RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2017-03393

						COUNSEL:  NONE
	
						HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

His records be corrected to reflect he was commissioned and entered onto active duty in the grade of Major and not in the grade of Captain.

APPLICANT CONTENDS THAT:

In 2016, he worked with his recruiter and the Chief of Bioenvironmental Engineering Force Development who informed him he would enter onto active duty in the grade of Major.  His paperwork, including all signed contracts and commissioning information, initially listed his commission grade as Major and he was sworn in on 14 Sep 16 in the grade of Major.  However, on 21 Sep 16, he was informed by his recruiter that there was an oversight by Air Force Recruiting Service (AFRS) in determining his grade and that Air Force Personnel Center (AFPC) established that he would enter onto active duty in the grade of Captain.  His recruiter then sent him new documents to sign so that his orders could be finalized and because he had already made plans to resign from the United States Air Force Reserve (USAFR) and made financial commitments based on the anticipation of remaining a Major upon entering onto active duty.  The negative employment and financial implications associated with declining the position at the time dictated that he quickly accept it or face the unthinkable consequences for suddenly being unemployed without a place to live or health insurance to cover his daughter and then pregnant wife. 

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

STATEMENT OF FACTS:

The applicant is currently serving in the Regular Air Force (RegAF) in the grade of Captain, O-3.

On 11 Mar 16, the applicant was recommended and conditional release was granted by the authorizing official for resignation from the Reserve of the Air Force for appointment to the Regular Air Force in the grade of Major, as evidenced by DD Form 368, Request for Conditional Release.

On 23 May 16, according to the documentation provided by the applicant, he received a Conditional Selection Notification letter stating he had been conditionally selected for appointment to the RegAF in the grade of Major in the Bioenvironmental Engineer specialty and assignment location to be determined (TBD).

On 17 Jun 16, according to the documentation provided by the applicant, he received a Conditional Selection Notification letter stating he had been conditionally selected for appointment to the RegAF in the grade of Major in the Bioenvironmental Engineer specialty with commissioned officer training date of 25 Jul 16 and an assignment location to Hill AFB, Utah.

On 14 Sep 16, the applicant signed two oaths of office, one appointed to the Reserve of the Air Force in the grade of Captain and the other to the grade of Major, both Biomedical Science Corps (BSC) category, as evidence by AF Forms 133, Oath of Office, both dated 14 Sep 16.

On 14 Sep 16, the applicant acknowledged receipt and consent to accept Reserve of the Air Force appointment in the grade of Captain and also in the grade of Major and enter onto active duty in the same grade, as evidenced by two separate Statements of Understanding for Extended Active Duty – USAF Health Professions, both dated 14 Sep 16.

On 20 Sep 16, according to the documentation provided by the applicant, his recruiter signed AFRS Form 1327, Application for Participation in the Recruiter Assistance Program, reflecting his grade as “O-4”.

On 21 Sep 16, the applicant received a total of 6 years, 8 months, and 1 day of constructive service credit and indicated the amount was equal to the grade of Capt, as evidence by DPAM Form 60, BSC Access – Constructive Credit Computation.

On 21 Sep 16, the applicant was ordered to active duty, as evidenced by AF Form 766, Extended Active Duty Order, Special Order AH-1152, in the grade of Captain and on 30 Sep 16, Block 13 was amended from, “Effective Date of duty is on or after 30 Sep 16…report not later than…5 Oct 16” to, “Effective Date of duty is on or after 25 Sep 16…report not later than…30 Sep 16”, as evidenced by AF Form 973, Request and Authorization for Change of Administrative Orders, Special Order AH-1183, dated 30 Sep 16.

On 27 Sep 16, the applicant entered active duty in the grade of Captain, as evidenced by AF Form 1613, Personal Data, dated 8 Dec 16.

On 28 Sep 16, according to the documentation provided by the applicant, the Senate confirmed his appointment by voice vote to the grade of Major.

In support of his request, the applicant provided further documentation to include copies of commissioning certificate, congratulatory letter and various email correspondences.

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C and D.    

AIR FORCE EVALUATIONS:

AFRS/RSOC recommends denial indicating there is no evidence of an error or an injustice.  AFI 36-2005, Tables 10.5 and 10.6 outline process/procedures for computing service credit.  AFPC accurately re-calculated the applicant’s service credit in accordance with the governing rules and concluded that Captain is the correct authorized entry grade onto active duty.

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

AFPC/DP2N recommends denial indicating there is no evidence of an error or an injustice.  The governing policies in DoDI 6000.13, AFI 36-2005 and AFI 36-2008 only authorize the applicant to receive the appropriate amount of service credit to commission in the reserve and enter onto active duty in the grade of Captain.

The alleged injustice occurred when AFRS reviewed the applicant’s DD Form 368, Request for Conditional Release and it was verified the applicant was holding status as a Major in the reserve, however there was an oversight when identifying he was holding status in a Line of the Air Force category/specialty and not the same category/specialty (BSC) he was being accessed to active duty in. Constructive service credit was required to be computed in accordance with DoDI 6000.13 and AFI36-2005 to determine his reserve appointment grade and enter onto active duty grade as a Biomedical Sciences Corps officer.

In Sep 16, when the applicant entered onto active duty, he received a total of 6 years, 8 months, and 1 day of constructive service credit (DPAM Form 60).  The Applicant earned 24 months of credit for his Master’s in Environmental Engineering (at 100% credit) from 26 Mar 07 to 26 Mar 09 (DoDI 6000.13, Enclosure 3 para 1c(3)(b) and AFI 36-2005, Table 2.5. Rule 8).  The applicant earned 4 years, 7 months, 24 days of credit for his prior commissioned service time (at 50% credit) from 27 May 05 to 13 Sep 16, minus the 2 years of overlap where he earned degree credit (DoDI 6000.13, Enclosure 3, para 1b(b) and AFI 36-2005, Table 2.5, Rule 45). The period of time spent earning his master’s degree overlapped with his prior commissioned service time from 27 May 05 to 13 Sep 16, therefore he was awarded 100% credit for the degree time and awarded 50% credit for the prior commissioned time that did not overlap.  In accordance with DODI 6000.13 and AFI 36-2005, a period of time can only be counted once.  He also earned 7 days of entry grade credit (not CSC) as stated in AFI 36-2008, paragraph 11 (at 50% credit) from 14 Sep 2016 to 26 Sep 16.

Once service credit is computed, AFI 36-2005, Table 2.1., is used for Grade Determination.  This table determines the grade eligible for appointment based on the amount of service credit earned.  Using column B of this table, he received at least 4 years of credit but less than 11 years of credit, therefore he commissioned in the reserve in the grade of Captain.  Based on the amount of service credit earned AFI 36-2008, Table 1, Grade in Which Ordered to EAD, is used to determine the grade he is eligible to enter onto extended active duty.  Using column B of this table, and entry grade is the same as reserve grade, he would enter onto active duty as a Captain.

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

The applicant refutes virtually every point made by the OPR and argues that all documents leading up to his commissioning into the RegAF list an entry grade of Major.  The errors made by AFRS and AFPC when re-calculating his CSC is unfair to him and his family.  Furthermore, the wing Staff Judge Advocate (SJA) concluded that since his appointment into the grade of Major was confirmed by the Senate, there is no legal authority that would allow the Air Force to reduce his grade after appointment and confirmation.  In support of his response, the applicant provides copies of his resume that was provided to his recruiter as part of his initial application to transition from USAFR to the RegAF, an email from his recruiter that included AFRS Applicant Information Sheet (AIS), and a memorandum from his current Wing Commander.

ADDITIONAL AIR FORCE EVALUATION:

AF/JAA recommends granting the applicant’s request, indicating there is evidence of an error or injustice.

In Marbury v. Madison, 5 U.S. (1 Cranch) 137, 155-156 (1803), the Supreme Court found three separate actions were required to complete a commissioning appointment that was subject to Senate confirmation:  (1) the President’s nomination, (2) confirmation by the Senate, and (3) the President’s appointment.  Title 10, U.S.C., Section 531(2), states, “Original appointments in the grade of major, lieutenant colonel, and colonel in the … Regular Air Force … shall be made by the president, by and with the advice and consent of the Senate.”

Title 10, U.S.C., Section 533(a)(1), “For the purpose of determining the grade and rank within grade of a person receiving an original appointment in a commission grade … in the RegAF … such person shall be credited at the time of such appointment with any active commission service (other than services as a commissioned warrant officer) that he performed in any armed force … before such appointment.”

In accordance with AFI 36-2005, Officer Accessions, Table 11.1, determines the grade eligible for appointment based on the amount of service credit earned.  Using column B of this table, the applicant received at least 4 years of credit but less than 11 years of credit; accordingly, he should have commissioned in the grade of O-3.

In the applicant’s case, the Presidential nomination was made, and the Presidential appointment was tendered.  The applicant also signed an oath as an O-4.  The appointment and oath were both signed on 14 Sep 16.  However, the Senate did not confirm the applicant until 28 Sep 16.  Accordingly, the appointment had no legal effect.  The Air Force had only ministerial authority to present the applicant’s commission on behalf of the President.  The Senate could have chosen to delay confirmation or not to confirm at all, in which case the appointment signed prior to confirmation would have been a nullity, as there would be no confirmed officer to appoint.  A commission is finalized when all conditions precedent to accomplish the investiture of office are complete.  In this case, the conditions precedent were not complete with the applicant signed the oath.  Additionally, the applicant concedes he should not have been commissioned as an O-4.  He even signed a new oath as an O-3 prior to Senate confirmation.  This raises a more pressing concern as to whether he properly commissioned as an O-3.

To receive a commission as an O-3, the Air Force would nominate the appointee (in this case, the applicant), and the Secretary of Defense (SECDEF) would approved the nomination.  The commission becomes effective at the point in time the SECDEF-approved tender of commission (i.e., an offered appointment) is accepted.  The President therefore still had the authority to tender a commission as an O-3 to the applicant.  As such, signature of the oath as an O-3 would complete the commission process.  Yet, the President did not tender an O-3 commission.  The President nominated and tendered an O-4 commission.  The orders the applicant received in and of themselves could no serve to edit or amend the President’s nomination, and the applicant’s signature on the oath as an O-3 is likewise lacking the Constitutional prerequisites.  The Board does not have the legal authority to make these changes.  

However, it does appear the applicant may have suffered an injustice.  Agents acting on behalf of the Air Force informed the applicant he would enter the RegAF as an O-4.  He made “financial commitments based on the anticipation of remaining a Major upon entering active duty.”  When he was notified of the change in commissioning grade on 21 Sep 16, he had already resigned from his USAFR position and terminated his residential lease in preparation to report to his duty assignment.  If the Board decides an injustice has occurred, it could adjust the Applicant’s records to his benefit.

It is recommended the board adjust the applicant’s records to change his grade to O-4 based on the Presidential appointment and Senate confirmation of his appointment to O-4 by changing his records to reflect he had enough constructive service credit to transfer to the RegAF as a Biomedical Sciences Corps officer and adjust his records to reflect he took the oath on 29 Sep 16.

A complete copy of the AF/JAA evaluation is at Exhibit G.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant acknowledges receipt of the AF/JAA evaluation with no additional comments.

The applicant’s complete response, with attachments, is at Exhibit I.

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  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.  While we note the comments of AFRS/RSOC and AFPC/DP2N indicating that relief should be denied because the applicant’s constructive service credit was accurately calculated in accordance with the governing rules and authorized the applicant to receive the appropriate amount of service credit to commission in the reserve and enter onto active duty in the grade of Captain, we believe a preponderance of the evidence substantiates that corrective action is warranted.  In this respect, we agree with the opinion and recommendation of AF/JAA and adopt its rationale as the basis for our conclusion the applicant has been the victim of an injustice.  In this regard, he was informed he would enter the RegAF in the grade of Major and made financial commitments based on the anticipation of remaining a Major upon entering active duty.  Therefore, we recommend the applicant’s records be corrected as indicated below.  

THE BOARD DETERMINES THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that he had enough constructive service credit to transfer to the RegAF in the grade of Major as a Biomedical Sciences Corps officer and that he took the oath of office on 29 September 2016.

The following members of the Board considered AFBCMR Docket Number BC-2017-03393 in Executive Session on 6 Feb 18 under the provisions of AFI 36-2603, Air Force Board for Correction of Military Records:

	Panel Chair
	Member
	Member

All members voted to correct the records as recommended.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2017-03393 was considered:

	Exhibit A.  DD Form 149, dated 13 Jul 17, w/atchs.
	Exhibit B.  Excerpts from Personnel Records.
	Exhibit C.  Memorandum, AFRS/RSOC, dated 30 Aug 17.
Exhibit D.  Memorandum, AFPC/DP2N, dated 10 Oct 17, w/atchs.
	Exhibit E.  Letter, AFBCMR, dated 27 Oct 17, w/atchs.
Exhibit F.  Memorandum, Applicant, dated 5 Nov 17, w/atchs.
Exhibit G.  Memorandum, AF/JAA, dated 25 Jan 18.
Exhibit H.  Email, AFBCMR, dated 25 Jan 18, w/atchs.
Exhibit I.  Memorandum, Applicant, dated 25 Jan 18.

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.