RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2008-03968 INDEX CODE: 112.10 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His involuntary reassignment to the Individual Ready Reserve (IRR) be revoked and he be reinstated to his previous assignment as a traditional Reservist assigned to the 917th Wing, Barksdale Air Force Base, with pay, points, leave, awards and decorations. 2. He be reconsidered for promotion to the grade of colonel by a Special Selection Board (SSB). 3. By amendment at Exhibit E, the applicant requests the 917th Wing accomplish an OPR for the period of 30 September 2006 through 29 September 2007. 4. By amendment at Exhibit E, the applicant requests that he be awarded 52 days of authorized leave and 623 active duty retirement points for the period 1 October 2007 through 14 June 2009. 5. By amendment at Exhibit E, the applicant requests that Reserve Order A-342, dated 27 September 2007 and RO HB-0062, dated 12 September 2008, be revoked. ________________________________________________________________ APPLICANT CONTENDS THAT: The requirements of AFI 36–2115, Assignments within the Reserve Components were not complied with when he was involuntarily reassigned to the IRR. On 26 September 2007, the wing commander (Wg/CC) requested that he volunteer for a transfer to the IRR, when he refused, his commander placed him in the IRR. AFI 36- 2115 specifically outlines processes, procedures and documents that must be accomplished prior to involuntarily transferring an Air Force Reserve member to the IRR. None of the procedures or documents outlined in the AFI were accomplished. In support of his request, applicant submits a personal letter, copies of a Statement of Understanding, his Reserve order, a manning document, AF IMT 102, Inspector General Personal & Fraud Waste and Abuse Complaint Registration; extracts from AFI 36- 2115, letters from his commander, HQ AFRC/IGD and United States Representative, His complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 29 May 1985, the applicant was commissioned in the military and has been progressively promoted to the grade of lieutenant colonel (Lt Col) having assumed that grade effective and with a date of rank of 1 March 2004. On 5 September 2008, he filed an Inspector General (IG) complaint alleging he was improperly and involuntarily reassigned to the IRR, in violation of AFI 36-2115. On 17 October 2008, SAF/IGD concluded he was not improperly placed in the IRR. The remaining relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letter prepared by AFRC/JA at Exhibit B. ________________________________________________________________ AIR FORCE EVALUATION: HQ AFRC/JA recommends denial. JA states despite the fact there was not strict compliance with the procedures, the spirit of the AFI was complied with. The applicant knew the reason for the action and knew he would be transferred to ARPC as a result. There is no mandatory waiting period between the time a member is notified of an assignment to an overage position and the time assigned to the IRR. On 9 April 2007, his commander gave him 90 days to look for an Individual Mobilization Augmentation (IMA) position. The commander could have transferred him to ARPC at that time. Instead, the commander did not approve his reassignment to the IRR until 30 September 2007, more than five months after his removal from the command post. He knew the reasons for the action (loss of confidence in his abilities) and the consequences (that he had to leave the wing). Had the procedural requirements of the AFI been fully complied with, the end result would have been the same. He was given more than enough time to prepare for it and the commander was within his authority to execute the transfer. He was not denied any substantial rights and the denial of procedure was a harmless error. He is not entitled to the relief he is seeking. The complete JA evaluation is at Exhibit B. HQ AFRC/A1K recommends denial. A1K states the assignment action has been validated as legally sufficient; therefore, there is no recommendation to the contrary in support of his requests. The complete A1K evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant responded stating the admission by AFRC/JA that the specific requirements of AFI 36-2115 were not complied with validates his claim that AFI 36-2115 was violated. He addresses other issues contained in AFRC/JA’s advisory and provides various other documents in support of his request. In a letter dated 18 May 2009, the applicant provides additional information for the Boards consideration. In addition to his previous requests, he request the 917th Wing accomplish an OPR for the period of 30 September 2006 through 29 September 2007, in accordance with AFI 36-2406, Officer and Enlisted Evaluation Systems, as directed by the Congressional Inquiries Division. The documentation he provides verifies he was serving in position number “03057311C” from October 2006 through September 2007. He reiterates information from his 1 April 2009 letter and states his mobility folder contains a document that validates he was serving in the referenced position number. The undated document reflects his grade as Lt Col. Reserve Order A- 342 reflects the reason he was transferred to the IRR as an "Overage Grade Greater than Authorization." He was not assigned to an occupied position, he was maintained in his assigned position and therefore, no overage situation existed. He held the correct grade for his assigned position. The information provided by Colonel J----- proves beyond a doubt he was not moved into position number “1C0305731” on 26 September 2007, as the Wg/CC alleged. It proves no overage or over grade situation existed as reflected on Reserve Order A-342. There was no movement, overage or over grade and special order A-342 is invalid. In another letter dated 4 January 2010, the applicant provided additional documentation in support of his claim that AFI 36- 2115 was violated. His complete submission, with attachments, is at Exhibit E. ________________________________________________________________ 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 warranting partial relief. After careful consideration of the applicant's submission and the evidence of record, we disagree with AFRC/JA's assessment that the applicant's substantial rights were not violated. In our view, the applicant was denied the due process afforded to him by AFI 36-2115 and in spite of JA's argument that the applicant was given more than enough time to find another position, we find that time was not the essential element in this case; but adherence to proper procedure was. We normally give great deference to commanders because they are generally in the best position to judge the circumstances of any given situation. However, in this case, the applicant has shown, by a preponderance of evidence that proper procedures were not followed and his involuntary transfer to the IRR is not valid and assignment order A-342 and Reserve Order RO-HB-0062 should be revoked. With regard to his request for an SSB, we are inclined to grant his request as it appears he met a promotion board after his involuntary transfer to the IRR and therefore, he was not in a participating status at the time the promotion board convened. With respect to the applicant’s request to be paid 623 active duty retirement points, while we find it appropriate to grant the above requests, we believe the applicant has not provided any evidence that would persuade us that he should be awarded 623 active duty points for the period 1 October 2007 through 14 June 2009. However, we find it appropriate to grant the applicant enough points for him to earn a satisfactory year, and by such action, we believe the applicant will be afforded proper and fitting relief. We took note of the applicant’s request for awards and decorations, but find that he has not shown he was denied any specific award or decoration as a result of his involuntary transfer to the IRR. Regarding his request for 52 days of leave, Defense Finance Accounting Service will compute his new leave balance and correct his records accordingly. With respect to his request that the 917th Wing prepare an OPR for the period 30 September 2006 through 29 September 2007, it appears this action has already been mandated based on a letter dated 13 June 2008, from the Office of Legislative Liaison. However, should the OPR not be accomplished, he may resubmit a request to the Board for reconsideration on this matter. Therefore, we recommend his records be corrected to the extent 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. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ RECOMMENDATION OF THE BOARD: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that: a. On 30 September 2007, he was not transferred to the Individual Ready Reserve (IRR), but rather, on that date, he continued to participate in a Traditional Reserve status with the 917th Wing of the Air Force Reserve. b. He be awarded an additional 10 paid active duty (AD) points, and 28 paid inactive duty training (IDT) points for retention/retirement (R/R) year 29 May 2007 through 28 May 2008, resulting in 78 total retirement points and one year of satisfactory Federal service for retirement. c. He be awarded an additional 15 paid active duty (AD) points, and 48 paid inactive duty training (IDT) points for retention/retirement (R/R) year 29 May 2008 to 28 May 2009, resulting in 78 total retirement points and one year of satisfactory Federal service for retirement. d. It is further directed that he be considered for promotion to the grade of lieutenant colonel by Special Selection Board for the Fiscal Year 2008 Reserve Colonel Selection Board. ________________________________________________________________ The following members of the Board considered Docket Number BC- 2008-03968 in Executive Session on 8 April 2009 and 11 January 2010, under the provisions of AFI 36-2603: By a majority vote, the Board voted to approve the requests as recommended. XXXXX voted to deny the request that the applicant be awarded paid points and submitted a Minority Report which is at Exhibit F. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 23 October 2008, w/atchs. Exhibit B. Letter, HQ AFRC/JA, dated 24 February 2009. Exhibit C. Letter, HQ AFRC/A1K, dated 27 February 2009. Exhibit D. Letter, SAF/MRBR, dated 6 March 2009. Exhibit E. Letter, Applicant, dated 1 April 2009, w/atchs. Exhibit F. Letter, Minority Report, dated 11 January 2010, w/atchs.