RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-04205 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: He be appointed to the grade of Lieutenant Colonel (Lt Col). ________________________________________________________________ APPLICANT CONTENDS THAT: After separating from the Air Force Medical Service in Jul 2010, he agreed to return to active duty only after being promised by the Air Force Recruiting Service (AFRS) that he would re-enter at the grade of Lt Col. However, the Air Force has since refused to appoint him as a Lt Col offering only a confusing and often contradictory rationale. After repeated, unsuccessful attempts to rectify this broken promise, he is forced to ask the Board to intervene on his behalf. It is important to point out that the magnitude of errors committed by the Air Force Personnel Center (AFPC) and AFRS have had real and drastic consequences for him, his family, and his unit. He was not afforded the fair opportunity to make a decision with full disclosure and transparency due to either falsehoods or omissions under which he was recruited. Some specific examples include, but are not limited to: a. Leaving a lucrative civilian medical practice, including declining a significant annual pay increase, based on the assurance that he would receive the salary and benefits of a Lt Col. b. Declining a clinical position close to his family in order to pursue a Lt Col rank-appropriate position as Chief of Medical Staff. c. Being unable to assume the role of deputy group commander desired by his commander due to the rank inversion this has created within the organization. He is disappointed knowing that he has satisfied his terms of the agreement, yet the Air Force has not done the same. He had no reason to doubt his nomination to Lt Col was accurate, and made significant life decisions based on that information. As a result, he earnestly and respectfully requests that the Air Force carry through on his appointment to Lt Col. In support of his request the applicant provides copies of memorandums for the Board, a Reaccession Timeline, Presidential Nomination and Congressional Confirmation, a statement from AFRS, Commissioning Statement of Understanding, and electronic communiqués. The applicant's complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant is currently serving in the Regular Air Force in the grade of major. On 2 Aug 2011, the 112th Congress of the United States confirmed his appointment to Lt Col. The remaining relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letter prepared by the appropriate office of the Air Force at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: HQ AFPC/DPAM recommends denial. DPAM states the applicant only earned enough credit to be a major. In Dec 2010, the Air Force Recruiting Service (AFRS) nominated him for appointment as a major in anticipation of accessing in Jun 2011. In Mar 2011, AFPC determined he earned enough credit to appoint as a Lt Col, and AFRS nominated him for appointment as a Lt Col. In Jul 2011, his Lt Col appointment was pending confirmation, and AFRS commissioned him as a major. He signed a statement he would access as a major and transfer to the grade of Lt Col upon confirmation. In Jul 2011, extended active duty (EAD) orders were published accessing him to active duty as a major based on his appointment confirmation. In Aug 2011, his appointment to Lt Col was confirmed. At this time, AFPC identified an error that occurred in Mar 2011, when his credit was computed. He was given three years credit for his residency training that overlapped with the military service time he already received credit for. This error awarded him a total of 17 years, 1 month and 28 days of credit instead of the 14 years, 18 days credit authorized. He was informed the senate confirmation as a Lt Col was without effect since he needed a total of 16 years credit to be accessed as a Lt Col according to AFI 36-2005, Appointment in Commissioned Grades and Designation and Assignment in Professional Categories - Reserve of the Air Force and United States Air Force. In Aug 2011, he told DPAM he was misinformed by his recruiter that he could not reaccess back to active duty earlier than one year from his date of separation. DPAM informed him according to AFI 36-2604, Officer Promotion, Continuation and Selective Early Removal in the Reserve of the Air Force, he was authorized to return to active duty with the same grade (major) and DOR held when he separated from active duty in Jul 2010, as long as he returned within one year of that date. DPAM recommended he contact his recruiter for a statement that he was miscounseled on the policy and then submit a request to the Air Force Board for Correction of Military Records (AFBCMR). According to the recruiter’s memorandum he agreed he misinformed him on the policy. If his recruiter would have applied AFI 36-2604, paragraph 7.7. and ensured he reaccessed back to active duty prior to 20 Jul 2011, he would have been accessed with the same grade and DOR he held when he previously separated from active duty. Since he did not enter EAD until 31 Jul 2011, his record had to be computed to determine his appointment grade The complete DPAM evaluation, with attachments, is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 9 Dec 2011, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D). ________________________________________________________________ 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 to warrant partial relief. In this respect, we note the applicant has established by a preponderance of the evidence that he signed a statement that he would access as a major and transfer to the grade of Lt Col upon confirmation. Subsequently the appointment to the grade of Lt Col was confirmed; however administrative errors discovered after he entered his contract caused the senate confirmation to be without effect. While the applicant only earned enough credit to be accessed as a major, it is obvious that he was misled into believing he would transfer to the grade of Lt Col upon confirmation. However, there is no provision in law to allow us to appoint him in the grade of Lt Col. Nonetheless, it appears the applicant relied on the information provided to him to his detriment and impacted his ability to make an informed decision in the best interest of he and his family. In view of the above and as an exception to policy, we believe waiving the 6-month EAD requirement and recommending he be considered for promotion by SSB to the grade of Lt Col is the appropriate remedy and constitutes full and fitting relief. In arriving at our decision, we are keenly aware that the courts have held that corrections boards have an abiding sanction to determine, insofar as possible, the true nature and fitting relief. Therefore, in the interest of justice, we recommend his records be corrected as indicated below ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that as an exception to policy, the 6-month Extended Active Duty (EAD) requirement is waived and that he meet a Special Selection Board (SSB) for the CY11A Lieutenant Colonel Medical Corps (MC) Central Selection Board as an in-the-promotion zone (IPZ) eligible. ________________________________________________________________ The following members of the Board considered this application in Executive Session on 22 May 2012, 15 Oct 2012, and 28 Nov 2012, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence was considered in AFBCMR BC-2011- 04205: Exhibit A. DD Form 149, dated 24 Oct 11, w/atchs. Exhibit B. Letter, HQ AFPC/DPAM, dated 30 Nov 2011, w/atchs. Exhibit C. Letter, SAF/MRBR, dated 9 Dec 2011.