Inexplicable running-track measurement errors could throw airmen into the administrative unknown

The Air Force recently admitted that the walking and running tracks at 19 of its bases were too long and caused many airmen to erroneously fail their physical training tests. This might seem benign to civilians but, for service members, failing a physical training test could be the death knell for their career.  As the article notes, failing a PT test could result in a negative performance report—adverse paper that remains in their file and could jeopardize their promotion chances and ultimately lead to involuntary separation.

Recognizing their error, the Air Force intends to notify potentially affected airmen and give them the opportunity to apply to the Air Force Board for the Correction of Military Records (AFBCMR).  The Air Force’s contrition is nice but could be just the beginning of a long administrative process that applies to any service member wrongfully denied promotion.

The AFBCMR process typically takes about 12 months from the date of submission to reach a decision.  The Board does not have the authority to directly promote an applicant nor does any 10 U.S.C. § 1552 military records-correction board.  See Schwalier v. Hagel, 776 F. 3d 832, 836–37 (Fed. Cir. 2015).  Many applicants—and some attorneys—make the mistake of requesting direct promotion but, by law, the AFBCMR can only direct that the applicant be considered by a Special Selection Board (SSB).  See Scott v. England, 264 F. Supp. 2d 5, 8 (D.D.C. 2002).  Absent a discrete request for an SSB, the Board may direct SSBs sua sponte but failing to make an explicit request could invite problems, especially if the board denies an application and an applicant seeks judicial review.  A failure to request an SSB before a military records-correction board deprives a federal court of jurisdiction because it is deemed to be a failure to exhaust administrative remedies.  Scott, 264 F. Supp. at 8.  Similarly, issues not raised at the administrative level could be deemed waived in federal court.  See Coburn v. McHugh, 679 F. 3d 924, 929 (D.C. Cir. 2012).  In short, specifically ask for SSB consideration.

If the AFBCMR does not grant relief and direct an SSB, the applicant may have grounds for reconsideration or judicial review.  Reconsideration rules vary by correction board but the AFBCMR requires, “newly discovered relevant evidence that was not reasonably available when the application was previously considered.”  32 C.F.R. § 865.6(a).  Without such evidence, the Board will return the request, usually with a letter indicating that relief now lies with an appropriate federal court.

Regarding judicial review, case law is somewhat inconsistent on whether courts have subject matter jurisdiction to review decisions by a military records-correction board not to grant SSB consideration.  The United States District Court for the District of Columbia (DDC) seems to have clear precedent that such decisions are reviewable.  See Gilbert v. James, 134 F. Supp. 3d 42 (D.D.C. 2015).  One case out of the Eastern District of Virginia suggests that decisions not to grant SSBs is discretionary and effectively unreviewable.  Harris v. Mabus, No. 10-cv-833 at *6 (E.D. Va. Sept. 6, 2011).  I would expect the robust analysis of Gilbert to carry the day on this issue and the most likely relief from a federal judge would be to remand the matter to the AFBCMR to properly direct SSB consideration.

Whether by judicial remand or initially directed by the records-correction board, SSB consideration falls under the statutory provisions of 10 U.S.C. § 628.  There are a number of nuanced procedural rules but, generally, SSBs are convened periodically and consider an officers records against a “a sampling of the records of those officers of the same competitive category.” SSBs then make a determination as to whether officer should be recommended for a retroactive promotion.  If recommended for promotion, the SSB then submits a report to the Secretary of the pertinent military department detailing its recommendation. 10 U.S.C. § 628(c)(1). If the report recommends the officer for a promotion, and the report of the board is approved by the President, then the officer is retroactively appointed to the next higher grade and given “the same date of rank, the same effective date for the pay and allowances of that grade, and the same position on the active-duty list as he would have had if he had been recommended for promotion to that grade by the board which should have considered, or which did consider, him.”  § 628(d)(2).  When the officer is promoted, he becomes entitled to a back pay remedy.  See Porter v. United States, 163 F.3d 1304, 1315 (Fed. Cir. 1998).

A decision by the SSB to deny promotion is reviewable in federal court and may be set aside if the court finds the action was arbitrary or capricious, not based on substantial evidence; a result of material error of fact or material administrative error; or otherwise contrary to law.  § 628(g)(2)(A)–(D).  If the court finds an SSB unlawful, it can “set it aside,” which generally means that the case is remanded back to the records-correction board for SSB consideration, ostensibly with directions to remedy prior SSB deficiencies.  If the SSB fails to grant promotion, you guessed it, you might need to go back to the military records-correction board or federal court.

Hopefully, the process is efficient and painless for these aggrieved airmen.   But it is conceivable that some cases could languish in the perpetual administrative appeal judicial review spin cycle.  Depending on the particulars of a case, an experienced lawyer can be invaluable in proactively navigating the process. 

Contact Brian D. Schenk if you have been wrongly passed over for promotion, are dealing with these issues at a military records-correction board or at any phase in this complicated administrative web.

Brian Schenk