RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2015-05198

							COUNSEL:  

							HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

1.  His grade be changed from major (O-4) to lieutenant colonel (O-5).

2.  His date of rank to the grade of major (O-4) be changed from 9 November 2015 to July 2008.

APPLICANT CONTENDS THAT:

He recently re-commissioned into the Air Force after separating in September 2013.  On 11 August 2015, he was informed that his name was on Active Duty scroll #532 for lieutenant colonel, which was approved a few days before.  His decision to re-commission was based on that notification.  He signed the commissioning paperwork on 22 September 2015, with expectations of receiving active duty orders a few days later.  On 2 October 2015, he was notified that his name was removed from scroll #532 and added to scroll #538; however, scroll #538 did not include all the required signatures.  Therefore, he would be commissioned in the grade of major.  As an Air Force Medical Corps physician who graduated from medical school in 2002 and completed Air Command and Staff College, he should have entered active duty in the grade of lieutenant colonel.  In addition, records show his date of rank for the grade of major as 9 November 2015.  His actual date of rank is July 2008 [sic], which is when he was promoted to the grade of major.

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 3 July 2005.

Via Special Order JB-003161 dated 24 June 2008, the applicant was promoted to the grade of major with a date of rank of 24 June 2008.
On 30 September 2013, the applicant resigned from the Regular Air Force, in the grade of major and was credited with 8 years, 2 months, and 28 days of active service.

According to AFI 36-2008, Voluntary Extended Active Duty for Air Reserve Commissioned Officers, the minimum entry grade credit to enter extended active duty in the grade of lieutenant colonel is 16 years.

According to AFRS 1431, Estimated Medical Service Grade and Pay Computation Worksheet, dated 29 January 2015, the applicant qualified to enter the Air Force in the grade of lieutenant colonel.

Via Special Order AH-0015, dated 23 October 2015, the applicant was ordered to active duty in the grade of major effective 9 November 2015.

According to AFPC Form 282, Date of Rank Computation, dated 14 January 2016, the applicant’s date of rank to the grade of major was 22 September 2011.

According to AFPC Form 282 dated 5 October 2016, the applicant’s date of rank to the grade of major was changed to 22 July 2009.

According to DPAM Form 60, Constructive Service Computation, dated 6 October 2016, the applicant was credited with 16 years, 3 months, and 17 days of total entry grade credit.

AFI 36-2005, Appointment in Commissioned Grades and Designation and Assignment in Professional Categories -- Reserve of the Air Force and United States Air Force, states the date of rank for Medical Corps officers is determined by back dating the date the officer entered extended active duty by the amount of service credit in excess of the total entry grade credit [3 months, 17 days].

According to Under Secretary of Defense (Personnel and Readiness) memorandum dated 10 February 2015, only the President may appoint Regular officers above the grade of O-3 and Reserve officers above the grade of O-5 following Senate confirmation.  This decision affirms that Military Department correction boards do not have the authority to remedy perceived errors or injustices by correcting records to show that an officer has been appointed to a certain grade when the officer has not been appointed to that grade by the President or the Secretary of Defense.  Boards may only make such a correction to reflect that a proper appointment has occurred.  They may also adjust the date of rank of an officer who has been properly appointed.

Via Special Order JB-005261 dated 1 May 2017, the applicant was promoted to the grade of lieutenant colonel with a date of rank and effective date of 1 May 2017.

The remaining relevant facts pertaining to this application are described in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are included at Exhibits C-E.

AIR FORCE EVALUATION:

AFRC/RSOC recommends granting the applicant’s request to change his commission grade to lieutenant colonel.  The applicant had sufficient constructive service credit to commission in the grade of lieutenant colonel; however, his scroll [appointment nomination list] was not approved at the time of his commissioning.  Therefore, he commissioned in the grade of major with the understanding he would have to submit an application to the Board to correct his rank to lieutenant colonel when the correct lieutenant colonel scroll was approved.

A complete copy of the AFRC/RSOC evaluation is at Exhibit C.

AFPC/DP2N recommends granting the applicant’s request to change his accession grade to lieutenant colonel pending approval of the Regular Air Force lieutenant colonel scroll.  The applicant was recruited into the Air Force as a Residency Trained Flight Surgeon and qualified to enter active duty in the grade of lieutenant colonel.  However, in discussions with the Air Force Recruiting Service, the applicant’s lieutenant colonel scroll was not submitted in a timely manner to allow for the President and Senate to approve the scroll.  This oversight caused the applicant to enter active duty in the grade of major instead of his authorized grade of lieutenant colonel.  As stated in Title 10, United States Code, section 531: Original appointments of commissioned officers, original appointments in the grade of major to colonel (O-6), shall be made by the President, by and with the advice and consent of the Senate.

A complete copy of the AFPC/DP2N evaluation, with attachments is at Exhibit D.

AFPC/DP2LT recommends denial of the applicant’s request to change his date of rank to the grade of major to July 2008, indicating there is no evidence of an error or injustice.  The applicant was discharged from the Air Force on 30 September 2012 [sic] in the grade of major.  Had he returned to active duty within 1 year of his discharge, he would have retained his grade and date of rank in accordance with AFI 36-2604, Service Dates and Dates of Rank.  Since he had a break in service that exceeded 1 year, his date of rank had to be computed based on constructive service credit determined by the Medical Accessions Branch.  According to DPAN Form 60, the applicant received a total of 16 years, 3 months, and 17 days of constructive service credit.  In accordance with AFI 36-2005, Appointment in Commissioned Grades and Designation and Assignment in Professional Categories-Reserve of the Air Force and United States Air Force, service credit cannot exceed 14 years.  Therefore, the applicant’s date of rank was initially established as 22 September 2011.  However, in accordance with AF/SG FY16 Medical CSC Guidance Policy memo, the maximum 14-year limit was waived since the applicant was accessed in a critical/short career field.  Therefore, his date of rank should have been established as 22 July 2009.  A corrected AFPC Form 282 was completed and forwarded to Officer Promotions to the correct date of rank in the military personnel data system.

A complete copy of the AFPC/DP2LT evaluation, with attachments, is at Exhibit E.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 7 October 2016, for review and comment within 30 days (Exhibit F).  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.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice to warrant correcting the applicant’s date of rank to the grade of major to July 2008.  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 AFPC/DP2LT and adopt the rationale expressed as the basis for our conclusion the applicant has not been the victim of an error or injustice.  Therefore, in the absence of evidence to the contrary, we find no basis to favorably consider this portion of the applicant’s request.

4.  Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of error or injustice to warrant partial relief.  After a thorough review of the evidence of record and the applicant’s complete submission, we believe the applicant is the victim of an injustice.  The OPRs concede the applicant’s constructive service credit should have allowed him to commission in the grade of lieutenant colonel and recommended relief.  However, the applicant had already entered active duty in the grade of major.  Therefore, as verbalized in Title 10, United States Code, section 531, the Secretary of the Air Force does not have the authority to change original appointments of commissioned officers.  Nevertheless, since the President has already made the determination the applicant is to serve in the higher grade of lieutenant colonel, the Secretary of the Air Force does have the authority to adjust his effective date of rank to the date it would have been had no error occurred.  In view of the foregoing, the Board finds it is in the interest of justice to correct the applicant’s record.  Accordingly, we recommend the applicant’s records be corrected to the extent 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 to the grade of lieutenant colonel (O-5) with a date of rank of 22 July 2015, and effective date of pay of 9 November 2015.

The following members of the Board considered AFBCMR Docket Number BC-2015-05198 in Executive Session on 18 May 2017, under the provisions of AFI 36-2603:

All members voted to correct the records as recommended.  The following documentary evidence was considered:

Exhibit A.  DD Form 149, dated 7 December 2015, w/atchs.
Exhibit B.  Applicant's Master Personnel Records.
Exhibit C.  Memorandum, AFPC/RSOC, dated 13 July 2016.
Exhibit D.  Memorandum, AFPC/DP2N, dated 22 September 2016, 
  w/atchs.
Exhibit E.  Memorandum, AFPC/DP2LT, dated 7 October 2016, 
  w/atchs.
Exhibit F.  Letter, AFBCMR, dated 13 October 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.