RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2021-01319

XXXXXXXXXXXX	COUNSEL:  NONE
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

1.  He be promoted to colonel (O-6), with a Date of Rank (DOR) of 1 Nov 17.

2.  He receive back pay difference between lieutenant colonel (O-5) and O-6 from 1 Nov 17 – 31 Oct 20.

3.  His retirement grade be corrected from O-5 to O-6.

4.  His retired pay rate be corrected to reflect top-three pay years as an O-6 from 1 Nov 17 – 31 Oct 20, beginning with retirement pay from 1 Nov 20.

5.  His Officer Performance Reports from 1 Nov 17 to 31 Oct 20 corrected from O-5 to O-6.
Decorations from 1 Nov 17 to 31 Oct 20 corrected from O-5 to O-6.

APPLICANT’S CONTENTIONS

Due to being incorrectly scrolled when transferring from active duty to the Air Reserve Component (ARC), and the subsequent delays to have the scrolling issue corrected, he was prevented from being promoted to O-6 on the Active Duty List (ADL) to Reserve Active Status List (RASL).  A delay of nearly two years in the scroll correction caused him to be removed from the ADL to RASL by SAF/GC as he was forced to apply for retirement per Air Force regulation.  Furthermore, he was unable to apply for ARC positions as an O-6 due to the delay in the process and removal from the ADL to RASL.  Due to not being able to apply for ARC positions in the commensurate grade, he was pushed to retirement as required by Air Force instructions.  Had this scroll delay not occurred, he would not have been removed from the ADL to RASL, would have been promoted and able to apply for open O-6 ARC positions, and had the opportunity to continue his Air Force career.

In fall 2016, he was selected for promotion to O-6 while serving on active duty.  He was notified of a Permanent Change of Station in May 17, and due to a terminal illness in his immediate family, decided to leave active duty and transfer to the ARC.  His line number was after his separation date, but unbeknownst to him, the promotion transferred from the ADL to RASL in accordance with Air Force Instruction (AFI) 36-2504, Officer Promotion, Continuation and Selective Early Removal in the Reserve of the Air Force, paragraph 6.4.  He was notified by ARPC/PB (on/about Feb 18) that he should have pinned on O-6 on 1 Nov 17.  Subsequently, he requested promotion orders be published.

ARPC/PB discovered he had not been properly scrolled into the ARC, and this error needed to be corrected to complete the promotion process.  A ratification memorandum was created in Feb 18 to correct the scrolling error, and would need to be approved by the Secretary of Defense (SECDEF), which occurred in Mar 20, nearly two years after initiation.  His promotion then needed to be approved by the United States Senate, and ARPC/PB waited until Jun 20 to include his name on the quarterly ADL to RASL list for Senate approval.

Due to his orders ending 31 Oct 20, he was mandated to apply for retirement four months prior (1 Jul 20) or seek another ARC position; however, he was unable to apply for ARC positions as an O-6 due to the delayed promotion.  He decided to apply for retirement and it was approved just prior to the four month minimum requirement.

On 4 Aug 20, he was notified by ARPC/PB that the Secretary of the Air Force General Counsel removed his name from the ADL to RASL list due to his approved retirement.  This was the sole reason for removal.  ARPC/PB recommended he request an extension to his current orders, for at least six months, and withdraw his retirement application to get the promotion process completed.  After completion, he could seek another ARC position as an O-6.

His request to extend his Voluntary Limited Period of Active Duty (VLPAD) orders was denied on 27 Aug 20, due to lack of funding, which, in turn, denied him the ability to be confirmed by the Senate and the three years of pay in the commensurate grade.  He was also denied the opportunity to apply for ARC O-6 positions.

All of these errors and delays were not his fault.  The delay forced him into the window for his retirement, and he was pushed from the ADL to RASL promotion list.  He feels an injustice is being served to deny a rightful promotion and further ARC positions due to delays and errors of the staffing process to correct the initial scrolling error.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force Reserve lieutenant colonel (O-5) receiving retired pay.

On 11 Jan 17, according to ARPC/PB, the applicant was selected for promotion by the Calendar Year 2016C (CY16C) Colonel Line of the Air Force Central Selection Board.

On 1 Sep 17, the applicant was furnished an honorable discharge from the Regular Air Force, with Narrative Reason for Separation:  Interdepartmental Transfer, and credited with 21 years, 1 month, 15 days active service.

On 2 Sep 17, under Special Order XXXXX, dated 21 Sep 17, the applicant was appointed in the Air National Guard (ANG).

On 31 Oct 17, under Special Order XXXXX, dated 8 Nov 17, the applicant was honorably discharged from the ANG.

On 1 Nov 17, under Special Order XXXXX, dated 4 Oct 17, the applicant was voluntarily ordered to Extended Active Duty for the period of 1 Nov 17 – 1 Nov 20, under the Voluntary Limited Period of Active Duty Program.

On 22 Jun 20, the applicant applied for active duty retirement.

On 31 Oct 20, the applicant was furnished an honorable discharge from the United States Air Force Reserve (USAFR), with Narrative Reason for Separation:  Sufficient Service for Retirement, and credited with 24 years, 3 months, and 12 days active service.

On 1 Nov 20, under Special Orders No. XXXXX, dated 13 Jul 20, the applicant was relieved from active duty, organization and station of assignment, and retired in the grade of O-5.

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

AIR FORCE EVALUATION

ARPC/PB recommends denying the applicant’s request for promotion to O-6.  The applicant was given options to remain in the Air Force while ARPC/PB worked his ADL to RASL package; however, he chose to retire instead.  If approved, the applicant will still require Senate confirmation of his promotion nomination.  The applicant was selected for promotion by the CY16C Colonel Line of the Air Force Central Selection Board, approved on 11 Jan 17.  He separated from active duty on 1 Sep 17, and transferred to the ANG on 2 Sep 17 until 1 Nov 17, when he entered the USAFR.

In accordance with Title 10. U.S.C. section 14317 and AFI 36-2504, paragraph 6.4., any officer selected for promotion to a higher grade, who transfers from the ADL to the RASL of the same armed force, will receive their promotion provided the officer remains in the same competitive category.  AFI 36-2504, Table 5.2., Rule 13, states that transfers from the ADL to the RASL, with a pending ADL promotion, the date of rank will be calculated using the current (as of the date of the transfer) RESAF IPZ eligibility criteria.

In Feb 18, ARPC/PB notified the applicant that he should have pinned on O-6 on 1 Nov 17; however, it was not discovered until the fall of 2018 that the applicant had not been properly scrolled into the ANG by the gaining unit or the National Guard Bureau.  The applicant’s ADL to RASL promotion package was put on hold pending a ratification memorandum to correct the applicant’s federal recognition into the ANG and completed and approved by the SECDEF The ratification process was approved on 27 Mar 20.  On 1 May 20, ARPC confirmed the applicant’s eligibility for ADL to RASL.  The ADL to RASL promotion request was sent up to OSD in Jun 20 for approval and Senate confirmation.

The applicant stated he was mandated to apply for retirement four months prior to 31 Oct 20 or seek another ARC position.  On 22 Jun 20, he applied, and was approved for an active duty retirement.  ARPC/PB recommended he extend his VLPAD orders to ensure his promotion was processed, but his extension was denied by HAF/A1PT.  The applicant was counseled that he should pull his retirement and go into the Individual Ready Reserve (IRR), which would allow ARPC/PB to continue working his package.  The applicant’s concern at the time was if he transferred to the IRR, he would not be able to retire and receive retirement pay; therefore, he would seek out O-6 opportunities before pulling his retirement application.  The applicant ultimately decided to retire, knowing his options, and was approved to retire on 1 Nov 20.

In accordance with AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members, paragraph 5.14.2, officers who met a promotion board on or after 1 Oct 96, and were on a recommended list for promotion to the grades of O-5 and above, must serve satisfactorily in grade for 3 years, to retire in that grade.  Time in grade requirements reduces to 6 months if officer is involuntarily separated from active status due to age or years of service.  Because of his decision to retire, the applicant could not serve in the grade for three years.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 7 Sep 21 for comment (Exhibit D), and the applicant replied on 22 Sep 21.  In his response, the applicant contended ARPC/PB’s recommendation misses key facts and policies presented in his original application.  It stated he did not complete the three years time in grade required for retirement in the grade of O-6; however, if his application is approved, his date of rank to O-6 will be 1 Nov 17, with a retirement of 17 Nov 20, retroactively.  Additionally, the billet he occupied was not a Reserve billet, and did not require the rank of O-6.  Due to delays and errors by the ANG and ARPC/PB, his promotion was continually delayed for over 2.5 years.  Had they completed their staffing duties correctly in 2017 and 2018, the promotion would have been completed shortly thereafter.  It should be noted ARPC/PB contacted him in Mar 20 to let him know his ratification memo had been approved and he would be on the next scroll in Apr 20.  He did not find out until later he was instead submitted for the second quarter scroll.

Further, ARPC/PB continued that he was given options to remain in the Air Force while they worked his ADL to RASL package, but he chose to retire instead.  He was presented three options:  (1) Apply for an extension in his current position.  He did this and was denied due to funding; (2) Contact the ARC for possible placement in a colonel (O-6) position.  He reached out to the POC for positions and was told there was nothing available in Sep 20.  Furthermore, at that time he was one month from terminal leave for retirement; and (3) Retract his earned retirement and move to the IRR while ARPC/PB processed his promotion.  This option was untenable as it would have put him in a position of no income or benefits.  Secondly, he had little faith that ARPC/PB would complete this work in a speedy manner.  He would have to wait for ARPC to complete their work, get Senate approval, and then apply for retirement again.  The timeline was indeterminate and without income or benefits, this option was not reasonable.

ARPC/PB’s statement regarding Senate approval is incorrect, unnecessary, and irrelevant.  If the board approves his application, it will be upon ARPC/PB to correct the error and submit the nomination to the Senate with a 1 Nov 17 promotion date.  ARPC again says he must serve three years time in grade; however, he was in an active duty billet, thus Reserve requirements for grade do not apply.  It is unreasonable for ARPC/PB to expect a member to wait over 2.5 years to finalize a promotion, then attempt to blame the member for deciding to retire, thus not warranting the promotion earned.

If the correct processes had been followed by the staffing agencies at ANG and ARPC/PB, he would have a promotion date of 1 Nov 17 allowing him three years time in grade in the position he held.  Furthermore, he would have been able to apply for O-6 opportunities following his assignment after 1 Nov 20.  Due to the delay, he was forced to retire when his orders were complete.

The POC’s recommendations indicate they did not fully understand or review the entirety of his application.  It is clear that due to numerous errors and delays of staffing, an injustice has occurred in not completing the staffing process in a reasonable time.

The applicant’s complete response is at 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 reviewing all Exhibits, the Board concludes the applicant is the victim of an error or injustice.  While the Board notes the recommendation of ARPC/PB against correcting the record, the Board finds a preponderance of the evidence substantiates the applicant’s contentions in part.  Specifically, the applicant has provided documentation reflecting his efforts to resolve the extensive delay in executing his promotion caused by the original error in scrolling.  This is sufficient to justify granting the applicant’s request to execute his promotion recommendation, resulting from selection by the CY16C Colonel Line of the Air Force Central Selection Board, and adjust his retired grade and pay accordingly.  However, for the remainder of the applicant’s request, the evidence presented did not demonstrate an error or injustice, and the Board finds no basis to recommend granting that portion of the applicant’s request.  Therefore, the Board recommends correcting the applicant’s records 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:

	a. He was not released from the Regular Air Force on 1 Sep 17, but on that date, he continued to serve on active duty until his retirement, effective 1 Dec 20. 

	b. His promotion recommendation, resulting from selection by the CY16C Colonel Line of the Air Force Central Selection Board, was executed and he was promoted to the active duty grade of colonel (O-6) with the effective date and date of rank of 1 Dec 17.

	c. He completed sufficient time in grade as a colonel (O-6), in accordance with Title 10, United States Code, Section 1370b(1) and Air Force Instruction 36-3203, Service Retirements, to retire in that grade, effective 1 Dec 20.

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-2021-01319 in Executive Session on 28 Oct 21:

, 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 16 Dec 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, ARPC/PB, w/atchs, dated 19 Aug 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 7 Sep 21.
Exhibit E:	Applicant’s response, dated 22 Sep 21.

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.