ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2014-01548-2

XXXXXXXXXXXX	COUNSEL: NONE	 

  	HEARING REQUESTED: NO

APPLICANT’S REQUEST

The Board reconsider her request she be reinstated on active duty and granted selective continuation for the CY10 Biomedical Science Corps (BSC) Major Selective Continuation Board; or in the alternative, she be granted special board (SB) consideration for the CY10 BSC Selective Continuation Board.  

The applicant also requests she be continued to 24 years in the rank of major (O-4) and be considered for a special selection board (SSB) for promotion to lieutenant colonel (O-5).  

RESUME OF THE CASE

The applicant is a former Air Force major (O-4).

On 31 Aug 11, the applicant was honorably discharged with a narrative reason for separation of “Non-Selection, Permanent Promotion.”  The applicant was credited with 15 years, 4 months and 22 days of active duty service.

On 3 Sep 15, the Board considered and denied her request her date of separation (DOS) be changed to allow retirement under the Temporary Early Retirement Authority (TERA); or in the alternative, she be reinstated to active duty under selective continuation.  The Board determined the Secretary of the Air Force (SecAF) had a reasonable basis to pursue the course of action he determined necessary and acted within the limits of his authority.  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.  Accordingly, there was no requirement to continue a member selected by the board if the needs of the service did not support continuation.  

For an accounting of the applicant’s original request and the rationale of the earlier decision, see the AFBCMR Letter and Record of Proceedings at Exhibit J. 

On 7 Apr 21, the applicant requested reconsideration for reinstatement on active duty, with selective continuation to 24 years, or SB consideration for selective continuation.  The applicant also requests she be considered by a SSB for promotion to lieutenant colonel.  With constructive service credit (CSC), she would have completed 24 years of active service on 9 Apr 20.  If selected for promotion to lieutenant colonel, she requests she be advised the earliest date she can retire at the rank before deciding if she consents to being restored to active duty.  

She was selected for continuation by the CY10 BSC Major Selective Continuation Board.  The SecAF’s action in disapproving the recommendation of the continuation board was unlawful and unjust.  However, in her earlier case, the Board found there was no error or injustice in her involuntary decision.  The AFBCMR should reconsider her request based on the Court of Federal Appeals Court (CoAFC) opinion in Baude v United States, which established the SecAF did violate DODI 1320.08, Continuation of Commissioned Officers on Active Duty and on the Reserve Active Status List, when he failed to follow procedures for continuing or involuntarily discharging officers who met the CY11A Major Selective Continuation Board.  Likewise, the SecAF violated DODI 1320.08 by not following procedures when he disapproved the continuation of officers selected by the CY10 BSC Major Selective Continuation Board.  

The CY10 BSC Major Selective Continuation Board was convened on 8 Nov 10, the SecAF instructed the continuation board it should normally continue a major who was within 6 years of retirement on the continuation date as prescribed by DODI 1320.08.  The CY10 BSC Major Selective Continuation Board decided to selectively continue all 24 officers.  However, on 6 Dec 10, the SecAF notified the Secretary of Defense (SecDef), he was going to exercise his authority to not continue a large pool of captains and majors.  On 15 Dec 10, the SecAF disapproved her continuation based on Air Force needs to lower its officer end strength.   On 21 Mar 11, the CY11A Major Selective Continuation Board was convened.  Instead of disapproving continuation board selections as he did with the CY10 BSC Major Selective Continuation Board, the SecAF modified the procedure and instructed the continuation board it should not normally continue majors unless they were within five years (instead of six years) of retirement on the date the board convened.  The CoAFC opinion in Baude v United States contains statements which also apply to the SecAF’s disapproval of the CY10 BSC Major Selective Continuation Board.  The CoAFC opinion states the regulation is unambiguous that a selective continuation board shall normally continue a major within six years of retirement, absent unusual circumstances such as derogatory information.  It also stated force management actions did not constitute unusual circumstances.  She was within six years of retirement and the continuation board selected her for continuation.  The SecAF identified no unusual circumstances.  Therefore, the SecAF violated DODI 1320.08 by discharging her involuntarily.  

Although the path the SecAF took to effect noncontinuation of officers considered by the CY10 BSC Major Selective Continuation Board and the CY11A Major Selective Continuation Board were different, the SecAF violated DODI 1320.08 by discharging majors who normally would have been continued to reduce the force, a reason that was not an unusual circumstance under the regulation or as decided by the CoAFC.  

The applicant’s complete submission is at Exhibit K.

APPLICABLE AUTHORITY/GUIDANCE

Baude v. United States:

On 9 Apr 20, the CoAFC issued an opinion (Baude v. United States) that the named plaintiff demonstrated the AFBCMR’s decision in denying him SB for continuation in the rank of major was arbitrary, contrary to law and unsupported by substantial evidence. The plaintiff was not selected for continuation by the CY11A Major Selective Continuation Board.  He was within 6 years of qualifying for a length of service retirement; however, the SecAF’s modified memorandum of instruction (MOI) to the board narrowed the window for continuation to officers within 5 years of retirement instead of 6 years.  The CoAFC vacated the CoFC’s earlier opinion for judgment in favor of the Government and reversed the denial of the plaintiff’s cross-motion for summary judgment.  The CoAFC concluded the SecAF’s instructions to the continuation board did in fact violate DODI 1320.08, Continuation of Commissioned Officers on Active Duty and on the Reserve Active Status List, because the SecAF lacked the authority to re-write the regulation or narrow the protective window or disregard the regulatory presumption in favor of continuation.  It stated an officer in the Air Force who holds the grade of O-4 must appear before a promotion board to receive further promotion per 10 U.S.C. §§ 611a and 628(k).  An officer who otherwise would be discharged for nonselection of promotion may nevertheless remain in active service if a continuation board selects them for continuation per 10 U.S.C. §§ 611 and 637.  A commissioned officer on the active duty list (ADL) in the grade of O-4 shall normally be selected for continuation if the officer will qualify for retirement within 6 years of the date of continuation.  The Secretary of the Military Department in unusual circumstances, such as when an officer’s personnel record contains derogatory information may be discharged involuntarily.  In this case there were no unusual circumstances.  The case was remanded to the AFBCMR to convene a SB for reconsideration of the plaintiff’s non-continuation through a process consistent with DODI 1320.08.  On 23 Nov 20, the CoAFC informed the AFBCMR of the Order.  Due to the CoAFC Order directing the Air Force convene a SB for the plaintiff rather than remanding the plaintiff’s request for reconsideration by the AFBCMR, the applicant’s case was not considered by the AFBCMR.  Instead, on 25 Mar 21, the plaintiff was considered by a SB convened at AFPC for the CY11A Major Selective Continuation Board.  

10 U.S.C. § 637(a) (3). An officer who holds the regular grade of major who is subject to discharge or retirement in accordance with section 632 of this title may not be continued on active duty under this subsection for a period which extends beyond the last day of the month in which he completes 24 years of active commissioned service unless he is promoted to the grade of lieutenant colonel.

DODI 1320.08, 3.3(a), Officers in the Grade of O-4 Approaching Retirement Eligibility.  A board may consider for continuation a commissioned officer on the active duty list in the grade of O-4 who is subject to discharge and will qualify for retirement between two to six years after the required date of discharge.  Such an officer will normally be selected for continuation if the officer will qualify for retirement within four years of the required date of discharge; however, there is no entitlement to continuation.  Selection or non-selection will be based on the criteria set by the Secretary of the Military Department concerned.  Officers who are between four and six years away from qualifying for retirement may be continued based on the criteria set by the Secretary of the Military Department concerned.  

AFI 36-2501, Officer Promotions and Selective Continuation, paragraph 7.11.2, Determining Continuation Period, continue majors until the last day of the month in which he or she is eligible to retire as an officer (normally upon completion of 20 years of total active military service).  Majors who possess critical skills may not be continued any longer than the last day of the month in which they complete 24 years of active commissioned service.

AFI 36-2501, Officer Promotions and Selective Continuation, paragraph 7.1, SecAF Responsibilities, 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.

AIR FORCE EVALUATION

AFPC/DP2SSR recommends denial for retirement.  Since the applicant did not complete 20 years of active service required by law, the applicant cannot be retired.  The law requires that officers complete at least 20 years of active service, at least 10 years of which have been active service as a commissioned officer.  Further, TERA is a force management tool which allows the SecAF to offer early retirement.  The law allowing for TERA expired at the time the applicant was discharged.  The TERA is also a force management program and members do not have the option of applying for early retirement outside the established program parameters.  

The complete advisory opinion is at Exhibit M.

AFPC/JA states the SecAF did not violate 10 U.S.C. § 637, nor is the applicant entitled to the same consideration as the plaintiff in Baude v United States.  The statute specifically states continuation is subject to Secretarial approval, as well as to the needs of the service.  The SecAF made the decision to disapprove the applicant’s continuation based on the needs of the Air Force.  The applicant’s case is also distinguishable from the plaintiff in Baude v United States in two ways.  First, she did not meet the same selective continuation board and more importantly, the memorandum of instruction (MOI) for the selective continuation board she met did not contain the modified protective window which the Baude court found problematic.  The CoAFC determined the SecAF abused his authority within the MOI when he narrowed the continuation window set forth in DODI 1320.08 from six years to five.  Moreover, she was actually selected for continuation but the selection was disapproved by SecAF.  The Baude ruling also did not direct any action by the AFBCMR on behalf of the applicant as they did for the plaintiff in that case.  If the AFBCMR believes the principles articulated in Baude v United States apply to the applicant’s case, they may grant her request for relief.  If on the other hand, the AFBCMR does not believe the principles articulated in Baude v United States apply, the AFBCMR may deny the requested relief.  

The complete advisory opinion is at Exhibit N.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant on 23 Feb 22 for comment (Exhibit O), and the applicant replied on 15 Mar 22.  She states this request for reconsideration for continuation is based on the decision in Baude v United States.  The decision has applicability to her case.  

She cited the court cases that held similar cases should be treated in a similar manner.  AFPC/JA identified two reasons for saying her case should be distinguished.  First, she did not meet the same selective continuation board; and second, her continuation board did not have the same MOI instructions that the CoAFC found problematic.  These reasons do not address the crucial way in which her case is similar and that is the SecAF did not comply with DODI 1320.08 when he used continuation boards as a means to reduce the force.

AFPC/JA also pointed out that she was actually selected for continuation but her selection was disapproved by the SecAF.  This seems worse than the action taken in the plaintiff’s case in Baude v United States.  The SecAF substituted his judgment for that of a duly constituted continuation board that made its selections in compliance with DODI 1320.08.  The SecAF disapproved her continuation based on the needs of the Air Force, a reason that the CoAFC determined did not comply with the regulation.

AFPC/JA also notes the CoAFC did not direct any action on her behalf but the AFBCMR can choose to grant her request if the AFBCMR believes the principles articulated in Baude v United States apply.  There are two principles that are particularly relevant.  The Air Force’s force management actions cannot constitute unusual circumstances and the needs to reach congressionally mandated end strength is not an unusual circumstance.  Accordingly, the SecAF wrongfully disapproved her continuation by basing his decision on Air Force needs to lower its officer end strength.

AFPC/DP2SSR recommends denying relief because she has not completed 20 years of service required by law and cannot be retired.  Certainly, an error occurred relating to retirement eligibility.  If she had been continued, she would have continued to serve until she qualified for retirement.  If selected for continuation, 10 U.S.C. § 1558 provides that she will receive constructive service credit from the date of her involuntary discharge to the date she is restored to active duty or retired.  She agrees 1 May 16 is the date she would have qualified for a 20 year retirement.  However, as a major, she can be continued to 24 years per 10 U.S.C § 637(a) (3).  She requests the 1 May 20 retirement date also be considered.  

The applicant’s complete response is at Exhibit P.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board remains unconvinced the evidence presented demonstrates an error or injustice.  The Board concurs with the rationale of AFPC/DP2SSR and AFPC/JA and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The applicant contends her case is similar to the plaintiff’s in Baude v United States and that the SecAF also violated DODI 1320.08 in disapproving the results of the CY10 BSC Continuation Board in an effort to lower officer end strength.  However, the Board does not find the applicant is similarly situated to the plaintiff in Baude v United States.  In this respect, the applicant was not considered for continuation by the same CY11A Major Continuation Board with the SecAF MOI narrowing the continuation window from six years from retirement to five years, which the CoAFC opined violated DODI 1320.08.  The applicant also asserts her case is even more egregious in that the SecAF disapproved the results of the CY10 BSC Continuation Board, which recommended she be continued; however, she has not provided any evidence to substantiate it was not within the SecAF’s authority to disapprove the recommendations of the continuation board.  Accordingly, the Board does not find the principles articulated in Baude v United States apply to the applicant’s case to warrant reinstatement on active duty, continuation in the grade of major to 20 or 24 years or SSB consideration for promotion to lieutenant colonel.  Therefore, the Board recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2014-01548-2 in Executive Session on 28 Feb 22 and 25 Mar 22:

 , Panel Chair
 , Panel Member
 , Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit J:	Record of Proceedings, w/ Exhibits A-I, dated 8 Dec 15.
Exhibit K:	Application, DD Form 149, w/atchs, dated 7 Apr 21.
Exhibit L:	Documentary evidence, including relevant excerpts from official records.
Exhibit M:	Advisory Opinion, AFPC/DP2SSR, dated 6 Jul 21. 
Exhibit N: Advisory Opinion, AFPC/JA, dated 22 Feb 22.
Exhibit O:	Notification of Advisory, SAF/MRBC to Applicant, dated 23 Feb 22.
Exhibit P:	Applicant’s Response, dated 15 Mar 22. 

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.