DoD Changed Rules on Selective Continuation

[gdmarsh]

I am a separated Air Force veteran, due to policies of DoD Instruction 1320.08, March 14, 2007, where the application of policy changed, April 2012.

As I understand from Air Force Personnel officials, the continuation policy always allowed military members to continue until retirement, if they had less than six years remaining.

With over 14 years of honorable military service (in other words, I have less than six years to retire), I am interested to continue my military service. If anyone can provide help 1) understanding why I cannot be accommodated under the old application of the policy, or 2) if I am able to be accommodated under the re-written instruction, April 2012.

Why I was discriminated in either case, I do not understand. Assistance with either (or both) option(s) is most appreciated; I really need a friend, here!

I've been attempting to get these answers on my own for a very long time, and finding an expert is very difficult.

 

[OHRoadwarrior]

The old deferral rules did not allow extension beyond 5 years it appears. You don't get to call them up and demand to be reinstated. I understand it used to be considered proper for an officer to leave the corp when he went a certain amount of time without promotion. That does not coincide with your recollection.

 

[gdmarsh]

OHRoadwarrior, I understand I can't "demand to be reinstated", but there should be some recognition by leadership why there was such an extreme (and first-time-ever) omission of this policy with one very small group of officers.

Also, could you please explain your comment, "that does not coincide with your recollection"; I do not understand.

Thank you.

 

[OHRoadwarrior]

1.Why should there be? Do the rules in effect not apply to everyone? If they wanted an exception they would have created it.

2.Apparently, you think you had a right to stay until you earned a pension regardless of whether your efforts were recognized by command as having been promoted to a level of inefficiency. Historically, when you do not receive a timely promotion it is a hint your services are no longer wanted and you should leave the service.

OHRoadwarrior, I understand I can't "demand to be reinstated", but there should be some recognition by leadership why there was such an extreme (and first-time-ever) omission of this policy with one very small group of officers.

Also, could you please explain your comment, "that does not coincide with your recollection"; I do not understand.

Thank you.

 

[gdmarsh]

While I am very proud of my contributions and service, I do have a few issues with how/why my military career ended, there are still issues with why this policy change--yet another impact to my career.

So the reason for my post is, I am unsure why the practice of the policy changed; AND why was the regulated rules of the policy rewritten? No, neither of those rules apply to me (or others, between mid-Dec 2010 to April 2011)....why? No, those rules did not apply to everyone.

As I understand, this was a historic decision by the Air Force to not allow continuation, Dec 2010; then April 2012, the DoD published rules accommodating service members like me. Is this allowed, by who or what authority? I have the Promotion board instructions from Dec 12, 2010 saying "continue 100% eligible officers", and news reports saying the same week, "Sec AF reports to DoD, no continuation". I've seen Title 10 codes saying service secretaries should run their continuation programs cognizantly; but changing your mind on Monday, and making career-impacting and historic decisions by the end of the week does not sound cognizant.

Hopefully, my questions are not to be harsh to you; I only seek to understand. I really appreciate anyone to assist my understanding of this situation, and whether I should pursue with an advocate or counselor. Thank you.

 

[CJane]

I just read through the instruction, here:
http://www.dtic.mil/whs/directives/corres/pdf/132008p.pdf

It says, pretty specifically, that if an officer is within TWO years of being eligible for retirement, s/he should be retained. Not SIX years. That seems like a REALLY long time to keep an officer around after he's failed to promote.

There's this:

4.2. To support through policies and procedures the consideration for continuation of
commissioned officers in the grade of O-4 who have failed of selection for promotion to the next
higher grade for the second time who are between 4 and 6 years of qualifying for retirement
pursuant to section 3911, 6323, or 8911 of Reference (d) on the date the officers would have
been discharged.

4.3. To support through policies and procedures the consideration and continuation of
commissioned officers in the grade of O-4 who have failed of selection for promotion to the next
higher grade for the second time who are between 2 and 4 years of qualifying for retirement
pursuant to section 3911, 6323, or 8911 of Reference (d) on the date the officers would have
been discharged unless skill requirements or quality indicators dictate otherwise.

but it only says that you should be extended the consideration, not that you SHALL be retained.

 

[gdmarsh]

So the legacy-practice of keeping captains for six years, and the newly-added (April 2012) para 6.3.2 (below) are not applicable?

DOD 1320.08, para 6.3.2, "a commissioned officer on the Active-Duty List in the grade of O-3 who is subject to discharge.....within 2 to 6 years of the date of discharge may be considered."

My biggest contention is thin line of these rules. At this point, I'm not as concerned about the retained, but that my own career failed over the mismanagement of higher leaders. Even more so, to your point about being considered, rules were changed so quickly, I cannot be certain I there even was a selective continuation board held, to make any considerations.

 

[CJane]

So the legacy-practice of keeping captains for six years, and the newly-added (April 2012) para 6.3.2 (below) are not applicable?

DOD 1320.08, para 6.3.2, "a commissioned officer on the Active-Duty List in the grade of O-3 who is subject to discharge.....within 2 to 6 years of the date of discharge may be considered."

What you're not understanding is that there is a WORLD of difference between "may be considered by a board... as determined by the Secretary" and "shall be retained".

 

[gdmarsh]

Understood. Thank you.

 

[OHRoadwarrior]

So your argument is the service should have paid you $600k in salary/benefits when they do not want you, so they will be obligated to pay you about $70k for life? Do you have a $10k toilet seat in your bathroom and an $8k hammer in your garage?

 

[gdmarsh]

No, it is not the focus of my argument; and, your hammer argument is not consistent with your comment of applying rules fairly...true?

My career aside....my main legal question here questions why the legacy of ALWAYS continuing members was practiced; and now, the rule now accommodates that practice. All the rules were changed for a small group....for the first time...ever.

 

[OHRoadwarrior]

Then your answer is easy. Go ask the people who made the rules.

No, it is not the focus of my argument; and, your hammer argument is not consistent with your comment of applying rules fairly...true?

My career aside....my main legal question here questions why the legacy of ALWAYS continuing members was practiced; and now, the rule now accommodates that practice. All the rules were changed for a small group....for the first time...ever.

 

[CJane]

No, it is not the focus of my argument; and, your hammer argument is not consistent with your comment of applying rules fairly...true?

My career aside....my main legal question here questions why the legacy of ALWAYS continuing members was practiced; and now, the rule now accommodates that practice. All the rules were changed for a small group....for the first time...ever.

The simplest answer is that for the past decade or so, we've needed the military to continue growing. We've done that through enlistment waivers, and through promoting "average" people through the system. IIRC, the promotion percentage for MAJ-LTC for the Army was something like 80%. Promotion from Captain to Major was along those lines as well.

But now, we're faced with the need to downsize this bloated - and officer-heavy Military. We can't downsize, and also keep people who don't pass muster for promotion. Just can't.

Expect to see fewer waivers for people getting in, more Members facing career ending legal issues for activities that would have been overlooked a few years ago, more Members passed over for retirement and outed instead of upped. And expect to see that for several years.

 

[gdmarsh]

Thank you OHRoadwarrior, my senator has engaged the Department of Defense on their policy for a few months. Also I appreciate CJane's "simplest answer"; but an April 2012 (after my separation) letter from the Chief of Staff of the Air Force says despite downsizing issues, something was not done properly.

That aside, I still don't have a grasp on the legal answer of how the government can discriminate a small group of people, using historic/legacy decisions while not keeping cognizant of these programs. My focus here is determining the legal side of that issue.

Thank you again. Cheers.

 

[Zigner]

Thank you OHRoadwarrior, my senator has engaged the Department of Defense on their policy for a few months. Also I appreciate CJane's "simplest answer"; but an April 2012 (after my separation) letter from the Chief of Staff of the Air Force says despite downsizing issues, something was not done properly.

That aside, I still don't have a grasp on the legal answer of how the government can discriminate a small group of people, using historic/legacy decisions while not keeping cognizant of these programs. My focus here is determining the legal side of that issue.

Thank you again. Cheers.

What protected group is being discriminated against?