RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS. IN THE MATTER OF: DOCKET NUMBER: BC-2015-01678 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: 1. His records reflect a separation under the FY15 Voluntary Separation Pay (VSP) Program. 2. Authorize separation pay as calculated in Personnel Service Delivery Memorandum (PSDM) 14-44; FY15 Officer Voluntary Separation Pay (VSP) Program. APPLICANT CONTENDS THAT: He separated from active duty on 31 Dec 14 due to the recent Force Shaping Board (FSB) directed toward, among others, Captain Year Group (CYG) 2009 Line of the Air Force - Judge Advocate (LAF-J) officers. His request is based on both detrimental reliance and equity grounds. During multiple telephonic and in person conversations with 11 Force Support Squadron (FSS) and Air Force Legal Operation Agency (AFLOA) Front Office personnel, it was made clear that the mandatory 31 Dec 14 separation date for officers not retained by the FSB would render a large volume of his CYG, himself included, ineligible for VSP in accordance with PSDM 14-44. Based on their guidance, he would be exactly 11 days short of the purportedly necessary full six years of active duty service VSP. Multiple members of his CYG within AFLOA were expressly told by AFLOA Front Office personnel that our class was not eligible for VSP and that any such application would inevitably be rejected by AFPC. While he initially intended to submit a VSP request, he detrimentally relied upon these direct and indirect communications when he made the decision not to apply for VSP. It appeared futile to submit a request that, according to his leadership, would be rejected and worse, could influence his Senior Rater’s (AFLOA/CC) stratification of his retention recommendation. PSDM 14-44 provides guidance on the FY15 VSP and accordingly, Attachment 2, paragraph 2(b) under “Commander:” “no commander, supervisory, agency, unit, or organization [was] authorized to delay [or] divert…applications under this program.” This direction is very clear and shows that his chain of command should have simply processed applications for VSP instead of directly communicating to multiple officers that they were ineligible to submit such an application and creating a chilling effect in which officers were not comfortable submitting an application. Following his separation from active duty, the results of a Freedom of Information Act request filed by one of his 2009 CYG peers was shared. This FOIA application requested data on VSP applications for officers with less than six years of commissioned service as of 31 Dec 14. This date is significant because, according to AFLOA leadership, it encapsulates individual who did not qualify for VSP and whose applications would be rejected. Specifically, the FOIA application requested the total number of applications submitted, total number approved, and requested a breakdown by career fields. AFPC’s FOIA policy officer relayed the following information: 383 Air Force members in the group applied for the VSP program. Of those 383, 279 applications were approved. Within his career field, 51J, 10 members applied and all 10 members were approved. Based on these figures, it is clear that had he not received wholly incorrect information from his command, he could have applied for VSP and that application would have been approved. Additionally, the statutory authority relied upon by the Force Shaping Board, 10 U.S.C. 647§, “Force Shaping Authority,” is directly at odds with the Air Force Instruction, 36-3206, Administrative Discharge Procedures for Commissioned Officers. AFI 36-3206 makes a clear distinction between the status of non- probationary officers and probationary officers. When the “finish line” is 6 years of service, the optis of involuntarily separating a number of officers who served 5 years, 11 months, and 20 days, is hardly consistent with the best traditions of the Air Force. It certainly appears that they were specifically targeted so the Air Force could eliminate personnel without having to pay them the full involuntary separation pay that would accompany a Reduction In Force. Despite their status as non-probationary officers, they were fired through a craven technicality that unfairly deprived them either voluntary or involuntary separation pay. But for AFLOA leadership expressly telling AFLOA members that attempts to apply for VSP would be futile (and the VSP applications could adversely impact their odds of retention), he could have, and would have, submitted an application for VSP. His request would have then joined the 100% acceptance rate revealed by the FOIA documentation. He materially changed his positon based on ex officio representations from his command and the material change was to his personal, financial and professional detriment. He also advances his request on the basis of fairness and equity. The force reduction unfairly targeted a disproportionate amount of the CY09 LAF-J class. It is patently unfair and unjust for an arbitrary line in the sand to have been drawn in which an active duty date of 0000 hours on 1 Jan 09 subjects an officer to a mere 33% chance of retention where peer officers, both superior and inferior, who started active duty a minute before 2359 hours on 31 Dec 08 are exempted. That is the system FSB created. Those same CYG09 officers were then mislead by their leadership leaving them to be involuntarily separated with mere months to find employment and without absolutely any financial cushion whatsoever. This is not fair and this is not right. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 10 Jan 09, the applicant entered the Regular Air Force. On 31 Dec 14, the applicant was furnished an Honorable discharge, and was credited with 5 years, 11 months, and 21 days of active service. 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 and D. AIR FORCE EVALUATION: AFPC/DPSOR-SEP recommends denial indicating there is no evidence of an error or an injustice. The Air Force convened a FY14 Force Shaping Board to consider eligible officers within competitive categories for continued retention. Officers who were not selected for retention were given a mandatory separation date of 31 Dec 14. The applicant was eligible to meet the Force Shaping Board (FSB) due to being in the rank of Captain in the 2009 Year Group and competitive category of Line of the Air Force Judge Advocate (LAF-J) officers. He was not selected for retention and as a result of his non selection, was given a separation date of 31 Dec 14. The applicant contends that he initially intended to apply for VSP but was informed by his leadership that because of the mandatory separation date of 31 Dec 14, he was not eligible. This was because he would fall short of the required 6 years and 1 day needed to be eligible to apply and receive VSP. He states that based on that information, he decided not to apply for VSP. PSDM 14-44 was released to the field for individual review on 20 May 14. PSDM 14-44, page 3 states that “officers who reach more than 6 years of service 1 Jan through 30 Apr 15 may request a separation date equal to the date they complete 6 years and 1 day of service to qualify for VSP”. The applicant would have been able to apply for VSP as long as he requested a Date of Separation (DOS) that would have taken him to 6 years and 1 day of Total Active Federal Military Service. The fact that the applicant did not apply is a decision made of his own accord. The applicant contends that based on a FOIA request made by a peer, 10 VSP applications were approved on individuals in his competitive category with less than six years of Total Federal Commissioned Service Date (TFCSD), which means that if he had been allowed to apply he would have been approved, therefore, he received incorrect information from his chain of command. The applicant’s theory on the VSP approvals is flawed. In accordance with the PSDM, VSP authorized officers with more than 6, but less than 20 years of Total Active Federal Military Service (TAFMS). TAFMS would have included any time served on active duty to include prior service. VSP eligibility was not based on federal commissioned service. The applicant further contends the statutory authority is directly at odds with Air Force Instruction 36-3206. This contention is also flawed. The statutory authority takes precedence over an Air Force instruction. In addition, AFI 36- 3206, dated 6 Jul 00, is currently under revision and will reflect current guidelines established by DoD and statutory policy. DoDI 1332.30, Separation of Regular and Reserve Commissioned Officers, dated 25 Nov 13, established the definition of probationary officer as a commissioned officer with fewer than six years of active commissioned service. The applicant contends that because of his status as a non- probationary officer with 5 years and 11 months of service, he was unfairly deprived of either voluntary or involuntary separation pay. Title 10 U.S.C. Section 1174, clearly states that a regular officer who has completed 6 or more but less than 20 years of active service is entitled to separation pay. The PSDM shows the applicant had the opportunity to apply for VSP by selecting a DOS that could meet the 6 year and 1 day requirement, but he chose not to do so of his own volition. He decided to have his record meet the FSB and was not selected for retention. His discharge was consistent with the procedural and substantive requirements of the FSB, the discharge instruction and was within the discretion of the discharge authority. A complete copy of the AFPC/DPSOR evaluation is at Exhibit C. AFPC/JA recommends denial indicating there is no evidence of an error or an injustice. This advisor concurs with the advisory written by AFPC/DPSOR, and only expands the discussion of several contentions raised by the applicant. One of applicant’s major contentions is he was repeatedly told by “11 FSS and AFLOA personnel” he was ineligible to apply for VSP. The applicant says that although he originally intended to apply for VSP, he detrimentally relied on these communications that any such application would be denied and that it would hurt his chances to be retained by the FSB. In response, it is noted the applicant does not identify who any of these “personnel” were, nor does he offer any corroborating proof of these claims. Moreover, the PSDM that governed the force shaping processes, PSDM 14-44, was published months in advance of his decision point, and it clearly provided that applicant and all others similarly situated were in fact eligible to apply for VSP. It is suspected the applicant decided to forgo applying for VSP and [take a chance] he would be retained by the FSB. When he was not, he now wants to retroactively claim he should be awarded an alternative for which he knew he was eligible, did not elect at the appropriate time. The applicant also argues that the definitions of “probationary” and “non-probationary” officers in AFI 36-3206, Administrative Discharge Procedures for Commissioned Officers, are at odds with the statutory authority behind the FSB, 10 USC 647, and that as a non-probationary officer as defined by the AFI, he was not eligible for force shaping and should have received separation pay. The applicant has these concepts confused. First, he was not separated pursuant to AFI 36-3206, and that regulation and its accompanying definitions are irrelevant. The authority for the Air Force to conduct Force Shaping Boards is based on 10 USC 647, which provides that in order to be considered for any force reductions under that force shaping authority, an officer must not have completed more than six years of active duty. This statutory authority is independent of any authority regarding discharge for cause under 10 USC 1181 and AFI 36-3206. In addition, separation pay is governed by 10 USC 1174(a), which in subsection (1) specifies that such pay is authorized only for regular officers who have completed six or more, but less than 20, years of active duty. Again, provisions of AFI 36-3206, which apply only to discharge for cause cases pursuant to Section 1181 of Title 10, do not apply. Moreover, by regulation, the Air Force cannot contravene a specific provision of law—particular where that law prescribes an entitlement. Finally, this advisor was not persuaded that what happened to the applicant constitutes an injustice as contemplated by 10 USC 1552 (“shocks the conscience”), or that it was even unfair. While force shaping measures can be harsh for those ultimately affected, they are necessary when budgetary constraints imposed by Congress force the services to reduce their manpower. Most importantly, the programs utilized by the Air Force in FY14 and FY15 to shape the force were determined only after careful analysis of the overall Air Force and individual career category force needs. While these actions may have impacted certain groups more than others, they were not applied arbitrarily or unfairly. The applicant had a choice to make when facing the FSB; he could have avoided the board and separated with VSP. Rather, he elected to roll the dice in an effort to be retained. That this action did not turn out as he had hoped does not render the result arbitrary or unfair. A complete copy of the AFPC/JA evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 3 Nov 15 for review and comment within 30 days (Exhibit E). 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. We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility (OPR) and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. 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-2015-01678 in Executive Session on 2 Feb 16 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 16 Apr 15, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPSOR-SEP, dated 27 Apr 15. Exhibit D. Memorandum, AFPC/JA, dated 31 Aug 15. Exhibit E. Letter, SAF/MRBR, dated 3 Nov 15.