RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-00654

XXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

Her date of entry into the Air Force Reserve be changed to 8 Jun 19 to eliminate the 11-day break in service between her date of separation from the Regular Air Force and entry into the Air Force Reserve.

APPLICANT’S CONTENTIONS

Through no fault of her own, a delay in processing the scroll at the Office of the Secretary of Defense resulted in a break in service between her separation from the Regular Air Force and the date she was gained into the Air Force Reserve.  Additionally, in December 2018, while on active duty, she was selected for promotion to the grade of O-5 and was informed the promotion would transfer with her.  However, she has since been advised that due to the break in service she is no longer eligible for promotion. She is hopeful that removing the break in service will allow her to maintain her promotion to O-5, with a date or rank of May 2020.

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS

The applicant is currently serving as an Air Force Reserve major (O-4).  On 7 June 2019, she was furnished an honorable discharge from the Regular Air Force.  On 19 June 2019, under Reserve Order PC-01247, dated 27 August 2019, she was appointed as a Reserve of the Air Force in the grade of O-4.  

The Air Force Personnel Center confirmed the applicant was selected for promotion by the M0518A Lieutenant Colonel Promotion Board, and would have pinned-on 5 May 2020.

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

APPLICABLE AUTHORITY

Title 10, United States Code, Section 531 (Title 10 U.S.C § 531): Original appointments of commissioned officers.

Original Appointments of Commissioned Officers.  Original appointments in the grades of major (O-4) , lieutenant colonel (O-5) , and colonel (O-6)  in the Regular Army, Regular Air Force, and Regular Marine Corps and in the grades of lieutenant commander, commander, and captain in the Regular Navy shall be made by the President, by and with the advice and consent of the Senate.

According to Under Secretary of Defense (Personnel and Readiness) memorandum dated 10 February 2015, 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

ARPC/DPAR recommends removing the break in service.  ARPC finds no administrative error and concludes the break in service was due to no fault of the applicant.  Therefore, the break in service should be eliminated in accordance with the SAF/GCM policy granting the Board the authority to adjust her date of separation.  The extension of the applicant’s date of separation for elimination of break in service will correct her date of rank to O-4 and service dates.  Furthermore, the applicant was selected for promotion to O-5 while on active duty, during promotion board M0518A.  The results of the promotion board were publicly released before the applicant separated from active duty; therefore, the applicant will retain the promotion.

The complete advisory opinion, with attachment, is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 3 June 2020 for comment (Exhibit D).  On 5 June 2020, the applicant replied indicating her concurrence with the OPR recommendation (Exhibit E).

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 thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is the victim of an injustice.  While the applicant requests the effective date of her appointment order be changed to 8 June 2019, the Board concurs with ARPC/DPAR and finds that changing her date of separation from active duty is a more fitting option.  The Board notes that AFPC/DPAR states that the applicant will retain her the promotion to the grade of O-5; however, there is no evidence the applicant was actually scrolled and promoted to O-5.  Therefore, per Title 10 U.S.C § 531, the Board cannot direct the applicant’s promotion.  However, once the applicant has been properly appointed, she may seek relief from the Board to request a change in her date of rank, if applicable.  Accordingly, the Board recommends the applicant’s records be corrected as indicated below. 

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 pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show she was not released from active duty on 7 June 2019, but on that date, she continued to serve on active duty until 18 June 2019, on which date she tendered her resignation, was discharged from all Regular Air Force appointments, and was released from active duty.

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-2020-00654 in Executive Session on 23 July 2020:

, 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 9 February 2020.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, ARPC/DPAR, w/atch, dated 1 June 2020.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 3 June 2020.
Exhibit E:	Applicant’s Email response, dated 5 June 2020.

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.