RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-02768 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His 2007-2008 non-selections to the grade of master sergeant (MSgt/E-7) be set aside and he be reconsidered for promotion or retroactively promoted in a Federal Reserve capacity. 2. He be granted retired back pay and allowances. ________________________________________________________________ APPLICANT CONTENDS THAT: His former Air National Guard (ANG) unit commander reprised against him by non-recommending him for promotion. After being successful in reenlisting in the United States Air Force Reserve (USAFR), he subsequently transferred back to his former unit with sufficient retainability for promotion; however, he was still not recommended for promotion. He reenlisted in the USAFR for three years (as a Category-E Individual Mobilization Augmentee (IMA) drilling for points only), and even though he was assigned to the USAFR at Warner- Robins, he was attached to his former ANG unit; successfully retrained into the aeromedical specialist career field, and was eligible for promotion to MSgt under normal promotion consideration and the Deserving Airman Promotion Program (DAPP). He completed several tours of active duty in support of Operation NOBEL EAGLE and should have been promoted. In support of his appeal, the applicant provides a brief from counsel; copies of DD Forms 214, Certificate of Release or Discharge from Active Duty, issued in conjunction with his separation from active duty on 10 Oct 02, 4 Jun 03, 10 Mar 05, 30 Sep 07, 16 Mar 08, and 18 Jul 08 respectively and other supporting documents. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: Based on information from the applicant’s submission, he completed the following tours of active duty: 03 Jun 02 – 10 Oct 02 03 Mar 03 – 04 Jun 03 01 Nov 04 – 10 Mar 05 23 Apr 07 – 30 Sep 07 06 Nov 07 – 16 Mar 08 17 Mar 08 – 18 Jul 08 The applicant was mandatorily relieved as a member of the Air National Guard and Reserve of the Air Force, on 22 Jul 08, and placed on the USAF Retired List, at age 60, in the grade of technical sergeant. He was credited with 25 years, 3 months, and 6 days of service for basic pay, including 25 years and 10 days of service for retirement. ________________________________________________________________ THE AIR FORCE EVALUATION: NGB/A1PS concurs with the Subject Matter Expert's (SME) opinion and recommends denial of relief stating they did not find the evidence substantiated an error. They provide the following analysis of the case: 1) In 2004, the applicant was promoted to technical sergeant under the Deserving Airman Promotion Program (DAPP). This program is one of many tools squadron commanders could employ to effectively manage the force structure and composition of their units. One of the provisions of the DAPP is that it allows a commander to promote someone they deem worthy of promotion while still occupying a position in a lower grade, on a temporary basis. As highlighted in his application, the unit commander counseled him on his options with regard to his future service in the Air Force. Since he would be retirement eligible at the end of the period of enlistment that coincided with his promotion, the commander informed him, if he wanted to remain in the Air Force, he would have to find another unit with which to serve because he did not intend to retain him beyond his Expiration Term of Service (ETS). 2) The applicant actively sought and obtained a position with the Air Force Reserve prior to his ETS in 2005. He was subsequently attached to his former Guard unit in 2007 for the purposes of gaining credit for satisfactory service. During this period, he requested the opportunity to be considered for promotion but was not recommended by his commander. The commander’s reasons for not recommending him were she believed he did not have enough "effective leadership or management skills" and had no "proven ability to develop subordinate personnel." In accordance with the governing directive, The Enlisted Force Structure, "MSgts are transitioning from being technical experts and first line supervisors to leaders of operational competence skilled at merging subordinates' talents, skills, and resources with other teams' functions to most effectively accomplish the mission. This rank carries significantly increased responsibilities and requires a broad technical and managerial perspective.” It was her opinion that he did not display these qualities. However, since he was a member of the USAFR, the unit commander of the unit he was assigned to could have gone against her recommendation and promoted him. Since it is neither their desire nor function to second-guess a unit commander and the applicant did not provide any evidence of the reprisal he alleges, they found no injustice and do not recommend relief be granted. The complete NGB/A1PS evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: In regard to his contention that he was reprised against, he notes: 1) In 2007, he transferred back to his ANG unit and was no longer attached to the USAFR. His deployments in 2007 and 2008, originated with his ANG unit. Accordingly, his temporary duty (TDY) commanders were without authority to promote him. 2) His unit commander took him back on the basis that he would deploy and not be at the unit. He was advised that a MSgt unit vacancy position was unfilled. However, even though he was being deployed in positions (security forces) that were not one of his Air Force specialties, he was not recommended for promotion based on his lack of demonstrated leadership and management skills “needed…[for] mission requirements” within the squadron. Consequently, none of his deployed duties were promotion-qualifying. In his initial request, he points out that according to Air Force instructions, ANG commanders are charged with minimum standards of due care to make “every effort to reassign qualified overage members to vacant positions…make every effort to fill vacant positions with qualified…personnel in the grade authorized.” The injustice is plain, his commander could not fairly complain that he failed to show leadership at the 7-skill level in his specialty, that the unit “needed,” and withheld promotion qualifying opportunities. The complete response from counsel, 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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice in regard to the applicant’s claim of reprisal and opportunity for promotion to MSgt. We note the applicant alleges whistleblower retaliation in violation of Title 10 USC 1034 from his superiors. However, based upon our own independent review of the available evidence, the applicant has not established the nonrecommendation for promotion by his superiors was an act of reprisal. The available evidence of record and the applicant’s own statements reflect the reasons the commander nonrecommended him for promotion to the grade of MSgt and we did not find the documentation provided sufficient to determine his claim of reprisal. We further note there is no evidence the applicant filed a complaint of reprisal with the IG nor did we find the applicant made a protected communication prior to the nonrecommendation for promotion. As noted by the applicant and counsel the TDY commanders were without authority to promote him. However, since he was a member of the Air Force Reserve, the squadron commander of the unit he was assigned to (not the TDY commander) could have recommended him for promotion. Additionally, we find no basis to overturn their decisions in this matter or to direct further investigation. We note that given the presumption of regularity in the operation of governmental affairs and in the absence of corroborative documentary evidence establishing impropriety, it is presumed that officers of the government, like other public officials, discharge their duties correctly, lawfully, and in good faith. The applicant has not provided sufficient evidence to overcome this presumption. We further note in his declaration statement and response that the applicant believes he was not given sufficient credit for retirement and believes the record does not reflect his 25 years of satisfactory service. However, his retirement order reflects he was credited with over 25 years of service under Title 10 USC 12732 for basic pay. For a complete evaluation of the applicant’s retired pay, we recommend he contact the Air Reserve Personnel Center or the Defense Accounting and Finance Services. In view of the above and in the absence of evidence to the contrary, we find no basis upon which to recommend granting the relief sought in this application. 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-2011-02768 in Executive Session on 1 May 2012, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 2 Aug 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, NGB/A1PS, dated 4 Oct 11, w/atch. Exhibit D. Letter, SAF/MRBR, dated 28 Oct 11. Exhibit E. Letter, Counsel, dated 28 Nov 11, w/atchs. Panel Chair