RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-00051 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. Retroactive reappointment as a career Reservist (CR) to May 07. 2. Void nonselections for promotion to lieutenant colonel (O-5) as a Regular officer. 3. Promote to Reserve O-5 effective and with a date of rank (DOR) of 16 May 09. 4. Retroactive back pay as O-5 from 16 May 09 to present. 5. Direct promotion to O-5 or in the alternative Special Selection Board (SSB) consideration for promotion to O-5 with a letter to the Board President. 6. Change her date of separation (DOS) to allow her to achieve an active duty (AD) retirement. ________________________________________________________________ APPLICANT CONTENDS THAT: Although, she entered AD in her late forties she was assured that she would be able to extend or reach sanctuary to achieve a 20-year retirement. Due to the Fiscal Year 2005 National Defense Authorization Action (FY 05 NDAA) (aka DOPMA) she was involuntarily converted to Regular status. She was not properly advised by Air Force personnel regarding her ability to obtain status as a CR. She submitted a request for CR status but it was not processed due to her being converted to a Regular officer and would be receiving an indefinite DOS. She was eligible for CR status from 2004 through 2006. CR status is still available, nothing in DOPMA has barred it. AFI 36-2008, Voluntary Extended Active Duty (EAD) for Air Reserve Commissioned Officers, sets forth a “safe haven” for Reserve officers who come on AD for three years or less. According to Table 2 of the AFI, she should have served on EAD for three years before becoming eligible for promotion to Lieutenant Colonel (Lt Col) and should not have been transferred to AD until she had served more than three years of service. Due to being converted to a Regular officer, she was considered for promotion too early and passed over for promotion, thus, subjecting her to unfair treatment as a passed over and non- promotable Regular officer. Her opportunities to receive an AD or Reserve retirement were limited due to her being converted to a Regular officer. Individuals in similar situations have received equitable relief from other corrections boards when the applicant relied on the advice and guidance of the services which was misleading. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 31 Mar 89 the applicant entered the Air National Guard (ANG). She was discharged from the ANG on 1 Nov 93, and transferred to the Air Force Reserve (USAFR). On 16 May 02, the applicant was promoted to rank of major (O-4). On 4 Jun 04, the applicant commenced a tour of voluntary AD for a period of 36 months. On 5 Sep 06, the applicant applied for a Specific Period of Time Contract (SPTC) to extend her DOS to 28 Feb 11 to complete a permanent change of station (PCS) move to a short tour assignment and three-year follow-up CONUS assignment. The applicant was considered and nonselected for promotion to the grade of O-5 by the Calendar Year 2007A (CY 07A) Central Selection Boards (CSBs), CY 08A, CY 09A, CY 09D, CY 10D, CY 11C and CY 12C. On 22 Apr 10, the applicant requested her case before the AFBCMR be administratively closed. By DD Form 149, dated 22 Jun 13, the applicant requested the Board resume the processing of her application. According to documents submitted by the applicant, she filed an Inspector General (IG) complaint against her supervisor, Chief Nurse, Commander and others. She alleged downgrade of her Air Force Specialty Code (AFSC), failure to recognize her Medical Surgical Nursing Unit (MSNU) orientation completion, hostile work environment, denial of DEROS Extension, denial of Incentive Specialty Pay (ISP), denial of additional convalescent leave, disruption of mental health care treatment, Medical Evaluation Board (MEB) package, erroneous PCS notification, abuse of authority, discrimination, and inadequate performance feedback. By memorandum dated9 Sep 13, XX FW/CC notified the applicant that there was sufficient evidence to substantiate the unjust downgrade of her AFSC, DEROS extension, denial of ISP, abuse of authority, and inadequate performance feedback. The investigation also found discrepancies in the creation of the applicant’s Officer Performance Report and failures to comply with procedures required by the Air Force Instruction. On 19 Dec 13, the applicant requested her case before the AFBCMR be administratively closed. By application dated 22 Jun 14, the applicant requested the processing of her resume. On 28 Nov 14, the applicant was permanent disability retired in the grade of major with a 70 percent disability rating. She was credited with 12 years and 9 months of active service. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPAMN recommends denial for SSB consideration indicating there is no evidence of an error or injustice. There were no errors in the calculation of the applicant’s promotion board eligibility. The applicant was not involuntarily ordered or recalled to AD. She voluntarily requested accession to EAD through the Air Force Recruiting Service (AFRS). She maintained the grade of major (04) she held in the Reserve. Her DOR was 16 May 02. The applicant required and was approved for a waiver for EAD. She was counseled on several occasions regarding being competitive for promotion to Lt Col. The applicant met her in- the-promotion-zone (IPZ) Lt Col board on CY 07A and met subsequent Lt Col boards in 2008 and 2009. Many of the paragraphs and tables the applicant references from AFI 36-2008 do not apply to her as a member on EAD. A complete copy of the AFPC/DPAMN evaluation, with attachments, is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 6 Aug 10 for review and comment within 30 days (Exhibit D). As of this date, no response has been received by this office. ADDITIONAL AIR FORCE EVALUATION: AFPC/DPSOO recommends denial of the requested relief. The applicant was brought onto AD and was properly considered for all promotion boards. Therefore, there is no basis to remove her nonselections or change her DOR. When the applicant entered AD, she was not a Reservist but an AD officer with a Reserve commission and fell under Title 10, Chapter 36 for promotion eligibility. There is no basis to change her service component as the transition to Regular status was implemented by law and there are no CR or any Reserve officers on the active duty list (ADL). The applicant was not brought onto AD under the Limited Period Recall Program (LPRP) as that is used for Line of the Air Force (LAF) officers. Regardless of whether she had a Reserve or a Regular commission, she would have met the same promotion boards as all AD officers who are eligible based on DOR not time-in-service or time-in-grade. At the time the applicant entered AD, all ADL officers with Reserve commissions met an AD board, not Reserve board. Reservists who are on the Reserve Active Status List (RASL) met Reserve promotion boards. If the FY 05 NDAA had not required the Services to transition Reserve commissioned officers on the ADL to Regular status, the applicant would have been able to apply for CR status. She would have been able to continue her career with a Reserve commission, but would have still met the same promotion boards that she did as a Regular officer. All officers on the ADL, regardless of whether they had a Reserve or a Regular commission would have competed at the same promotion boards. The FY 05 NDAA required the Services to transition Reserve commissioned officers currently on the ADL to Regular status by 1 May 06. Due to this change in law, the CR status program for AD officers no longer applied. When the applicant applied for a SPTC, she was already a Regular officer. She was ineligible to apply for CR status because she was a Regular officer. Even if the applicant had been eligible to apply for CR status and it had been approved prior to the conversion, the law would have still required her to revert to Regular status. The applicant was not brought onto AD under the LPRP, and the LPRP is only used to bring LAF officers onto AD. She was brought onto the ADL and fell under AD eligibility for meeting promotion boards and not the Reserve promotion boards. The service members were provided instructions informing them that their DOS will not change, but that some will have their DOS adjusted depending on their grade at the time of the transition. Furthermore, Medical, Dental and Nurse Corps officers to include those who may not be able to accrue 20 years of service to receive an AD retirement by age 62 or 68, were transitioned to Regular status. The applicant will reach age 62 in 2019 but will not be retirement eligible until 2022. Her DOS was updated to 2022 and she can retire at that time. The applicant was not considered a Reservist while on AD. She was an AD officer with a Reserve commission. The timing of Reserve boards is different than AD boards so she should not have been working off of a Reserve schedule. There are no CR status officers on the ADL and at the time the applicant met her IPZ board to Lt Col the select rate was 52 percent. All data provided in this appeal applies to Reserve boards. A complete copy of the AFPC/DPSOO evaluation is at Exhibit F. AFPC/JA recommends denial indicating there is no evidence of an error or an injustice. The advisory from AFPC/DPAMN indicates the applicant was counseled on several occasions before entering EAD about the risks of entering AD at the age of 47 and with a DOR that would render her eligible for promotion sooner than her peers. She was also counseled on things she needed to make her competitive for an AD promotion. It seems the applicant viewed entering AD as a career move and not a 36 month tour with a return to the Reserves. The applicant was considered for promotion to Lt Col in the Nurse Corps from 2007-2012, but was not selected by any of these selection boards. As a result of the FY 05 NDAA, she transitioned to Regular status on 27 Apr 06. There was no provision in the law or the implementing DOD guidance for an officer who was eligible to decline this appointment. As a Regular officer on the ADL, the applicant met the AD Lt Col (0-5) promotion boards beginning in 2007; she was not eligible for any Reserve promotion boards. The applicant in an effort to extend her DOS to complete a voluntary PCS Short Tour completed a SPTC, however, it was determined to be unnecessary due to her Regular status on 6 Sep 06. Counsel’s contention that the applicant’s not being permitted to achieve CR status in the Reserve versus being converted to a Regular officer was erroneous and unfairly caused her to have to compete for promotion on AD rather than as she had planned on in the Reserve is faulty in law and is not supported by the facts in evidence. The applicant was a volunteer for career AD; she was not recalled pursuant to a LPRP or invoked sanctuary rights. The provisions of AFI 36-2008 cited by counsel did not apply to her, and CR status was no longer available to her as the law required her to be converted to Regular status before the expiration date of her AD tour and she had to be and was converted to Regular status before the 1 May 06 statutory deadline. It is unfair for the applicant to now argue that her meeting AD promotion boards unfairly denied her the opportunity for promotion. The applicant was warned and counseled on the promotion risks when she applied for AD. However, she elected to enter AD. Her voluntary acceptance of the overseas assignment and extension of her 2007 DOS contradicts her argument that she wanted CR status and not an AD career. The applicant made a knowing and conscious decision to pursue an AD career in the Air Force knowing the risks for promotion. The evidence does not support the applicant’s argument that she was planning for a non-AD Reserve career, and was unfairly thwarted by bad advice and improper application of the rules. The applicant has not proven a case of injustice. Injustice has been consistently defined by the courts as an action that "shocks the conscience." The applicant's chain of command did not fail her; she did not rely on faulty advice; she volunteered to extend her AD to serve overseas; and she is serving as an AD critical care nurse. The applicant’s present claim that she wanted CR status at the outset of her AD career is totally inconsistent with these facts and her stated AD career plans. She chose the course she took; she should not now be afforded the Reserve career she voluntarily abandoned and whatever promotion opportunities she now believes would go with it given her knowing decision to pursue an AD career as an Air Force critical care nurse. Finally, while not discussed in the other advisories, the applicant is not without an AD retirement opportunity. If she remains on AD until age 62 (or 68 if she meets the statutory requirement for a waiver), she will be retired pursuant to 10 USC 1251, notwithstanding that she will have not reached 20 years of AD service and would not be eligible for retirement pursuant to 10 USC 8911. Therefore, JA finds the applicant failed to establish any material error or injustice and her application should be denied. A complete copy of the AFPC/JA evaluation is at Exhibit G. ________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: The applicant submits an eight-page response in which she counters the advisory opinions point-by-point and indicates her agreement or disagreement. She states that while it was noted that her DOS was changed to 2019, the change did not occur until after Aug 08 and then only after her previous DOS was changed three times. She further contends that the advisory opinions failed to mention the reasons for the varying changes to her DOS that occurred prior and it was never addressed why her DOS was changed four times. She contends that having a DOS that reflected minimal years of service for retention negatively impacted the promotion board’s decision evidenced by her non-selection for promotion and, even more important, negatively influenced the promotion recommendation from her senior rater. She was considered a Reservist by all management levels, including AFPC. Her records did not reflect a service component. She was erroneously informed that she must sign a SPTC to obtain retention beyond her 36-month AD contract to complete a PCS. She was wrongfully advised by all management levels and AFPC. The advisory writer indicated her submission of a specified period of time contract (SPTC) was not required because she had already been converted to Regular status, however, this was accomplished without any notice that the conversion had occurred and without an assignment of a DOS confirming the appointment to Regular status. She completed the SPTC because she was told that she was a Reservist without career status that she must extend her DOS to obtain retainability for the purpose of a permanent change of station (PCS). She signed the contract believing she was satisfying the mandatory retention requirements for a PCS. She was also concerned with protecting her career and had she not signed the contract she would have been subjected to being separated due to failing to obtain the retainability required to complete a PCS. She believed extending her DOS and obtaining CR status, would provide her the retainability she needed for promotion consideration as a career Reservist while assuring her return to full time Reserve duty after completing her EAD tour. She planned and accomplished her promotion goals based on that of a Reserve career officer. She completed her graduate degree and Air Command and Staff College (ACSC) right on target with Reserve promotion. She further contends that while the law is law, her mandatory conversion to the Regular AF is not only flawed and unfair, but is prejudicial. Her opportunity to leave AD as a Reservist on EAD and to resume her full time Reserve status after completing her EAD tour has been grossly affected. Also, the conversion to a Regular officer will likely subject her to incurring an Active Duty Service Commitment (ADSC) for a PCS, Tuition Assistance, Education and promotion. She believed she was a Reservist on EAD, who would be able to continue her career in the Reserve. She tried to preserve that entitlement and sought to obtain CR status for promotion and career progression purposes as a Reservist, while simultaneously satisfying her AD retention requirement to complete a PCS movement. While the advisory noted she received proper and fair consideration for promotion, she believes there are not any AD commanders who would award a definitely promote recommendation to an individual whose record lacked career status, nonselections for promotion, intermediate PME, graduate degree, with a history as a Reserve member competing for promotion on AD with other Regular AF officers who are many years her junior by service time, DOR, total service and age. The XXX Fighter Wing (FW) Inspector General's letter affirms she has been subjected to malicious and prejudicial treatment by officials in her leadership chain. Reservists on AD who were converted to Regular AF status had no alternative other than to allow the law to prevail in order to preserve their individual military careers and vested retirement interests with little or no possibilities for promotion. She is a victim of circumstances, numerous wrongful advisements, and an unfair and faulty law, and therefore, appeals to the Board to approve her request by promoting her to the grade of O-5. The applicant’s complete response, with attachment, 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. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We took notice of the applicant’s complete submission, to include the rebuttal response, in judging the merits of the case. The applicant contends she was a Reserve officer on extended active duty (EAD) who was involuntarily converted to Regular status and this conversion prohibited her from maintaining her status as a career Reservist (CR). We note the applicant entered active duty as an officer with a Reserve commission and was transitioned to Regular status in accordance with the provisions of the Fiscal Year 2005 National Defense Authorization Act which required all services to transition all active duty officers with a Reserve commission to Regular status. The applicant alleges she was misadvised on how to obtain CR status, however she has not provided any evidence to support she was not properly counseled. We note the applicant entered active duty at the age of 47 and was counseled on the risks for promotion and retirement for a member entering active duty at such a late age. There is no evidence found or provided that indicates the applicant was not properly considered for promotion by the promotion boards. The applicant alleges that other corrections board granted relief when the individual relied on faulty information from the Air Force. However, other than her own assertions, she has not presented any evidence that would convince us she was treated differently than other similarly situated officers. Further, the applicant contends the IG investigation, FRNO 2013-07242, finding that she was victim of malicious and prejudicial treatment by individuals in her rating chain validates her claims for promotion and retirement. However, we note, based on the finding of reprisal under the Whistleblower Protection Act (10 USC 1034); the applicant has been afforded corrective action in the form of retroactive payment of Legacy Incentive Specialty Pay (ISP) for the period 2012 and 2013 from a separate Board. Therefore, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice other than what has been resolved under the provisions of the Whistleblower Protection Act. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 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 issue(s) involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-00051 in Executive Session on 19 May 15, under the provisions of AFI 36-2603: , Panel Chair , Member , Member Although, chaired the panel, in view of his unavailability, due to retirement, has signed as Acting Panel Chair. The following documentary evidence pertaining to AFBCMR Docket Number BC-2010- 00051 was considered: Exhibit A. DD Forms 149, dated 4 Jan 10, w/atchs and 22 Jun 13, w/atchs. Exhibit B. Applicant's Master Personnel Records Exhibit C. Letter, AFPC/DPAMN, dated 8 Jun 10, w/atchs. Exhibit D. Letter, SAF/MRBR, dated 6 Aug 10. Exhibit E. Letter, AFBCMR, dated 30 Aug 10. Exhibit F. Letter, AFPC/DPSOO, dated 8 Oct 13. Exhibit G. Letter, AFPC/JA, dated 6 Nov 13. Exhibit H. Letter, SAF/MRBR, dated 6 Dec 13. Exhibit I. Letter, Applicant, dated 19 Dec 13. Exhibit J. Letter, AFBCMR, dated 20 Feb 14. Exhibit K. Letter, Applicant, 27 Jan 14.