RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-03570 COUNSEL: NONE HEARING DESIRED: NO __________________________________________________________________ APPLICANT REQUESTS THAT: His rank of major (O-4) be restored with the original promotion date of 19 June 1995. __________________________________________________________________ APPLICANT CONTENDS THAT: His promotion effective 19 June 1995 to the grade of major, was unjustly rescinded by Headquarters Air Reserve Personnel Center (HQ ARPC) when they published an Air Force Form 973, Request and Authorization for Change of Administrative Orders, dated 29 November 2010. He returned to active duty as a major via the Rated Officer Limited Period Recall Program on 5 October 2009 for a three-year tour of duty as an Air Liaison Officer/Fighter Duty Officer. He was paid as a major from 5 October 2009 to 18 June 2011. The military pay office notified him on 19 July 2011 that he would be demoted to captain and that he would have to pay back $27,602.52 due to overpayment of Basic Housing Allowance (BAH) and Base Pay from 5 October 2009 to 31 July 2010. HQ ARPC indicated the reason for this action was that he was placed in the Inactive Status List Reserve Section (ISLRS) on 21 May 1995 which was less than a month prior to his promotion to major (presumably after his promotion board met). He would not have applied to return to active duty under the Limited Recall Program at the rank of captain and the age of 55 years old. His demotion to captain (O-3) is a breach of his active duty Air Force contract and is causing him to suffer reclamation of pay totaling $27,602.52, reduction of future pay, loss of current leadership responsibilities, and future opportunities to serve as a Field Grade Officer. In support of his appeal, the applicant provides copies of his recall to active duty documents, promotion documents, AF Form 973, Statement of Service, notification of indebtedness, Leave and Earning Statement, performance reports, award documents, and personnel information documents. The applicant’s complete submission, with attachments, is at Exhibit A. __________________________________________________________________ STATEMENT OF FACTS: The applicant is currently serving on extended active duty under the Limited Recall Program in the grade of captain. On 6 June 1995, HQ ARPC published a promotion order, which projected the applicant’s promotion to the grade of major with a 15 June 1995 date of rank (DOR). On 5 June 1995, HQ ARPC published an assignment order, retroactively assigning him to ISLRS effective 21 May 1995. After the applicant’s recall to active duty under the Limited Recall Program, his records were audited prior to being considered for promotion. As a result, an AF Form 973 was issued to rescind his June 1995 promotion to major, based on his assignment to ISLRS prior to the effective date of promotion. As a result, the applicant incurred a debt for overpayment as a major rather than as a captain for the period 5 October 2009 to 31 July 2010. __________________________________________________________________ AIR FORCE EVALUATIONS: ARPC/DPB recommends denial. DPB states Title 10 United States Code (USC), Section 8378, Chapter 837, of the Reserve Officer Personnel Act of 1954 (Repealed) (Attachment 3) and Section 14317 of the Reserve Officer Personnel Management Act (1996) indicates an officer, selected for promotion, is not eligible to receive promotion if the officer is removed from an active status, until he is again recommended for promotion by a selection board. Title 10 USC, Section 101, defines active status and any status in the Reserve other than the Inactive National Guard, the Retired Reserve, or an Inactive Status List. The applicant’s assignment to ISLRS, effective 21 May 1995, voided his promotion to major. When the applicant obtained his Limited Period Recall tour, assigning him from ISLRS to active duty, the office at the Air Force Personnel Center, responsible for the assignment, was apparently unaware that the applicant’s promotion to major was statutorily voided by his assignment to ISLRS. The applicant’s orders were incorrect as he could not be called to a Limited Period Recall Tour as a major because he was a captain. Had he been assigned to a Reserve program rather than an active duty program following his ISLRS assignment, his grade and DOR would have been verified and updated in the Military Personnel Data System prior to the new assignment’s consummation. He would have correctly had his grade and DOR adjusted to reflect the statutory requirements. While Limited Period Recall officers are active duty assets and all personnel actions are handled through active duty, Limited Period Recall officers are considered for Reserve promotion. Prior to a Limited Period Recall officer’s promotion cycle, their records are audited for accuracy, to insure the officer’s record is identified for the correct promotion board. The applicant’s record was audited approximately two months prior to the promotion cycle. At this time, his grade and DOR were adjusted based on his time spent in ISLRS. As a result, his grade was adjusted to captain with a DOR of 3 November 1999. DPB indicates that based on the applicant’s adjusted DOR, he was eligible for promotion to the grade of major during the Calendar Year 2011 (CY11) promotion cycle and will be eligible for the CY12 Reserve promotion cycle. As he was not correctly identified for the CY11 cycle, ARPC/DPB will grant him Special Selection Board (SSB) consideration. The complete DPB evaluation, with attachments, is at Exhibit B. __________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 16 December 2011, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days (Exhibit C). As of this date, this office has received no response. __________________________________________________________________ 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 injustice to warrant partial relief. After a thorough review of the evidence presented, it appears the applicant faithfully entered into his 3-year period of active duty under the Rated Officer Limited Recall Program. While the applicant was erroneously paid in the grade of major for the period 5 October 2009 to 31 July 2010, we find no evidence that he contributed to this error or that he attempted to defraud the government. We note it took almost three years for the Air Force to discover their error and we believe to hold the applicant accountable for this error would constitute an injustice. Accordingly, we recommend the applicant’s record be corrected as indicated below. With regard to the applicant’s request that his rank of major be restored, while we note AFPC erroneously recalled him to active duty in the grade of major, we believe the applicant should have been aware that he had not pinned-on his promotion to major before separating from service. Therefore, we find no basis to recommend granting his request to restore his rank of major. However, due to his records being administratively corrected to reflect his grade of captain, his record will be considered by SSB for the CY11 Reserve Major Promotion Board. _________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that he requested remission of his debt in the amount of $27,602.52, incurred as a result of being overpaid in the grade of major for the period 9 October 2009 to 18 June 2011; and, his request was approved by competent authority. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-03570 in Executive Session on 27 March 2012, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence for AFBCMR Docket Number BC-2011- 03570 was considered: Exhibit A. DD Form 149, dated 26 Jul 11, with atchs. Exhibit B. Letter, ARPC/DPB, dated 6 Dec 11, w/atchs. Exhibit C. Letter, SAF/MRBR, dated 16 Dec 11.