RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-02470

XXXXXXXXXXXXXX	COUNSEL: NONE	 

  	HEARING REQUESTED: NO 	

APPLICANT’S REQUEST

1. He be reinstated on active duty in the grade of lieutenant colonel (O-5), per his promotion in
the Air Force Reserve on 10 Aug 12.

2. He be allowed to defer signing the 20 year selective continuation contract.

3. He be permitted to sign a 24 year selective continuation contract.

4. He be retired from active duty on 1 Oct 21 or the date established for return to duty with immediate retirement.

5. He receive back pay and constructive service credit (CSC) to 30 Jun 20, the date he would be required to retire as a major (O-4).

6. He receive back pay from 1 Dec 11 to the date he is restored to active duty should his records be corrected to show he was promoted to lieutenant colonel during the continuation period.

7. He receive back pay from 1 Dec 11 to 30 Jun 20 should his records not be corrected to show he was promoted to lieutenant colonel and should he decline continuation. In this instance, the Air Force Reserve be notified he is entitled to active duty CSC from 1 Dec 11 to 30 Jun 20.

8. In the alternative, he be considered by special selection board (SSB) for promotion to lieutenant colonel for 2012 to 2015, without having to sign his selective continuation contract.   If selected and approved for promotion to lieutenant colonel, he be continued to a specified date until retirement as requested.

APPLICANT’S CONTENTIONS

He was selected for continuation by a special board (SB) in response to a Court of Appeals for the Federal Circuit (CoAFC) that the Secretary of the Air Force (SecAF) violated DODI 1320.08, Continuation of Commissioned Officers on Active Duty and on the Reserve Active List, with respect to instructions provided to the CY11A Major Selective Continuation Board.

Prior to exercising his options to either consent or not consent to the continuation offer, he requests that a written decision be made that his promotion to lieutenant colonel effective 10 Aug 12 by the Air Force Reserve be recognized or that SSBs be convened to determine if he would have been selected for continuation during the continuation period. The request is made in accordance with AFI 36-2501, Officer Promotions and Selective Continuation, paragraph 6.1 and 6.3, which provide that separated eligible officers can be granted SSBs and paragraph 6.4, which states that applications for SSBs should be submitted to the AFBCMR. His requests are related to his AFBCMR case, BC-2013-04256, which has been closed. Further, his promotion to lieutenant colonel was under the accelerated promotion program which allowed commanders the means to nominate exceptionally well-qualified candidates to promote in an accelerated manner.

He will consent to continuation if his records are corrected to show he was not discharged on 30 Nov 11 but was continued as a major (O-4) and was promoted to lieutenant colonel effective 10 Aug 12.

If SSBs are convened and he is not selected for promotion to lieutenant colonel, he requests the AFBCMR decide that his promotion to lieutenant colonel in the Reserves is necessary to ensure fair and equitable relief, consistent with a past decision. He would then consent to continuation on active duty. However, he preserves his right to pursue further judicial review of noncompliance with law or regulation or inconsistency with the Court or AFBCMR decisions with the Court of Federal Claims (CoFC). His case is currently stayed while the continuation process is finalized.

His request is similar and should be granted per AFBCMR cases, BC-2004-03840 and BC-2006-
00134. He too was competitively selected for promotion by a Reserve Central Selection Board (CSB) and it is possible he could have been promoted to lieutenant colonel by an active duty board at some time later in his career had he been continued and not discharged. On 27 Apr 21, AFPC/DP2SP informed him he was selected by a SB for continuation by the CY11A Major Selective Continuation Board, which convened on 25 Mar 21. He was requested to acknowledge receipt of the notification within 72 hours.

The continuation offer asked him to accept continuation as if it was 2011 with no regard for the last 10 years of his military service. The offer did not address whether or not his promotion to lieutenant colonel by a Reserve promotion board would be recognized or if SSBs would be convened to determine if he would have been promoted during the continuation period of if he can even be reinstated to active duty at this point.

On 12 May 11, he submitted questions to AFPC/DP2SP concerning the continuation offer and its impact upon matters such as his grade, back pay, CSC and status in the Reserves. AFPC/DP2SP advised his date for deciding if he would accept or decline continuation was changed to “to be determined.” Although a SB was convened and selected him for continuation, steps to grant him thorough and fitting relief have not been taken. AFPC/DP2SP stated they are unable to grant an SSB until he has accepted the continuation and continuation contracts are required to be signed and returned no later than 60 days after notification has been given. They also stated the SecAF may only approve continuation to 20 years of service and not the 24 as requested.

The AFBCMR will need to consider whether the Court’s remand order was answered. When the Court remanded the matter he be considered for selective continuation, it included a determination of what post hoc selective continuation would mean.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

Per Headquarters Air Reserve Personnel Center Special Order XXXX, dated 25 October 2021, effective 30 November 2021, the applicant was relieved from his present Reserve assignment and retired per AFI 36-3203 and Title 10, United States Code, Section 9311, in the grade of lieutenant colonel (O-5), effective 1 December 2021.  

On 30 Nov 11, he was honorably discharged from the Regular Air Force with a narrative reason for separation of Non-Selection, Permanent Promotion, as a result of his twice deferral for promotion by the CY11A Lieutenant Colonel Line of the Air Force (LAF) CSB and nonselection for continuation by the CY11A Major Selective Continuation Board. He was credited with 15 years, 5 months and 18 days of active duty service.

ARPC IMT 92, Appointment Order, Reserve Order XXXXX, dated 13 Jan 12, reflects he was commissioned in the Air Force Reserve in the grade of major on 1 Dec 11. The order stated based on receipt of separation pay, he incurred a 3 year service commitment in the Air Force Reserve.

Per Reserve Order XXXXX dated 10 Aug 12, the applicant was promoted to the grade of lieutenant colonel with date of rank (DOR) and effective date 10 Aug 12.

On 2 Aug 13, the applicant submitted an AFBCMR application (BC-2013-04256) requesting reinstatement to active duty or in the alternative, he be retired under the Temporary Early Retirement Authority (TERA). The applicant contended the SecAF illegally violated DODI 1320.08, Continuation of Commissioned Officers on Active Duty and on the Reserve Active Status List, 6-year protective retirement window for officers in the grade of major by erroneously applying a 5-year protective window. As a result, the continuation board erred using the incorrect date of continuation. On 30 Oct 14, the Board denied the applicant’s request. The Board agreed with the opinions and rationale of AF/A1P, AFPC/DPSOR AFPC/JA that the applicant was not the victim of an error or injustice. The Board noted the comments of counsel that the intent of Congress was that officers attaining the grade of major be continued to 20 years; however, the Board also noted that Congress anticipated that under unusual circumstances continuation of majors to 20 years of service may not be possible. The Board concluded the SecAF acted within the limits of his authority in the instructions provided to the continuation board in changing continuation criteria from 6 years to 5 years.

On 12 Jan 16, the applicant filed a complaint with the CoFC with 15 other plaintiffs. On 29 Aug 16, the CoFC remanded the case to the AFBCMR to deliberate whether the applicant should be considered by a SB for continuation for the CY2011A Major Selective Continuation Board. On 8 Feb 17, the Board denied the applicant’s request. The Board agreed with the opinion and rationale of AFPC/DP2SP that the applicant was not the victim of an error or injustice. The Board noted the Air Force was required to make a reduction in the officer force to meet congressionally mandated end strength. The Board found the SecAF acted within the limits of his authority in the instructions he provided to the continuation board. Therefore, the Board found no evidence the applicant was treated differently than others similarly situated.

On 20 Jun 18, the applicant filed an appeal with the CoAFC. On 4 Apr 20, the CoAFC issued an opinion (Baude v United States) that the applicant demonstrated the AFBCMR decision in denying him SB for continuation in the grade of major was arbitrary, contrary to law and unsupported by substantial evidence. In an Order filed 19 Nov 20, the case was remanded to the AFBCMR to convene a SB for reconsideration of the applicant’s non-continuation through a process consistent with DODI 1320.08. On 23 Nov 20, the CoFC informed the AFBCMR of the Order.

Due to the CoAFC Order directing the Air Force convene a SB rather than remanding the applicant’s requests for reconsideration by the AFBCMR, the applicant’s case was not reconsidered by the AFBCMR. Instead, on 25 Mar 21, the applicant was considered by a SB convened at AFPC for the CY11A Major Selective Continuation Board. In an AFPC/DP2SP memorandum dated 27 Apr 21, the applicant was advised he was selected for continuation. He was requested to complete the selective continuation contract by either accepting or declining continuation by 27 May 21.

In an e-mail dated 11 May 21, the AFBCMR provided the applicant with the AFPC/DP2SP memorandum notifying him of his selection for continuation by the CY11A Major Selective Continuation Board and the selective continuation contract.

In a response dated 24 Jun 21, the applicant requested additional relief in lieu of accepting or declining the selective continuation. The applicant’s case (BC-2013-04256) was closed as the applicant was considered and selected for continuation per his request and the Order of the CoAFC. The applicant submitted a new DD Form 149, Application for Correction of Military Records, dated 19 Jul 21 for the additional corrections as a result of his selection for continuation.

The applicant cites BC-2004-03840 in support of his request. The applicant in this cited case was discharged in the grade of captain (O-3) after his twice deferral for promotion to major by an active duty CSB. In Sep 04, the AFBCMR removed an OPR from his record and he was considered for SSB for promotion to major. While he was not selected for promotion, he was offered continuation and on 7 Dec 04, he accepted the initial continuation offer. On 9 Dec 04, after accepting continuation, he requested the Board reinstate him to active duty in the grade of major and he receive SSB for promotion to lieutenant colonel on what would have been his in the promotion zone (IPZ) board. On 24 Mar 05, the Board agreed with AFPC/DPPPO that the applicant was competitively selected for promotion to major by a Reserve CSB, and it was possible with  additional reports in his record he could be recommended for promotion by an active duty board at some time later in his career. The Board directed the applicant’s record’s be corrected as follows: (a) He was not discharged but was continued on active duty; (b) He was selected for promotion to the grade of major; (c) He be promoted to the grade of major with a DOR of 1 Oct 02, upon Senate confirmation and (d) Any non-selections for promotion to the grade of lieutenant colonel prior to receiving a minimum of two officer performance reports (OPRs) with at least 250 days of supervision in the grade of major be set aside.

The applicant also cites BC-2006-00134 in support of his request. The applicant in this cited case requested he receive a direct promotion to the grade of lieutenant colonel as if he was selected by the CY2002A Lieutenant Colonel CSB. On 18 May 06, the Board considered and denied his request for direct promotion to lieutenant colonel but granted his request for reinstatement to active duty. On 12 and 13 Mar 07, he wrote letters to the SecAF and the AFBCMR to review if the findings violated his equal protection rights. By virtue of his promotion to major by SSB and his return to active duty, he became eligible to meet lieutenant colonel CSBs as early as 2002. He missed several promotion boards while he was a member of the United States Navy. He further contended he could not receive fair and equitable promotion consideration by a SSB and requested the Board reconsider his direct promotion to lieutenant colonel. On 27 Feb 08, the Board recommended the applicant’s record be corrected to incorporate personnel records rendered while a member of the Navy into his existing Air Force records, he be considered for promotion to lieutenant colonel by a SSB, with his records including Navy records and any nonselections incurred as a result of the SSBs be set aside.

For more information, see the excerpt of the applicant’s record at Exhibit B and the applicable authority/guidance.

APPLICABLE AUTHORITY/GUIDANCE

Baude v United States. On 9 Apr 20, the CoAFC, Baude v United States, concluded the AFBCMR’s decision to deny the applicant SB consideration for continuation was arbitrary, contrary to law and unsupported by substantial evidence. The CoAFC vacated the CoFC’s denial of the plaintiff’s cross motion for summary judgement and ordered on remand that a SB be convened for reconsideration of his non-continuation. The CoAFC concluded the SecAF’s instructions to the selective continuation board violated DoDI 1320.08, Continuation of Commissioned Officers on Active Duty and on the Reserve Active Status List, because the SecAF lacked the authority to re-write the regulation or narrow the protective window or disregard the regulatory presumption in favor of continuation. Further, even if the SecAF had the authority to declare any circumstances sufficiently unusual to justify rewriting other aspects of the regulation, which he did not, there were no “unusual circumstances identified.” An officer in the Air Force who holds the grade of major (O-4) must appear before a promotion board to receive further promotion per 10 U.S.C. §§ 611a and 628(k). An officer who otherwise would be discharged for nonselection of promotion may nevertheless remain in active service if a continuation board selects them for continuation per 10 U.S.C. §§ 611 and 637. A commissioned officer on the Active Duty List in the grade of major shall normally be selected for continuation if the officer will qualify for retirement within 6 years of the date of continuation. The Secretary of the Military Department in unusual circumstances such as when an officer’s personnel record contains derogatory information may be discharged involuntarily.

10 U.S.C. § 1558(a) Correction of Military Records. The Secretary of a Military Department may correct a person’s military records in accordance with a recommendation made by a special board. Any such correction may be made effective as of the effective date of the action taken on a report of a previous selection board that resulted in the action corrected in the person’s military records. 

10 U.S.C. § 1558(b)(2)(B), Such term does not include a promotion board convened under section 573(a), 611(a) or 14101(a).

10 U.S.C. § 1558(c)(1) Relief Associated with Correction of Certain Actions. The Secretary of the Military Department concerned shall ensure that an involuntarily board separated person receives relief under paragraph (2) or under paragraph (3) if the person, as a result of a correction of the person’s military records becomes entitled to retention on or restoration to active duty or to active status in a Reserve component.

10 U.S.C. § 1558(c)(3)(A), If an involuntarily board separated person in paragraph (1) does not consent to restoration of status, rights and entitlements under paragraph (2), the Secretary concerned shall pay that person back pay and allowances (less appropriate offsets) and shall provide that person service credit.

10 U.S.C. § 637(a)(3). An officer who holds the regular grade of major who is subject to discharge or retirement in accordance with section 632 of this title may not be continued on active duty under this subsection for a period which extends beyond the last day of the month in which he completes 24 years of active commissioned service unless he is promoted to the grade of lieutenant colonel. DODI 1300.04, Inter-Service and Inter-Component Transfers of Service Members, paragraph 2.2(c) Secretaries of the Military Departments may approve transfers into their respective departments that are acceptable to both the gaining Military Service and the losing uniformed service and are in the best interests of both parties.

DODI 1300.04, paragraph 3.2(b)(1)(a) A commissioned officer transferring between the active duty list and the Reserve Active Status List (RASL) of the same Military Service will be processed for an original appointment in accordance with DODI 1310.02, Original Appointment of Officers. The officer’s appointment grade and DOR will be determined by the Military Service concerned.

DODI 1310.02, Original Appointment of Officers, Enclosure 3(a) All Regular and Reserve appointments for officers in the grade of lieutenant colonel are made by the President, by and with the advice and consent of the Senate, unless otherwise authorized in law.

AFI 36-2501, Officer Promotions and Selective Continuation, paragraph 7.1, SecAF Responsibilities. Determines when to hold a continuation board based on Air Force requirements, establishes continuation quotas, approves termination of continued officers (prior to expiration of term), approves continuation propriety actions and board reports.

AFI 36-2501, Officer Promotions and Selective Continuation, paragraph 6.1, Holding SSBs. AFPC conducts promotion SSBs to consider officers who were improperly considered or not considered, by one or more Central Selection Boards. Use SSBs for active duty, separated, or retired officers, if eligible according to paragraph 6.3. Paragraph 6.3.1.1, The action of the board that considered the officer was contrary to law or involved material error of fact or material administrative error. Paragraph 6.3.2, Pursuant to Formal Appeal, the AFBCMR can grant SSBs when they determine an officer’s nonselection for promotion resulted because of an error or injustice in the officer’s record.

AFI 36-2501, Officer Promotions and Selective Continuation, Determining Continuation Period, paragraph 7.11.2 Continue majors until the last day of the month in which he or she is eligible to retire as an officer (normally upon completion of 20 years of total active military service). Majors who possess critical skills may not be continued any longer than the last day of the month in which they complete 24 years of active commissioned service.

AFI 36-2501, Officer Promotions and Selective Continuation, paragraph 7.7.5, Military Personnel Flight (MPF) returns all acceptance/declination statements for selective continuation. Involuntary separation actions will be initiated by AFPC for officers who fail to sign the statement within 60 days from public release.

5 U.S.C. § 5533, Dual Pay from More than One Position, An individual is not entitled to receive basic pay from more than one federal position.  Receipt of military retired pay is exempt.  In view of this, the applicant cannot be paid for active duty service and service in the Air Force Reserve for the same period.  The applicant’s records includes DD Forms 214, showing he performed periods of active duty service in the Air Force Reserve from 4 Apr 12 to 14 Nov 12, 7 Feb 13 to 19 Feb 13, 1 Oct 17 to 9 Nov 19, 5 Mar 20 to 14 Sep 21 and 15 Sep 21 to 30 Nov 21.  

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 applicant requests further correction of his records in view of the CoAFC remand order and his selection for continuation by a SB for the CY11A Major Selective Continuation Board, which convened on 25 Mar 21.  Pursuant to the CoAFC remand order and the applicant’s selection for continuation, the Board recommends the applicant’s records be corrected to show he was not discharged from active duty on 30 Nov 11 but was continued on active duty until 30 Jun 16 (20 years) and was retired from active duty on 1 Jul 16 in the grade of major.  The Board further recommends the applicant’s records be corrected to show he was approved for an inter-service transfer to the Air Force Reserve on 2 Jul 16, after his 20 year retirement rather than on 1 Dec 11. The Board also notes the applicant was competitively selected for promotion to lieutenant colonel by a Reserve CSB with DOR and effective date 10 Aug 12.  While this Board does not have the authority to direct an officer’s promotion, it is within the Board’s authority to award service credit for DOR.  Accordingly, in the interest of justice, the Board recommends the applicant retain his Reserve Air Force promotion to lieutenant colonel with DOR and effective date 10 Aug 12.   In view of the passage of time and the challenges in making the applicant whole, the Board is persuaded the recommended correction is proper and just.  However, for the remainder of the applicant’s request, the evidence presented did not demonstrate an error or injustice. 

The Board notes the applicant requests reinstatement onto active duty in the grade of lieutenant colonel.  He contends it is possible he would have been selected for promotion to the grade of lieutenant colonel had he not been involuntarily discharged for nonselection for promotion.  He further contends his selection for promotion to lieutenant colonel in the Air Force Reserve is evidence of his likely promotion.  However, this is not known.  The Board does not find his selection for promotion to lieutenant colonel in the Air Force Reserve sufficient to conclude he would have been selected for promotion by an active duty lieutenant colonel CSB.  The applicant also cites AFBCMR cases BC-2004-03840 and BC-2005-00134 as precedent to grant his request; however, the Board does not find the applicant’s case is similar to the cited cases.  In BC-2004-03480, the applicant was in the grade of captain when discharged.  The applicant was considered for continuation and subsequent SSB due to removal of an OPR.  Unlike the applicant in this case, the nonselection for continuation was not based on the MOI provided to the promotion board narrowing the selective continuation window.  In BC-2006-00134, like the applicant in this case, he was denied the request for direct promotion to the grade of lieutenant colonel.  While the applicant was recommended for SSB, unlike the applicant in this case, he did not receive service credit for retirement.    

The applicant also requests he be continued to 24 years, instead of 20 years; however, the Board finds this is unnecessary.  The Board recognizes AFI 36-2501 permits officers who possess critical skills to be continued until completion of 24 years of commissioned service.  Otherwise, majors are continued until the last day of the month in which they qualify for 20 years of service.  In the applicant’s case there is insufficient justification to provide the applicant with continuation to 24 years.    

The applicant also requests in the alternative he be considered by a SSB for promotion to lieutenant colonel, without having to sign a selective continuation contract.  However, the Board does not find it compulsory or in the interest of justice to provide the applicant SSB consideration for promotion to lieutenant colonel. Therefore, the Board 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:

a.	 He was not discharged from active duty on 30 Nov 11 but continued to serve on active duty until 30 Jun 16, when honorably discharged for retirement.

b.	 On 1 Jul 16, he retired from active duty in the grade of major (O-4).

c.	 On 2 Jul 16, he was approved for an inter-service transfer to the Air Force Reserve in the grade of major.

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-2021-02470 in Executive Session on 27 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 22 Jul 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	AFBCMR BC-2013-04256 Complete Case, w/Exhibits A thru S.  
Exhibit D:	Cited Case ROPs BC-2004-03840 and BC-2006-00134.

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.