RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2022-00370

XXXXXXXXXXXXXX	COUNSEL: NONE	 

  	HEARING REQUESTED: NO	 

APPLICANT’S REQUEST

1.   He be retroactively promoted to the rank of major (O-4) with an appropriate date of rank (DOR) for the P0419E Central Selection Board (CSB).

2.   In the alternative, he be considered for promotion to major by a special selection board (SSB) and his 21 Dec 19 officer performance report (OPR) be reviewed by the SSB.  

APPLICANT’S CONTENTIONS

Public Law 116-92, National Defense Authorization Act (NDAA), was signed on 20 Dec 19, 18 days after his promotion board began and 8 days after the board adjourned.  There was no legal requirement for the Air Force Personnel Center (AFPC) to change the promotion opportunity from 100 percent to 95 percent due to the NDAA.  The 100 percent promotion opportunity should have been maintained, consistent with the two previous years’ promotion boards.  His wing commander’s assessment was he was fully qualified for promotion to major.  

On 14 Sep 17, the Air Force announced a 100 percent promotion opportunity for major and that promotion recommendation forms (PRF) were only required for officers who received a “Do Not Promote” or “Promote” recommendation and had derogatory information.  However, AFPC changed policy without notification or time for board packages to be submitted based on a reduced promotion opportunity.  Numerous eligible officers had valid and substantive reasons for not having certain items completed but without derogatory remarks and were not given the chance to add additional information.  

In his case, his OPR was scheduled to close out 21 Dec 19, 19 days after the board convened.  A year’s worth of work was not captured and reviewed by the board.  The accomplishment would have ensured a significant increase in his board score.

Premature changes were made to the promotion opportunity based on what the Air Force believed to be the law or would soon be law.  The IG responded that the change from 100 percent to 95 percent promotion opportunity was driven by a law change, 10 U.S.C. § 616(d).  However, the law was not enacted until 20 Dec 19.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a captain (O-3) in the Air Force.  The military personnel data system (MilPDS) shows he has a projected promotion to major (O-4), with sequence number 915.  

The applicant provides a memorandum from SAF/IGQ to another captain who filed an IG complaint, dated 3 Feb 21, alleging the AF/A1 did not have the authority to change the promotion system while inviting discriminatory practices.  The IG responded the AF/A1 did have authority to implement policy for promotion systems and the applicant’s complaint was dismissed.  The complainant also alleged the promotion opportunity was to be 100 percent and as a result PRFs were not required, this led the force at large to be unaware of the change to 95 percent.  The IG responded the change was driven by a law change that promotion opportunity could not exceed 95 percent.  The complainant was informed he could petition the AFBCMR for correction of his records.    

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

APPLICABLE AUTHORITY/GUIDANCE

Per 10 U.S.C. § 624, When the report of a selection board is approved by the President, the Secretary of the Military Department concerned shall place the names of all officers approved for promotion within a competitive category on the promotion list.  In this regard, the AFBCMR which serves on behalf of the Secretary of the Air Force, is without authority to grant appointments and directly promote officers.  

AFI 36-2501, Officers Promotions and Selective Continuation, paragraph 2.10.1, Officers eligible for promotion may write a letter to the board.  

AIR FORCE EVALUATION

AFPC/DP2SP recommends denial.  The applicant was non-selected for promotion to major by the P0419E CSB, which convened on 2 Dec 19.  The applicant’s OPR closed out 21 Dec 19, after the convening date of the CSB on 2 Dec 19; therefore, it would not have been provided to the board within the officer selection record (OSR).  Furthermore, the P0419E CSB executed the Secretary of the Air Force Memorandum of Instructions (MOI) directing board members to recommend members for promotion, with a promotion opportunity limit of 95 percent for promotion to major.

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 23 Mar 22 for comment (Exhibit D).  In a response dated 14 Apr 22, he requests the Board consider AFPC’s announcement beginning in Dec 17 that there would be a 100 percent promotion opportunity to the rank of major.  The Personnel Services Delivery Memorandum (PSDM) 19-51, updated 14 Aug 19, removed the requirement for PRFs and senior raters were only required to submit PRFs for officers receiving a “Do Not Promote” or a “Promote” recommendation but had derogatory information.  

The P0419E CSB convened on 2 Dec 19 and Public Law 116-92 was signed on 20 Dec 19.  There was no adequate time provided to prepare records after the change.  The Air Force at large did not find out the promotion opportunity was 95 percent rather than 100 percent until after the public release on 20 Feb 20.  Promotion opportunities have been consistently published on myPers for CSBs since 2020.  

His 2018 OPR had no stratification.  His 2019 OPR included stratification by the rater and additional rater, he was assigned to a wing level position and received an annual award.  His 2019 OPR was signed and finalized before the results of the P0419E CSB and represented 346 days of performance.  

The change of the promotion opportunity affected how records were scored.  In accordance with AFI 36-2501, a 100 percent board typically utilizes a “yes” or “no” scoring system, while a board without a 100 percent opportunity using a scoring scale.  Contrary to the advisory, an SSB is authorized under AFI 36-2501 due to an administrative error/policy in the enactment of the law because it failed to provide a reasonable opportunity for officers to submit materially applicable information that would have changed the results of the board.  He cites 10 U.S.C. § 615(a), AFI 36-2501, paragraph 2.18 and Public law 116-92 as evidence that selection board procedures were developed to give all eligible officers fair and equitable consideration, not for ease of administration.   

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 not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DP2SP and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  In this respect, the applicant contends the 95 percent promotion opportunity for the P0419E CSB was improper as the CSB convened on 2 Dec 19 and PL 116-96 limiting officer promotion board opportunity at 95 percent was not signed into law until 20 Dec 19.  However, the Board finds the applicant’s contention is without merit as it was the SecAF MOI to the P0419E board which limited the promotion opportunity to 95 percent.  The applicant also requests he be granted an SSB so the board may review his OPR with close out date 21 Dec 19.  However, his OPR closed out after the start date of the CSB on 2 Dec 19 and would not be included in his officer selection record.    Consequently, the applicant has provided insufficient evidence to warrant granting a SSB for the P0419E CSB.  With respect to the request he be retroactively promoted to the rank of major, the Board, which serves on behalf of the Secretary of the Air Force in the correction of military records, is without authority to directly promote officers.  Therefore, the Board recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

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-2022-00370 in Executive Session on 21 Apr 22:

, Panel Chair
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 3 Nov 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DP2SP, dated 22 Mar 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 23 Mar 22.
Exhibit E:	Applicant’s Response, w/atchs, dated 14 Apr 22.  
.
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.