RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2022-02755

XXXXXXXXXXX	COUNSEL: XXXXXX
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His date of rank (DOR) and effective date to major (O-4) be corrected to reflect XXXXXX.

APPLICANT’S CONTENTIONS

XXXXXX, upon graduation from the Uniform Services University School of the Health Sciences (USUHS), he was appointed as an O-4 in the Medical Service Corps and his DOR and effective date should reflect 18 May 19.  Instead, his DOR and effective date to O-4 reflects XXXXX, which is the date his scroll was signed.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a major in the Regular Air Force.

According to the applicant’s Statement of Service dated 2 Sep 15, he served on active duty from 30 May 01 to 28 Aug 13, and was honorably discharged in the grade of O-4.  He then served in the Air Force Reserve from 29 Aug 13 to 4 Jun 15, and was honorably discharged in the grade of O-4.  On 5 Jun 15, he accepted an appointment as a second lieutenant (O-1) in the Air Force Reserve Medical Corps.

On XXXXXX, according to Special Order XXXXXX, dated XXXXX, the applicant was ordered to active duty in the grade of O-1 for duty as a USUHS student.

On 19 Oct 18, according to DPAM Form 60, Constructive Credit Computation, the applicant received 12 years, 11 months, and 25 days of CSC, which was sufficient to be appointed in the grade of O-4.  He was credited with 2 years, 10 months, and 10 days for his service in the Air Force Reserve. 

On XXXXX, according to Special Order XXXXX, dated XXXXX, the applicant, upon graduation from USUHS Class of XXXX was appointed to the grade of O-4 in the Regular Air Force effective XXXXX, Scroll ID XXX signed by the President of the United States and confirmed by the Senate on XXXX.

In Jun 22, DPAM Form 60, dated 19 Oct 18,  was corrected to indicate the applicant received 10 months and 10 days of CSC for his time in the Air Force Reserve, rather than 2 years, 10 months and 10 days.  Accordingly,  the applicant’s total CSC was changed to reflect 10 years, 11 months, and 25 days, which is sufficient credit for appointment to the grade of O-3 and not his previously awarded grade of O-4.  

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: Original appointments of commissioned officers. Original appointments in the rank 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 rank 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 Feb 15, 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 DOR of an officer who has been properly appointed.

AIR FORCE EVALUATION

AFPC/DP2N recommends granting the application. On 29 Jul 15, the applicant was tendered a regular appointment in the grade of O-1 upon acceptance to USUHS.  On 19 Oct 18, his CSC was calculated to award service credit not received prior to attending USUHS and his total credit received was calculated to be 12 years, 11 months, and 25 days, authorizing him to be reappointed in the grade of O-4 in accordance with Air Force Manual (AFMAN) 2032, Military Recruiting and Accessions.  On XXXX, he graduated from USUHS and on XXXXX his O-4 appointment scroll was signed by the President of the United States  and confirmed by the Senate.  This delay in the O-4 scroll being signed caused his DOR and effective date to O-4 to be established as XXXXX.  The Air Force Scrolling Office then instructed the Air Force Personnel Center (AFPC) to submit a correction of military records to ratify the applicant’s DOR and effective date to O-4.

In Jun 22, AFPC was notified an oversight had occurred when the applicant’s CSC was initially calculated on 19 Oct 18 and he was mistakenly awarded “overlapping” credit.  Once the “overlapping” credit was removed, his CSC was recalculated and corrected to reflect 10 years, 11 months, and 25 days.  In accordance with AFMAN 36-2032, Table 5.9, Rule 3, the applicant was eligible for appointment to the grade of O-3.  However, AFPC does not have the legal authority to change the applicant’s grade from O-4 to O-3 based on the corrected/adjusted amount of service credit.  In addition, he had received an appointment to O-4 by the President, which was then confirmed by the Senate.  Finally, a downward adjustment in grade based on the corrected CSC, which was not the applicant’s fault, would result in undue financial hardship to the applicant as the Air Force would recoup the difference in pay and entitlements between the grades of O-3 and O-4 from XXXXX to present.

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 26 Oct 22, for comment (Exhibit D), but has received no response.

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. It was not the applicant’s fault his CSC was incorrectly calculated and the mistake was not discovered until after his appointment to the grade of O-4 was ratified.  Furthermore, an adjustment in grade, three years after the fact, would not only be unfair to the applicant but would cause undue financial hardship. Therefore the Board concurs with the rationale and recommendation of AFPC/DP2N and finds a preponderance of the evidence substantiates the applicant’s contentions. Accordingly, 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 APPLICANT be corrected to show:

	a. He was awarded sufficient CSC for appointment in the rank of major as a Medical Corps Officer.

	b. He was promoted to the rank of major with a date of rank and effective date of rank of XXXXXX.

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-2022-02755 in Executive Session on 19 Jan 23:

, Panel Chair 
, Panel Member
, Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, dated 13 Oct 22.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DP2N, w/atchs, dated 20 Oct 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 26 Oct 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.