RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2019-03243

xxxxxxxxxxxxx	COUNSEL:  NONE
	
	HEARING REQUESTED:  NO

APPLICANT’S REQUEST

1.  His date of rank to first lieutenant (O-2) be changed from 24 Sep 15 o 24 Sep 13.

2.  His accession grade be changed to captain (O-3) rather than O-2.

APPLICANT’S CONTENTIONS

He was told his rank was incorrect when he joined the Air Force and he would have to pursue a correction after arriving to his first duty station.  His Master’s degree should qualify for 24 months constructive credit.  Once his DOR changes to reflect his years of experience and appropriate degree, he will meet the criteria for the grade of O-3.  This change should be retroactive to his date of accession as the conditions were met on 24 Sep 18.  He signed a memorandum of record acknowledging the need for a correction.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a currently serving Air Force captain.

On 15 Mar 17, the applicant was awarded his Master of Science degree in Nursing (MSN).

On 19 Jul 18, according to AF Form 133, Oath of Office, the applicant was appointed to the Regular Air Force in the grade of  O-2.

On 20 Aug 18, according to documentation provided by the applicant, he signed a memorandum addressed to the Air Force Recruiting Service acknowledging his accession into the United States Air Force as an O-2, and his responsibility to submit required educational records and proof of employment to the Air Force Board for Correction of Military Records (AFBCMR) to prove eligibility for O-3.

On 27 Aug 18, under Special Order AH-1343, the applicant was called to extended active duty in the grade of O-2, effective 24 Sep 18. 

On 27 Aug 18, as annotated on DPAM Form 60, NC Constructive Credit Computation, the applicant earned 5 years constructive service credit; 4 years sufficient to access as an O-3, with the remaining 1 year credited toward his DOR, in accordance with Air Force Instruction (AFI) 36-2005, Officer Accessions, Table 11.2., Appointment Grade and Computation of TYSD, DOR, & TFCSD, Rule 1, dated 2 Aug 17, but was scrolled as an O-2.

On 16 Sep 19, under Special Order JB-04494, the applicant was promoted to the grade of O-3, with a DOR and effective date of 14 Aug 19.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C and D.

APPLICABLE AUTHORITY

Title 10, United States Code, Section 531 (10 U.S.C § 531): Original appointments of commissioned officers.  Original appointments in the grades of second lieutenant (O-1) , first lieutenant (O-2) , and captain (O-3)  in the Regular Army, Regular Air Force, and Regular Marine Corps and in the grades of ensign, lieutenant (junior grade), and lieutenant in the Regular Navy shall be made by the President alone.

According to Under Secretary of Defense (Personnel and Readiness) memorandum dated 10 Feb 15, only the President may appoint Regular officers above the grade of O-3 and Reserve officers above the grade of O-5 following Senate confirmation.  Only the Secretary of Defense may appoint all other officers because Congress has vested such appointment authority in the President alone, and the President has assigned that function to the Secretary of Defense.  This decision affirms that Military Department correction boards do not have the authority to remedy perceived errors or injustices by correcting records to show that an officer has been appointed to a certain grade when the officer has not been appointed to that grade by the President or the Secretary of Defense.  Boards may only make such a correction to reflect that a proper appointment has occurred.  They may also adjust the date of rank of an officer who has been properly appointed.

AIR FORCE EVALUATION

AFRS/RSOC recommends changing the applicant’s record to credit him with five years of service credit.  The applicant was erroneously denied constructive service credit for a qualifying degree.  While he was granted three years of professional work experience, in accordance with AFI 36-2005, Table 10.5., Service Credit on Appointment or Designation as a BSC, MSC, or NC officer, Rule 45, the applicant should also have been granted an additional two years for his MSN degree, in accordance with Rule 5 of that same reference.  The applicant’s military record should be updated to reflect commission as an O-3, effective 24 Sep 18.

The complete advisory opinion is at Exhibit C.

AFPC/DP2N recommends changing the applicant’s DOR to the grade of O-3.  Constructive service credit is determined in accordance with Department of Defense Instruction (DoDI) 6000.13, Accession and Retention Policies, Programs, and Incentives for Military Health Professions Officers (HPOs), Enclosure 3, and AFI 36-2005.  In Sep 18, the applicant received the appropriate amount of constructive service credit to enter active duty in the grade of O-3; however, he entered active duty in the grade of O-2.  The Air Force Scrolling Office directed AFPC Medical Officer Accessions to access him to active duty in the grade of O-2, and upon selection and promotion to O-3, submit an AFBCMR request to correct his effective date and DOR to O-3.  The correction should reflect the applicant’s date of rank as 24 Sep 17, with an effective date of rank of 24 Sep 18.

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant on 6 Apr 20 for comment (Exhibit E), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

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

3.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice to warrant correcting the applicant’s date of rank to the grade of O-2.  The Board took notice of the applicant's complete submission in judging the merits of the case; however, the evidence presented did not demonstrate an error or injustice.  Therefore, in the absence of evidence to the contrary, the Board finds no basis to favorably consider this portion of the applicant’s request. 

4.  Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of error or injustice to warrant partial relief.  After a thorough review of the evidence of record and the applicant’s complete submission, the Board believes the applicant is the victim of an injustice.  AFRS/RSOC and AFPC/DP2N concede the applicant’s constructive service credit should have allowed him to commission in the grade of O-3 and recommended relief.  However, the applicant had already entered active duty in the grade of O-2.  Therefore, as verbalized in 10 U.S.C § 531, the Secretary of the Air Force does not have the authority to change original appointments of commissioned officers.  Nevertheless, since the President has already made the determination the applicant is to serve in the higher grade of O-3, the Secretary of the Air Force does have the authority to adjust his effective date of rank to the date it would have been had no error occurred.  In view of the foregoing, the Board finds it is in the interest of justice to correct the applicant’s record and recommends the applicant’s records be corrected to the extent indicated below.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show he received the appropriate amount of constructive service credit to qualify to access in the grade of captain (O-3), and his date of rank to captain be established as 24 Sep 17, with an effective date of rank of 24 Sep 18.

However, regarding the remainder of the applicant’s request, the Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

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-2019-03243 in Executive Session on 23 Apr 20:

, Panel Chair 
, Panel Member
, Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 1 Jun 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFRS/RSOC, dated 21 Jan 20.
Exhibit D:	Advisory opinion, AFPC/DP2N, dated 31 Mar 20.
Exhibit E:	Notification of advisory, SAF/MRBC to applicant, dated 6 Apr 20.

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.