RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-01149

	COUNSEL: YES 
	
	HEARING: NO

APPLICANT REQUESTS THAT:

His promotion to the grade of lieutenant colonel, ordered in or about May 1964, be granted.

APPLICANT CONTENDS THAT:

He was forced to retire before his promotion effective date due to circumstances beyond his control.  He is eligible for the promotion because “a Reserve commissioned officer who has been recommended for promotion, but was assigned to Retired Reserve before the promotion became effective because of physical disability or completing number of years of service will be placed on retired list at the grade recommended.”  He is not seeking back pay or an increase in pension, but he is seeking the recognition he earned.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

On 8 Jun 64, the applicant submitted a request to be transferred to the Retired Reserve, as evidenced by AF Form 131, Application for Transfer to the Retired Reserve.

On 30 Jun 64, the applicant was relieved from his, then, current assignment in the grade of major and assigned to the Retired Reserve list awaiting pay at age 60 (6 May 82).  The applicant was credited with 20 years, 6 months and 22 days of satisfactory service.

On 6 May 82, the applicant was place on the Air Force Retired List and retired in the grade of major, Reserve Order EL-8092, dated 12 Nov 81.

According to the documents provided by the applicant:

On 1 May 64, the applicant was selected for promotion to the grade of lieutenant colonel as annotated on Reserve Newsletter, Volume III Number 3 with an effective date of promotion of 12 Jun 65.

On 16 May 64, the applicant submitted a waiver request for his annual tour of 17 May 64 through 31 May 64 for circumstances beyond his control.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C and F.

AIR FORCE EVALUATION:

ARPC/DPTT recommends denying the application. Although the applicant provided a Reserve Newsletter, dated 1 May 64, which under the section titled “Promotion to Lieutenant Colonel” listed the applicant as a select to Lieutenant Colonel, no evidence could be located in the archived promotion records to confirm or deny his selection for promotion.  Additionally, no promotion selection list for the 1963-1964 timeframe can be found.

Additionally, there is nothing in AFR 36-86, Promotion of Officers in the Reserve of the Air Force (published 1 January 1963) nor in ARM 35-3 part 6 Promotions and Demotions, Chap 60, Permanent Promotion of Officers of the Air Reserve Forces (published 1 October 1963) stating officers selected for promotion who subsequently retire before they pin on are to be placed on the retired list at the grade recommended.  At the time of the applicant's transfer to the Retired Reserve in 1964, Title 10, United States Code (U.S.C.), Section 1374, did allow Reserve commissioned officers who had been recommended for promotion, but assigned to the Retired Reserve before the promotion became effective to be placed on the retired list at the grade recommended if they met certain criteria; physical disability or reaching maximum age or service.  Since the applicant did not meet any of these criteria, he was placed on the retired list in his current grade of major.

Furthermore, IAW Title 10, U.S.C., Section 14310, paragraph (d), states “Under regulations prescribed by the Secretary concerned, if an officer on the reserve active status list is discharged or dropped from the rolls or transferred to a retired status after having been recommended for promotion to a higher grade under this chapter but before being promoted, the officer’s name shall be administratively removed from the list of officers recommended for promotion by the selection board”.

The complete advisory is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 29 Dec 16 for comment (Exhibit D), and the applicant replied on 23 Jan 17.  Through counsel, the applicant contended his request was submitted in a timely manner and he took steps to immediately upon notice, contact state legislatures and continued to do so over the years in an effort to correct the injustice.  The applicant states ARPC/DPTT incorrectly quoted Title 10, U.S.C., Section 1374, and 10, U.S.C., Section 14310, paragraph d was not in effect until after his promotion selection date and therefore is not applicable.  
The applicant’s complete response is at Exhibit E.

ADDITIONAL AIR FORCE EVALUATION:

ARPC/PB recommends denying the application. The applicant omitted from Title 10 U.S.C., Section 1374, the statutory requirement that a member be transferred to the Retired Reserve “because of physical disability or as a result of completing the number of years of service or reaching the age at which his retirement, transfer to the Retired Reserve, or discharge is required by law”. There is no evidence that the applicant was transferred to the Retired Reserve for any of the reasons listed in 10 U.S.C., Section 1374(a).  The applicant was unable to complete his annual tour training due to family hardships and requested a waiver to not participate which was denied.  He then opted to retire in lieu of participation which does not meet the standard to be promoted to the grade recommended.  The applicant retired under Title 10, U.S.C., Section 8911, in the highest grade held, which was major.  

The complete advisory is at Exhibit F.

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 2 Apr 18 for comment (Exhibit G), but has received no response.

THE BOARD CONCLUDES THAT:

1.  The application was not timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is not the victim of an error.  The Board concurs with the rationale and recommendation of ARPC/DPTT and ARPC/PB and finds that a preponderance of the evidence does not substantiate the applicant’s contentions.  The applicant did not meet the statutory requirements outlined in 10 U.S.C., Section 1374, nor did he pin-on lieutenant colonel prior to retiring.  The Board also notes the applicant did not file the application within three years after the alleged error or injustice was discovered, or should have been discovered, as required by Title 10, United States Code, Section 1552, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  Moreover, the applicant has offered no plausible reason for the delay in filing the application.  The Board finds the application untimely and concludes it would not be in the interest of justice to excuse the delay.  Therefore, the Board recommends against correcting the applicant’s records.

THE BOARD RECOMMENDS THAT:

The applicant be informed the application was not timely filed; it would not be in the interest of justice to excuse the delay; and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2016-01149 in Executive Session on 23 May 18:

All members voted not to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 14 Mar 16.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, ARPC/DPTT, dated 6 Sep 16.
Exhibit D:	Notification of Advisory, AFBCMR to applicant, dated 29 Dec 16.
Exhibit E:	Applicant’s response, w/atchs, dated 20 Jul 17.
Exhibit F:	Advisory opinion, ARPC/PB, dated 6 Sep 16.
Exhibit G:	Notification of Advisory, SAF/MRBC to applicant, dated 2 Apr 18.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9.