RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-02405

 		COUNSEL: NONE

	HEARING: YES

APPLICANT REQUESTS THAT:  

His appointment in the Air Force Reserve show he was appointed in the grade of captain (O-3), instead of major (O-4).  

He receive special selection board (SSB) consideration for promotion to major.    

His promotion deferral for lieutenant colonel (O-5) be removed from his record.  

The debt for overpayment as the result of his incorrect grade and date of rank (DOR) be forgiven.  

On 1 May 18, he amended his request to include removal of any other promotion deferral actions and discharge notifications that may occur pending consideration of his case.  

APPLICANT CONTENDS THAT: 

ARPC has admitted to the error in his grade and DOR.  He served on active duty in the Navy JAG Corps and was selected for promotion to lieutenant commander (O-4) while in the Individual Ready Reserve (IRR).  The error was the result of receiving a day for day credit for his IRR time.   The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS.  

The applicant is a major in the Air Force Reserve, with a date of rank (DOR) of 31 Mar 08 and an effective date of promotion of 28 Oct 13.    

Per ARPC IMT 92, Appointment Order, Reserve Order, PA-00113 dated 2 Dec 13, the Secretary of Defense approved his appointment in the grade of major on 28 Oct 13.  

On 12 Sep 17, he was notified of his second deferral for promotion to lieutenant colonel and that he would be discharged per 10 U.S.C. § 14506 on his mandatory separation  date (MSD) of 1 Jun 22. For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C, G and J.

DD Form 2789, Remission/Waiver of Indebtedness Application, may be submitted to request a waiver of a debt.  The request must be submitted within 5 years from when the debt is placed against an account.  

The applicant is scheduled to meet the CY18 Air Force Reserve Line and Nonline Lieutenant Colonel Promotion Selection Board scheduled to convene on 11 Jun 18 per ARPCM 17-39 dated 13 Dec 17.   

AIR FORCE EVALUATION:   

ARPC/DPAR recommends approval of the request to correct his grade to captain with DOR of 22 Mar 08 and effective date 28 Oct 13.  Per AFI 36-2005, Officer Accessions, his appointment as a major was incorrect.  ARPC/DPAR recommends he seek recourse through the scroll ratification process and his ARPC IMT 92 be amended to reflect the corrections.  The promotion deferrals for lieutenant colonel should be removed, the pending discharge rescinded and his debt for the correction of his grade be forgiven by DFAS.  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 16 Feb 18 for comment (Exhibit D).  The applicant replied on 18 Feb 18.   One of his requests is for the AFBCMR to order the convening of a SSB to consider his promotion back to major.  This is important as he would otherwise be in a strange position of being a captain with too many years and he is worried about the repercussions this may have.  The SSB would see he would have been qualified to become a major in 2014 or 2015, in which case the amount of overpayment would be minimal.  The complete response is at Exhibit E.  

ADDITIONAL AIR FORCE EVALUATION:

ARPC/PB recommends the promotion deferral for lieutenant colonel be removed.  The applicant would be scheduled for a SSB for the CY15 Line and Nonline Major Promotion Board.  If not selected, he would be scheduled for an SSB for the CY16 Line and Nonline Major Promotion Board.  The complete advisory is at Exhibits G.

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The Board sent a copy of the additional Air Force evaluation to the applicant on 27 Feb 18 for comment (Exhibit H).  On 15 Mar 18, the applicant confirmed receipt of the additional evaluation (Exhibit I).  

ADDITIONAL AIR FORCE EVALUATION: 

SAF/MRBL recommends the applicant receive sufficient CSC to qualify him for appointment in the grade of major on 28 Oct 13, with DOR 28 Oct 13, and the deferrals to lieutenant colonel and the discharge memorandum notification for separation on his MSD be removed from his records.    

Despite the applicant having been erroneously accessed as a major, there is no legal option to re-scroll him as a captain whether or not done in error.  Since the correct CSC calculation does not provide any additional time over the 11 years required for major, his DOR should be changed to the latest allowable date, which is the date of his appointment, 28 Oct 13.

In applying the laws cited, once the officer completes their commission, there is no longer retained authority to nullify the appointment to a lower grade.  There are two prior completed cases establishing AFBCMR precedent.  In BC-2014-00409, the applicant’s grade was erroneously changed from captain to first lieutenant because her CSC was erroneously calculated.  AFPC/JA advised the date of office is the effective date of the appointment when commissioned.  The Board agreed with AFPC/JA and recommended crediting her with sufficient CSC to qualify her for appointment as a captain.   In BC-2012-04500, the applicant signed her oath and was appointed as a second lieutenant on 8 Jul 11.  On 11 Jul 11, she made known she was pregnant which would have made her ineligible to be commissioned.  Despite having signed documents previously declaring she was required to provide notice of pregnancy, AF/JAA advised that the appointment power of the Executive ended once the commission was executed and no law provides for the Secretary of Defense to revoke or nullify a completed commission.  The Board agreed with AF/JAA and recommended documents relating to her disenrollment from AFROTC be void and she be assigned to the IRR.  She was provided supplemental relief and was ordered to extended active duty (EAD).  The complete advisory is at Exhibit J.  

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:  

The Board sent a copy of the additional Air Force evaluation to the applicant on 16 Apr 18 and the applicant replied on 1 May 18.  He finds the legal opinion very satisfactory.  He requests that in addition to the removal of the two promotion deferrals, any other promotion deferral actions and discharge notifications that may occur before the Board’s action also be removed.  The complete response is at Exhibit K.  

THE BOARD CONCLUDES:

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, it is the Board’s opinion that the applicant is the victim of an error and injustice.  The Board concurs with ARPC/DPAR, ARPC/PB and SAF/MRBL and finds that a preponderance of the evidence substantiates the applicant’s contentions.  While we note ARPC/DPAR recommends his grade and DOR be corrected via a re-ratification of his scroll to show he was appointed in the grade of captain given he did not have sufficient CSC to be appointed as a major, we agree with SAF/MRBL that once the applicant completed the commissioning process there is no authority to nullify his appointment, although it was in error.  Therefore, we recommend the applicant’s record be corrected to reflect he was credited with sufficient CSC as of the date of his initial Reserve appointment to qualify him for appointment as a major.  This would make his original appointment correct and his date of rank and effective date would be the date of his appointment, 28 Oct 13.   Moreover, based on the correction, a SSB is no longer required and given he would not have been eligible for promotion consideration to lieutenant colonel, we recommend all promotion deferrals to lieutenant colonel and notification for separation on his MSD of 1 Jun 22 be void and removed from his records.  With respect to the applicant’s request that his debt for overpayment as a result of the correction to his grade and DOR be forgiven, the applicant has not yet incurred any debt for us to waive.  Therefore, it is our recommendation that upon the corrections to the applicant’s record, he submit a DD Form 2789 through his finance office to request debt remission should he incur a debt.  Therefore, the Board recommends the applicant’s records be corrected as indicated below.

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.

THE BOARD RECOMMENDS: 

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that:

           a. Competent authority approved sufficient constructive service credit to qualify him for appointment to the grade of major in the Reserve of the Air Force on 28 Oct 13, with date of rank and an effective date of promotion of 28 Oct 13.

           b. The ARPC/DPTT notification memorandum dated 12 Sep 17 for his second deferral for promotion to lieutenant colonel with notification for discharge on his mandatory date of separation of 1 Jun 22 be removed from his record.  

           c. Any subsequent nonselection for promotion to lieutenant colonel and discharge notification as a result of the promotion deferral that may occur pending correction of his records be removed from his record.    

The applicant was adjudicated without a personal appearance.  

CERTIFICATION: 

The following quorum of the Board, as defined in paragraph 1.5 of Air Force Instruction (AFI) 36-2603, considered AFBCMR Docket Number BC-2017-02405 in Executive Session on 9 Mar and 4 May18:

 , Panel Chair
 , Panel Member
 , Panel Member

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

Exhibit A: Applicant’s application, DD Form 149, dated 28 Apr 17, w/atchs.
Exhibit B: Documentary evidence, including excerpts from official records.
Exhibit C: Advisory opinion, ARPC/DPAR, dated 1 Feb 18, w/atch.
Exhibit D: Notification of Advisory, SAF/MRBC to claimant, dated 16 Feb 18.
Exhibit E: Applicant’s response to Exhibit D, dated 18 Feb 18, w/atch.
Exhibit F. Notification of Applicant’s Response, dated 21 Feb 18.  
Exhibit G. Advisory Opinion, ARPC/PBP, dated 27 Feb 18.
Exhibit H. Notification of advisory, SAF/MRBC to applicant, dated 27 Feb 18.
Exhibit I.  Applicant’s response to Exhibit H, dated 15 Mar 18, w/atchs.  
Exhibit J.  Advisory Opinion, SAF/MRBL, dated 16 Apr 18.
Exhibit K. Notification of advisory, SAF/MRBC, dated 16 Apr 18.
Exhibit L.  Applicant’s response to Exhibit K, dated 1 May 18.  

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