RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00216

XXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

1.  His break in service following an interservice transfer from active duty in the United States Marine Corps (USMC) to the Wyoming Air National Guard (WYANG) be eliminated.    

2.  The WYANG honor his promotion selection to the grade of major (O-4) that he received while on active duty in the USMC.   

APPLICANT’S CONTENTIONS

His three-month break-in-service was through no fault of his own but was due to delays within the WYANG officer-recruiting process, a slow local turnaround on the Aeronautical Rating Board (ARB) waiver, and COVID-related delays with the NGB/SG waiver process.  Due to this break, the WYANG is unable to promote the applicant to major (O-4) until he became a fully qualified C-130 pilot with one year in service, had one Air Force Officer Performance Report (OPR) and was the sole occupant of his position, despite the fact that he was selected for major (O-4) in the Marine Corps with a date of rank (DOR) of 1 Jul 20.

In support of his appeal, the applicant provides a detailed timeline of events and various documents from his military record that indicate his selection for major (O-4) while in the USMC. 

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an Air National Guard captain (O-3).

On 29 May 2018, a Recommendation for Selection letter, provided by the applicant, indicates that he was selected for a position as a C-130H Mobility Pilot in the WYANG, which carries an authorized grade of major (O-4). 

On 2 Aug 19, according to a FY-21 USMC Major Promotion Selection Board Convening Order, provided by the applicant, the applicant was selected for the grade of major (O-4) with line number 314.

On 3 Dec 19, DD Form 368, Request for Conditional Release, and a Resignation in Conjunction with Interservice Transfer memorandum, provided by the applicant, indicates that his request for an interservice transfer was approved.  The release was valid until 31 Mar 20.

On 1 Jul 20, according to Special Order XX-XXX-XX, dated 21 Jul 20, the applicant was appointed in the grade of captain (O-3) in the WYANG.

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 14317, Officers in transition to and from the active-status list or active-duty list:

(b) Effect of Placement on Active-Duty List.-A reserve officer who is on a promotion list as a result of selection for promotion by a mandatory promotion board convened under section 14101(a) or a special selection board convened under section 14502 of this title and who before being promoted is placed on the active-duty list of the same armed force and placed in the same competitive category shall, under regulations prescribed by the Secretary of Defense, be placed on an appropriate promotion list for officers on the active-duty list established under chapter 36 of this title.

(c) Officers on a Promotion List Removed From Active-Duty List.-An officer who is on the active-duty list and is on a promotion list as the result of selection for promotion by a selection board convened under chapter 36 of this title and who before being promoted is removed from the active-duty list and placed on the reserve active-status list of the same armed force and in the same competitive category (including a regular officer who on removal from the active-duty list is appointed as a reserve officer and placed on the reserve active-status list) shall, under regulations prescribed by the Secretary of Defense, be placed on an appropriate promotion list established under this chapter.

DODI 1300.04, Inter-Service and Inter-Component Transfers of Service Members, dated 25 Jul 17, Section 3, Transfer of Commissioned Officers: 

3.1 Inter Service Transfer

b. Appointments and Promotions, Paragraph 3: If a commissioned officer who transfers between Military Services is on a promotion list to the next higher grade in accordance with Sections 624 or 1403 of Title 10, U.S.C., the Secretary of the Military Department concerned will integrate the officer into the promotion list of the gaining Military Service based on the officer’s date of rank in his or her current grade in the losing Military Service.

d. Transferring between the ADL and the RASL. A commissioned officer previously awarded constructive service credit for education, training, or experience who does not transfer to the same or a comparable category may lose that credit and will receive only the credit applicable to the category into which the officer is transferred. Such an officer may be reappointed in or to the grade (and given the date of rank) appropriate for the amount of credit

3.2. Transfer Between the Regular and Reserve Components or Between Reserve Components.  (1)Transferring between the ADL and the RASL.

b. Appointments and Promotions, paragraph 1, Transferring between the Active Duty List and the Reserve Active-Status List (RASL): 

	(a) A commissioned officer transferring between the ADL and the RASL of the same Military Service will be processed for an original appointment in accordance with DoDI 1310.02. The officer’s appointment grade and date of rank will be determined by the Military Service concerned, in accordance with DoDI 1312.03 and DoDI 6000.13, as appropriate.

	(b) No commissioned officer will be transferred between the ADL and the RASL of the same Military Service with a precedence or relative rank higher than held on the day before such transfer occurs.

	(c) If a commissioned officer who transfers between the ADL and the RASL is on a promotion list to the next higher grade in accordance with Sections 624 or 1403 of Title 10, U.S.C., the Secretary of the Military Department concerned will integrate the officer into the corresponding promotion list in the new components promotion list based on the officer’s date of
rank in his or her current grade.

AFI 36-2504, Officer Promotion, Continuation and Selective Early Removal in the Reserve of the Air Force:

6.4. Transfer of Promotion from the ADL to the RASL. 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 providing the officer remains in the same competitive category. The officer’s DOR on the RASL is calculated using the current Reserve of the Air Force requirements for IPZ promotions for the officer’s competitive category. HQ ARPC/DPJ will award a DOR based on the calculation (see Table 5.2.). 

Current Grade and Date of Rank remain the same.  

AFMAN 36-2032, Military Recruiting and Accessions, dated 27 Sep 2019:

5.9. Inter-Service Transfer.

5.9.1. Overview. Commissioned officers in another uniformed service may be given the opportunity to apply for an inter-service transfer to the Air Force without interruption in their service under 10 USC § 716. Commissioned officers selected for inter-service transfers are discharged or terminated from their current commissions and appointed in the Air Force without interrupting total service. 

5.9.1.3. No officer will be transferred between the Active Duty List and the Reserve Active Status List with a precedence or relative rank higher than held on the day before such transfer occurs.

5.9.4. Authorized Grades.
5.9.4.5. Transferring service members on a promotion list to the next higher grade are integrated into the promotion list of the gaining component based on the officer’s date of rank in his/her current grade in the losing service. Exception: Does not apply to USPHS officers.

AIR FORCE EVALUATION

NGB/A1PO, recommends partially granting the applicant’s request to remove his break in service application.  Due to the timelines provided by both the WYANG State Recruiter and NGB A2/3/6/10, Operations Support Branch office, the applicant’s package was not received within a timely manner prior to being release from the USMC on 31 Mar 20.  However, NGB recognizes the request from the applicant’s chain of command including the WYANG Adjutant General who all recommend approval to remove the applicant’s break in service.  Therefore, NGB recommends approving the portion of the applicant’s request to remove his break in service.  

In regards to the applicant’s request to honor his USMC promotion to major (O-4), NGB recommends deny and cites that Title 10, United States Code, Section 14317 limits the promotion selection transfer to “the same armed force and place in the same competitive category.”  As such, a Marine Corps promotion selection cannot be transferred to the Reserve Active Status List (RASL).  

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 17 May 21 for comment (Exhibit D), and the applicant replied on 3 Jun 21.  In his response, the applicant contended that while NGB/A1PO references Title 10 USC, Section 14317 as evidence against honoring his promotion selection, they miss the fact that the code does not disallow honoring a promotion in the set of circumstances that are applicable to his case.  Furthermore, their recommendation is inconsistent with DODI 1300.04, which governs the interservice transfer of officers between armed forces.    According to, Section 1.2 (a), officers are to be given the opportunity to transfer between services without interruption in their service careers; Section 2.2 d, Secretaries of military departments will integrate transferring officers already on a promotion list to the next highest grade of the losing service into the promotion list of the gaining military service; and Section 3.1.b.4, “If a commissioned officer who transfers between Military Services is on a promotion list to the next higher grade, in accordance with Sections 624 and 1403 of Tittle 10 USC, the Secretary of the Military Department concerned will integrate that officer into the promotion list of the gaining military service based on the officer’s date of rank in his or her current grade.”  

If the AFBCMR determines that his break in service should be removed, as recommended by both NGB/A1PO and his entire chain of command, then DODI 1300.04 requires that NGB retroactively integrate the applicant’s 2020 active duty promotion selection to major (O-4) with his interservice transfer to the WYANG.  

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.  The Board concurs in part with the rationale and recommendation of NGB/A1PO and agrees the applicant’s break in service should be removed.  Specifically, the applicant has provided evidence in the form of a letter from his chain of command and the NGB Adjutant General who all support the applicant’s request to remove his break in service.  Furthermore, the Board recognized the applicant’s transfer occurred during the COVID-19 pandemic and notes the administrative delays to process his accession package were outside of his control.  However, the Board recognizes that they do not have the authority to correct state appointment orders and can only recommend to the Wyoming Air National Guard (WYANG) that they correct the applicant’s break in service by issuing an amended state appointment order.  In reference, to NGB/A1POs recommendation to deny the applicant’s request to integrate his USMC selection for promotion to major (O-4) into the ANG, we disagree.  The Board notes that while the USC, may not specifically address individuals that are transferring from Sister Services it does not disallow honoring a promotion in the set of circumstances that are applicable to the applicant’s case.  Moreover, DoDI 1300.04, Paragraph 3.1b. states that, “If a commissioned officer who transfers between Military Services is on a promotion list to the next higher grade in accordance with Sections 624 or 1403 of Title 10, U.S.C., the Secretary of the Military Department concerned will integrate the officer into the promotion list of the gaining Military Service based on the officer’s date of rank in his or her current grade in the losing Military Service.”  As such, the Board finds the applicant provided sufficient evidence, to include the FY-21 USMC Major Promotion Selection Board Convening Order and Marine Administrative Message 372/20, which shows that he was selected for promotion to Major and indicates that had he remained in the USMC he would have promoted to major (O-4) on 1 Jul 20.  However, the Board notes the applicant has since been promoted to major (O-4) in the ANG and therefore recommends correcting the applicant’s records as indicated below.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show:

1.  That the Air Force Board for the Correction of Military (AFBCMR) recommends that the Wyoming Air National Guard make the following corrections to remove the break-in-service:

a)  The AF Form 133, Oath of Office, dated 1 July 2020, be declared void and removed from his records.

	b)  Special Order XX-XXX-XX, dated 21 July 2020, be revoked. 

c)  A new AF Form 133, Oath of Office, be accomplished to reflect a 1 April 2020 effective date.
	
d)  Upon completion of the new Oath of Office, he be issued an amended state appointment order to reflect appointment to the Wyoming Air National Guard effective 1 April 2020.

2.  His date of rank and effective date of rank for promotion to Major (O-4) be corrected to reflect 1 July 20.

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-2021-00216 in Executive Session on 9 Sep 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 13 Sep 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, NGB/A1PO, w/atchs, dated 10 May 21.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 17 May 21.
Exhibit E:	Applicant’s response, dated 3 Jun 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.