RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-05226 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His removal from the 2007 A508A Reserve Officer Personnel Management Act (ROPMA) O-5 selection list be expunged and “selected” be entered in his record. 2. He be reinstated into a flying billet in the Air National Guard (ANG) or Air Force Reserve (AFR) in an available 11FXX Air Force Specialty Code (AFSC). 3. His mandatory separation date (MSD) be adjusted to 1 November 2014. 4. He receive payment of the Aviation Career Incentive Pay (ACIP)[sic] recouped by the Defense Finance and Accounting System (DFAS). ________________________________________________________________ APPLICANT CONTENDS THAT: 1. His appeal relates to a Class-A mishap that happened on 15 May 2007, while he was a member of the New Jersey ANG. He was the Range Control Officer (RCO) at a bombing range where an F-16 dispensed flares below minimum flare dispense altitude. The flares ignited a fire which spread rapidly. The Class-A threshold was exceeded and the Air Force convened an accident investigation board (AIB) and a safety investigation board (SIB). The AIB concluded that the cause of the mishap was pilot error by the Mishap Pilot (MP) who deployed flares that impacted the Warren Grove Range and ignited a fire, which spread beyond the boundaries. Substantially contributing to this mishap were the failure of the Lead Pilot (LP) to communicate with the MP concerning the MP's intended use of flares and to properly coordinate the MP's intent to use flares during the flight on the range coordination sheet, the RCO's failure to convey additional restrictions on flare use at the WGR, the MP's lack of information concerning additional restrictions on flare use at the WGR, and the unplanned show of force maneuver flown by the MP and requested by the RCO. 2. His initiating commander made a recommendation to delay- with-intent-to-remove his name from the 2007 A508A ROPMA selection list. In order to convince his chain of command that he was fit to assume the duties of the next higher grade, he submitted a response within the suspense provided, however, the initiating commander sent his intent to remove through the chain where it was received and endorsed even before receiving his response. Additionally, there was no legal review. He was unaware of these actions until he received evidence through a Freedom of Information Act (FOIA) package on 31 Oct 2009. 3. He was subsequently removed from flying status without consideration by a Flying Evaluation Board (FEB). There were no reviews of his flight record, check rides or training folders. If any reviews were conducted he was not given an opportunity to present his case. He was assigned a non-flying AFSC without his consent or prior consultation. His Aviation Service Code was changed from 3A (active) to 3J (inactive restricted) and he was told to report to the Logistics Squadron. 4. In 2008, he resigned from the NJANG thereby resigning an AGR position, in sanctuary status, and transferred as a traditional guardsman to the Idaho ANG (IDANG). During this time, he completed an active duty for work (ADSW) tour with the National Guard Bureau. This was followed, with no break, by a deployment to the AOR. Except for a two week period, necessitated by the transition from the NJANG to the IDANG, he served continuously on active duty. These assignments took him through to 20 years of active duty service. In May 2008, while he was a member of the IDANG, he filed two Inspector General (IG) complaints through the HQ USAF IG. The complaints were for his removal from the 2007 A508A ROPMA selection list and flying status. HQ USAF IG referred the complaints to the New Jersey ANG IG who concluded that the complaints were not justified. 5. In May 2009 he received an electronic Leave and Earnings Statement indicating a debt collection for ACP. The debt was to be collected by means of an involuntary allotment. He was told DFAS could not repay the involuntary allotment without the commander’s determination that the debt was unfair. It seemed a fruitless quest to get the very same commander who ordered actions leading to his ineligibility for ACP to conclude that DFAS’ action to recoup it was unfair, so he chose to seek relief through the AFBCMR. 6. In 2009 during discussions with the Air Reserve Personnel Center (ARPC) they discovered an error of a break-in-service in his record. This error made him eligible for a Special Selection Board (SSB) for the 1998 O-4 Board. The NJANG erroneously gave him a 7-day break-in-service when he was accessed into the unit. The discovery of that error resulted in his being considered by a SSB that changed his O-4 date of rank from 1 Oct 2000 to 1 Oct 1999. This action triggered an O-5 SSB in the spring of 2012. He was selected and as a result, his O- 5 date of rank changed from 1 Oct 2009 to 1 Oct 2006. He is currently working the back pay issue with DFAS and no BCMR relief is requested. While he was pleased to be promoted as of 2006, his promotion could be perceived as an insult, at the time, to senior New Jersey National Guard officers. He is concerned about actions the New Jersey National Guard might take to interfere with his 2006 promotion. 7. Regarding his Mandatory Separation Date of 1 Jun 2012. He does not even meet minimum Time-in-Grade requirements for O-6 selection, prior to his mandatory retirement. The entirety of his career; Bronze Star as an O-4; repeatedly stratified as number 1 as an O-5,etc., hopefully demonstrates that he has the potential to be a fine O-6. But he does not have an opportunity to even compete, due to his removal from the A0507A ROPMA O-5 list and other factors. He hopes the Board will consider that should the removal from the A0507A ROPMA O-5 list was unjust, the resulting fallout of his being unable to even compete for O- 6 is also unjust. In support of his request the applicant submitted a personal statement, copies of the F-16 Mishap Report, administrative action memoranda and documents extracted from his Military Personnel Record (MPR). The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: According to documents extracted from his Military Personnel Record, the applicant is a former Air National Guard commissioned officer who is assigned to the Retired Reserve section awaiting pay at age 60, (24 February 2016). The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force at Exhibit C through G. ________________________________________________________________ AIR FORCE EVALUATION: 1. NGB/A1PO does not provide a recommendation but states that the applicant’s removal from the fiscal Year (FY) 2008 promotion list was processed correctly by the National Guard Bureau and resulted in the Secretary of the Air Force’s approval of the action. The action required legal reviews and therefore, they believe the process was accomplished properly and the removal should stand as an action that was part of the applicant’s record. 2. A1PO further states, action from the February 2012 SSB promoted the applicant to the grade of Lieutenant Colonel with an effective date prior to his removal from the FY 2008 promotion list. Therefore, his promotion history indicates he was selected for promotion in 2006 which effectively voids the action of his removal from the FY 2008 promotion list. The complete NGB/A1PO evaluation is at Exhibit C. NGB/A1PP recommends denial of the applicant’s request to extend his MSD. A1PP states the applicant’s promotion issue was resolved prior to his retirement, based on his total federal commissioned service date (TFCSD) of 30 May 1984. Per 10 U.S.C. § 14507(a), the MSDs are established based on the member’s grade and 28 years from the TSFCD. Therefore, the applicant’s MSD was established as 1 June 2012. There is no basis in accordance with 10 U.S.C. for the applicant’s MSD to be extended to 1 November 2014. The complete NGB/A1PP evaluation is at Exhibit D. NGB/A1PF does not provide a recommendation but states that upon review of the applicant’s debt generated against his Aviator Continuation Pay agreement, they have concluded that, as it currently stands, the debt is valid. They determined that the debt was valid because the applicant resigned his AGR tour and thereafter his records do not show full time duty. Through policy and statute, the ACP program was designed only for members on full-time duty. The applicant separated from full time duty and became a Drill Status Guardsman (DSG) and only worked part-time, therefore, he was no longer entitled to ACP and the unearned portion of the payment he received should have been recouped. The complete NGB/A1PF evaluation is at Exhibit E. NGB/A1P states they concur with the subject matter experts (SMEs) advisories and recommend denial of relief based on the governing directives. Additionally, the applicant has not provided supporting documentation to establish a basis to extend his MSD or show that he was treated in an unjust manner with respect to his promotion and repayment of ACP. The complete NGB/A1P evaluation is at Exhibit F. NGB/A3OS recommends denial of the applicant’s request to be reinstated into a flying billet. A3OS states the applicant has not provide any supporting documentation such as flying records, training reports, or record of flight physicals for their review. The complete NGB/A3OS evaluation is at Exhibit G. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 1. In his response, the applicant states that he respectfully contends that NGB/A30S's advisory opinion does not explain, support or justify his removal from flying without an FEB, evaluation letter from command authority expressing a loss of confidence in his flying abilities, no-notice check ride, review of his records, or any other command or administrative reason or rationale of any type. In total, NGB/A30S does not provide any information on how his removal from flying was a proper and just action. Therefore, he respectfully asserts that NGB/A30S does not dispute his contention that he was removed from flying in an erroneous and unjust manner. 2. The applicant further states NGB/AlPO asserts that just prior to his mandatory retirement, he was promoted by a Special Selection Board for 2006. This SSB promotion voids the action of his promotion removal from the FY 2008 list. He respectfully states that this is completely irrelevant to what is right, and just. The 2007 promotion removal had consequences, such as his resignation from his AGR position and the ACP debt which were not resolved by an earlier promotion effective date that happened just before he retired. He challenges that NGB/A1PF does not dispute, that it was the NJANG who broke the spirit of the ACP agreement by: a. removing him from flying. b. assigning him to the Logistics AFSC with no intention of career-broadening. c. informing him that there was no chance for redemption in the NJANG. d. informing him that he would be retired, as an O-4, as soon as he had 20 years of service. He states that in fact, he was the one who maintained the ACP, in spirit and in effect, by finding positions wherein his experience as a combat aviator could be leveraged to provide value to the Air Force and to the nation. 3. Regarding his MSD; he argues that, due to his removal from the A0507A ROPMA 0-5 selection list, and the failure of the NJANG to provide a PRF for the subsequent board in 2008, he effectively had no opportunity to compete for promotion to 0-6. The applicant’s complete response 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 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. We took careful notice of the applicant’s complete submission in support of his requests and the evidence of record in judging the merits of the case and believe that the applicant did not submit sufficient evidence to overcome the presumption of regularity concerning his removal from flying. The applicant’s contentions are duly noted; however, we agree with the opinions and the recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Therefore, in the absence of persuasive evidence to the contrary, we find no basis 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 that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that 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 this application in Executive Session on 22 August 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in AFBCMR Docket Number BC-2012-05226: Exhibit A. DD Form 149, dated 25 Oct 2012, w/atchs. Exhibit C. Letter, NGB/A1PO, dated 27 Nov 2012, w/atchs. Exhibit D. Letter, NGB/A1PP, dated 14 Dec 2012, w/atch. Exhibit E. Letter, NGB/A1PF, dated 28 Dec 2012. Exhibit F. Letter, NGB/A1P, dated 28 Dec 2012, w/atch. Exhibit G. Letter, NGB/A3OS, dated 23 Jan 2013. Exhibit H. Letter, SAF/MRBR, dated 3 Feb 2013. Exhibit I. Letter, Applicant, dated 15 Mar 2013, w/atchs.