RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 				DOCKET NUMBER: BC-2017-00002

XXXXXXXXXX					COUNSEL:  XXXXXXXXXX

							HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

A special board be convened pursuant to Title 10 United States Code, Section 1558: Review of actions of selection boards: correction of military records by special boards; judicial review (10 U.S.C. § 1558).

APPLICANT CONTENDS THAT:

In a 15-page brief, through counsel, the applicant contends the following:

The Secretary of the Air Force illegally violated Department of Defense Instruction (DoDI) 1320.08, Continuation of Commissioned Officers on Active Duty and on the Reserve Active Status List, by erroneously changing the 6-year protective retirement window for selective continuation to a 5-year protective window; as a result, the Calendar Year (CY) 2011A Major Line of the Air Force (LAF) Selective Continuation Board erred by using the incorrect date of continuation.  The properly measured date of continuation was not until 1 December 2011.  At that time, the applicant had served more than 15 years in the service and had fallen within the Secretary of the Air Force’s unlawfully restricted 5-year protective window for mandatory continuation.

Because the board did not approve its results until May 2011, the continuation board improperly found that the applicant fell beyond the 5-year protective window and approved his separation from service on that basis.  The continuation board for 2012 used 30 November 2012 as the measuring date, by which time, the applicant had served well over 15 years.  The applicant was exposed to two wrongs: illegal 5-year window and the wrong measurement window.  If measured correctly, the applicant would have qualified for retention under the 5-year protective window.

According to DoDI 1320.08, section 6.3, officers within 6-years of retirement shall normally be continued unless they have derogatory information on their record.  The applicant does not have derogatory information and should have been continued by the subsequent CY 2011A Major LAF Selection Continuation Board.
On 6 December 2010, the Secretary of the Air Force sent a notification to the Under Secretary of Defense for Personnel and Readiness [USD (P&R)] of his proposal to not continue large pools of officers; however, USD (P&R) never responded with permission to perform the cuts.  There was no approval or authority; therefore, the Secretary of the Air Force was in violation of DoD rules.  Even if the approval to deviate was authorized, arguably such authority is without legal justification given the plain language of the instruction to continue officers within 6-years of retirement.

The Secretary of the Air Force failed to update critical specialty codes for continuation.  Air Force Functional Managers were still under the impression that the 6-year window of the DoDI applied and because of this, they did not supply the Air Force with an updated critical Air Force Specialty Code listing.  There is a disparity between the critical skills listed in the Secretary of the Air Force’s Memorandum of Instruction and the critical skills for which a retention bonus is authorized and those identified to Congress as critical to the budget.  The failure to update the critically manned career fields was of consequence and subjecting the applicant to a number of defective processes including, but not limited to, process of material error, process of effectuated in an arbitrary and capricious manner and contrary to expressed rules and regulations.

The Secretary of the Air Force breached 10 U.S.C. § 638a (d) (B) (3).  When convening a selection board to consider for discharge regular officers on the active duty list in a grade below lieutenant colonel (O-5) the Air Force is limited by §638a(d)(B)(3), which states “the total number of officers described in subsection (b)(3) from any of the Armed Forces who may be recommended during a fiscal year for discharge by a selection board convened pursuant to the authority of that subsection may not exceed 70 percent of the decrease, as compared to the preceding fiscal year, in the number of officers of that Armed Force authorized to be serving on active duty at of the end of the fiscal year.”

Additionally, §691(d) states “no funds appropriated to the 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) unless the reduction in end strength for that Armed Force for that fiscal year is specifically authorized by law.”  The Air Force’s force management efforts were so aggressive that the actual end strength was less than the FY 2012 authorized end strength.

Incorporating all the facts, law and arguments raised, they illustrate the decision to involuntarily separate the applicant was arbitrary and capricious, not based on substantial evidence, and resulted in material error or administrative error.  The separation was contrary to the laws and regulations.

As recompense for the numerous errors, the applicant should have been offered incentives such as voluntary separation pay or delayed 30 days for the Temporary Early Retirement Authority to be instituted and given an opportunity to retire under this authority.

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

STATEMENT OF FACTS:

On 30 November 2011, the applicant was discharged from the Regular Air Force in the grade of major (O-4).  His narrative reason for separation is “Non-selection, Permanent Promotion,” and he was credited with 14 years, 5 months and 14 days of active service.

In accordance with 10 U.S.C., § 1558, paragraph (f) (1), “A person seeking to challenge an action or recommendation of a selection board, or an action taken by the Secretary of the military department concerned on the report of a selection board, is not entitled to relief in any judicial proceeding unless the action or recommendation has first been considered by a special board under this section or the Secretary concerned has denied the convening of such a board for such consideration.”

According to AFI 36-2501, Officer Promotions and Selective Continuation, paragraph A13.1 (Authority for Special Boards), “Section 1558 of title 10, United States Code, authorizes [Secretary of the Air Force] to convene Special Boards to consider whether to recommend a member, prospective member, or former member of the Air Force for appointment, enlistment, reenlistment, assignment, promotion, retention, separation, retirement, or transfer to inactive status in a reserve component, for which that person was not considered, or was improperly considered, by a previously convened selection board that should have considered him/her.”  Paragraph A13.3.1. (Requesting Special Board Consideration), states “Members, prospective members, and former members of the Air Force request Special Board consideration by a DD Form 149, Application for Correction of Military Record.”

On 30 October 2014, the Board considered and denied similar appeals in which numerous applicants [not including the applicant] requested they be reinstated to active duty, or in the alternative, they be retired under the provisions of the Temporary Early Retirement Authority and that they be allowed to recoup any retention bonuses they may have received.  These applicants, Air Force officers in the grade of major (O-4), with over 14 years of service met the CY2011A Lieutenant Colonel LAF Central Selection Board, and were non-selected for the second time and subsequently met the CY2011A Major LAF Selective Continuation Board and were not selected for continuation to retirement eligibility.  The board was furnished the names and records of 245 officers who were twice non-selected for promotion to the grade of lieutenant colonel (O-5).  The board recommended 88 officers for continued service under the selective continuation program and determined they were the most fully qualified to meet the needs of the Air Force among those officers whose names were furnished to the board.  Counsel argued that Congress’ intent in passing the Defense Officer Personnel Management Act was that officers who attained the permanent grade of major be continued to 20 years of service and, possible retirement.  Counsel also claimed the applicants’ records did not contain derogatory information; therefore, they should have been continued until eligible for retirement.  After carefully reviewing all the evidence, the Board concluded the Secretary of the Air Force, based on the needs of the Air Force and eligibility criteria for continuation, acted within the limits of his authority in the instructions provided to the continuation board.  The Board also denied counsel’s request that any applicants who may have received retention bonuses be allowed to keep the unearned portion of any retention bonus.  However, the Board determined counsel did not present evidence the applicants he represented were under any retention agreements.  Absent such information, the Board was unable to determine whether such agreements represented an injustice.  In a memorandum dated 21 March 2011, the Secretary of the Air Force was informed of the results of the CY2011A Major LAF Selective Continuation Board.

On 12 January 2016, the applicant’s counsel filed a complaint via the United States Court of Federal Claims on behalf of the aforementioned applicants who previously submitted DD Forms 149 requesting special board consideration. However, prior to seeking judicial review, the applicants must first exhaust all administrative remedies.  Therefore, in a letter dated 29 August 2016 (Exhibit E), the court remanded the case back to the Board to deliberate whether these applicants should receive consideration by a special board.  In the same case, there were plaintiffs including the applicant, who had not previously requested the convening of a special board.  These plaintiffs were afforded the opportunity to submit such a request along with a DD Form 149, and any supplemental statements in support of the request, on or before 30 days following the issuance of the 29 August 2016 order.  The applicant submitted his request for special board consideration via DD Form 149 dated 5 December 2016 (Exhibit A).

On 8 February 2017, the Board considered the applicants who timely submitted their application requests and determined they did not meet the requirements for a special board under the provisions of AFI-36-2501.  Therefore, their requests for the convening of a special board pursuant to 10 U.S.C. § 1558 was denied.

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:

AFPC/DP2SP recommends denial indicating there is no evidence of an error or an injustice.  Special boards are to be granted when an eligible officer was not considered by a selection board, the action of the selection board was contrary to law or involved material error of fact or material administrative error, or the board did not consider material information that should have been available in compliance with pertinent Air Force Directives, instructions and policies.  The applicant was eligible for and met the CY2011A Major LAF Selective Continuation Board.  The board was convened under 10 U.S.C. § 611(b): Convening of selection boards, and actions taken by the board were not contrary to law nor did they involve material error of fact or material administrative error.  When making their decision not to continue the applicant, board members followed the lawful guidance provided by the Secretary of the Air Force.  Finally, board members considered all material information provided in the selection records and the applicant has not requested that anything be added to his record nor has he identified errors in his record.

A complete copy of the AFPC/DP2SP evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to counsel on 24 March 2017, for review and comment within 30 days (Exhibit D).  As of this date, no response has been received by this office.

FINDINGS AND CONCLUSIONS OF THE BOARD:

Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  After a careful review of the applicant’s contentions, documentation submitted in support of the request, and the available evidence of record, we are not convinced the applicant has provided sufficient evidence for us to conclude that he is the victim of an error or injustice.  The applicant has repeated the arguments of his co-plaintiffs, who timely submitted their applications challenging the same CY 2011A Major LAF Selective Continuation Board.  However, as noted in our previous decisions, the Air Force was required to make a reduction in the officer force, and although it was unfortunate, it was necessary in order to meet congressionally mandated end strength numbers.  The Secretary of the Air Force acted within the limits of his authority in the instructions he provided to the continuation board.  Therefore, we find no further action by the Board is required in response to the applicant’s request for special board consideration.  We also note 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 10 U.S.C. § 1552, Correction of military records: claims incident thereto, and AFI 36-2603, Air Force Board for Correction of Military Records.  Furthermore, the applicant did not submit an application and any supplemental statements in support of his request for a special board pursuant to 10 U.S.C. § 1558 within 30 days following issuance of the court’s order.  Therefore, because the applicant has offered no plausible reason for the delay in filing the application, and because our review of the case gives no indication that it would be in the interest of justice to excuse the failure to timely file the application, we find the application untimely.

THE BOARD DETERMINES THAT:

The application was not timely filed and it would not be in the interest of justice to waive the untimeliness.  It is the decision of the Board, therefore, to reject the application as untimely.

The following members of the Board considered AFBCMR Docket Number BC-2017-00002 in Executive Session on 19 May 2017, under the provisions of AFI 36-2603:

, Panel Chair
, Member 
, Member

The following documentary evidence was considered:

Exhibit A.  DD Form 149, dated 3 December 2016, w/atchs.
Exhibit B.  Applicant's Master Personnel Records.
Exhibit C.  Memorandum, AFPC/DP2SP, dated 23 March 2017.
Exhibit D.  Letter, AFBCMR, dated 24 March 2017.
Exhibit E.  Letter, United States Court of Federal Claims, 
  dated 29 August 2016, w/atchs.