RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-03058

 						COUNSEL:   

						HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

His Promotion Recommendation Form (PRF) with a Promote “P” recommendation be changed to Definitely Promote “DP.”

He be awarded a Meritorious Service Medal (MSM).

He be issued a fair Officer Performance Report (OPR) for the limited two month reporting period in 2012.  

He be granted Special Selection Board (SSB) consideration for the Calendar Year (CY) 2012 Participating Reserve Lieutenant Colonel Promotion Board.

He be credited with seven weeks of additional service for the period of 2012 to 2013 in order to be granted sanctuary status.

APPLICANT CONTENDS THAT:

The applicant, thru counsel, in a 305-page application contends the previous relief provided by the AFBCMR in BC-2011-00522 and    BC-2012-02745 which include remedial SSBs was wrought with problems and ultimately precluded him from receiving fair promotion consideration.  Counsel requests the Board provide a permanent remedy to a situation that through no fault of the applicant disrupted an otherwise flawless career.  

In February 2006, the applicant relocated to Singapore for his civilian job and in September 2006 requested relief from his Fiscal Year (FY) 2006 obligations as an Individual Mobilization Augmentee.  However, he was not transferred to the Individual Ready Reserve (IRR) until March 2008.  This resulted in him not achieving a qualifying “good year” for 2006 and counted against his promotion clock.  He was erroneously non-selected for promotion by the CY 2009 and CY 2010 Lieutenant Colonel (O-5) promotion boards.  

The applicant appealed the injustice to the AFBCMR and in BC-2011-00522, the Board corrected the applicant’s records to reflect he was reassigned to the Inactive Status List Reserve Section (ISLRS) effective 18 August 2007 and granted him SSB consideration for the CY 2011 Air Force Reserve participating Line and Health Professionals Lieutenant Colonel Promotion Selection Board.  However, while the AFBCMR was processing his case, he was discharged per Reserve Order CB-82 dated 11 May 2011.  Following the Board’s directed reinstatement, the applicant returned to his unit.   

On 16 May 2012, the applicant received a PRF with a “P” for the CY 2012 Lieutenant Colonel Promotion Board.  The PRF included an incorrect record of participation that as a result of the AFBCMR’s correction indicated he had only one “good year.”  He also had no participation with his unit during 2012 which ultimately reflected two “bad years.”  

In 2012, the applicant’s supervisor was in the process of submitting him for an MSM for the inclusive period of 21 April 2009 to 30 May 2012.  The applicant was advised that the MSM would be a significant discriminator and could make a difference in his promotion consideration.    

On 4 June 2012, the applicant submitted a second application to the AFBCMR.  While his application was pending, he was notified of his second non-selection by the CY 2012 Lieutenant Colonel Promotion Board and that his Mandatory Separation Date (MSD) would be 1 March 2013.  

By 26 February 2013, the applicant had completed all participation requirements.  However, because the completion date of 20 April 2013 was seven weeks after his MSD of 1 March 2013, he did not receive the required membership points that would have qualified him for his 18th year of satisfactory service creditable toward retirement.  

On 30 August 2013, the applicant submitted a letter to his Senior Rater (SR) requesting his PRF be amended from “P” to “DP.”  The context of the PRF was due to the AFBCMR correction to his records reflecting he had “good” participation years for 2009 to 2010 and 2011 to 2012 and that the PRF should be based on a record reflecting the satisfactory participation.  Despite the fact there were no limits on the award of “DP” PRFs, his SR declined to change the PRF.  

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

STATEMENT OF FACTS:

On 1 March 2013, the applicant was discharged from the Air Force Reserve in the grade of major (O-4) due to his second deferral for promotion to the grade of lieutenant colonel.    

On 10 November 2011, the AFBCMR (BC-2011-00522) corrected the applicant’s records to reflect the following: (a) He was reassigned to the ISLRS effective 18 August 2007.  (b) His records were not considered for promotion to the grade of lieutenant colonel by the CY 2009 Air Force Reserve Participating Line and Health Professionals Lieutenant Colonel Promotion Selection Board.   (c) He was not discharged from all appointments in the United States Air Force effective 1 June 2011, but was continued in his Reserve Assignment.  (d) He be considered for promotion to the grade of lieutenant colonel by a SSB for CY 2011 Air Force Reserve Participating Line and Health Professionals Lieutenant Colonel Promotion Selection Board.  

On 20 February 2013, the AFBCMR (BC-2012-02745) further corrected the applicant’s record to reflect the following: (a) He was credited with an additional two non-paid inactive duty training points, for Retention/Retirement (R/R) year 21 April 2009 through 20 April 2010, resulting in 14 active duty points, 21 inactive duty points, 0 Extension Couse Institute (ECI) points, 15 membership points, for a total of 50 retirement points and a satisfactory year of federal service. (b) He was credited with 14 paid active duty points and 24 inactive duty training points for Retention/Retirement (R/R) year 21 April 2011 to 20 April 2012, resulting in 14 active duty points, 24 inactive duty training points, 45 ECI points, 15 membership points, for a total of 98 total retirement points and a year of satisfactory federal service. (c) He be considered by SSB for promotion to the grade of lieutenant colonel by the CY 2011 Line and Non-line Lieutenant Colonel Participating Reserve Promotion Selection Board and the CY 2012 Line and Non-line Lieutenant Colonel Participating Reserve Promotion Selection Board. 

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

AIR FORCE EVALUATION:

ARPC/PB recommends denial of the request his PRF be changed to a “DP.”  The applicant has not proven the SR considered any prohibited information when making his promotion recommendation decision, either originally or when the applicant requested the SR change his recommendation.  There is no evidence the SR made an inaccurate assessment of the applicant’s promotion potential by giving him a “P” recommendation.  The SR is solely responsible for evaluating the officer’s record when determining the recommendation, and must do a new PRF for each board.  A “DP” recommendation means the strength of the performance and performance-based potential warrants promotion.  A “P” means the ratee is qualified for promotion.  The SR provided the applicant a copy of his PRF on 16 May 2012.  The applicant requested discussion on the PRF which took place on 22 June 2012.  The applicant recapped the discussion in an e-mail and there was no mention concerning any inaccuracies in the PRF.  When the applicant was granted the SSB for the V0512A board, he petitioned the SR in a written request dated 20 August 2013 to re-do the PRF based on the changes directed in the AFBCMR.  The SR replied to the request in a written statement dated 7 November 2013, stating he thoroughly considered the information provided by the applicant and decided to maintain the original “P” recommendation.  

ARPC/PB recommends denial of the applicant’s request to have an MSM and to have the MSM meet the SSB.  The appropriate approval authority did not award an MSM to the applicant, either before the original V0512A board or any time afterwards.  Only documents that were a matter of record at the time of the original board are eligible to meet an SSB.  The applicant provides intent by his unit to submit an MSM but there is no documentation provided from the award approving authority stating an MSM would have been approved if submitted.  There is also no explanation why the unit did not complete an MSM when it had the ability to do so at any time.  ARPC has no record of receiving an approved MSM for the applicant.  

ARPC/PB states the applicant already has an OPR for 2012.  The close out date of the OPR was extended to 28 September 2012 to ensure 120 days of supervision as directed by AFI 36-2406, Air Force Officer and Enlisted Evaluations Programs.  It is unclear as to what issues the applicant has with this OPR as his case does not acknowledge the existing OPR or outline any concerns with it.  A review of this OPR shows it meets all requirements set forth in AFI 36-2406.  Since the OPR close out date was after the V0512A board was held, this OPR would not have been a matter of record and could not be presented to either the original board or the SSB.  If the applicant feels he was not given a fair assessment, the applicant would need to submit a request to the Evaluation Report Appeals Board (ERAB), which is the first avenue of relief for correcting an evaluation.  

ARPC/PB recommends denial of the applicant’s request for additional SSB consideration for the V0512A board.  The applicant has not proven his record was incomplete or inaccurate when it met either the original board or the SSB previously granted by the AFBCMR.  The AFBCMR has corrected the applicant’s records in two previous cases.  In BC-2011-00522, dated 2 December 2011, the applicant’s date assigned to ISLRS was adjusted.  This changed his Date of Rank (DOR), removed the non-selections from the V0509C and V0510A boards and granted him SSB consideration by the CY 2011 Lieutenant Colonel Promotion Board.    However, it negatively impacted his point credit history by changing his R/R dates.  The 2010 R/R year changed from a satisfactory to an unsatisfactory year towards retirement.  The R/R date change also prevented him from having time to accrue enough points for a satisfactory year in 2012.  His second application, BC-2012-02745, dated 20 February 2013 (before the V0511A SSB was held), changed the 2010 and 2012 R/R years from unsatisfactory to satisfactory, which resulted in the applicant being granted SSB consideration by the V0511A and V0512A boards.  The applicant was not promoted by either board and was separated 1 March 2013, one month and 21 days short of 18 years of satisfactory service.

ARPC/PB recommends denial of the applicant’s request to extend his satisfactory service for seven weeks to qualify for a Reserve sanctuary.  To grant relief for satisfactory service would be contrary to the criteria established in 10 U.S.C. § 12646 which establishes criteria for satisfactory service.  From a participation points and service history perspective, the applicant did not remain in active status long enough to qualify for 18 years of satisfactory service.  He fell short by one month and 21 days.  

A complete copy of the ARPC/PB evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel, on behalf of the applicant, states the PRF written by his senior rater utilized inappropriate information that was tainted by his bias and a misunderstanding of the applicant’s complicated situation resulting from the AFBCMR directed records corrections.  The advisory opinion claims the SR was provided access to the applicant’s previous promotion history and was free to consider the information when determining a PRF recommendation.  While this may be true, it remains a fundamental unfairness that the applicant’s SR allowed the previous AFBCMR corrected promotion passover to taint his PRF and support his award of a “P” PRF which in turn, negatively affected his promotion board consideration.  The PRF remains unfair because once the wrong perception was made; it was more difficult to overcome.  His SR had little, if any direct knowledge of the applicant’s performance and undoubtedly relied on the ranking military officer and focal point for all military specific personnel matters in the applicant’s unit since the head of the Air Force Office of Scientific Research (AFOSR) was a civilian.  The leadership who replaced the ranking military officer was supportive of the applicant but unfortunately, they could not have any impact on the issues that predated their tenure.

The advisory opinion calls into question why the applicant did not complete Air Command and Staff College (ACSC) earlier and leaves open the inference that his own actions invited the negative consequence.  But the reason he did not complete ACSC earlier is far more nuanced and affected by the uncertainty of the issues the AFBCMR sought to correct on two occasions.  The record demonstrates that the applicant’s Reserve career was unexpectedly, and for no fault of his own, plunged in several years of upheaval and uncertainty.  His case is complicated and his career was derailed through no fault of his own.  Assuming individuals at Edwards AFB discharged their duties appropriately, he would have completed ACSC before his first eligible promotion board.  But he did not realize the timing of his ACSC completion was an issue until after he had learned he had been erroneously passed over the second time.  Had he known the date of his ACSC completion would become a barrier, he would have completed ACSC much earlier.

The advisory opinion also conveniently ignores the strength of his record and misleadingly claims his OPRs showed no stratification.   The perceived lack of stratification in the applicant’s record occurred after the administrative errors that derailed the applicant’s career for years.  In light of this, his entire Air Force record supports a “DP” rating and he provides objective evidence that his performance was within the top 85 percent of his peers.  In part because there are no constraints on the number of “DP” ratings awarded, giving the applicant a “P” PRF effectively placed him in the bottom 15 percent of his peer group.  The advisory opinion attempts to present a number of negative facts about the applicant’s performance history and ignores the strengths of his record and the fact that it was marred by promotion passovers that were outside of his control.  

The applicant was also twice set to receive a MSM which requires being in a unit for three years.  His ability to complete three years with a unit was exceedingly complicated by disruptions caused by two promotion passovers, retroactive record corrections and uncertainty.  His unit would complete the MSM if he was reinstated.  

A fair remedy would be to acknowledge the errors that derailed his otherwise exemplary career and credit him with the seven weeks of time that he was unable to complete due to no fault of his own.  The Board has the authority to make such a correction and a compelling reason to do so.

The advisory opinion expresses confusion as to the fairness of his 2012 OPR which at the time of the submission of his AFBCMR application was thought to be the most recent OPR to be considered by the CY 2012 SSB.  If the applicant had not been erroneously discharged on 1 June 2011, he would have been able to participate fully through the 26 May 2012 PRF.  However, his discharge and absence created a negative impression in his supervisory chain and created an awkward context for the OPR and PRF.  Because the first AFBCMR corrections which resulted in his reinstatement in January 2012, he was at a severe disadvantage and was not able to participate for nearly all of the time covered by the 2012 OPR.  His unit had no idea if the applicant would be returned to the unit or if an OPR or PRF was necessary.  Ultimately, his SR had to write a “last minute” PRF that would be considered by the board.   Although the AFBCMR has found errors and injustices in his record, and has ordered corrections, the errors and injustices persist.

In the applicant’s second AFBCMR decision dated 20 February 2013, the AFBCMR effectively agreed with the applicant that he did not have the opportunity to perform an annual tour or any training for the retirement year ending 2012.  It follows, then that the AFBCMR should also agree that it was impossible for the applicant to fairly be evaluated both in his PRF and the OPR given the truncated evaluation period.  The same logic that applied to the remedies the AFBCMR afforded the opportunity in February 2012 should apply.  In light of his inability to fairly be evaluated is due to no fault of his own.  There is ample justification to grant the applicant’s request for a MSM and a SSB that contains fair evaluative material such as an OPR and PRF based on a meaningful amount of real performance.

The applicant’s complete submission 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.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  While counsel’s response to the Air Force evaluation is noted, he has not provided substantial evidence which refutes the assessment of the case by the Air Force OPR to warrant granting any of the requested relief.  Counsel contends errors persist as a result of the AFBCMR directed corrections to the applicant’s records in BC-2011-05022 and BC-2012-02745 to warrant granting the requested relief; however, we disagree.  We recognize the corrections directed by the Board in BC-2011-05022 negatively impacted the applicant’s point credit history and resulted in unsatisfactory R/R years for 2010 and 2012.  However, as pointed out by the Air Force OPR, the corrections in his subsequent application, BC-2012-02745, further corrected the applicant’s record to reflect satisfactory R/R years for 2010 and 2012 and the applicant received SSB consideration for the 2011 and 2012 lieutenant colonel promotion boards.  With respect to the request the applicant be issued a “fair” OPR for the period ending 28 September 2012 we note the Air Force OPR recommends the Board direct the applicant to the ERAB which is the first avenue of relief for correcting an evaluation.  However, given the applicant was discharged from the Air Force Reserve on 1 March 2013, we are persuaded there is not an administrative avenue of relief for the applicant to pursue and the request is ripe for adjudication by this Board.  While it is unfortunate the applicant fell short by one month and 21 days in qualifying for sanctuary status for retirement, the preponderance of the evidence indicates the applicant’s MSD of 1 March 2013 was properly established upon his second deferral for promotion to the grade of lieutenant colonel in accordance with 10 U.S.C. § 14506.  To credit the applicant for seven weeks of service he did not perform is contrary to 10 U.S.C. § 12646 and is not in the interest of justice.  While we recognize the applicant’s situation and can appreciate his feelings with respect to the course of events he describes, we are not convinced these circumstances warrant granting the requested relief.  In fact, while the Board agreed that some error or injustice contributed to his discharge, he has been made as whole as this Board is able or willing to make him under the circumstances.  Therefore, we agree with the opinions and recommendations of the Air Force OPR and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden of proof of either an error or an injustice.  In the absence of evidence to the contrary, we find no basis to recommend granting any of the relief sought in this application.   

4.  The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

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-2015-03058 in Executive Session on 3 May 2016 under the provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-03058 was considered:

	Exhibit A.  DD Form 149, dated 30 June 2015, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, ARPC/PB, dated 12 March 2016.
	Exhibit D.  Letter, SAF/MRBR, dated 23 March 2016.
	Exhibit E.  Letter, Counsel, dated 20 April 2016.