RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-02537
		INDEX CODE:  110.02

		COUNSEL:  NONE

		HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

His separation from active duty on 30 April 2000, as a result of a reduction-in-force (RIF) action, be changed to an active duty retirement.

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APPLICANT CONTENDS THAT:

The RIF action used to separate him from extended active duty was inappropriate and incorrectly administered.  A request to retire (Temporary Early Retirement Authority – TERA) should have been approved by the Air National Guard (ANG) and the U.S. Air Force.  

His active duty management analyst (MA) position was ordered unfunded by NGB in order to fund the new Community Manager (CM) position.  After being assured by his wing, State, and NGB that he would not lose his job - the MA incumbent was allowed to remain in the position - the position was eventually unfunded.  This action resulted in his Active/Guard Reserve (AGR) tour being terminated two years early.  He had met with the State and wing commander’s to try and resolve his situation by finding employment elsewhere in the State but had been unsuccessful.  

In November 1999, he was given two options by the State Human Resources Officer (HRO): 1.  Participate in a Reduction-in-Force (RIF) action, or 2.  Apply for early retirement under the Temporary Early Retirement Authority (TERA).  He was informed at first by the HRO that TERA was not available to him; the HRO later recanted and offered him TERA, supposedly with NGB’s verbal approval.  He accepted an early retirement and began retirement out-processing.  The State and Wing assisted in the retirement processing in the normal manner and he applied for, and was granted, terminal leave and permissive TDY.  He sold his home, relocated his family, took post-service employment, and bought a new home.  In March 2000, he was told his application for TERA had been disapproved by the NGB.  Their disapproval was based on the policy at the time that no TERA would be approved for incumbents of unfunded positions unless there was a concurrent net loss of an Employment Authorization (EA).  In his case, the EA did not go away, it was simply reapplied to a different unfunded position, making that position funded.

The state argues he was given the opportunity to apply for the new position and failed to do so.  He states that he was not made aware of the new position vacancy (the position was already encumbered as the state had filled it early - prior to NGB identifying funds to do so.)  He never saw the position vacancy announcement while it was being offered, he found out later it had been offered as a civilian (GS-Technician) position and not an active duty position - which may have kept him from applying for it anyway.  Further, the vacancy announcement had a closing date of 1 February 2000 and he had begun approved PTDY and terminal leave in November 1999.  

When TERA was denied, he was sent a RIF notice.  He states the RIF was a result of the state trying to fix the situation they found themselves in.  They had procured a verbal approval from NGB to allow him to retire early under TERA - he met all the requirements demanded by law, to do so.  The state had allowed him PTDY, terminal leave, and had disbursed funds for his PCS, all apparently, without the authorization to do so.  He states the RIF was not carried out in accordance with (IAW) established ANG Instructions.  The instructions only allow RIF action to take place for those members losing positions where the EA is also being lost.  Established RIF procedures also require a RIF board, consisting of three board members, to analyze all retirement eligible personnel.  To his knowledge, no RIF Board was ever formed, no other retirement eligible personnel were considered, and the EA originally funding his position was not lost, only reapplied elsewhere.

He wrote letters to the state HRO, and two of his elected officials.  All three were returned with responses not acceptable to him.  The response from Senator, through NGB, restated he had the opportunity to apply for the new position created by NGB and failed to do so.  It also restated the denial of TERA was based on the ANG policy that required a loss of an EA, and that he was offered a voluntary Special Separation Benefit (SSB).  He disputes these responses as inaccurate.  He never “voluntarily” accepted a RIF or an SSB, nor to serve for three additional years in the Ready Reserve (a requirement to receive an SSB).  He did receive Readjustment pay as indicated on his final leave and earnings statement that he believes is not the same as an SSB.  He notes the RIF and the SSB both require the loss of an EA to be offered - which did not happen.  How could the unit RIF him or offer him an SSB when he, by ANG policy did not qualify for either?  The requirement of serving three additional years in the Ready Reserve for receipt of an SSB was also disproved as he only served two additional years (in traditional guard status) and that only because he needed the time to qualify for a Reserve retirement at age 60.  He was completely discharged from the military effective 1 June 2002 and subsequently transferred to the Retired Reserve only then.  He argues that if he could qualify for a RIF and/or SSB, then he should have qualified for early retirement under TERA.

In support of his appeal, the applicant has provided a personal statement and:

	     1. A memo from the Georgia State HQ Human Resources Office (HRO) dated 20 Apr 99, establishing the Community Manager (CM) position.
	     2. 116th Support Group Commander (SPTG/CC) memo dated 25 May 99, questioning the intent of the State HQ in dealing with the incumbent of the Management Analyst (MA) position.
	     3. Select copies of his Officer Performance Reports (OPR’s).
	     4. Memo from applicant to SPTG/CC and Wing CC dated 7 Nov 99, summarizing his position and asking for guidance.
	     5. A copy of the ANG Separation Incentive Program (SIP).
	     6. Memo from applicant to SPTG/CC and Wing CC dated 1 Dec 99, requesting TERA.
	     7. A copy of the Transition Assistance Program Table of Contents.
	     8. A copy of the Robins AFB Pre-Separation/Retirement Briefing.
	     9. Copies of various out-processing documents.
	    10. Copies of Leave Form requests, including those normally required by retirement - Permissive TDY (PTDY) and terminal leave requests.  Also a copy of document establishing retired pay procedures.
	    11. Memo from Georgia ANG (GA ANG) State HRO to applicant dated 29 Mar 00, notifying applicant of impending RIF action and consequent termination of applicants Active/Guard Reserve (AGR) position.
	    12. Chapter 4 of ANG Instruction (ANGI) 36-101, Priority Placement, and Reduction in Force.  
	    13. Correction to request for terminal leave.
	    14. Copy of ANG/DP memo to GA ANG State HRO, dated 16 May 00, denying applicant’s request for TERA and reiterating the original policy that allowed the State to grandfather the MA position until vacated.
	    15. Copy of Public Law 102-484, Section 4403, Temporary Early Retirement Authority, and associated documents.
	    16. Memo from GA State HRO to applicant informing him there is no appeal of the TERA denial.
	    17. Technician Vacancy Announcement for a temporary technician position of the CM position.
	    18. Letter from Representative Max Cleland to applicant dated 27 Nov 00, with attached memo from GA ANG Adjutant General (AG) explaining GA ANG’s position on applicant’s separation.
	    19. Letter from Representative Zell Miller to applicant dated 8 Dec 00, with attached memo from National Guard Bureau (NGB) Office of Policy and Liaison explaining NGB’s position on applicant’s case.
	    20. Applicant’s 1030 Apr 00 Leave and Earnings Statement (LES).
	    21. Honorable discharge certificate, NGB Form 22, Report of Separation and Record of Service, and Special Order A-078 relieving applicant from assignment effective 31 May 02.

His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant, while a fulltime active duty member of the Georgia Air National Guard (GA ANG), occupied a management analyst position.  ANG/XPM, in a memo dated 22 Mar 99, directed the management analyst position be unfunded and that the employment authorization be used to fund a new community manager position.  The memo stated should the State choose to retain the management analyst position and not move funding to the community manager position that a local management change to their fulltime unit-manning document was authorized.  Applicant was in the fourth year of a six-year active duty tour with the 116th Bomb Wing.  The State decided to fund the CM position and the applicant’s tour was subsequently terminated early, effective 30 Apr 00.  His application to retire early under TERA was disapproved and he subsequently accepted an SSB as a result of an involuntary RIF action.  He remained in the GA ANG as a traditional guardsman until he was honorably discharged effective 1 June 2002.  He had served a total of 20 years, 3 months and 26 days.

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AIR FORCE EVALUATION:

ANG/DPPI recommends denial.  DPPI queried the GA ANG for information surrounding applicant’s case.  GA ANG declined to provide any further details concerning his case stating the case had “already been thoroughly investigated.”  DPPI notes the denial of the applicant’s TERA application was based on ANG policy at the time requiring the net loss of an EA as justification for approval of a TERA application.  DPPI states it is not clear to them how the applicant received an SSB (implicit in this response is the fact that an SSB approval also required a net loss of an EA).  DPPI notes the policy at the time as being clear on the requirements for application of TERA.

DPPI’s complete evaluation, with attachment, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant points out that the ANG/DPPI advisory does not appear to have addressed his contention that he was inappropriately separated nor has it offered a potential remedy.  He identifies two misleading statements included in the advisory.  The first statement, that he was separated “…based on termination (through an amendment) of his original active duty orders” is confusing as he was actually separated as a result of the application of an inappropriate RIF.  The second statement, that a “…Memorandum, issued 29 March 2000 (was issued) as justification for curtailing the original AGR tour”  was wrong in fact as the memorandum was actually titled “Reduction in Force Notice.”  These two statements contribute to the false assumption that he was separated simply as the result of a curtailed tour and the administrative change of some orders.  The fact is that his full-time career was ended by an inappropriate RIF action - which, he notes, the advisory never mentions.  IAW with ANG Instructions, a RIF is only to take place on the net loss of an EA.  Since the unit did not lose an EA, the application of RIF action against him was essentially illegal.  He is very disappointed the advisory does not address this issue and that the resultant paradox had never been explained to him.  

He disputes the State's contention that a thorough investigation has been conducted and doubts that it ever occurred at all.  He assumes whatever findings ensued from the thorough investigation were not significant as they were not documented and sent to ANG/DPPI as a result of their request for more information.  

The DPPI statement “116th Wing commander elected to fund the new CM position and according to Georgia (ANG) the applicant did not apply for the position when the vacancy was announced.”  He began terminal leave in January 2000 with the expectation of retiring in April 2000.  He since found that the position was announced as a temporary position and for a GS civilian technician - not a full time AGR.  While he states he didn’t know the position was being announced at the time, because of the way it was announced he probably would not have qualified as he was an active duty member.  Further, if, as the State contends, he was the subject of a RIF, the State, by regulation, was bound to notify him in writing of the vacancy and that he be given the opportunity to apply.  This did not happen as his leadership already considered him gone.

He corrects the DPPI advisory’s statement that his active duty at the time was fifteen years and ten months as he actually had sixteen years and two months.  He reiterates his qualification for TERA at the time and states that the law does not require a net loss of an EA.  He also finds it interesting that the ANG continues to state he received an SSB.  He states that his military leave and earnings statement refer to the payment as readjustment pay.  In order to distinguish between the two, he contacted the Defense Accounting and Finance Service (DFAS) and was told that the transaction coded on his record was Readjustment Pay with a Special Program Designator (SPD) of LGH which, defined, is Involuntary Release.

The benefit he received, $93,325.05, was automatically paid by DFAS.  He never voluntarily asked for or accepted the benefit as the DPPI advisory implies.  There was nothing voluntary about his separation.  Should the Board agree to relief, he states the Readjustment Pay could be recouped (by the government).  The DPPI discussion on this issue is completely inaccurate.  DPPI has mentioned several times over the past year that he was authorized an SSB when, in fact, their own policy prohibits any program under TERA, including SSB’s, unless there is a net loss in EA’s.  He decries the fact that DPPI continues to say he accepted a voluntary SSB when he actually involuntarily received Readjustment pay.  

He lists three scenario’s that could result from the Board’s deliberations:

		1.  If the Board finds the RIF action appropriate and denies the request for retirement then no relief would be provided and justice would not be done.

		2.  If the Board finds the retirement not possible but the RIF action inappropriate then he could be ordered back to active duty.  A return to active duty would create a significant and devastating financial hardship.  This scenario could only work if the financial impact of physically returning to service could be addressed.  He would rather this solution address the actual need for him to physically return to the service and would prefer a return to service be avoided.

		3.  Should the Board grant the requested relief then he would be officially retired effective 1 May 2000.  The retired back pay should be sufficient to repay the readjustment benefit.  Should this option be selected he would ask that $48,219.00 be waived from the readjustment benefit payback as he has paid this amount of medical expenses for his wife since his separation that would have been covered by an active duty retirement.  He states that recouping the medical expenses is not the critical issue; the critical issue is that he was wrongfully separated from the service and unjustly denied the opportunity of early retirement under TERA.

He is proud of his past service - much of which was performed TDY in support of small training exercises to the likes of DESERT STORM.  He believes the evidence he has present is sufficient for the Board to render him a favorable decision.

Applicant’s complete response is at Exhibit D.

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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.  After an extensive review of the facts of this case, it is apparent to the majority of the Board that the applicant's separation from his active duty tour on 30 April 2000 was error.  In this regard the majority of the Board notes the following:

	a.  The facts of the case reveal that the Georgia Air National Guard (GAANG) mismanaged the applicant’s separation, as did, to some extent, the National Guard Bureau (NGB).  The applicant's position was unfunded in an effort to fund another position on the State's manning document. However, the State did not lose an employment authorization.  The applicant was offered two options: participate in a Reduction-in-Force (RIF) or apply for early retirement.  In November 1999, the applicant accepted and applied for retirement under the auspices of the Temporary Early Retirement Authority (TERA) and began the retirement process with the full support and assistance of the GAANG.  Upon notification from NGB that ANG policy made the applicant ineligible to retire under TERA, the GAANG decided to separate the applicant via a RIF.  Although the applicant was sent a RIF notice, we could find no evidence where RIF procedures, clearly outlined in the Active/Guard Reserve (AGR) management program, were ever followed to their conclusion.

	b.  Subsequently, the GAANG then shortened the applicant's AGR tour by more than two years and separated him from the AGR program with a Special Separation Benefit (SSB) of over $93,000.  However, based upon ANG policy at that time it does not appear that the applicant was eligible for the SSB.

	c.  The applicant has requested that he be allowed to retire under TERA as he was originally informed.  However, based on our above findings and to provide the applicant with full and fitting relief, we belive he should be continued on active duty until he reaches 20 years of active duty service.  In this regard, we note had the applicant's tour not been inappropriately shortened; he would have remained on active duty until 31 May 2002.  On 31 May 2002, applicant would have had over 18 years of active duty service and would have been in sanctuary.  Therefore, by law, he would have been continued on active duty until he reached 20 years and hence eligible for an active duty retirement.  In view of the above, we recommend that his records be corrected to the extent indicated below.

4.  In view of our determination that the applicant should have been continued on active duty, the applicant should provide any documentation to the appropriate agency for possible reimbursement of his medical expenses incurred after his separation of 30 April 2000.  With respect to the SSB received, applicant will have to repay the monies received.
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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that:

	a.  On 30 April 2000, his Active Guard/Reserve (AGR) tour was not curtailed but on that date he continued to serve in his assignment with the Georgia Air National Guard.

	b.  On 20 May 2002, he requested an extension of his AGR tour for a period of two years and competent authority approved his request.

	c.  On 29 February 2004, he was discharged from the Air National Guard and transferred to the Air Force Reserve and was retired for length of service effective 1 March 2004.
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The following members of the Board considered this application in Executive Session on 20 January 2004, under the provisions of AFI 36‑2603:

By a majority vote, the Board voted to grant the request.  Ms. Reynolds voted to deny the request and did not desire to submit a minority report.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 5 Aug 02, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ANG/DPPI, dated 22 Jul 03, w/atch.
    Exhibit D.  Letter, Applicant, dated 1 Nov 03.

                                   

 DEPARTMENT OF THE AIR FORCE
WASHINGTON DC

Office Of The Assistant Secretary

BC-2002-02537

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 APPLICANT, be corrected to show that:

		a.  On 30 April 2000, his Active Guard/Reserve (AGR) tour was not curtailed but on that date he continued to serve in his assignment with the Georgia Air National Guard.

		b.  On 20 May 2002, he requested an extension of his AGR tour for a period of two years and competent authority approved his request.

		       c.  On 29 February 2004, he was discharged from the Georgia Air National Guard and transferred to the Air Force Reserve and retired for length of service effective 1 March 2004.