RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-02211

					COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

His rank be changed to Second Lieutenant, rather than Cadet First Class (C1C), Airman First Class (A1C), or Sergeant (Sgt).

APPLICANT CONTENDS THAT:

On the applicant’s behalf, his father submits this request.  The applicant is a 2006 graduate of the United States Air Force Academy Prep School and a 2010 graduate of the United States Air Force Academy (USAFA).  Prior to his graduation he earned a pilot spot and was assigned to a military base pilot training.  However, a few months prior to his graduation he was injured while training, which required surgery.  During the surgery the military doctor accidentally damaged a nerve.  This prevented him from getting his commission.  The nerve damage turned into Complex Regional Pain Syndrome (CRPS) and he now has serious health issues.  He has been unable to work since the surgery and currently lives with his parents who are his caregivers.  He submitted a request to his Congressman’s office in an effort to rectify his retired rank.

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

STATEMENT OF FACTS:

The applicant initially entered active duty in the Regular Air Force on 13 July 2005 as a Pre-Cadet Assignee.

According to the applicant’s DD Form 214, Certificate of Release or Discharge from Active Duty, effective 28 June 2006, he received an honorable discharge to enroll in the USAFA.

According to the Secretary of Defense (SECDEF) Action Memo, the SECDEF approved the applicant’s original appointment by initialing the Memo and signing the scroll.  The SECDEF approval date was 7 May 2010. 

AF IMT 133, Oath of Office, reflects the applicant and the Commandant of Cadet signed the form indicating that the applicant was sworn in as a commissioned officer, effective 26 May 2010.

Special Order (SO) Number ACD-02828, dated 13 September 2010, placed the applicant on the Temporary Disability Retired List (TDRL) for being diagnosed with Complex Regional Pain Syndrome (CRPS) and was rated with a 30 percent compensable percentage for physical disability.  

The applicant’s DD Form 214 reflects the applicant received a temporary disability retirement effective 29 September 2010 in the grade Airman First Class (E-3).

SO Number ACD-00238, dated 6 November 2015, reflects the applicant’s order, DAFSO ACD-02828, dated 13 September 2010 - relating to placing him on the TDRL in the grade of C1C was amended to reflect that he was placed on the TDRL in the grade of SRA, and that his highest grade held on active duty was Senior Airman (SrA).

SO Number ACD-00239, dated 6 November 2015, reflects the applicant’s order, DAFSO ACD-02054, dated 12 September 2012 - relating to removing him from the TDRL and retiring him in the grade of C1C was also amended to reflect his highest grade as SrA.

On 26 May 2016, the applicant’s Congressman’s office forwarded additional information to the Board for Correction of Military Records (BCMR).

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibit C, E, and G.    

AIR FORCE EVALUATION:

AFPC/DPFDD coordinated with the USAFA and reviewed the Military Personnel Data System (MilPDS), and found that when the applicant’s status was changed in MilPDS from Cadet to active (AA.10) for the purpose of retirement, his rank converted to A1C.  Although the applicant may have been notified of a pending assignment, he was separated for reasons of physical disability prior to being commissioned as an officer in the United States Air Force.  At the time of his placement on the TDRL, his rank in the MilPDS was C1C, so that was the rank reflected on his retirement orders. However, the applicant’s records have since been amended to reflect his correct rank at the time he was placed on the TDRL, which should have been SrA based on his Cadet status.

A complete copy of the AFPC/DPFDD evaluation, with attachments, is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 2 December 2015 for review and comment within 30 days (Exhibit D).  As of this date, no response has been received by this office.

ADDITIONAL AIR FORCE EVALUATION:

HQ USAFA/JA recommends denial.  In this regard, because the applicant did not take the oath, even though there was a completed AF IMT 133, USAFA finds the applicant's commission is not complete and recommends you deny the applicant's request to change his retired rank from Cadet First-Class to Second Lieutenant based on the AF IMT 133.  However, the applicant may seek his relief through another remedy - 10 USC 1372 - Grade On Retirement for Physical Disability may retire a member at the grade he would have been promoted but for his medical diagnosis and subsequent MEB.

By way of background, months prior to the applicant’s May 2010 USAFA graduation, the applicant underwent surgery after a knee injury resulted in an ACL reconstruction meniscal tear.  Based on the injury and subsequent nerve damage, the applicant went to a MEB after the surgery.  Because the applicant was otherwise qualified to graduate from USAFA while the determination on his commission was pending based on the Medical Evaluation Board (MEB) findings, on 21 May 2010 the applicant was approved to graduate from USAFA and be awarded a Bachelor of Science degree without a commission at the May 2010 graduation ceremony.  However, an AF IMT 133, Oath of Office, form was accomplished for the applicant indicating that he sworn a commissioning oath on 26 May 2010.  In September 2010, the MEB results came back and did not support commissioning but rather a TDRL medical retirement.

The applicant was dis-enrolled from USAFA on 29 September 2010.  From May 2010 until the MEB results in September 2010, the applicant remained in USAFA cadet status with the rank of Cadet First-Class.  In accordance with the governing instructions, a member is to be retired in the grade he was serving in on the date he was placed on TDRL.  All USAFA systems of record indicate that the applicant did graduate with a Bachelor of Science degree in Management but that he did not receive a commission based on his pending MEB at the time of the USAFA graduation.

At issue in this case is how an AF IMT 133 would be accomplished on a member who was identified as being allowed to graduate and receive his diploma without a commission.  The USAFA/A1A, Cadet Personnel, identified this as administrative error (see attachment).  Because each USAFA graduating class is approximately 1,000 cadets, the AF IMT 133 forms for each cadet is prepared well ahead of the graduation date.  Because the determination on the applicant's approval for graduation without commission came only days before USAFA graduation day, the applicant’s AF IMT 133 was never removed from his file and was published in error.

A complete copy of the HQ USAFA/JA evaluation is at Exhibit E.

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 11 May 2016 for review and comment within 30 days (Exhibit F).  As of this date, no response has been received by this office.

ADDITIONAL AIR FORCE EVALUATION:

SAF/MRBL recommends approval.  This case is similar to one of a Reserve officer, discussed in the attached AF/JAA Opinion of the Judge Advocate General (OPJAGAF).  After consulting with AF/JAA on the applicant’s status, JAA was able to obtain a copy of the scroll in which the SECDEF appointed the applicant as a Second Lieutenant (extract attached).  Additionally, the applicant provided a completed oath of office, dated 26 May 2010, signed by the applicant and the USAFA Superintendent.  The governing instructions states, “Taking the Oath. Individuals being appointed or commissioned in the Regular Air Force … must execute AF Form 133 when they accept the appointment.”  Thus, when the applicant’s appointment was combined with his completed oath of office, he was commissioned as a Second Lieutenant.  AF/JAA agrees with this conclusion. Once the commission was complete, even if in error, it cannot be undone except through the process of removing or retiring a commissioned officer.  In this case, the applicant was retired with a disability.

A complete copy of the SAF/MRBL evaluation, with attachments, is at Exhibit G.

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 15 June 2016 for review and comment within 30 days (Exhibit H).  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.  Sufficient relevant evidence has been presented to demonstrate the existence of 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.  While we note the comments of AFPC/DPFDD and HQ USAFA/JA indicating that relief should be denied because the applicant’s medical condition and eventual MEB finding did not support the applicant receiving a commission, we believe a preponderance of the evidence substantiates that corrective action is warranted.  In this regard, we agree with opinion and recommendation of SAF/MRBL, who in consultation with AF/JAA, recommend correcting the applicant’s records to reflect his highest grade held as Second Lieutenant.  Based on the evidence provided by AF/JAA in the form of the SECDEF scroll which appointed the applicant as a Second Lieutenant, effective 7 May 2010, along with a signed the Oath of Office (IMT Form 133) that signifies the applicant was sworn in by the Commandant of Cadets, effective 26 May 2010, the Board thereby supports the assertion that the applicant should be disability retired as a Second Lieutenant.  Therefore, 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 permanently disability retired in the grade of Second Lieutenant with an effective date of rank of 26 May 2010.

The following members of the Board considered AFBCMR Docket Number BC-2015-02211 in Executive Session on 15 March 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-2015-02211 was considered:

	Exhibit A.  DD Form 149, dated 21 Apr 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFDD, dated 10 Nov 15, w/atchs.
	Exhibit D.  Letter, SAF/MRBR, dated 2 Dec 15.
	Exhibit E.  Memorandum, HQ USAFA/JA, dated 11 May 16.
	Exhibit F.  Letter, SAF/MRBR, dated 11 May 16.
	Exhibit G.  Memorandum, SAF/MRBL, dated 15 Jun 16, w/atchs.
	Exhibit H.  Letter, SAF/MRBR, dated 15 Jun 16.

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 with regard to AFBCMR Docket Number BC-2015-02211.