ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-02580-2

XXXXXXXXXX					COUNSEL:  XXXXXXXXXX 
	
	HEARING REQUESTED: YES 	

APPLICANT’S REQUEST

Her record be corrected to show that she was not discharged on 1 Mar 17, but continued to serve on active duty in the grade of colonel.

In the alternative, her record be corrected to show that she retired from the Air Force with the associated back pay, benefits, entitlements, including the cost of medical insurance and her incentive pay that was recouped be returned.

RESUME OF THE CASE

On 1 Mar 17, the applicant was honorably discharged in the grade of lieutenant colonel (0-5) after serving 17 years, 8 months and 17 days of active duty with a narrative reason for separation of “Resignation.” 

On 7 and 12 Nov 19, the Board considered and denied the applicant’s request to be reinstated on active duty in the grade of colonel (O-6) with the associated back pay, allowances, cost of medical insurance and additional military service.  The Board concurred with the rationale and recommendation of AF/A1LO and found that a preponderance of the evidence did not substantiate the applicant’s contentions.  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 G. 

On 12 Sep 20, the applicant submitted a request for reconsideration.  The applicant states that on 4 Apr 20, the U.S. Government supplemented the administrative record in the case.  Upon further review of the administrative record at the U.S. Court of Federal Claims, she realized that numerous documents were not transferred from the U.S. District Court to the U.S. Court of Federal Claims, and that the AFBCMR did not consider them as well.  The Board should consider the new evidence and address whether she was properly advised about her right to submit an assignment deferment request under AFI 36-2110, Assignments, whether the Summary Sheet properly considered her waiver of active duty service commitment as her assignment deferment request; and whether the failure of the Air Force to act on her repeated requests to withdraw her separation and failing to justify its non-endorsement complied with the AFI 36-2110, Assignments and Caddington v. United States, 147 Ct. Cl. 629, 634 (1959).

The applicant contends the Air Force misled or deceived her to believe she only had two options in response to receiving an assignment, those being to accept the assignment or submit for voluntary separation, when she could have applied for a hardship request.  The Colonel’s Group and her wing commander did not act in the best interests of the Air Force.  Had she been informed about her right to submit an assignment deferment request under AFI 36-2110 she would have submitted one and the Air Force could have deferred her assignment.  As a single parent with a child custody agreement, she received incomplete advice on her options that rendered her resignation involuntary.  The Air Force was aware of her unique circumstances but failed to advise her about submitting an assignment deferment request.  Her unit acted in bad faith by falsely promoting her to the grade of colonel to prevent her from transferring to a Reserve unit and then converting her military position to a GS position.  Her multiple requests to withdraw her separation were ignored.  Lt Col S failed to act on her requests to stop her separation, and gave her incomplete advice on how to request to withdraw one.  Her commander failed to explain her non-endorsement of her separation withdrawal request.  The initial AFBCMR decision failed to address this violation.  The applicant did not want to be separated under any circumstances and she wanted to continue to serve.  The AFBCMR’s opinion that her hardship request was considered and rejected, when she never submitted one and she never received an official Air Force message addressing is arbitrary and capricious.  The DoD-wide and Air Force-wide requirements for keeping single parents with children whenever possible were in effect long before the Air Force notified her about her promotion and new assignment.  The new evidence shows they were completely overlooked in her case.  Based on this, she was treated unlike any other officer and single parent in the U.S. Armed Forces.  In support of her request the applicant submits two Air Force Times Articles dated 5 Aug and 2 Sep 20, emails and various other documents associated with her requests.

The applicant’s complete submission is at Exhibit H.

AIR FORCE EVALUATION

AF/A1LO recommends denying the application.  There is no evidence of an error or injustice regarding involuntary separation.  To the first question, did the Air Force misrepresent or deceive the applicant by informing her she was required to accept reassignment or separate, A1LO was aware of her justification for hardship consideration and rejected it as grounds for declining reassignment.  SAFPC was aware of the same in their deliberation of her separation request with associated active duty service commitment (ADSC) waivers.  Her wing commander was aware and elected not to endorse her separation withdrawal.  To the second question, the applicant relied on a misrepresentation or deceptive statement by the Air Force to her detriment, the applicant was aware of her pending separation from active duty in Mar 16 after declining her assignment and submitting for separation. 

On 16 Nov16, the applicant attempted to withdraw her separation request.  The Assignment Office of Primary Responsibility (OPR) and approval authority for colonels and colonel-selects is A1LO, and A1LO has decision authority for exception to policy request based on hardship to cancel an assignment.  The applicant’s justification for declining reassignment was the same as her justification for later requesting to withdraw her separation and remain on active duty at MacDill AFB, FL.  A1LO applied the same authority to deny her withdrawal based on hardship being one not uncommon among airmen and that doing so would not be in the best interests of the Air Force, those interests being her reassignment to a valid colonel assignment at Lackland AFB, TX.  She then pursued a Reserve Commission, which delayed the SAFPC decision beyond 1 Dec 16 and ultimately resulted in a 1 Mar 17 separation date.  To the third question, the failure of the lead assignments officer to act on the 16 Nov 16 separation request or the wing commander’s exercise of discretion in refusing to endorse the 13 Feb 17 request, A1LO, SAFPC, and the wing commander acted in the best interests of the Air Force.  The Air Force selected the applicant for promotion to the grade of colonel and selected her for reassignment to a valid colonel requirement at Lackland AFB through the A1LO-managed assignments process.  She declined to comply with the needs of the Air Force’s decision and elected to separate which then required the Air Force to identify another officer to fulfill the needs of the Air Force requirement.  Furthermore, the record reflects that she declined her promotion to the grade of colonel and was separated on 1 Mar 17.  In a career field less than 100 percent manned, her declination ultimately resulted in a position either at Lackland AFB or elsewhere remaining vacant.  Her organization at MacDill AFB subsequently hired her as a civilian to perform the same duties as she had been performing in uniform which means they hired her to do lieutenant colonel equivalent duties.  

The complete advisory opinion is at Exhibit I.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 26 Jul 21, for comment (Exhibit J), and the applicant replied on 23 Aug 21.  In response, the applicant states the volume and magnitude of factual inaccuracies in the advisory opinion makes it unreliable.  The evidence presented shows the Air Force failed to adequately inform the applicant about her legal rights concerning her new assignment and the second and third level effects on her active duty pay and retirement benefits.  She relied on these misrepresentations, just as she relied on the misrepresentations concerning her early promotion to the grade of colonel.  The evidence shows the Air Force failed to properly process her requests to withdraw her separation, only to hire her as a GS-15 civilian for the same position.  She wanted to continue to serve in the Air Force and consulted with her chain of command because the new assignment would not allow her to see her children for approximately three years.  Her chain of command erroneously advised her that she had to resign and request to waive her bonus repayment, and then transfer to a Reserve unit.  Her chain of command failed to advise her that in addition to resigning she had other options that better responded to her desire to serve: (1) request another assignment, (2) request a hearing to determine whether she would be retained on active duty, (3) turn down her promotion, or (4) submit a hardship request.  She was not advised about a lot of other options available to her short of “resigning.”  In addition, she was not counseled that by following her chain of command’s advice, she was effectively forfeiting 50 percent of her military retirement benefits.  Also, no one advised her that once she reached 18 years of service, she would have a limited entitlement to remain on active duty until she retired.  Had she been advised about all of her options, she would have made informed choices and exercised her legal rights.  Based on the incomplete advice she received, on 16 Mar 16, she decided to follow her chain of command and requested to separate.  Had she received complete and accurate advice in Mar 16, she would have never submitted her request to separate, and then two more requests to stop her separation.  Based on these errors and injustices, she should be entitled to full relief to make her whole.

The applicant’s complete response is at Exhibit K.

ADDITIONAL AIR FORCE EVALUATION:

After reviewing the applicant’s rebuttal dated 23 Aug 21, the Board Staff asked A1LO to address questions derived from the applicant’s rebuttal such as:  Was it the Air Force’s responsibility to counsel the applicant she could have applied for a hardship request; the effects of declining her promotion; to inform her that once she reached 18 years of service, she would have a limited entitlement to remain on active duty until she retired; and to advise her that in addition to resigning she had other options that better responded to her desire to serve such as:  (1) request another assignment, (2) request a hearing to determine whether she would be retained on active duty, (3) turn down her promotion, or (4) submit a hardship request?  Additionally, why the Air Force did not act on her requests to withdraw her separation and why the commander did not list the reason(s) she denied the applicant’s request to withdraw her separation?  

In response, A1LO stated in part that there is nothing in writing that mandates the Air Force counsel applicants on the various options that they can take, as there is no way to identify the needs of all members and that the “18 years limited entitlement” statement only applies to involuntary separations.  Regarding a request for another assignment, A1LO states the assignment selection is based on the needs of the Air Force and she would not have been granted another assignment by A1LO, due to the needs of the Air Force.  With respect to a request for a hearing, SAFPC disapproved the applicant’s ADSC waiver for separation effective 1 Dec 16.  However, her separation effective 1 Feb 17 was approved.  If the applicant turned down her promotion, she would still be a colonel select and would have to follow O-6 assignment rules.  With respect to submitting a hardship request, at the time of this case, the applicant’s situation did not meet the program eligibility of a humanitarian deferment or reassignment.  The humanitarian request would have been denied.  A1LO was unable to answer why the Air Force did not act on her requests to withdraw her separation or why the commander did not list the reason(s) she denied the applicant’s request to withdraw her separation?

As required by 10 U.S.C. 1556(a), a copy of the correspondence was sent to the applicant’s counsel for review and comment within 30 days (Exhibit M).

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION

In a letter dated 12 Apr 22, counsel responded stating the applicant received inaccurate and incomplete advice from her chain of command that misinformed her and she relied on that erroneous advice to request to separate so she could serve in Air Force Reserve and work in the same position as a GS employee.  As the U.S. Court of Appeals for the Federal Circuit explained in Covington v. Department of Health and Human Services, 750 F.2d 937 (1984), the key question is whether the individual in question made an informed choice.  The Air Force’s failure to develop written guidance for Air Force officers who are selected for promotion is immaterial to this analysis.  If anything, it suggests that unlike in other personnel actions, there is no one counseling standard within the Air Force and that telling officers to separate, join Reserves and then come back to the same position as a GS employee is arbitrary and capricious and improperly circumvents the system of processing Air Force personnel actions, especially without counseling Air Force officers about the second and third level effects concerning their military retired pay and benefits.  The applicant received incorrect and inaccurate advice that effectively cost her pay and benefits.  The unit also arbitrarily and capriciously interfered with her ability to withdraw her separation request.

The applicant’s complete response is at Exhibit N.

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 careful review of the complete evidence of record and the new documentation submitted in support of the applicant’s request for reconsideration, the Board does not find it sufficient to overturn the previous Panel’s decision.  Therefore, the Board concurs with the rationale and recommendation of A1LO and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Accordingly, the Board recommends against correcting the applicant’s records.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

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-2019-02580-2 in Executive Session on 6 Oct 21 and 22 Jun 22:

, Panel Chair
, Panel Member
, Panel Member

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

Exhibit G:	Record of Proceedings, w/ Exhibits A-F, dated 7 and 12 Nov 19.
Exhibit H:	Application, DD Form 149, w/atchs, dated 12 Sep 20.
Exhibit I:	Advisory Opinion, AF/A1LO dated 9 Jul 21. 
Exhibit J:	Notification of Advisory, SAF/MRBC to Counsel, dated 26 Jul 21.
Exhibit K:	Applicant’s Response, w/atchs, dated 23 Aug 21.
Exhibit L:	Additional correspondence, AF/A1LO, w/atchs, not dated. 
Exhibit M:	Notification of correspondence, SAF/MRBC to Counsel, dated 16 Mar 22.
Exhibit N:	Counsel’s Response, w/atchs, dated 12 Apr 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