RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-05100

  	COUNSEL: 

	HEARING: NO

APPLICANT’S REQUEST:

	a. Through counsel, he requests that he given Special Board (SB) consideration in accordance with Title 10 United States Code (10 U.S.C.) Section 1558 and to be reinstated onto active duty until retirement eligibility.  

	b. In the alternative, he receive a pro-rated retirement under Temporary Early Retirement Authority (TERA).  

APPLICANT’S CONTENTION:

In a 17-page brief, counsel makes the following key contentions:

a.	The Secretary of the Air Force (SECAF) violated DODI 1320.08’s 6-year protective window for selective continuation.  The SECAF arbitrarily changed the protective retirement window for selective continuation by changing the window to 5-years without authority, which caused members (including the applicant) to be involuntarily separated with over 14 years of service.  

b.	The Continuation Board utilized an incorrect “Date of Continuation.”  Due to the change in the protective window, the applicant was excluded from being considered at the proper start time.

c.	The SECAF did not properly list specialty codes in critical need or high-demand.  The applicant was in high-demand as shown by being offered a retention bonus and/or was not offered Voluntary Separation Pay.  However, the SECAF refused to consider the applicant’s career field critical when he gave the board instructions, which resulted in an abrupt involuntary separation.  Further, the applicant missed the recently instituted TERA by a mere 30 days.  Officer with 15 years, like him, will receive pro-rated retirement for years served.

d.	The SECAF violated 10 U.S.C. 638(a)(d)(B)(3) and 10 U.S.C. 691(d).  The Air Force cannot institute discharges unless there is a decrease in personnel numbers.  However, between 2010 and 2011 there was not a decrease in personnel numbers.  No funds appropriated to the Department of Defense (DoD) may be used to implement a reduction of the active duty end strength for any of the armed forces for any fiscal year below the level specified in subsection (b) of 691(d) unless reduction in end strength for that armed force for that fiscal year is specifically authorized by law.

e.   The applicant was involuntary separated due to material error, arbitrary and capricious standards, employed lack of substantial evidence and other breached laws and regulations of relevance to this matter.  

Due to the aforementioned violations, the applicant should have been selected for continued service; however, the SECAF acted by breaching the governing instructions that changed the 6-year protection to a 5-year protective window and he was not selected for promotion.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant was discharged in the grade of major.  He met and was non-selected for continuation by the Calendar Year 2011A (CY11A) Major Selective Continuation Board, which convened on 7 Mar 11, in conjunction with the CY11A Lt Colonel Central Selection Board.  

The United States Court of Federal Claims granted the UNOPPOSED MOTION TO STAY THESE PROCEEDINGS PENDING THE OUTCOME OF THE PROCEEDINGS BEFORE THE CORRECTION BOARD, dated 15 Dec 17, pending the AFBCMR’s final decision.  The complete Motion is at Exhibit F.  The complete Court Order is attached at Exhibit G.

AIR FORCE EVALUATION:

AFPC/DP2SPP recommends denying the applicant’s request for a SB, noting that he is not requesting the promotion board correct or change any aspect of his records.  The applicant was eligible for and met the CY11A Major Selective Continuation Board.  The selection board was convened under 10 U.S.C. section 611(b), and actions taken by the board were not contrary to law nor did they involve material error of fact or material administrative error.  Thus, he does not meet the requirements for a SB.  In addition, it would be unfair to 156 officers who were similarly situated, as they were also separated from the Air Force.  

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 Nov 17 and 6 Dec 17 for comment (Exhibits D and E) and the applicant’s counsel replied on 4 Jan 18.  In a 6-page brief, counsel notes that the AFPC/DP2SPP advisory opinion recommends denying the applicant’s request based on three reasons, which are as follows:

1.	He requested no correction or change to his records.   

2.	The board was not convened contrary to law.

3.	Granting his request for SB consideration would be unfair to the other 156 officers who were also not offered continuation and separation from the Air Force.  The advisory opinion does not explain how they reached the determination that is would be unfair to the other officers, in fact, the opinion ignores the unfair treatment is has subjected him to and the remaining majors to by deviating from well-settle authoritative law.
	
Counsel reiterates many of his original contentions and adds that the advisory opinion overlooks numerous statues and authoritative regulations that the promotion board disregarded when they took this action.  There is no analysis or rationale as to why DP2SPP finds the SECAF’s guidance comports with law.  Counsel goes into a detailed explanation of how the SECAF violated specific DoD regulations and Air Force Instructions when he provided illegal instructions in the form of the SECAF’s Memorandum of Instruction (MOI) to the members of the promotion board.  Counsel contends that the instructions altered the “date of continuation” by which the board measured whether the member was within the protective window.  The 14 Mar 07 version of the governing DoD instruction states that a major who will qualify for retirement within six years of the date of continuation shall normally be selected for continuation.  The applicant served over 14 years of active service at the time the 2011A Promotion Board convened and was within 6-years of retirement eligibility.  Counsel requests the AFBCMR disregard the AFPC/DP2SPP advisory opinion and its recommendation in its entirety and grant him relief.  

The applicant’s complete response is at Exhibit H.

ADDITIONAL AIR FORCE EVALUATION:

AFPC/JA recommends denying the application.  The applicant has failed to file his request in a timely manner.  Counsel essentially alleges the Air Force violated the governing DoDI in conducting the Selective Continuation Board, that his non-selection for continuation and separation from the Air Force were both unlawful and unfair, and that he should be reinstated in the Air Force or offered a partial retirement.  For the reasons stated below, AFPC/JA disagrees with these allegations and recommends the application be denied both as untimely, and as failing to establish any material error or injustice.  

The applicant was notified of his non-selection for promotion and selective continuation in mid-June 2011.  His DD Form 149 was signed on 8 December 2016, five and a half years after notification of the non-selection.  The “date of discovery” block (8a) shows 15 July 2016.  In the block for explanation of delays (8b), applicant states, “This constitutes the exact same appeal as filed by other separated Majors who filed their claims in approximately August of 2013.”  Counsel states, “Our client was informed in mid-June 2011 that he would be involuntarily separated.  He did not know of the legal and administrative breaches…until many months after.”  

The applicant’s failure to pursue his interests at the appropriate time, relying on the retention of legal counsel some five years after the fact to provide a rationale for claiming error, falls far short of the standard.  In fact, it is precisely the kind of behavior the AFBCMR should not cater to.  To do otherwise risks a potential flood of similarly spurious applications and the total debilitation of the congressionally mandated filing period requirement.
	
The applicant’s claim also fails on the merits.  At the outset, AFPC/JA agrees completely with AFPC/DP2SP’s advisory, but addresses in more detail counsel’s contentions.  The first—and primary—argument applicant offers is the Air Force, in the form of the then SECAF, “illegally violated DODI 1320.08 by changing the 6 year protective window to a 5 year protective window and the continuation board erred in their utilization of the wrong ‘date of continuation.’”  Specifically, the applicant contends SECAF “violated the law by arbitrarily restricting DoDI’s 6 year protective window to 5 years and by inaccurately defining the protective window’s start, the DoDI’s ‘date of continuation’, to exclude [the applicant], in violation of Air Force regulations.”  Notwithstanding counsel does not cite to a law that was violated in this portion of his brief, he nevertheless believes SECAF acted arbitrarily and without authority in his instructions to the Selective Continuation Board. 

For the CY11A Selective Continuation Board, however, SECAF modified the normal policy and instructed that officers within 5 years of retirement eligibility should be selected for continuation, absent derogatory information in their record.  Counsel argues the governing DoDI provision requires that officers within 6 years of retirement be offered continuation unless they have derogatory information in their record (which applicant did not).  He goes on to argue SECAF’s change in policy was made arbitrarily and without authority.

The DoDI provision in question is DoDI 1320.08, Continuation of Commissioned Officers on Active Duty and on the Reserve Active Status List, dated 14 March 2007, paragraph 6.3, which provided:

The Secretary of the Military Department concerned may, when the needs of the respective Military Service require, convene continuation selection boards according to section 611(b) of Reference (d) to recommend commissioned officers in the grade of O-4 on the Active Duty List who are subject to discharge or retirement according to section 632 of Reference (d) for continuation on the Active Duty List according to section 637 of Reference (d).  A commissioned officer on the Active Duty List in the grade of O-4 who is subject to discharge according to section 632 of Reference (d) shall normally be selected for continuation if the officer will qualify for retirement according to section 3911, 6323, or 8911 of Reference (d) within 6 years of the date of continuation.  The Secretary of the Military Department concerned may, in unusual circumstances such as when an officer’s official personnel record contains derogatory information, discharge an officer involuntarily in accordance with section 632 of Reference (d).  When the Secretary of the Military Department concerned intends not to continue larger pools of officers in the grade of O-4 who would qualify for retirement within 6 years of the date of a continuation, the Secretary shall notify the USD(P&R) of the proposed course of action…

In making his argument that SECAF violated this provision, counsel interprets the provision as if the word “normally” were not there.  “Normally” means just what it says: a usual or typical action.  Deviation is authorized in “unusual circumstances.”  Basing a discharge decision on derogatory information in the officer’s record is listed as an example of an unusual circumstance; it is not the sole basis for doing so.  Moreover, the applicant’s counsel omitted the last sentence of the provision, which was applicable to the CY11A Selective Continuation Board—an intent not to continue a larger pool of officers in the grade of O-4 who would qualify for retirement within 6 years.  Were “derogatory information” the only basis to digress from the normal rule, the last sentence of the provision would be unnecessary.

Counsel argues the applicant nevertheless fell within the 5 year window used at his board because the Air Force used the wrong date in calculating that 5 year period.  Counsel argues the first day of the seventh month from the date of approval of the continuation board results (1 Dec 11) should have been used, rather than the convening date of the board (21 Mar 11).  While the date of continuation would normally be the first day of the seventh month from the approval of the board results (based on 10 USC § 632), SECAF is not obligated under the law, DoDI 1320.08, or Air Force policy to use this date.

In Section B of counsel’s brief, he contends SECAF never received the requisite permission from the SECDEF to change the 6-year protective window to 5 years.  However, there was no requirement in DoDI 1320.08 to obtain permission.  Paragraph 6.3 simply stated, “[T]he Secretary shall notify the USD(P&R) of the proposed course of action.”  In late November 2010, AF/A1P briefed USD(P&R) on several planned Air Force measures to reduce officer numbers to meet Congressionally mandated end strength levels.  These measures included limiting selective continuation of O-4 officers.  On 6 Dec 10, SECAF sent a notification memorandum to notify USD(P&R) of his intent to not selectively continue large pools of twice-deferred officers who would otherwise qualify for retirement within 6 years of the date of continuation.  That request was received and acknowledged by e-mail on 7 Dec 10, by ODUSD (MPP) on behalf of USD(P&R).  AF/A1P also briefed Congressional subcommittee staff members on the proposed actions on 12-13 Jan 11.  All concerns raised during that briefing were answered within the month.  Finally, AF/A1P briefed USD(P&R) himself on 24 Jan 11.  At no time did any DoD official indicate disagreement or concern with the Air Force’s authority to implement any part of its 2011 selective continuation plan.  These collective actions establish the Air Force ensured its plans with respect to selective continuation boards were fully briefed at the proper levels.  In short, SECAF acted with full authority and his actions were in no way arbitrary.

Furthermore, counsel states that absent permission, officers who qualify for retirement within 6 years may only be discharged in “unusual circumstances.”  He claims DoD has defined “unusual circumstances” (as the term is used in paragraph 6.3 of DoDI 1320.08) as “when an officer’s personnel record contains derogatory information.”  This is incorrect.  The plain language of the paragraph reveals that derogatory information is only an example of an unusual circumstance (“such as…”).  It if were the sole basis for deviating from the normal situation described in the paragraph, there would be no need for the term “unusual circumstances” or the introductory phrase “such as.”  Additionally, while the Air Force and the other services have had to use various force management tools to help attain Congressionally mandated end strength numbers, the requirement to add to the normal force management mix a change in the “protective window” for twice nonselected majors to be selectively continued does represent an “unusual circumstance” indicative of the more drastic measures required at that time.  Counsel’s end-strength numbers focus solely on O-4 numbers, which is misleading.  The overall Congressionally mandated end strength numbers for FY10 were 331,700; for FY11, they were 332,200.  The actual inventory for each year was 334,188 and 333,370, respectively.  The Air Force is free to shape the force in a manner that best meets its overall needs.  In this case, it was determined that drawing down O-4s was a necessary part of the plan to decrease end strength numbers.

To support counsel’s repeated insistence SECAF acted without authority, in Section C of his brief, counsel cites to the April 2012 modification to DoDI 1320.08, wherein the language of the previous paragraph 6.3 of “within 6 years of retirement” was changed to “within 4 years of retirement.”  He argues that somehow this change bolsters his argument that the previous 6 year provision could not be changed as was done by the Air Force.  AFPC/JA disagrees.  The new language strengthens the argument the Air Force acted properly in 2011.  Of particular note, the modified paragraph highlights: “there is no entitlement to continuation.”  

In Section D of counsel’s brief, he argues SECAF’s “unlawful actions caused a chain reaction of procedural inequity that led to violations of Air Force Regulations.”  Specifically, he claims the Air Force failed to “update critical specialty codes for continuation.”  This argument is based on the fact that the applicant was in a career field that received a critical skill retention bonus, but that same career field was not listed as a critical skill in the Secretary’s MOI.  The list of critical skills designated by SECAF in the MOI is ever changing.  Moreover, “critical skills” as applied to bonus pay programs has a different definition than “critical skills” as applied to officers that should normally be selected for continuation.  

In Section E of counsel’s brief, he argues the applicant and others similarly situated were not offered voluntary separation opportunities because they were in high demand, thus presumably denying them the opportunity to be treated fairly.  In particular, he claims that programs such as TERA were not offered to the applicant.  First, while voluntary means to force shape will normally be used before involuntary measures, “normally” again means just what it says—typically, not always.  Moreover, TERA was not authorized at the time the applicant was involuntarily separated.  It was implemented by Congress 30 days later.  There was no requirement for SECAF to offer a retirement program that was not in existence, or wait until such time as one was authorized.  Accordingly, SECAF’s actions were not arbitrary and applicant suffered no injustice therefrom.

In Section F of counsel’s brief, he states SECAF violated 10 USC § 638a and 10 USC § 691(d) in approving the applicant’s discharge.  10 USC § 638a applies to force shaping boards, not selective continuation boards.  Likewise, 10 USC § 691(d) applies to force shaping actions, not selective continuation boards.  Consequently, contrary to counsel’s assertions, the applicant’s selective continuation board was not bound by the limitations contained within 10 USC § 638a or 10 USC § 691(d). 

Finally, in the last part of his brief, counsel states, “the judicial standard of review utilized under 10 USC 1558 required to find in favor of an applicant are [sic] satisfied.”  Specifically, he reiterates the applicant’s discharge was arbitrary and capricious, not based on substantial evidence, and a result of material or administrative error.  In essence, he merely summarizes all of his previous arguments.  For all of the reasons stated above, those arguments are without merit.  In conducting the CY11A Major Line of the Air Force Selective Continuation Board and affecting the applicant’s discharge pursuant to 10 USC § 632, SECAF exercised his discretion in a proper and lawful manner.  Counsel has failed to prove any abuse of that discretion.

The complete advisory is at Exhibit I.

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 1 Aug 18 for comment (Exhibit J), but has received no response.

THE BOARD CONCLUDES THAT:

1.  The application was timely filed.

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

3.   After thoroughly reviewing all Exhibits, the Board does not find that an error has occurred or that circumstances of this case rise to the level of injustice to warrant Special Board consideration, reinstating him onto active duty or a TERA retirement.  While counsel’s comments in response to the AFPC/DP2SPP evaluation are duly noted, the Board does not find his assertions sufficiently persuasive to override the rationale provided by DP2SPP.  However, in an effort to ensure counsel’s arguments were properly addressed, the Board obtained an additional advisory from AFPC/JA.  AFPC/JA agrees with the opinion and recommendation of DP2SPP.  AFPC/JA recaptured the essence of the entire case file and while doing so, provides a detailed analysis of counsel’s arguments.  AFPC/JA notes that the Air Force was required to make a reduction in its officer force, and although it was unfortunate, it was necessary in order to meet congressionally mandated end strength numbers.  As such, the Board concludes the Secretary of the Air Force acted within the limits of his authority in the instructions he provided to the continuation board.  The continuation board is a competitive process and while the applicant was among 245 officers whose names were furnished to the board, the applicant was not one of the 88 officers selected for continuation.  The board determined the selected officers were fully qualified to meet the needs of the Air Force.  Therefore, absent a showing by the applicant that the decision not to continue him to retirement eligibility was otherwise arbitrary, capricious, or an injustice, the Board agrees with the opinions and recommendations of AFPC/DP2SPP and AFPC/JA and adopts the rationale contained in those opinions.  The Board concludes that the applicant has failed to meet his burden of proof that he has been the victim of an error or injustice.  Accordingly, in the absence of evidence that the applicant was treated differently than others similarly situated, we find no basis to grant any of the relief requested in this appeal.

THE BOARD RECOMMENDS THAT:

The applicant be informed the evidence did not demonstrate material error or injustice, 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-2016-05100 in Executive Session on 28 Mar 18 and 25 Sep 18:

, Panel Chair
, Panel Member
, Panel Member

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

Exhibit A:	Application, DD Form 149, w/atchs, dated 9 Mar 17.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2SP, dated 4 Oct 17.
Exhibit D: Notification of Advisory, SAF/MRBC to applicant, dated 29 Nov 17.
Exhibit E:	Notification of Advisory, SAF/MRBC to applicant, dated 6 Dec 17.
	Exhibit F:  MOTION TO STAY, dated 15 Dec 17.
	Exhibit G: ORDER STAYING CASE, dated 18 Dec 17.
Exhibit H:	Applicant’s Counsel’s response, dated 4 Jan 18.
Exhibit I:   Advisory opinion, AFPC/JA, dated 27 Jul 18.
Exhibit J:   Notification of Advisory, SAF/MRBC, dated 1 Aug 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.