RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-04921

   						COUNSEL:  NONE

						HEARING DESIRED:  YES

APPLICANT REQUESTS:

His Article 15 be declared void and removed from his Officer Selection Record (OSR), and he be granted a special selection board (SSB) for the Calendar Year 2015 Air National Guard Lieutenant Colonel (Lt Col) Selection Board (A0515A).  

Alternatively, he be directly promoted to the grade of Lt Col. 

APPLICANT CONTENDS:

1.  The Air Reserve Personnel Center (ARPC) expert did not advise him on Article 15 removal procedures during their Jun 14 post board counseling session, and he was not made aware of the possibility the existence of the Article 15 impacted his promotion decision.  

2.  The 189th FSS failed to distribute the Officer Preselection Brief (OPB) before the A0515A promotion selection board and thus he was not provided with information on how to remove the Article 15 from his OSR before the board.

3.  AFI 36-2608, Military Personnel Records System, dated 30 Aug 06, was missing several subparagraphs dealing with removing an Article 15, therefore, proper guidance was not in place.  

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 1 Jul 96.

On 9 May 08, the applicant’s commander issued him non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ).  The reasons his commander took this action were that on or about 26 Nov 07, with the intent to deceive, the applicant made a false official statement concerning his bank account deposits; for violating Article 111 of the UCMJ on or about 13 Oct 07, by driving a car with a blood alcohol content of .204; and, for violating Article 121 of the UCMJ, by stealing $1,472.00 from the United States Automobile Association (USAA) on three occasions, $800.00 from USAA on two occasions, $2,300 from USAA on one occasion, $300 from USAA on one occasion, and $1,904 from a Hotel/Casino in Las Vegas on one occasion.  For this the applicant forfeited $2,899 pay per month for two months, and was reprimanded.     

On 17 Jul 08, the applicant received a referral Officer Performance Report (OPR) covering the period 22 Apr 07 through 21 Apr 08 on which he was rated “Does Not Meet Standards” in Block III, Performance Factors, and Block IX.3, Professional Qualities.  The OPR contained the statement “Punished under UCMJ Article 15 for DUI arrest, fraudulent check cashing, and making a false statement.”  

On 1 Dec 11, the applicant was furnished an honorable discharge, with a narrative reason for separation of “Non-selection, Permanent Promotion,” was credited with 15 years and 5 months of active duty service and was transferred to the Non-participating Ready Personnel Section (NNRPS).  

Under Special Order Number AA-37, dated 17 Jul 12, the applicant was extended Federal Recognition in the Arkansas Air National Guard, effective 23 Jan 12.  

On 29 Sep 15, the applicant requested his Article 15 be removed from his OSR.

On 30 Sep 15, the applicant was notified of his mandatory separation date (MSD) of 1 Jun 16 due to his second deferral for promotion to the next higher grade.  

According to the information submitted by the applicant, he was notified on 26 Oct 15 that his Article 15 had been removed from his OSR. 

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPRs), which are attached at Exhibits C and D.    

AIR FORCE EVALUATIONS:

ARPC/PB recommends denial indicating there is no evidence of an error or an injustice.  When a commander makes the decision to file derogatory information in an OSR, the commander is required to notify the officer concerned of this fact.  Each officer is then told to refer to AFI 36-2608 for further information.  For the applicant, this occurred on 20 May 08 when he was notified the Article 15 would be placed in his OSR.  The AFI contains all information on the procedures to remove derogatory information filed in the OSR, including that it will not be removed until receipt of an approved request for its removal, and the requests for removal will not be processed until the officer is afforded one in-the-promotion-zone (IPZ) or above-the-promotion-zone (APZ) promotion consideration.  There is no requirement to provide the officer any further information on the process.  It is up to the individual officer to initiate the process to get the information removed from their OSR.

While serving in the ANG, the applicant met and was not selected for promotion to the grade of Lt Col on the CY13, CY14, and CY15 Lt Col Promotion Selection Boards.  On 1 Jun 16, he was involuntarily separated from the ANG for failure to be promoted.

The applicant was eligible to request removal of his Article 15 from his OSR after the CY13 Lt Col Promotion Selection Board (A0513A).  However, he did not request the Article 15 be removed.  A copy of every non-select records review, done on the electronic form provided, is maintained in the MyPers application.  Both the reviews for the A0514A board and the A0515A board have a note about the applicant’s Article 15.  There is no reason the counselor would have not mentioned that fact to the officer.  A board convening notice, containing guidance regarding each promotion board to include eligibility criteria, is published before each board.  

Non-select counseling is a service offered by both HQ AFPC and HQ ARPC.  The applicant does not provide any information on whether or not he took advantage of this service for the boards he met while on active duty or why he did not request it for the first board he met while in the ANG, the A0513A board.  AFI 36-2504, Officer Promotion, Continuation and Selective Early Removal in the Reserve of the Air Force, paragraph 1.7, states officers are responsible for monitoring their own promotion eligibility.  

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

NGB/A1 recommends denial indicating there is no evidence of an error or an injustice.  In accordance with Title 10 USC § 14506, a major who has failed to be selected for promotion to the next higher grade for the second time shall be removed the first day of the month after the month in which the officer completes 20 years of commissioned service.  On 3 Jul 14 NGB/A1PO issued official notification to the member of his being twice deferred and of the establishment of his 1 Jun 16 mandatory separation date (MSD).  This same memorandum provided guidance the member would continue to meet mandatory promotion boards up to 90 days of his MSD and encouraged the member to apply for retirement at least six months prior to separation.  The applicant was advised in 2008 of the AFI that contains the Air Force procedures regarding derogatory information filed in the OSR, and he had many opportunities before the A0515A board to file the appropriate paperwork to have this Article 15 removed.

A complete copy of the NGB/A1 evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Copies of the Air Force evaluations were forwarded to the applicant on 17 Jun 16 for review and comment within 30 days (Exhibit D).  As of this date, no response has been received by this office.

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.  We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of ARPC/PB and NGB/A1 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.

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:

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-2015-04921 in Executive Session on 15 Nov 16 under the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-04921 was considered:

	Exhibit A.  DD Form 149, dated 18 Nov 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, ARPC/PB, dated 2 Mar 16.
	Exhibit D.  Memorandum, NGB/A1, dated 6 Jun 16.
	Exhibit E.  Letter, SAF/MRBR, dated 17 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 the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.