RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-00343
		INDEX CODE:  110.03

		COUNSEL:  NONE

		HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

The following changes be made to his record:

1.	Correct Standard Form-50B (SF-50B), Notification of Personnel Action, for military administrative errors.

2.	Declare invalid a civilian’s resignation of a military commission. 

3. Declare the commander’s order to resign as illegal and coercive.
     
     4. Declare his resignation as involuntary and invalid.
     
     5. Declare invalid the Air Force (AF) authority cited as reason for discharge.
     6. Correct National Guard Bureau Form 22 (NGB 22), Report of Separation and Record of Service, administrative errors.
     
     7. Declare invalid his military discharge.
     
     8. Declare invalid the removal of his federal recognition.
     
     9. His mandatory promotion date to Lieutenant Colonel (05) be changed from 1 June 1998 to a date three years from the date a decision is reached by the AFBCMR.

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APPLICANT CONTENDS THAT:

There are two significant events that occurred back-to-back while he was a member of the Michigan Air National Guard (MI ANG) that has led to this application.  First, in September 1995, his fulltime military technician position was terminated as a result of false claims by his commander that he had lost his flying status and his security clearance.  In fact, he had not lost his flying status; a fact later revealed by HQ USAF/XOOT, the Office of Primary Responsibility (OPR) for Air Force flying status matters.  His Top Secret security clearance was also confirmed active and valid.  The Air Force Central Adjudication Facility (AFCAF) confirmed his standing and also reported that no adverse information had been reported on him since his last periodic review in 1994.  Therefore, his position was terminated on two false claims made by his commander.

Second, in October 1995, his commander illegally ordered him to travel to Wright-Patterson Air Force Base (W-P AFB) for the purpose of undergoing unprescribed medical treatment for alcohol abuse.  He was notified that if he did not undergo treatment he would be required to resign or face dishonorable discharge proceedings.  He did not travel to W-P AFB for treatment and after a final warning from his commander; he resigned his commission and was discharged on 31 January 1996 under the auspices of AFI 36-3209 wherein the authority for discharge was listed as voluntary resignation.

His resignation was not voluntary but due solely to the commander’s order to resign if he refused his commander’s order to report to W-P AFB.  He contends his commander’s order was illegal because he was not in military status.  As a Guardsman, he would have to be ordered to active duty for a period of 30 days in order to comply with said order.  He was not ordered to active duty.  Further, he contends a memorandum from AFMOA/SGOA confirmed the appropriate process for a command directed mental health evaluation was not followed and that the commander’s order for the evaluation was not objectively based on any observed behavioral lapses.  Finally, he contends his commander avoided every opportunity to comply with regulations governing fitness for duty, including a requirement that his own base medical squadron evaluate him.

In support of his appeal, the applicant has provided a personal statement, statements from a number of officer’s both in and out of his chain of command, select excerpts from Air Force Instructions (AFI’s), Air National Guard Instructions (ANGI’s), and National Guard Bureau Technician Personnel Regulations (TPR’s), as well as several excerpts of testimony from an NGB-IG and an Department of Defense (DoD) IG investigation, and numerous other pertinent documents. 

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

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STATEMENT OF FACTS:

The applicant transferred to the Michigan Air National Guard (MI ANG) from the Wisconsin Air National Guard (WI ANG) in 1992.  He was a fulltime military technician with the MI ANG and served as an Instructor Pilot (IP) until 31 January 1996 when his ANG technician employment was terminated, he resigned his military commission and was honorably discharged from the MI ANG.  At the time of his discharge, he had earned the rank of major (0-4) with a date of rank of 3 December 1988 and had served a total of 18 years, 8 months and 21 days of combined active and Reserve component service.

On 31 January 1996, he filed a complaint with the Air Force Inspector General (IG) alleging the MI ANG denied him due process and violated the Privacy Act, among other allegations.  The AF IG eventually forwarded the complaint to the Chief, NGB who, on 13 June 1996, directed NGB-IG to conduct an investigation into the allegations.  NGB-IG concluded their investigation and substantiated the actions of the MI ANG leadership in their handling of the applicant’s resignation and subsequent discharge.

In September 1998, the applicant filed a Congressional Inquiry through the office of Congressman (C/M) N--- S--- of Michigan, alleging the NGB-IG investigation was flawed.  On 28 October 1998, C/M Smith forwarded the allegations to the Assistant Secretary of Defense that resulted in the commencement of a December 1998 Department of Defense (DoD) IG investigation.  The DoD IG investigation took three years to complete and ultimately found that the NGB-IG findings were not correct in stating that the applicant’s termination was in accordance with regulatory provisions in effect at that time. 

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AIR FORCE EVALUATION:

ANG/DPPI, after an exhaustive review of the results of consultations and reports from several outside agencies by the NGB Judge Advocate (NGB-JA), found that while the propriety of the civilian technician termination lies outside the purview of the AFBCMR, the evidence supports a conclusion that the basis for the termination (loss of flying status and security clearance) were inaccurately stated on the SF 50B.  Further, the evidence also supports the allegation that his resignation was not voluntary but was the result of coercion.  

DPPI, based on NGB-JA’s findings, recommends relief be granted.  DPPI notes that if the Board decides to grant relief, the applicant should be awarded the retirement points and pay and allowances he would have earned had he not resigned his commission and his employment had not been terminated.  Further, DPPI states the applicant would have been eligible for mandatory promotion to Lieutenant Colonel (Lt Col/0-5) on 1 June 1998.

DPPI’s complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant notes he is not required to respond to the ANG/DPPI advisory opinion, but would like to address two issues that were in the opinion.  The first concerns his mandatory promotion (to Lt Col) date of 1 June 1998.  If the Board chooses to approve his appeal, he requests his mandatory promotion date to Lt Col be adjusted to three years after the Boards decision.  Had he not been coerced into resigning he would have been able to compete for promotion well prior to the mandatory promotion date of 1 June 1998.  He notes that without this three-year adjustment of his mandatory promotion date, upon the Board’s approval of his application, he would be immediately retired from the ANG.  His goal is to continue serving.  To that end, he notes that the MI ANG’s current extraordinary effort to return him to duty (possibly as soon as 21 February 2004) would be for naught if his mandatory promotion date were not extended.  As a result, his unfair discharge would merely end up being effective on June 1998 instead of January 1996 thereby making the requested relief of undoing all the harm caused by the coerced resignation contradictory.  He states the MI ANG has the authority to promote as promotion is a state function, but promotion dates are determined only under the auspices of federal regulations prescribed by the Secretary of the Air Force.  Therefore, the extension of his mandatory promotion date is well within the authority of the Board to approve.

Second, he is concerned the Board might consider not granting his request to correct the known errors on the SF-50B as the Board may only correct military records - not civilian records.  He states the corrected SF-50B will directly affect the outcome of an issue currently under review in the Court of Federal claims.  The Court is reviewing his civilian severance pay, which is determined by a voluntary or involuntary termination.  Should the Board decide to remove the three false statements in the SF-50B concerning flying status, security clearance, and “voluntary action” their action would enable the court to properly review the matter with truthful evidence.  He states that corrective action by the Board regarding the SF-50B may also assist the current Adjutant General in making his determination to reinstate his civilian position.  He feels it is right and in the interest of justice for the Board to give the AG the opportunity to correct the error of his predecessor.

Applicant's complete response is 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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  In this respect, we note the following:

	a.  After reviewing the evidence submitted by the applicant and noting the findings of the Department of Defense/IG and the, Secretary of the Air Force/IGQ investigations, it is apparent that the applicant’s commander abused his authority and the applicant’s resignation of his military commission was the result of coercion and not voluntary and his termination was not in accordance with regulatory provisions in effect at the time.  Based on the evidence of record, had the applicant not been separated, he would have continued to serve in the Air National Guard (ANG).  Since he was not allowed to serve, we believe that his record should reflect that he received credit for satisfactory years of service for his retirement/retention years 1995 through 2004.  In this regard, we believe he should be given an average of active and inactive duty points of his last four years of guard service.

	b.  Under most circumstances, this Board believes the decision regarding an applicant’s prospects for promotion should be addressed by the promotion selection process.  However, there are instances where the magnitude of the injustice is such that it can only be rectified by a Secretarial directed promotion.  We believe this is such a case.  In this respect, we believe that had the applicant been retained, he would have been considered for promotion to lieutenant colonel by the FY98 Line and Non-Line Lieutenant Colonel Selection Board.  As redress, the AFBCMR normally would have placed the applicant’s record before a Special Selection Board (SSB) and have the SSB compare his record with his contemporaries.  However, in this instance recommending his consideration by an SSB would not be practical since the applicant’s record would not have any current performance reports.  Based on the above and in view of the damaged caused by his commander’s abuse of authority, we believe he should be promoted to the Reserve grade of lieutenant colonel by the FY98 Line and Non-Line Lieutenant Colonel Selection Board. In arriving at our decision, we are keenly aware that the courts have held that correction boards have an abiding moral sanction to determine, insofar as possible, the true nature of an alleged injustice and take steps to grant thorough and fitting relief.  We note applicant’s request that he be promoted to lieutenant colonel three years from the date of the Board.  However, by law, the applicant must be considered by the FY 1998 mandatory lieutenant colonel slection board, the board which we are directing his promotion.

c.  In regard to applicant's request for reinstatement in the Air National Guard, this Board lacks the authority to grant that relief.  However, the Air Commander, 127th Wing Michigan ANG, has provided a letter of intent informing the Board that ANG Headquarters and the 127th Wing are currently working to find a valid vacant officer position for the applicant within the Michigan ANG.  Therefore, we recommend that he be discharged from the ANG effective 1 March 2003 and transferred to the active reserve.  If the ANG has a vacant position in which the applicant qualifies for they can take the necessary action to have him assigned.

d.  With respect to the applicant’s request to correct his Standard Form-50 (SF-50B), Notification of Personnel Action, it is well settled that the Board’s correction powers are limited to military records.  Guard technicians are full-time civilian employees who are also members of the ANG unit in which they are employed.  Because of this dual status, the Board does not have the authority to correct the civil service records of a guard technician.  In this regard, the applicant may seek a remedy through the Michigan ANG Human Relation office that has the authority to make corrections to the SF-50B in question.

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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. All references of his resignation of his commission on 8 November 1995 be declared void.

	b. On 31 January 1996, he was not honorably discharged but continued to serve in his assignment with the Michigan Air National Guard.

	c. He was considered and selected for promotion to the Reserve grade of lieutenant colonel by the FY98 Air National Guard Line and Non-Line Lieutenant Colonel Selection Board and upon appointment by the President, he be given an effective and date of rank of 1 October 1997.

	d.	He was credited with an additional 44 paid active duty points, 58 paid inactive duty points, and 15 membership points for retention/retirement year 25 October 1994 to 24 October 1995, resulting in a 140 total points; and, that the period 25 October 1994 to 24 October 1995 was a satisfactory year of Federal service.

	e. He was credited with 48 paid active duty points, 77 paid inactive duty points, and 15 membership points for retention/retirement years 25 October 1995 to 24 October 2003, resulting in 140 total points; and, that the periods 25 October 1995 to 24 October 2003 are satisfactory years of Federal service.

	f. During retirement/retention year 25 October 2003 to 29 February 2004 he was awarded 20 paid active duty points and 34 paid inactive duty points for the period 25 October 2003 to 28 February 2004.

	g.  He was discharged from the Michigan Air National Guard on 29 February 2004 and transferred to the Active Air Force Reserve Section effective 1 March 2004.

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The following members of the Board considered this application in Executive Session on 2 March 2004, 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 1 Dec 02, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, ANG/DPPI, dated 6 Jan 04.
     Exhibit D.  Letter, SAF/MIBR, dated 9 Jan 04.
     Exhibit E.  Letter, Applicant, dated 27 Jan 04.
     Exhibit F.  Letter, Michigan ANG, dated 3 Mar 04.

                                   
                                   Panel Chair

BC-2003-00343

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. All references of his resignation of his commission on 8 November 1995, be, and hereby are, declared void.

		b. On 31 January 1996, he was not honorably discharged but continued to serve in his assignment with the Michigan Air National Guard.

		c. He was considered and selected for promotion to the Reserve grade of lieutenant colonel by the FY98 Air National Guard Line and Non-Line Lieutenant Colonel Selection Board and upon appointment by the President, he be given an effective and date of rank of 1 October 1997.

		d. He was credited with an additional 44 paid active duty points, 58 paid inactive duty points, and 15 membership points for retention/retirement year 25 October 1994 to 24 October 1995, resulting in a 140 total points; and, that the period 25 October 1994 to 24 October 1995 was a satisfactory year of Federal service.

		e. He was credited with 48 paid active duty points, 77 paid inactive duty points, and 15 membership points for retention/retirement years 25 October 1995 to 24 October 2003, resulting in 140 total points; and, that the periods 25 October 1995 to 24 October 2003 are satisfactory years of Federal service.

		f. During retirement/retention year 25 October 2003 to 29 February 2004 he was awarded 20 active duty points and 34 paid inactive duty points for the period 25 October 2003 to 28 February 2004.

		g. He was discharged from the Michigan Air National Guard on 29 February 2004 and transferred to the Active Air Force Reserve Section effective 1 March 2004.

                                                                            
                                                                            Director
                                                                            Air Force Review Boards Agency