RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2015-01884

XXXXXXXXXX					COUNSEL:  NONE

							HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

The effective date of his promotion to the grade of lieutenant colonel (O-5) be changed to 1 October 2013, rather than 1 October 2014.

APPLICANT CONTENDS THAT:

Due to a break in service, he did not meet the Calendar Year 2013 Air National Guard Lieutenant Colonel (A0513A) promotion board.  However, as a result of an Air Force Board for Correction of Military Records (AFBCMR) decision (BC-2012-05576), he was permitted to meet a Special Selection Board (SSB) in lieu of the A0513A promotion board.  In April 2014, his records met the A0514A promotion board and he was promoted to the grade of lieutenant colonel effective 1 October 2014.  In June 2014, his records met the SSB and he was notified in November 2014 that he was selected for promotion to the grade of lieutenant colonel with a date of rank and promotion effective date of 1 October 2013.  However, his effective date for pay was not honored when he processed for promotion from the grade of major (O-4) to lieutenant colonel in the Air National Guard.  The National Guard Bureau states that his effective date cannot be changed due to strength numbers; therefore, he cannot receive back pay.  However, Title 10 United States Code (U.S.C.) Section 14502e states “An officer who is promoted to the next higher grade as the result of the recommendation of a special selection board convened under this section shall, upon such promotion, have the same date of rank, the same effective date for the pay and allowances of that grade, and the same position on the reserve active status list as the officer would have had if the officer had been recommended for promotion to that grade by the selection board which should have considered, or which did consider, the officer.”  Had he met the correct promotion board, he would have been promoted effective 1 October 2013, as a Drill Status Guardsman (DSG) on full time Title 10 contingency orders.  He had a change in status from DSG to Air Guard and Reserve (AGR) while the SSB process was ongoing.  Consequently, the National Guard Bureau says his effective date cannot be changed.

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 15 June 1989.

On 10 June 1993, the applicant was released from Active Duty in the grade of senior airman (E-4) and was credited with 3 years, 11 months and 26 days of active service.

According to Special Order A-0917 dated 10 April 1997, the applicant was ordered to extended active duty in the grade of second lieutenant (O-1) effective 19 May 1997.

According to Order Number AF-063995 dated 3 April 2012, the applicant was honorably discharged from the Regular Air Force in the grade of major effective 31 July 2012.  According to the corresponding DD Form 214, Certificate of Release or Discharge from Active Duty, the applicant was credited with 19 years, 2 months, and 8 days of active service.  His narrative reason for separation was “Completion of Required Active Service.”

According to Special Order AB-127-AZ dated 20 September 2012, the applicant was appointed to the Arizona Air National Guard in the grade of major effective 17 September 2012.

According to Order Number AS-142 dated 7 November 2013, Order Number AF-063995, item 13 (Effective Date) was amended to read 16 September 2012 vice 31 July 2012.  Item 8 (Remarks) states “With the support of the Air Force Board for Corrections of Military Records and under the authority of Section 1552, Title 10, United States Code and Section 8911, Title 10, United States Code, the member is instead being retired from Active Duty.”

According to Order Number Z66AAN, the applicant was assigned to Full-Time [AGR] Duty from 1 June 2014 to 31 May 2017.

According to Special Order Number AP-368 dated 1 October 2014, the applicant was promoted to the grade of lieutenant colonel with a date of rank and effective date of 1 October 2014.

According to Special Order Number AP-400 dated 6 November 2014, the applicant’s date of rank to the grade of lieutenant colonel was amended to read 1 October 2013, vice 1 October 2014.

The remaining relevant facts pertaining to this application are described in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is included at Exhibit C.

AIR FORCE EVALUATION:

NGB/A1P recommends denial indicating there is no evidence of an error or injustice.  To grant relief would be contrary to the criteria established by Title 10, U.S.C, Section 14311(e) 1.  The applicant’s effective date for pay as an AGR lieutenant colonel cannot precede the date a control grade became available and assigned to him for promotion.  The applicant separated from the Regular Air Force in the grade of major on 16 September 2012, and joined the Arizona Air National Guard on 17 September 2012, and was immediately placed on Title 10 contingency orders.  The applicant did not appear before the A0512A promotion board due to an incorrect break in service documented for 1 August 2012 through 16 September 2012.  On 31 October 2013, the AFBCMR corrected the break in service, which made him eligible for the A0513A promotion board and entitled him to an SSB.

The applicant met the A0514A promotion board on 7 April 2014, which established a 1 October 2014 date of rank and effective date.  In addition, the applicant also met the SSB and according to ARPC/PBO memorandum dated 10 June 2014, was recommended for promotion to the grade of lieutenant colonel with an effective date of 1 October 2013.  On 1 June 2014, the applicant accepted an AGR position in the grade of major.  The AGR control grade required for the over grade lieutenant colonel mandatory promotion was verified available effective 1 October 2014.

Upon entry into the AGR Program on 1 June 2014, the applicant’s promotions became subject to both grade and strength limitations. AFI 36-2504, Officer Promotion, Continuation and Selective Early Removal in the Reserve of the Air Force, paragraph 8.7. (Delay for Limitations in Officer Strength in Grade [AGR]) states “Promotion of an officer on the RASL, serving on active duty, to a grade with strength limitations set by Title 10 U.S.C., Section 10211 and 12310, can be delayed to ensure compliance with those strength limitations. The delay expires when the strength-in-grade limitations no longer apply.”  Subsequent to the SSB recommendation dated 10 June 2014, NGB published Special Order AP-400 correcting the applicant’s DOR to 1 October 2013; however the effective date remained 1 October 2014, as that was the date the control grade needed for promotion to lieutenant colonel became available for the applicant.

A complete copy of the NGB/A1P evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He reiterates that Title 10 U.S.C. Section 14502e established that the purpose of the SSB is to allow the member to be promoted on the proper date, had he met the correct promotion board in the first place.  It appears there are conflicting laws.  The advisory opinion states an AGR cannot be promoted until receiving a control grade.  However, Title 10 U.S.C. Section 14502e should take precedence.  Had he met the correct board, he would have been promoted on 1 October 2013, when he was a DSG and a control grade was not required.

The applicant's complete response is at Exhibit E.

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of an error or an injustice.  After a thorough review of the evidence of record and the applicant’s complete submission, we believe the applicant is the victim of an error or injustice.  The Board previously corrected the applicant’s break in service, which entitled him to an SSB.  The OPR argues that relief should be denied because upon entry into the AGR Program on 1 June 2014, the applicant’s promotion became subject to strength limitations established by Title 10, U.S.C, Section 14311.  On the other hand, Title 10 U.S.C 14502, states that an officer promoted to the next higher grade as a result of an SSB shall have the same date of rank, effective date for pay and allowances for that grade and the same position on the reserve active status list as the officer would have had if the officer had been recommended for promotion to that grade by the selection board which should have considered the officer.  Therefore, under the unique circumstances of this case under which the control date in question has long since passed, 10 U.S.C. 14502 prevails.  Accordingly, we recommend the applicant’s records be corrected as 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 he was promoted with the effective date of pay and grade of lieutenant colonel (O-5), Air Force Reserve, with a promotion effective date of 1 October 2013, rather than 1 October 2014.

The following members of the Board considered AFBCMR Docket Number BC-2015-01884 in Executive Session on 11 October 2016, 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-2015-01884 was considered:

Exhibit A.  DD Form 149, dated 1 May 2015, w/atchs.
Exhibit B.  Applicant's Master Personnel Records.
Exhibit C.  Memorandum, NGB/A1P, dated 7 June 2016.
Exhibit D.  Letter, AFBCMR, dated 16 June 2016.
Exhibit E.  Letter, Applicant, dated 1 July 2016.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.