(a), on 22 Oct 15, a summary of the communication made by DFAS to the Board was provided to the applicant for review and comment (Exhibit H). As of this date, no response has been received by this office. ADDITIONAL AIR FORCE EVALUATION: AFPC/DPSOE defers to the recommendation of DPSOR regarding the applicant’s request for reinstatement on active duty. If reinstated, the applicant would need to be on active duty prior to 1 Mar 16, to allow for an EPR to be written by the Static Cutoff Date (SCOD) for promotion cycle 16E5. The applicant’s HYT would need to be extended to at least Sep 16, to allow for testing between 1 May – 15 Jun 16 and selections announced in Aug 16. If nonselected, DPSOE defers adjustment of the applicant’s HYT/DOS to DPSOR. The applicant was tentatively selected for promotion to the grade of SSgt during cycle 13E5. He received promotion sequence number 2859.0 which would have incremented 1 Nov 13; however, on 29 Oct 13, he was non-recommended by his commander due to receiving an Article 15 for speeding and driving under the influence. His line number was removed IAW AFI 36-2502 and he received a referral EPR for the period 18 Aug 13 – 17 Aug 14, rendering him ineligible for promotion consideration to the grade of SSgt during cycle 14E5. DPSOR’s opinion states the applicant was erroneously considered for separation by the QFRB. Had he not been separated on 29 Sep 14, he would have been eligible for promotion consideration to the grade of SSgt during cycle 15E5 provided he received a nonreferral EPR on the SCOD of 31 Mar 15. A complete copy of the AFPC/DPSOE evaluation is at Exhibit I. APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 12 Nov 15, for review and comment within 30 days (Exhibit J). As of this date, no response has been received by this office. 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 to warrant rescinding the applicant’s Article 15 and the administrative actions (forfeiture of $1,152.00 pay per month for two months; reprimand, referral EPR and non-recommendation for promotion to the grade of staff sergeant). We took careful notice of the applicant's complete submission in judging the merits of the case; however, we do not believe the applicant has been the victim of an error or injustice. In this respect, it appears the DUI offense cited in the Article 15 is supported by the evidence of record and evidence has not been presented which would lead us to believe the Article 15 and the consequential administrative actions were improper. The applicant has not provided any evidence which would lead us to believe that the administrative actions taken by his commander prior to the QFRB’s decision were beyond his scope of authority, that he abused his discretionary authority in taking those actions, or that the actions taken were precipitated by anything other than the applicant's own conduct. Therefore, we conclude the applicant has failed to sustain his burden of proof that he has been the victim of an error or injustice. With respect to the applicant’s requests to change his DOS to 23 Nov 15 and to be returned to active duty after Dec 15, due to the passage of time, both of these requests are now moot. In view of the above and in the absence of persuasive evidence to the contrary, we find no basis to recommend granting the relief sought in this portion of the application. 4. Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice to warrant partial relief regarding the applicant’s separation as a result of consideration by the QFRB. Having carefully reviewed this application, we agree with the opinion and recommendation of AFPC/DPSOR and adopt the rationale expressed as the basis for our decision that the applicant has been the victim of an error or injustice. As such, we recommend the decision made by the QFRB to separate him from the Air Force be overturned and he be reinstated in the Air Force. Based on the QFRB’s erroneous decision to separate the applicant from the Air Force, it appears the applicant was unjustly denied an opportunity to compete for promotion to the grade of SSgt in the 15E5 cycle. While DPSOE believes the appropriate remedy is to extend the applicant’s HYT date to Sep 16 to allow him to compete for promotion in the 16E5 cycle, we disagree. We believe the more appropriate remedy is to change the applicant’s HYT to Aug 16 to allow him to compete for promotion solely in the normal cycle that he would have been considered had the QFRB error not occurred. Therefore, we recommend the applicant’s HYT date be changed to 31 Aug 16 and an AF Form 77 be prepared to cover the gap in his records to make him eligible for supplemental promotion consideration to the grade of SSgt for cycle 15E5. We believe correcting the records in this manner provides the applicant full and fitting relief. Accordingly, we recommend the applicant's records be corrected to the extent indicated below. THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that: a. He was not considered for separation by the Quality Force Review Board. b. On 29 Sep 14, he was not separated from active duty, but on that date continued to serve on active duty and was ordered Permanent Change of Station (PCS) to his home of selection pending further orders. c. Competent Authority approved a waiver of his High Year of Tenure (HYT) as an exception to policy, thereby, establishing his date of separation as 31 Aug 16. d. He be given supplemental promotion consideration to the grade of staff sergeant for the Fiscal Year 15E5 test cycle. e. An AF Form 77, Letter of Evaluation be prepared in accordance with AFI 36-2406, Officer and Enlisted Evaluation Systems, table 4, note 5 to cover the gap in the personnel record with a start date from the closeout of the last Enlisted Performance Report (EPR) through the date he is reinstated on active duty. The following members of the Board considered AFBCMR Docket Number BC-2014-03515 in Executive Session on 5 Jan 16, under the provisions of AFI 36-2603: Panel Chair Member Member All members voted to correct the records as recommended. The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-03515 was considered: Exhibit A. DD Form 149, dated 20 Aug 14, w/atchs. Exhibit B. Memorandum, AFPC/DPSOR, dated 29 Dec 14. Exhibit C. Letter, SAF/MRBR, dated 12 Jan 15. Exhibit D. Letter, Applicant, undated. Exhibit E. Letter, Applicant, dated 29 May 15. Exhibit F. Memorandum, AFPC/DPSID, dated 11 Sep 15. Exhibit G. Letter, SAF/MRBR, dated 17 Sep 15. Exhibit H. Email, SAF/MRBC, dated 22 Oct 15. Exhibit I. Memorandum, AFPC/DPSOE, dated 6 Nov 15 Exhibit J. Letter, SAF/MRBR, dated 12 Nov 15.