RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-00151
		INDEX CODE:  135.05

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His retirement date of 1 May 97 be adjusted to one that will provide him with 30 years of commissioned service or 5 years in the Reserve grade of colonel, thus entitling him to monetary restitution.
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APPLICANT CONTENDS THAT:

He was involuntarily retired in May 97 using Reduction in Force (RIF) procedures that did not follow Air National Guard Instruction (ANGI) 36-101.  The Idaho Air National Guard (IDANG) never convened a RIF board, ranked all the affected officers and retired all those eligible, and involuntarily separated officers until they reached the appropriate number called for in the new Support Personnel Manpower Document (SPMD).  Had the proper RIF procedures been followed, he would still have been in the Active Guard/Reserve (AGR) status when he was promoted to colonel instead of being in a retired status when the promotion came through.  He was notified on 29 Jul 98 that he had been promoted to colonel, with a date of rank of Jun 96, when he met the colonel board.  As a result of the improper AGR RIF, he was retired 50 months earlier than his mandatory separation date as a colonel (O-6), which would have been Jun 01.  Had he still been on AGR status when he was promoted to the grade of colonel, he would have been able to stay until he had attained 30 years of commissioned service or 5 years in grade.

In support of his request, the applicant submits a personal statement, with additional documents associated with the issues cited in his contentions.  These documents are appended at Exhibit A.
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STATEMENT OF FACTS:

The applicant’s Total Federal Commissioned Service Date (TFCSD) is 18 Dec 68.  Having been duly examined by a Federal Recognition Board, the applicant received temporary Federal recognition as a second lieutenant, Idaho Air National Guard (IDANG), effective 18 Dec 68.  On 9 Feb 69, the applicant was appointed a second lieutenant, Reserve of the Air Force (Air National Guard).

The applicant was progressively promoted to the Reserve of the Air Force and Air National Guard grade of lieutenant colonel (O‑5), with a promotion service date (PSD) of 11 Jan 87 and an effective date of 15 May 87.  By ANG Special Order AP-124, dated 5 Jun 98, he was promoted to the Reserve of the Air Force and Air National Guard grade of colonel (O-6), with a PSD and effective date of 30 Jun 96.

IDANG Special Order A-92, dated 14 Sep 94, reveals that the applicant was on an Active Guard and Reserve (AGR) tour of duty (full-time duty), during the period 1 Oct 94 - 30 Sep 99, and that the authorized military grade was O-5.

Information extracted from applicant’s submission indicates that he had a mandatory separation date (MSD), with 20 years of service, of 30 Jan 97.  On 28 Jan 97, the applicant was notified by HQ IDANG/CC that his AGR separation date was 30 Apr 97 (refer to Exhibit A, Tab I).  On 3 Feb 97, the applicant requested a 1 May 97 retirement date and transfer to the Retired Reserve.

IDANG Special Order AX‑36, dated 11 Apr 97, amended the applicant’s AGR Tour of 14 Sep 94, changing his end of tour date from 30 Sep 99 to 30 Apr 97.  By ANG Special Order AW-21, dated 21 May 97, the applicant’s Federal recognition status was withdrawn, effective 30 Apr 97, due to his transfer to the Air Force Reserve.

On 30 Apr 97, the applicant was relieved from his present Reserve assignment under the provisions of ANGI 36-101 (Termination of AGR Military Duty Tour) and retired in the Reserve grade of lieutenant colonel, effective 1 May 97.  He had completed a total of 20 years, 3 months and 23 days of active service for retirement.

Applicant’s ANG/USAFR Point Credit Summary, prepared 22 Jun 96, reflects he was credited with 28 years of satisfactory Federal service as of the retirement year ending (RYE) 22 Apr 96.
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AIR FORCE EVALUATION:

The Personnel Policy Staff Officer, ANG/DPFP, reviewed this application and recommended denial.  DPFP stated that the denial of an extension of an AGR tour to a member is not a violation of law or policy on the part of the Idaho ANG.  Retention in the AGR program is not an individual’s right, but is subject to the discretion of the unit commander.  Final approval authority is the Adjutant General.  DPFP indicated that there are provisions in law that allow for a member, once reaching sanctuary of 18 years of active duty, to remain on active duty until they have qualified for retirement at 20 years of service.  A member’s mandatory separation date (MSD) is determined by their age and grade.  In the applicant’s case, as a colonel (O-6), he could have served to age 60 or 30 years of commissioned service, whichever occurs first.  However, as an AGR member, he serves at the pleasure of the wing commander and subsequently the Adjutant General.  Once the applicant had achieved 20 years of active duty service, he was qualified for retirement.  DPFP stated that although a RIF was discussed, one was not accomplished and the applicant was separated because he had enough active duty service to qualify for an immediate active duty retirement.  DPFP sees no fault on the part of the Idaho ANG.

In support of their position, DPFP provided a submission from the commanding general, ID Military Division/IDCG, who stated that the applicant was separated from the AGR program because he was eligible for an immediate active duty retirement when the ID ANG was notified it would undergo a mission change resulting in a reduction in fulltime manpower positions.  IDCG indicated that the applicant was not mission essential nor did he possess unique military qualifications that were not readily available within the numbered wing.  This action was accomplished to avoid having to convene a RIF Board and was in accordance with ANGI 36-101.  The applicant’s subsequent retirement from the Air Force/ANG was his personal choice.  His notification to separate from the AGR program clearly stated that it did not affect his military status in the ID ANG.  Based upon a thorough review of all facts and circumstances surrounding applicant’s request, IDCG finds absolutely no substance to his request and wholeheartedly disagrees with any adjustment to applicant’s retirement date or any monetary restitution.

A complete copy of the ANG/DPFP evaluation, with attachments, is appended at Exhibit C.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the advisory opinion and indicated that he did not request an extension of an AGR tour.  He disagrees with the advisory writer that “he could have served to age 60 or 30 years commissioned service, whichever occurs first.”  Since he was promoted, effective 30 Jun 96, pre-Reserve Officers Promotion Management Act (ROPMA) rules apply.  Thus, his mandatory separation date (MSD) was still 30 years + 30 days or five years time-in-grade (TIG), whichever is later.  Even though he serves at the pleasure of the wing commander and subsequently the Adjutant General, his tour of duty is governed by regulation (ANGI 36-101); and, ANGI 36-101 is specific about involuntary separation before a tour ends.  The reason given for his separation was because he was retirement eligible and because of an SPMD change, AGR positions need to be given back to the Guard Bureau.  ANGI 36-101, para 6.6. states that the unit is required to conduct a Reaction in Force (RIF).  No other reason for his separation was given.  Because he was on the list for promotion to O-6, his mandatory separation date (MSD) as an O-5 was not applicable.  The advisory writer states that the reason he was separated was because he had enough active duty to retire.  His contention is his forced retirement was arbitrary and capricious.  The IDANG retained an o-5 (Lt Col  ) when, in fact, he should have been retired first.

The response from the Idaho ANG (IDANG) to his request for correction of military records comes as a complete surprise and contradicts what he was told in 1996 when these events were occurring.  The 14 Nov 96 memo requesting Lt Col    be excluded from any RIF actions before 30 Sep 97 is surprising.  However, this memo does not change his contention that the IDANG did not follow the proper procedures per ANGI 36-101.  In summary, the IDANG acted arbitrarily and did not follow the fair and equitable treatment as required by ANGI 36-101.  They should have either removed Lt Col   from AGR status or identified his specific qualifications that would make him exempt from being separated when the firing process began.  He asks the Board to correct his records and provide him the monetary relief to which he believes he is entitled.

Complete copies of the response are appended at Exhibit E.
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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of probable error or injustice.  After careful consideration of the facts of this case, we are unpersuaded that the applicant’s Active Guard/Reserve (AGR) separation and ensuing retirement was erroneous or contrary to the governing Air National Guard (ANG) instruction.  In cases of this nature, we are constrained to note that the needs of the service are paramount in such matters.  There is nothing in the evidence provided which would lead us to believe that the applicant’s separation was based on factors other than sound management principles or that his superiors abused their discretionary authority when the applicant was recommended for separation from the AGR program because he was retirement eligible.  In this respect, no evidence has been presented to indicate that the applicant was critical to the mission and should not have been separated from the AGR program.  We noted that an AGR Reduction In Force (RIF) was not accomplished because the full-time officer manpower reductions were accomplished through separation of retirement eligible AGRs, which we believe was in accordance with the governing ANG instruction.  Other than the applicant’s own assertions, we find no persuasive evidence indicating that the applicant’s substantial rights were violated, that the information cited as the basis for the recommendation for his separation was erroneous or that his commanders abused their authority.  We are therefore in agreement with the ANG assessment of the issues raised by the applicant and adopt their rationale as the basis for our conclusion that he has not been the victim of an error or injustice.  Accordingly, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.
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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of probable material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.
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The following members of the Board considered this application in Executive Session on 18 July 2001, under the provisions of AFI 36-2603:

	            Panel Chair
	            Member
	            Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 9 Jan 01, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, ANG/DPFP, w/atchs, dated 4 May 01.
   Exhibit D.  Letter, SAF/MIBR, dated 25 May 01.
   Exhibit E.  Letters from applicant, undated, w/atchs.

                                   
                                   Panel Chair