RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-01548 COUNSEL: HEARING DESIRED: YES APPLICANT REQUESTS THAT: Her Date of Separation (DOS) be changed to allow for early retirement under the Temporary Early Retirement Authority (TERA). In the alternative, she be reinstated to active duty under the selective continuation of twice deferred officers within 6 years of retirement until eligible for retirement with credit for time served as a federal employee for the Department of Veterans Affairs (DVA). APPLICANT CONTENDS THAT: In November 2010, the CY10C Lieutenant Colonel (Lt Col) Biomedical Service Corps (BSC) Central Selection Board (CSB) and the CYl0C Major BSC Selective Continuation Board convened. She was among the 24 twice deferred officers that the selective continuation board chose to continue. Despite the continuation board’s decision, she was involuntarily discharged from active duty on 31 August 2011 and was not allowed to retire. The decision was unlawful and unjust based on 10 U.S.C. § 637(a)(1), DODI 1320.08, Continuation of Commissioned Officers on Active Duty and on the Reserve Active Status List, and the Secretary of the Air Force (SECAF) Memorandum of Instructions (MOI) given to the board. In Accordance With (IAW) AFI 36- 2501, Officer Promotions and Selective Continuation, officers in the grade of major (O-4) who will qualify for retirement within 6 years of the date of the continuation board shall normally be continued. Per 10 U.S.C. § 637(a)(1), officers subject to discharge or retirement may be continued on active duty if selected for continuation by a selection board convened under 10 U.S.C. § 611(b). The SECAF MOI for the CY10C Major Biomedical Service Corps (BSC) Selective Continuation Board is in contrast to the instructions for the CY11A Major Line of the Air Force (LAF), Medical Service Corps (MSC) and Nurse Corps (NC) and Captain LAF and NC Selective Continuation Board. As opposed to the BSC selective continuation board in which the SECAF determined eligibility criteria for selective continuation for officers by specifically guiding the board to continue officers who would qualify for retirement within five years of the date of continuation and those with critical skills. As directed by the SECAF’s MOI, the board chose to selectively continue 100 percent of the eligible twice-deferred officers. The board’s decision was disapproved by the SECAF based on the needs of the Air Force to lower its officer end strength. The law does not authorize the SECAF to alter board results based on the needs of the Air Force to lower officer strength. The board did not act contrary to law, regulation or guidelines and therefore, their report should have been submitted per 10 U.S.C. § 14111. In a memorandum dated 6 December 2010, the SECAF notified the Undersecretary of Defense for Personnel and Readiness (USD P&R) of the decision to not selectively continue a large pool of twice-deferred officers in the grade of captain (O-3) and major who would otherwise qualify for retirement within 6 years of the date of continuation. The SECAF’s decision to not selectively continue the twice-deferred officers occurred after he received the CY10C Major BSC Selective Continuation Board results and is a modification/supplementation to the MOI given to the Board. IAW 10 U.S.C. § 14107(C), information or guidelines furnished to a selection board may not be modified, withdrawn or supplemented after the board submits its report to the Secretary of the Military Department concerned. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 9 April 1996, the applicant entered active duty. In a letter dated 9 March 2011, the Air Base Wing Commander (ABW/CC) notified the applicant she was not selected for promotion to the grade of Lt Col by the CY10C Lt Col BSC CSB. Because it was her second deferral for promotion to the grade of Lt Col, she was notified that the law required she be involuntarily separated no later than 31 August 2011. On 14 March 2011, the applicant acknowledged the notification. On 31 August 2011, the applicant was honorably discharged with a narrative reason for separation of “Nonselection, Permanent Promotion.” She was credited with 15 years, 4 months and 22 days of active duty service. On 6 February 2015, the applicant requested her case be administratively closed to allow more time to comment on the advisory opinions and submit additional evidence in support of her requests. The remaining relevant facts pertaining to this application are contained in the memorandums prepared by the Air Force Offices of Primary Responsibility (OPR), which are attached at Exhibits C thru E. AIR FORCE EVALUATION: AFPC/DPSOR recommends denial. The applicant has not documented any error or injustice. The TERA was not authorized under law at the time of her discharge and she did not have the required TAFMS at the time her discharge; therefore, she is not eligible for retirement. The law governing retirement of an officer IAW 10 U.S.C. § 8911, requires 20 years TAFMS and not less than 10 years Total Active Federal Commissioned Service (TAFCS). A complete copy of the AFPC/DPSOR evaluation is at Exhibit C. AFPC/DPSOO recommends denial. All actions taken by the SECAF were done IAW policy or law. In addition, there are no provisions in policy or law to retain the applicant until eligible to retire under TERA or at 20 years. TERA was not available for use by the SECAF until after the applicant separated from service; therefore, it was not a viable option. The applicant met the CY10C Lt Col BSC CSB Above-the-Promotion Zone (APZ) and was non-selected. It was her second non- selection and she was eligible to meet the CY10C Major Selective Continuation Board and was selected for continuation by the board. Although DODD 1320.08 states that officers within 6 years of retirement eligibility should be continued, it also states when the Secretary of the Military Department intends not to continue large pools of officers who would qualify for retirement within 6 years of retirement eligibility, the Secretary concerned shall notify the USD P&R. On 6 December 2010, in order to bring the Air Force within Congressionally mandated end-strength, the SECAF notified USD P&R of his intent to not continue large pools of twice deferred officers in the grades of captain and major who would otherwise qualify for retirement within 6 years of the date of continuation. Per 10 U.S.C. § 637(C), continuation of an officer on active duty under this section pursuant to the action of a selection board convened under 611(B) of this title is subject to the approval of the Secretary of the Military Department concerned. Although the applicant was selected for continuation by the board, on 15 December 2010, the SECAF chose to approve/disapprove the results of the continuation board in part. The SECAF chose to only continue one officer based on the officer holding a critical skill and not to continue the remaining 23 officers. The TERA was reinstated into law on 31 December 2011 through Public Law 112-81. It is a temporary force management tool used by the Service Secretary to target career fields with excess manning. The TERA allows members to retire with at least 15 but less than 20 years Total Active Federal Military Service (TAFMS). Since the TERA program is only available through SECAF approved force management programs, members do not have the option of applying for retirement under TERA outside the established parameters. Additionally, the law to reinstate the use of TERA was not effective until 31 December 2011, after the applicant was separated from service. The applicant has also referred to several statutes that are not applicable to her situation (10 U.S.C. § 14107, 14110 and 14111). These references apply to Reserve promotion boards and are not applicable to active duty promotion or continuation boards. A complete copy of the AFPC/DPSOO evaluation is at Exhibit D. AFPC/JA recommends denial and concurs with the recommendation of AFPC/DPSOO. The applicant did not qualify for TERA as there was no program in effect at the time she separated. Furthermore, because the applicant has failed to prove any error or injustice, there is no basis or authority to modify her DOS or to reinstate her to active duty. The applicant suggests the SECAF was effectively modifying the guidelines of her board IAW his new policy, in violation of the law. No one is contesting she met the criteria for continuation established by the SECAF some months prior to the continuation board; nor is anyone contesting she was selected for continuation by the board. Notwithstanding, however, the statute that governs continuation makes clear that a qualified person who meets and is selected by a board convened under 10 U.S.C § 611(b) “may, subject to the needs of the service” be continued on active duty per 10 U.S.C. § 637(a)(1). Thus, there is no requirement to continue a member selected by a board if the needs of the service do not warrant or support the continuation. This is reiterated in 10 U.S.C. 637(C), continuation of an officer on active duty under this section pursuant to an action of a selection board under section 611(b) of this title is subject to the approval of the Secretary of the Military Department concerned. Facing the possibility of exceeding statutorily imposed end strength ceilings constitutes an unusual and legitimate “need of the service” that would warrant disapproval of all or part of a board’s selection. Nothing in the DOD instruction or law contradicts or diminishes this authority. ? A complete copy of the AFPC/JA evaluation is at Exhibit E. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In a letter dated 1 July 2015, the applicant, through counsel, requested her case be re-opened and states the board which selected the applicant for continuation on active duty convened on 8 to 12 November 2010. Reference to DoD Instruction 1320.08 is appropriate and necessary for a proper decision in this case. DODI 1320.08, dated 14 March 2007, in effect at the time, paragraph 6.3 states when the Secretary of the Military Department concerned intends not to continue large pools of officers in the grade of major who would qualify for retirement within 6 years of the date of a continuation the Secretary shall notify USD (P&R) of the proposed action. AFI 36-2501, paragraph 7.1 to 7.3 states the SECAF determines when to hold a continuation board based on Air Force requirements, establishes continuation quotas, approves termination of continued officers (prior to expiration of term), approves continuation propriety actions and board reports. Paragraph 7.2 states, submit requests to HQ USAF/DPPP if continuation is desired based on “critical skill needs” prior to SECAF approval to hold a continuation board. The AFPC/JA advisory opinion ignores this language. It is clear that the needs of the service are determined before the continuation board meets, not after the board meets. The SECAF authorized the November 2010 selective continuation board without excluding any career field. Additionally, he made no mention prior to the board convening that he intended not to continue large pools of officers in the grade of major who would qualify for retirement within 6 years of the date of continuation. It was only after the board convened and issued its report that the SECAF issued the 6 December 2010 notification. DODI 1320.08, paragraph 6.3 and the context in which it is used also supports the applicant’s requests. The sentence in paragraph 6.3 which states “when the Secretary of the Military Department concerned intends not to continue large pools of officers in the grade of O-4” is in reference to a future event. The AFPC/DPSOO evaluation states that if the Board elects to grant relief to the applicant it could open the window for the other BSC officers not offered continuation and any other officer since then who was not offered continuation and involuntarily separated. This would include the 157 majors not retained by the CY11A Major Line Continuation board. The analogy to the 157 majors and any other officer not offered continuation in later boards is hollow. Their situation is entirely different from the applicant’s board which convened prior to the SECAF’s 6 December 2010 notification temporarily suspending selective continuation; the board involving the 157 majors convened after the 6 December 2010 notification. A favorable decision for the applicant will not set precedence nor have relevant bearing on the case of the 157. The applicant’s complete submission, with attachments 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, in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force OPRs and adopt the rationale expressed as the primary basis for our conclusion the applicant has not been the victim of an error of injustice. We note that counsel argues that the needs of the service are determined before continuation boards meet, not afterwards. However, as noted by AFPC/JA, the statute that governs continuation makes clear that a qualified person who meets and is selected by a board convened under 10 U.S.C § 611(b) “may, subject to the needs of the service” be continued on active duty per 10 U.S.C. § 637(a)(1). Thus, there is no requirement to continue a member selected by a board if the needs of the service do not warrant or support the continuation. Moreover, we are satisfied based on the explanation provided by AFPC (DPSOO and JA) that the SECAF had a reasonable basis to pursue the course of action he determined necessary and acted within the limits of his authority. The Board finds the applicant’s situation regrettable, however, does not find that an error has occurred or that circumstances of this case rise to the level of an injustice. Therefore, we find no basis to grant any of the relief requested in this appeal. 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 issues 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-2014-01548 in Executive Session on 3 September 2015 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 8 April 2014, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPSOR, dated 27 June 2014. Exhibit D. Memorandum, AFPC/DPSOO, dated 7 November 2014. Exhibit E. Memorandum, AFPC/JA, dated 10 December 2014. Exhibit F. Letter, SAF/MRBR, dated 23 January 2015. Exhibit G. Letter, Applicant, dated 6 February 2015. Exhibit H. Letter, AFBCMR, dated 26 February 2015. Exhibit I. Letter, Counsel, dated 1 July 2015, w/atchs