RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-00344
		(CASE 2)

		COUNSEL:  XXXXX

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

By amendment, he be promoted to the grade of lieutenant colonel, effective 17 Jul 97, and returned to active duty status via the Active Guard Reserve (AGR) program or by order to the active duty Air Force; or, in the alternative, he be given Special Selection Board (SSB) consideration for promotion to the grade of lieutenant colonel for Fiscal Year 1997 (FY97) and retired under the Temporary Early Retirement Authority (TERA) effective 31 Jan 99.

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APPLICANT CONTENDS THAT:

As established by a previous Board decision (AFBCMR 97-00814), he has suffered a serious injustice.  The record clearly indicates he was the victim of flawed investigations and he suffered a continued injustice through the withholding of his promotion and denial of immediate retirement.  The record also presents disturbing evidence of abuse of command authority with regard to the conduct of the investigations and denial of legal counsel to the applicant.  He had invested substantial time in the service of his country and had a full-time career ahead of him.  Because of erroneous command action, he will never enjoy a full career in the service of his country.  The evidence compels the Board to correct this injustice and lay to rest the unfortunate incident.

In support of his appeal, the applicant provided a counsel’s brief, documentation pertaining to a previous Board decision, supportive statements, copies of his officer performance reports (OPRs), and his separation document.

Applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant was appointed a second lieutenant, Air National Guard and Reserve of the Air Force on 3 Apr 82.  On 8 Mar 96, he was released from active duty under the provisions of AFI 36-3209 (Misconduct) with service characterized as honorable.  He was transferred to the Kansas Air National Guard, effective 2 Apr 96, in the grade of major.

On 2 Jan 97, the applicant’s commander notified him that he was recommending his separation from the Kansas Air National Guard.

On 23 Jun 97, the applicant was notified by the Executive Support Staff Officer, Kansas Air National Guard, that he was not approved for retention by the Kansas Air National Guard Selective Retention Review Board.

On 31 Jul 97, the applicant was relieved from his assignment and separated from the Kansas Air National Guard.

On 30 Jan 98, a Report of Investigation prepared by the Air Force Inspection Agency (AFIA) concerning abuse of authority in the Kansas Air National Guard was released indicating that on 3 Jun 97, a complainant wrote to the Secretary of the Air Force Inspector General(SAF/IG) and alleged a lack of integrity and inadequate procedures of the National Guard Bureau (NGB) Inspector General (IG) system, inconsistencies in officer career programs at NGB and the Air National Guard Readiness Center; abuse of authority by the NGB-IG and NGB Chief of Staff; unauthorized disclosures of an IG investigation; reprisal; coercion and intimidation and compromise of office/position.  On 4 Jun 97, another complainant wrote to SAF/IG and alleged waste of government resources by NGB-IG and NGB-JA and abuse of the IG system, abuse of authority by NGB-IG and NGB Chief of Staff.   On 4 Sep 97, SAF/IG tasked the Air Force Inspection Agency (AFIA) to conduct an investigation into the allegations made by both complainants.  The allegations concerned the processing, thoroughness, objectivity, and accuracy of an NGB-IG investigation of IG complaints filed by a major assigned to the Kansas Air National Guard which alleged wrongdoing by personnel assigned to the Kansas Air National Guard.  The AFIA investigation officers examined the facts and circumstances leading to the major’s separation and ultimate retirement and his subsequent IG complaints.  The investigation officers reviewed six interlocking investigations of alleged wrongdoing of a former Kansas Air National Guard wing commander and alleged wrongdoing by the major.  They also reviewed the actions taken against the major.  The AFIA investigation covered 21 allegations.  The complainants’ primary concerns were the alleged collapse of the confidential relationship between the NGB-IG and complainants and the improper influence the NGB-IG tried to exercise over local, state personnel actions.  The AFIA investigation officers concluded that although the investigative processes employed by the NGB-IG were flawed, the problems were not as pervasive as the complainants alleged (Exhibit C).

On 21 Oct 99, the Board considered an application pertaining to the applicant in which he requested that he be reinstated to the AGR program effective 8 March 96, with back pay and allowances; he be promoted to the grade of lieutenant colonel effective 14 Oct 95; the word Misconduct be removed from his DD Form 214, and all references to this matter be expunged from his records; and, upon his reinstatement to the AGR program, he be permitted to retire immediately under the 15-year active duty retirement program.  The Board directed that the applicant’s records be corrected to reflect that he was not released from active duty on 8 Mar 96 under the provisions of AFI 36-3209 (Misconduct), transferred to the Kansas Air National Guard on 2 Apr 96, discharged from the Kansas Air National Guard on 31 Jul 97, and assigned to the Retired Reserve on 2 Aug 97; but was continued on active duty until 31 Jan 99; and, that he was released from active duty on 31 Jan 99 for the Convenience of the Government and transferred to the Air Force Reserve and assigned to such a position for which he is qualified on the earliest practicable date. 

By a corrected Memorandum for the Chief of Staff, the applicant records were corrected to reflect that he was released from active duty on 31 Jan 99 under the provisions of AFI 36-3207 (Completion of Required Active Service), rather than for the Convenience of the Government.

Information extracted from the Personnel Data System (PDS) indicates that the applicant is currently assigned to the Inactive Status List Reserve Section (ISLRS) of the Air Force Reserve.

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AIR FORCE EVALUATION:

ANG/DPFP recommended denial indicating that the applicant was ineligible for position vacancy promotion based on the documentation that there was no intent by his immediate commander to recommend him for promotion.  ANG/DPFP noted the applicant’s assertion that he was not promoted because of unsounded investigations.  ANG/DPFP indicated that there was no evidence showing that the applicant’s promotion would have been approved even if no investigations occurred.  Although the applicant had accumulated 15 years of service, under the ANG TERA policy, he would not have been eligible for a TERA retirement.  ANG TERA policy stipulates that a state must have sustained reductions in its Active Guard Reserve (AGR) employment authorizations in order to be eligible for TERA consideration.  Kansas had not suffered any AGR losses, therefore, the applicant would not have been considered.

ANG/DPFP also provided comments from AGKS/AIR who indicated that the applicant’s claim is totally disingenuous.  The applicant and his counsel clearly know that the NGB-IG investigation was overturned by the Air Force Inspection Agency investigation.  This matter has been previously adjudicated and at that time the Board denied the request for promotion and early retirement, and there was no evidence that would change the opinion of the previous Board.  The applicant would not have been promoted but for the arguable investigations since he was reprimanded for another matter by the wing commander.  Further, the 15-year retirement was not appropriate for him then nor is it appropriate for him now.

A complete copy of the ANG/DPFP evaluation, with attachments, is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the advisory opinion and furnished a response and additional documentary evidence which is attached at Exhibit F.

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ADDITIONAL AIR FORCE EVALUATION:

ANG/DPFP reiterated their denial indicating that the applicant was ineligible for a position vacancy promotion based on the documentation (letter of reprimand) provided and there was no intent by his immediate commander to recommend his promotion.  He was also not eligible for an ANG TERA and he did not have the support of his chain of command, TAG, or ANG/DP.  According to ANG/DPFP, in order for the applicant to return to active duty, he has the right to apply for an AGR tour, but he must locate a unit with a military/full-time resource, and meet the eligibility criteria in ANGI 36-101, The Active Guard/Reserve Program (AGR).

A complete copy of the ANG/DPFP evaluation is at Exhibit G.

ARPC/DPA indicated that based on previous experience and duty history, the applicant may be qualified to fill positions in the 21XX (Logistics), 65FX (Finance), or 36PX (Personnel) career field and also indicated the IMA positions that are available for the applicant to consider.

ARPC/DPA stated that there are several non-pay, points only (Category E) options available to the applicant and they provided information on each of the programs.

According to ARPC/DPA, the Air Force Reserve recruiters would assist the applicant in securing either an IMA or traditional unit position.  The recruiters will provide assistance in identifying other unit or IMA positions for the applicant and arrange for interviews or other necessary meetings to secure an assignment.  They will also complete the necessary documentation to reassign the applicant from his current assignment in the Nonaffiliated Reserve Section of the Standby Reserve to the Selected Reserve.  A recruiter is not necessary for assignment to Category E.  The applicant would have to accomplish an AF Form 1288, Application for Ready Reserve Assignment, and submit it to the appropriate program.

A complete copy of the ARPC/DPA evaluation is at Exhibit H.

AFPC/DPAS indicated that upon reviewing the applicant’s package, he could be utilized as a core Personnel (36P) or Financial Management (65F) officer if returned to the active duty Air Force (Exhibit I).

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant indicated that the advisory opinions submitted by the Air Force Reserve and the Air National Guard are regrettably unresponsive.  They do not provide a means for the Board to completely correct the injustice it found in its previous decision (AFBCMR 97-00814).  

The ANG/DPPP advisory response is in error concerning his ineligibility for promotion based on the letter of reprimand and on no intent by the immediate commander to recommend promotion.  It is also misleading as to the applicability of the TERA program with regard to the Air National Guard.  He knows of at least one officer who was allowed to retire under the TERA without regard to the stipulations outlined in the advisory.  The negative recommendation for relief as outlined in the ANG/DPPP advisory has already been found in error by the previous Board decision.  The chain of command noted is the same that erroneously terminated him and it continues its prejudicial treatment.  Also, the inconsistent application of the TERA program within the ANG is on its face discriminatory.

Applicant’s complete response is at Exhibit K.

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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.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice concerning the applicant’s request for SSB consideration.  We note that in a previous appeal before the Board, the applicant requested that he be reinstated into the Active Guard Reserve (AGR) program effective 8 Mar 96, with back pay and allowances; he be promoted to the grade of lieutenant colonel effective 14 Oct 95; the word Misconduct be removed from his DD Form 214, and all references to this matter be expunged from his records; and, upon his reinstatement to the AGR program, he be permitted to retire immediately under the 15-year active duty retirement program.  The Board determined that corrective action was warranted based on the fact that the applicant’s AGR tour was wrongfully terminated.  In this respect, the evidence of record revealed that the tour termination was the result of an LOR the applicant received for misconduct.  However, the action taken appeared to have been based on a commander-directed inquiry into allegations against the applicant that was not thorough and unbiased.  The Board concluded that the appropriate relief would be to correct the applicant’s records to show that he continued on active duty until the end of his original AGR tour, change the reason for his separation, and transfer to the Air Force Reserve and have him assigned to a position for which he was qualified.  Since it appears that the applicant has met the eligibility requirements for mandatory consideration by a central selection board, we believe that he should also be afforded SSB consideration for promotion to the grade of lieutenant colonel beginning with the Fiscal Year 2001 (FY01) Line and Health Professions Lieutenant Colonel Selection Board, the earliest board for which he would have been in-the-promotion zone (IPZ) eligible.  We took note of the applicant’s request that he be given SSB consideration by the FY97 board.  However, eligibility for this board required a promotion service date (PSD) of 30 Sep 90 or earlier, and a total years service date (TYSD) of 30 Sep 76 or earlier.  Although the applicant’s PSD date is 17 Jul 90, his TYSD is 12 Jun 81.  Therefore, he was not eligible for consideration by the FY97 board based on his TYSD.

4.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice concerning the applicant’s requests that he be promoted to the grade of lieutenant colonel, effective 17 Jul 97, and returned to active duty status via the AGR program or by order to the active duty Air Force or retired under TERA effective 31 Jan 99. 

	a.  With regard to his request for promotion and early retirement under TERA, we note that the Board denied an earlier appeal containing these requests.  After a thorough review of the available evidence, to include the statements from the applicant’s former supervisor and the former director of personnel, we are not sufficiently persuaded that the applicant was not promoted or allowed to retire under TERA based on flawed investigations, as he alleges.  In this respect, we note that in addition to the LOR which was the basis for the termination of his AGR tour, he received another LOR for inappropriate behavior; i.e., retaliating against an individual for providing information against him in an official investigation by attempting to deface the professional reputation of that individual.  This LOR, in all likelihood, would have rendered him ineligible for promotion.  Furthermore, we find no evidence which convinces us that he would have been recommended for promotion by his commander but for the alleged flawed investigation, which is also an eligibility requirement.  We also note that the applicant did not meet the eligibility criteria for early retirement under TERA, notwithstanding his assertion that another individual in a similar circumstance as his was allowed to retire early.  In view of the foregoing, and in the absence of clear-cut evidence to the contrary, we adhere to the Board’s previous determination concerning the applicant’s requests for promotion and early retirement.

	b.  We note the applicant’s request that he be returned to active duty status via the AGR program or by order to the active duty Air Force.  However, we are not persuaded that such action is warranted.  Although the previous Board found that the applicant had been the victim of an error or injustice, it took what we believe was proper and fitting relief.  As indicated above, he was continued on active duty until the end of his original AGR tour, the reason for his separation was changed, and he was transferred to the Air Force Reserve to be assigned to a position for which he was qualified, since the Board lacks the authority to reinstate him to the Guard.  While it does not appear that the Air Force Reserve has yet acted on the Board directive to find the applicant a job, they have identified positions for which he is qualified, and have indicated their willingness to assist him in finding an appropriate position.  Although the applicant believes he is entitled to continue in an active duty status because he was on an AGR tour which was wrongfully terminated, we know of no policy or program which would have guaranteed him another AGR tour upon completion of the previous one.  The applicant is encouraged to work with the Air Force Reserve in order that the previous Board’s recommendation can be implemented, thereby finding him a position for which he is qualified.  In view of the foregoing, the applicant’s request that he be returned to active duty status via the AGR program or by order to the active duty Air Force is not favorably considered.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be considered for promotion to the grade of lieutenant colonel by a Special Selection Board for the Fiscal Year 2001 (FY01) Line and Health Professions Lieutenant Colonel Selection Board; and, if not selected by the FY01 Line and Health Professions Lieutenant Colonel Selection Board, he be considered for promotion to the grade of lieutenant colonel by a Special Selection Board for the Fiscal Year 2002 (FY02) Line and Health Professions Lieutenant Colonel Selection Board.

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The following members of the Board considered AFBCMR Docket Number 01-00344 in Executive Session on 16 Jul 02, under the provisions of AFI 36-2603:

Panel Chair
Member
Member

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 2 Dec 00, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  AFIA Report of Investigation, dated 30 Jan 98
                 (withdrawn).
     Exhibit D.  Letter, ANG/DPFP, dated 21 Aug 01, w/atchs.
     Exhibit E.  Letter, SAF/MIBR, dated 21 Sep 01.
     Exhibit F.  Letter, applicant, dated 15 Oct 01, w/atch.
     Exhibit G.  Letter, ANG/DPFP, dated 1 Feb 02.
     Exhibit H.  Letter, ARPC/DPA, dated 19 Feb 02.
     Exhibit I.  Letter, AFPC/DPAS, dated 4 Apr 02.
     Exhibit J.  Letter, SAF/MRBR, dated 12 Apr 02.
     Exhibit K.  Facsimile, AFBCMR, dated 14 May 02.
     Exhibit L.  Letter, applicant, dated 3 Jun 02.

                                   
                                   Panel Chair

AFBCMR 01-00344

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to , be considered for promotion to the grade of lieutenant colonel by a Special Selection Board for the Fiscal Year 2001 (FY01) Line and Health Professions Lieutenant Colonel Selection Board; and, if not selected by the FY01 Line and Health Professions Lieutenant Colonel Selection Board, he be considered for promotion to the grade of lieutenant colonel by a Special Selection Board for the Fiscal Year 2002 (FY02) Line and Health Professions Lieutenant Colonel Selection Board.

                                                                           
                                                                           Director
                                                                           Air Force Review Boards Agency