RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2015-02642
		
   						COUNSEL:  NONE

						HEARING DESIRED:  NO

APPLICANT REQUESTS:

1.  His discharge be overturned, he be reinstated onto active duty, and he receive back pay since the time of his discharge. 
 
2.  He be given a line number for promotion to the grade of Technical Sergeant (TSgt). 

3.  His eligibility for the Base of Preference (BOP) Program be reinstated. 
 
4.  His be allowed to apply for cross-training into a new career field.  

5.  He be allowed to attend Officer Training School (OTS).

APPLICANT CONTENDS:

The removal of both his Article 15 and referral enlisted performance report (EPR) by the Air Force Board For Correction Of Military Records (AFBCMR) means he was ineligible to meet the Quality Force Review Board (QFRB), and should not have been separated, allowing him to be reinstated onto active duty.  In addition, if he had not been reduced in rank by the Article 15 and subsequently separated, he would have been promoted to the grade of Staff Sergeant (SSgt) and been eligible for promotion consideration to the grade of TSgt.  

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 28 Oct 08.  

On 8 May 13, the applicant received an Article 15.  As punishment, he was reduced in grade from Senior Airman (SrA) to Airman First Class (A1C) with a new date of rank (DOR) of 22 Apr 13. 

On 2 Aug 13, the applicant received a referral EPR covering the period 28 Jun 12 through 27 Jun 13 which referred to the actions which were the basis of his Article 15. 

On 5 May 14, the applicant was not selected for retention by the QFRB.  

On 29 Sep 14, the applicant was furnished an honorable discharge in the rank of A1C, and was credited with 5 years, 11 months, and 2 days of active service.

On 14 Aug 14, the AFBCMR directed the applicant’s Article 15 and a referral EPR be declared void and expunged from his record; his record be corrected to reflect his rank as SrA with the original DOR of 12 Apr 11, and he be provided supplemental promotion consideration to the grade of SSgt for the 13E5 promotion cycle.  

On 22 Dec 14, AFPC/DPSOE notified the applicant he had not been selected for promotion to the grade of SSgt by the 13E5 special selection Board (SSB). 

The remaining relevant facts pertaining to this application are described in the memoranda prepared by the Air Force offices of primary responsibility (OPRs), which are included at Exhibits C, D, E, F, I and J.

AIR FORCE EVALUATIONS:

AFPC/DPSOE recommends denial of the applicant’s request for promotion to the grade of TSgt, indicating there is no evidence of an error or injustice concerning his grade.  Since he was never selected for promotion to SSgt, he was never eligible to be considered for promotion to TSgt prior to his separation.

A complete copy of the AFPC/DPSOE evaluation is at Exhibit C.

AFPC/JA recommends granting the applicant’s request to be reinstated onto active duty, indicating there is evidence of an error or injustice.  The applicant asserts he would not have been selected for non-retention by the QFRB for any other reason than the derogatory information (Article 15 and referral EPR) in his record.  Since the negative quality indicators that made the applicant eligible to meet the QFRB were expunged from his record, he should never have met the QFRB and been in jeopardy of involuntary discharge.  Assuming, arguendo, he would have still met the QFRB, once the Article 15 and referral EPR are removed from the record, in our judgment it is highly doubtful the applicant would have been separated.  Either of those reasons is a basis to grant the requested relief to “overturn” the QFRB result.  Therefore, it is in the interest of justice for the applicant to be reinstated to active duty.

Conversely, AFPC/JA recommends denying the applicant’s request to be promoted to the grade of TSgt.  There is no Air Force policy to allow for an automatic promotion.  The applicant was never selected for promotion to SSgt and, therefore, never eligible to be considered for promotion to TSgt prior to his separation.  However, if the Board grants the applicant’s request for reinstatement back to active duty, we concur with the recommendation the applicant be provided supplemental promotion consideration to SSgt, once tested, beginning with cycle 14E5.  Finally, if reinstated to active duty and promoted to SrA, the applicant would be eligible for a First Term Airman BOP assignment or Career Airman, BOP assignment.  

A complete copy of the AFPC/JA evaluation is at Exhibit D.

AFRS/RSO recommends denial of the applicant’s request for a recommendation to attend OTS, indicating there is no evidence of an error or injustice.  In accordance with AFI 36-2013, Officer Training School (OTS) and Enlisted Commissioning Programs (ECPS), upon re-entering the Air Force and completion of prerequisite degree requirements, the applicant can apply to Total Force Officer Training (TFOT) through his local command structure.  His application process may begin as soon as he is within a year of completing his degreed program.  Since he did not even apply for TFOT prior to being separated and he was not unfairly denied participation in the process, no error or injustice has occurred.

A complete copy of the AFRS/RSO evaluation is at Exhibit E.

AFPC/DPSOR-SEP recommends granting the applicant’s request to have his selection by the QFRB removed from his record, indicating there is evidence of an error or injustice. The applicant contends the successful removal of both the Article 15 and referral enlisted performance report (EPR) by the AFRBA should have removed his eligibility to meet the QFRB and allowed him to be reinstated to active duty.  A QFRB is convened to determine which airmen are to be retained in the Air Force and which are to be separated.  The applicant was not selected for retention by the board and was selected to separate on the mandatory separation date of 29 Sep 14.  Since the negative quality indicators that made the applicant eligible to meet the QFRB were expunged from his record, his placement on the QFRB and his subsequent selection for discharge were no longer valid.  Therefore, it is in the interest of justice for the applicant to be reinstated to active duty.     

A complete copy of the AFPC/DPSOR-SEP evaluation is at Exhibit F.

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

The applicant further supports his request by submitting a rebuttal to the Air Force evaluations, taking exception to two specific recommendations made in the evaluations.  He disagrees with the recommendations of AFPC/DPSOE and JA which recommend he not receive a direct promotion to TSgt.  The applicant states direct promotions do occur in the Air Force, citing the example of a TSgt in the Air Force Band who has only been on active duty for four months, and emphasizes that if he is returned to active duty in the grade of SrA, he will be a SrA with eight years of service and will soon be out of the Air Force again.  Some of his peers already have a line number to TSgt.  Further, he disagrees with the recommendation from AFRS/RSO to deny his request for a slot to OTS.  He feels if he had not been the victim of an injustice, he would have applied and been accepted.  He believes his chance of being recommended and selected for OTS after being investigated, charged, and wrongly separated from his career field are non-existent.  Therefore, if denied he will still be suffering an injustice. 

The applicant’s complete response is at Exhibit H.

ADDITIONAL AIR FORCE EVALUATION:

AFPC/DP2L recommends granting the applicant’s request for a one-year extension to his HYT, indicating there is evidence of an error or injustice.  The applicant’s Total Active Federal Military Service Date (TAFSMD) is 28 Oct 08.  HYT for Senior Airman (SrA) is eight years.  Therefore, his HYT is 27 Oct 16.  If the applicant is reinstated, recommend he be provided a one-year extension to his HYT, resulting in a HYT date of 27 Oct 17.  

A complete copy of the AFPC/DP2L evaluation is at Exhibit I.

AFPC/DP2L recommends granting the applicant’s request for a BOP assignment, indicating there is evidence of an error or injustice.  If reinstated by the Board, the applicant would qualify for a BOP assignment, and his request to be assigned to Buckley AFB, Colorado should be granted.   

A complete copy of the AFPC/DP2L evaluation is at Exhibit K.

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

In further support of his application the applicant submitted another rebuttal in response to the additional Air Force evaluations.  In this rebuttal he relayed several concerns about recommendations within the evaluations.  He noted while the advisories state someone cannot be automatically promoted, he cited examples of how the Air Force does automatically promote members.  He addressed the recommendation to extend his HYT to Oct 17, by noting it is almost Oct 16 now, and if approved, he will not have sufficient time once he returns to active duty.  He also asks again for the Board to seriously consider his request to attend OTS.  His prior commanders had mentioned OTS as an option for him, and becoming an officer has been his goal.  Finally, his peers will be a year away from testing for Master Sergeant next year, and attending OTS would allow him to create his own future.  

The applicant’s complete response is at Exhibit L.

THE BOARD CONCLUDES:

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 concerning the applicant’s request for a line number for promotion to TSgt or for entry into OTS.  We took notice of the applicant’s complete submission, to include his rebuttal response to the advisory opinion, in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility (OPRs) and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice concerning attending Officer Training School (OTS) or automatic promotion to the rank of Technical Sergeant (TSgt).  While the Board acknowledges the inherent injustice associated with the applicant’s situation, we believe having been the victim of an injustice, by itself, does not qualify the applicant for entry into extremely competitive programs or for promotions which he had not qualified for before the injustice.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting this portion of his requested relief.
Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of an injustice concerning the applicant’s request to be reinstated onto active duty, to be eligible for the BOP program, and to be allowed to apply for cross-training into a new career field.  The Board agrees with the opinions and recommendations of AFPC/JA and adopt its rationale as the basis for our conclusion the applicant has been the victim of an error or injustice concerning his reinstatement onto active duty, and to be reinstated into the BOP program.  However, even though AFPC/JA has confirmed the applicant would be granted his preference of Buckley AFB, CO under the BOP program, the Board believes simply making him eligible for the BOP program and allowing him to follow normal BOP procedures as a part of the process of being reinstated onto active duty is the appropriate relief.  In addition, the Board notes the applicant requests permission to cross-train into a new career field in one section of his application, and then in his rebuttal states if he is reinstated in the Air Force his desires to progress in his current Security Forces career field.  Therefore, the Board directs the applicant be allowed to apply for cross-training, if he so desires, utilizing the normal procedures for members who qualify for and choose to apply for cross-training.  Finally, while we note the recommendation from AFPC/DP2L to establish his new HYT date as 27 Oct 17, we believe the applicant should be allowed two full years from the date he arrives at his permanent duty station to requalify, train, test, and compete for promotion.  Therefore, we recommend the applicant’s records be corrected as indicated below.  

THE BOARD RECOMMENDS:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show:

a.  He was not separated on 29 September 2014, but continued on active duty from his current residence pending further orders.  

	b.  His high year of tenure for the grade of Senior Airman will be re-established on the date which is 24 months from the day he arrives for duty at his permanent base of assignment.  

c.  He qualifies for assignment under the Base of Preference Program.  

d.  He is authorized to apply for cross-training into a new Air Force Specialty Code (AFSC).  

e.  After testing for promotion to the grade of Staff Sergeant (SSgt), he be provided supplemental promotion consideration for promotion to SSgt, beginning with cycle 14E5 and for each ensuing SSgt promotion cycle since 2014.

The following members of the Board considered AFBCMR Docket Number BC-2015-02642 in Executive Session on 22 Sep 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-2015-02642 was considered:

	Exhibit A.  DD Form 149, dated 8 Jun 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/JA, dated 11 Feb 16.
	Exhibit D.  Memorandum, AFRS/RSO, dated 4 Apr 16.
	Exhibit E.  Memorandum, AFPC/DPSOR-SEP, dated 30 Jun 16.
	Exhibit F.  Memorandum, AFPC/DPSOE, dated 9 Jul 15, w/atch.
	Exhibit G.  Letter, SAF/MRBR, dated 12 Apr 16.
	Exhibit H.  Letter, Applicant, dated 8 May 16.
	Exhibit I.  Memorandum, AFPC/DP2L, dated 28 Jul 16. 
Exhibit J.  Memorandum, AFPC/DP2L, dated 29 Jul 16.
	Exhibit K.  Letter, AFBCMR, dated 3 Aug 16.  
	Exhibit L.  Letter, Applicant, dated 21 Sep 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 the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.