RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-04398 COUNSEL: HEARING DESIRED: NO APPLICANT REQUESTS THAT: 1. His transfer to the Individual Ready Reserve (IRR) be revoked. 2. His two nonselections for promotion be removed from his records. 3. Correct his record to show he was not discharged on 1 Oct 07, but remained to serve as a captain in the Air Force Reserve. 4. He be allowed to submit a request for an assignment as an 03 with the Air National Guard (ANG) or Air Force Reserve. 5. He not be considered or deferred for promotion until he has two annual Officer Performance Reports (OPRs). 6. He receive back pay or points toward retirement. APPLICANT CONTENDS THAT: The complexities of going from enlisted to officer and back to enlisted, active, Reserve and Guard status along with the rules that apply to different time in grade (TIG), promotion eligibility, reappointment, and discharge resulted in him being nonselected twice for promotion to 04. The governing rules and policy in place, and applied to his situation, created an injustice to his being considered for promotion to 04. In a similar case in which an Army Reserve officer promotion inequity was addressed by Army Board, relief was granted. Contingent on this appeal, he has been offered an 03 position with ANG. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant is currently serving in the ANG in the grade of technical sergeant, E-6. On 1 Oct 93, the applicant was discharged from the ANG in the grade of captain, 0-3 and assigned to the Air Force Reserve, Non-obligated Non-participating Ready Personnel Section (NNRPS) effective 2 Oct 93. On 2 Oct 95, he was assigned to the Inactive Status List Reserve Section (ISLRS). The applicant remained in ISLRS until his discharge from the Air Force Reserve on 24 Feb 00. On 19 Aug 03, the applicant was reappointed to the Air Force Reserve and assigned to a unit in the grade of captain, 0-3 with a date of rank (DOR) of 28 May 00. The applicant was considered, but not selected for the Fiscal Year 2007 (FY07) and FY08 Line and Health Profession Participating (PR) Major Promotion Selection Boards. On 1 Oct 07, the applicant was discharged from all appointments in the USAF due to his being twice deferred for promotion to the grade of major, 0-4. AIR FORCE EVALUATION: ARPC/PBP recommends denial indicating there is no evidence of an error or an injustice. The applicant requested his transfer to the IRR be revoked. There is no evidence showing he was not properly assigned to the IRR following his release from the ANG. The applicant also requests removal of his two nonselections for promotion to major. The applicant was considered for promotion when he was required to meet the promotion boards and there is no evidence his record contained any error when it met either board. The applicant has not provided any evidence to show the boards acted contrary to law or regulation, or that his record, when considered by the board, contained errors. The applicant further requested he not be considered or deferred for promotion to major until he has two annual OPRs. There is no evidence showing the applicant was treated differently than other service members who were being considered for promotion after having a break in service. According to Title 10 USC, Section 14301, eligibility for promotion board is established by the Secretary of the Air Force (SECAF). However, if an officer meets the TIG requirement and has one year on the reserve active status lists (RASL), the officer is required by law to be considered by a promotion board. If he is not recommended for promotion he is considered to be deferred for selection. There is no evidence to substantiate his request for back pay and points. To grant his request may likely set an untenable precedent and provide him an advantage that others in his situation are not afforded. However, they suggest the applicant seek a position in the USAFR or ANG. There is nothing in law that prohibits reappointment of a twice deferred officer who was discharged. The USAFR and the Illinois ANG can reappoint an officer provided the National Guard Bureau (NGB) authorizes the appointment, in lieu of granting retroactive relief to include pay and points. A complete copy of the AFPC/PBP evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant’s counsel refutes virtually every point made by the OPR and argues the advisory fails to address the particular inequity in this case. He believes the advisory merely restates the regulatory policies of Reserve assignments and TIG promotion eligibility, applied in the applicant’s reappointment in 93 and 03. The applicant does not raise “legal error” with these policies, nor in the selection boards. Rather, the callous insistence that the application of the policies must remain blind to when injustice occurs in a particular case. DoD guidance supports the applicant’s argument, in that moves between active status and inactive lists must “prevent an inequity with regard to an individual’s pay promotion, or retirement points.” Certainly, this extends to correcting records after an inequity has occurred, not limited to the 1993 snapshot in time. Moreover, as the Board is well aware, its charter obligates them to recognize and remove alleged injustice in the absence of legal error. In a related BCMR case without legal error in reserve transfer and TIG policies at the time, that in retrospect viewing the total circumstances, the result was inequitable. The advisory opinion makes no attempt to show why the related case carries no weight here, or is somehow irrelevant to the applicant’s situation. According to the DoD Report, Review of System for Correction of Military Records, the Boards are not bound by previous Board decisions in other cases, although prior similar cases are considered and given weight. In Wilhelmus v. Geren, 796 F.Supp.2d 157, 162 (D.D.C. 2011) the court decided the BCMR must treat similar cases in similar manner unless it provides legitimate reason. The court added that even if the ABCMR is not required to distinguish every similar prior decision, the need to consider relevant precedent becomes especially acute when a plaintiff has pointed to a specific prior decision as very similar to his own situation. In such cases, the Board may not simply ignore such precedent for the sake of expediency. The services’ regulations may differ on nomenclature, but their basic transfer and TIG polices, and equitable considerations, derive from DoD guidance. The advisory opinion’s failure to acknowledge the related case suggests a less than careful review. The advisory opinion insists that when transfer and TIG policies are applied, it is wholly irrelevant if they cause inequity, so the Board is powerless to remedy a particular injustice. It is unclear whether the opinion acknowledges that equitable considerations play any role in operation or impact of the policies, nor concedes that reservists have a remedy for injustices that arise. The injustice here was ignored that in 93 the applicant had planned inactivity and that he did not participate after 93. This advisory opinion indicates that once the transfer in 93 occurred the TIG, promotion eligibility are all fixed and a done deal. The recommended alternative of a waiver or reappointment only applies to twice deferred active duty officers and not Reservist. The applicant further noted after his discharge in 07, he requested an exception or waiver from NGB but was unsuccessful. The NGB stated it was not allowed because the applicant was not a twice deferred reservist from active duty. The NGB later informed the applicant that his only recourse was to appeal to the AFBCMR to remove the nonselections and then to qualify for reappointment. Thus, reappointment does not remove the original injustice, but creates new ones. The Counsel’s complete response, with attachment, is at Exhibit D. 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. We took notice of the applicant’s complete submission, to include the rebuttal response, in judging the merits of the case. There is no evidence the applicant was improperly transferred to the Individual Ready Reserve (IRR) following his release from the Air National Guard (ANG). Nor, does the evidence support the applicant was not properly considered for promotion by the promotion boards or that an error or injustice occurred during the promotion board processing. There is no evidence the applicant was treated differently than other service members who are similarly situated. By rebuttal, counsel argues that the issue is not a legal error with policy, but an injustice as to how policy is applied. While the applicant and counsel believe the applicant’s situation is unique and that the polices in place don’t apply, we find no evidence that the policies governing the applicant’s case were improperly applied. In the applicant’s submission, the applicant's counsel argues the Board did not consider the precedent of cases previously decided by other Correction Boards and courts in evaluating the applicant's requests, essentially asserting that similar consideration should be applied to the applicant's case and the requested relief should be granted. The Board disagrees. In this respect, we note that each case before this Board is considered on its own merits, and precedent does not bind us. While we do strive for consistency in the manner in which evidence is evaluated and analyzed, we are not bound to recommend relief in one circumstance simply because the situation being reviewed appears similar to another case. In the cases cited by counsel, the Board granted relief for the following reasons: 1) It was the responsibility of officials to verify the applicant’s eligibility for a position prior to offering him the position and to follow up on the processing of his waiver request. 2) the applicant’s inactivity was planned to attend law school, he had the option to request discharge rather than transfer to the Army Reserve, therefore a discharge would have stopped the clock for promotion consideration. 3) The rater’s negative characterization of the applicant on the Retention Recommendation Form (RRF) contributed to her promotion nonselection. However, we have thoroughly reviewed the cases cited by the applicant's counsel and find the circumstances are not applicable in the instant case. While the Boards determined relief was warranted, there was no evidence of an error in or injustice in the case at hand to warrant relief. 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-2014-04398 in Executive Session on 9 Sep 15, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining AFBCMR Docket Number BC-2014-04398 was considered: Exhibit A. DD Form 149, dated 5 Oct 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, ARPC/PBP, not dated, w/atchs. Exhibit D. Letter, SAF/MRBR, dated 6 Jul 15. Exhibit E. Letter, Counsel’s Rebuttal, 31 Jul 15, w/atchs.