RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-00997
		INDEX CODE:  110.03

		COUNSEL:  XXXXX & XXXXX

		HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

She be reinstated in the Texas Air National Guard (TXANG) Active Guard/Reserve (AGR) program, effective 15 April 2002, with all pay that was lost (less her subsequent earnings as a civil service technician) or in the alternative, she be assigned to active duty in an Air Force Reserve unit or in the Regular Air Force. 

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APPLICANT CONTENDS THAT:

She was not processed for involuntary separation in accordance with the applicable Air National Guard Instruction (ANGI) 36-101, The Active Guard/Reserve Program; that the allegations that served as the basis for the improper separation were not supported by the facts, and; that the separation was not warranted based on the allegations. 

She was ordered TDY to attend a school at Little Rock Air Force Base (AFB), Arkansas from 28 January 2001 to 2 February 2001.  While attending school, her mother notified her that the child left in her mother’s care was ill but they decided she should remain at the school.  She finished the class early on 1 February 2001 and decided to fly home that day.  She arrived at Houston and had her mother pick her up at the airport.  After they stopped at her mother’s house to pick up her child, her mother drove them both to her home.  Her car was being repaired at the time.  They were dropped off at her home in the early morning hours on 2 February 2001.

She had partially filled out her travel voucher prior to leaving for school based on her itinerary.  When she completed her travel voucher on 6 February 2001, she counted 2 February 2001 as a travel day as she had not arrived home until that date and was under the impression that she was authorized to use it as her travel day.  As her travel voucher had been partially completed prior to leaving, she only filled out the expenses she incurred in Block 18 of the voucher.  She did not go over the form and admits she made a mistake by not examining it more closely before submitting it.  Her voucher should have been changed to show her departure from Little Rock occurred on 1 February 2001 and not on 2 February 2001, as originally planned, and then arrived at her home on 2 February 2001.  She notes that this clerical error in no way resulted in an economic gain.  

ANGI 36-101 establishes the procedures to be followed for the involuntary separation.  It provides for the initial recommendation of the supervisor or commander, referral to the member for rebuttal, recommended approval/disapproval by the senior commander, and the ultimate decision by the Adjutant General (AG).  There is no evidence that her immediate supervisor was ever involved in the process and the only opportunity she had to respond to the charges was via letter to her commander on 9 November 2001.  Her involuntary separation process began and ended with her senior commander, in direct contradiction with the procedures established by ANGI 36-101.  ANGI 36-101 contains a provision that allows an AGR member to be involuntarily separated immediately, while omitting counseling or an LOR, if the reason for separation warrants immediate separation.  In this case, she notes that more than nine months passed until her senior commander decided to process her for involuntary separation.  Therefore, there is no basis for the immediate separation.

She has shown that at every stage of the involuntary separation process, she raised her concerns about the obvious noncompliance with ANGI 36-101 and her concerns seemed to have fallen on deaf ears.  She contends that the alleged misconduct that served as the basis for her unlawful separation cannot be supported by any facts.  Any error in judgment by her in this case does not warrant separation and is not supported by the governing ANGI.

She has served in varying capacities in the military for over 16 years.  She asks that due to the noncompliance with ANGI 36-101, she be reinstated into the AGR program effective 15 April 2002 and she will continue to be an asset to her unit.

In support of her appeal, applicant submits a brief from counsel with enclosures.

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

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STATEMENT OF FACTS:

On 21 February 2001, the applicant was accused of falsifying a travel voucher following a Temporary Duty (TDY).  The filing of a false travel voucher was considered a violation of Texas Code of Military Justice, section 432.151, False Official Statement.  

In March 2001, she was asked by her vice commander to sign a letter of resignation from the AGR program for the alleged violations of the TX Uniform Code of Military Justice (UCJM).  She refused to sign the letter.  On 1 March 2001, the Wing Commander appointed an investigating officer (IO) to investigate the allegations.  On 22 March 2001, the IO substantiated the allegation that the applicant made false official statements.  On 28 March 2001, she was assigned an official area defense counsel (ADC).

On 9 November 2001, applicant’s wing commander notified her by letter of his recommendation to involuntarily terminate her AGR tour due to false statements made on her February 2001 travel voucher and for making false statements, during sworn testimony, during the March 2001 IO investigation.

On 14 December 2001, her commander received the rebuttal to his recommendation through her attorney.  On 3 January 2002, her commander discounted her rebuttal in a letter to the Adjutant’s General (AG) Human Resources Office (HRO) and recommended her AGR tour be terminated.

On 15 April 2002, she was terminated from the AGR program.  She remained a traditional guardsman however, in the TXANG.

On 5 May 2002, she exercised her reemployment rights under Public Law 103-353, Uniformed Services Employment and Reemployment Rights Act and accepted a civil service technician position with her unit as a military pay technician.

On 28 February 2003, the TXANG requested a command investigation into the alleged improper termination of her tour.  In a memorandum dated 5 May 2003, the TX AG found “…no additional extenuation or mitigation that would cause the TXANG to amend or change its original decision.”  

On 27 December 2003, the applicant voluntarily transferred to the Air Force Reserve.  She has accumulated approximately 19 years of combined active and Reserve service. 

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AIR FORCE EVALUATION:

ANG/DPPI recommends denial.  DPPI contacted the TXANG and notes the comments made by the AG regarding this case that their investigation was conducted in accordance with the appropriate ANG regulations and remains valid.  Further comments were that there had been no additional extenuation or mitigation that would cause the TXANG to amend or change its original decision.  DPPI queried the National Guard Bureau’s Chief Counsel who replied “We are unable to render an opinion on whether or not applicant had demonstrated the existence of material error or injustice…The members separation/removal from the AGR program was entirely a State process under State law and the basis for the member’s removal was a violation of the Texas Code of Military Justice and not any federal law or regulation.  As such, the member’s remedies may only be provided by the State or the TXANG.”  DPPI concurs with the Chief Counsel’s opinion noting that the applicant was only removed from the AGR program under the Texas Code of Military Justice.

DPPI’s complete evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel for applicant states the recommendation for the denial for relief in the advisory opinion is based on the premise that the applicant “was only removed from the AGR program under the Texas Code of Military Justice.”  Counsel states she was not removed under the Texas Code of Military Justice.  She was processed for involuntary separation under ANGI 36-101, a federal regulation.  It is the noncompliance with this ANGI that serves as the basis for the application.  Despite the fact that it has been more than one year since the filing of the application, both the AG and the NGB Office of Chief Counsel completely ignore the basis for the application.

Applicant’s 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 timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice to warrant partial relief.  We believe the applicant’s case, at a minimum, was mishandled by her chain of command as evidenced by the results of a Command Directed Investigation that substantiated her allegation that she was not properly terminated and/or notified of her involuntary termination from her AGR position.  She admitted to making a mistake that, in her words, amounted to no more than an administrative error and we are inclined to agree.  Additionally, we are concerned that the Vice Commander, who asked her to resign from her AGR tour, waited over eight months until after he became the Wing Commander, to initiate involuntary separation from the AGR program procedures against the applicant and a total of 14 months to actually complete the separation action.  Nevertheless, involuntary separation from her AGR tour seems a disproportionate punishment to the alleged offense and we would be inclined to grant her request for reinstatement to her AGR tour.  However, this Board lacks the authority to grant such relief.  This was explained to the applicant whereupon she amended her request, indicating she would be willing to serve on active duty with the Air Force.  Based on the apparent mishandling of this case and to offset any possibility of an injustice, we recommend she be allowed to enlist in the Regular Air Force for a period of four years provided she is otherwise qualified.  
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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.  Special Order AH-53, dated 14 March 2002, relating to Special Order AH-13 (AGR TOUR) of 23 October 1998, be, and hereby is, declared void and removed from her record.

        b.  On 15 April 2002, her Active Guard/Reserve (AGR) tour was not curtailed but on that date she continued to serve in her assignment with the Texas Air National Guard until 24 May 2004.

        c. Provided she is found morally and physically qualified for duty, it is further directed that on 25 May 2004, she was discharged from the Texas Air National Guard and enlisted in the Regular Air Force in the grade of Technical Sergeant (E-6) for a period of four (4) years and was ordered Permanent Change of Station (PCS) to her home of record pending further orders.

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The following members of the Board considered this application in Executive Session on 25 May 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 19 Mar 03, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ANG/DPPI, dated 24 Mar 04.
    Exhibit D.  Letter, SAF/MRBR, dated 2 Apr 04.
    Exhibit E.  Letter, Counsel, dated 12 Apr 04.

                                   
                                   Panel Chair

 

AFBCMR BC-2003-00997

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.  Special Order AH-53, dated 14 Mar 02, relating to Special Order AH-13 (AGR TOUR) of 23 Oct 98, be, and hereby is, declared void and removed from her record.

                   b.  On 15 April 2002, her Active Guard/Reserve (AGR) tour was not curtailed but on that date she continued to serve in her assignment with the Texas Air National Guard until 24 May 2004.

                   c.  Provided she is found morally and physically qualified for duty, it is further directed that on 25 May 2004, she was discharged from the Texas Air National Guard and enlisted in the Regular Air Force in the grade of Technical Sergeant (E-6) for a period of four (4) years and was ordered Permanent Change of Station (PCS) to her home of record pending further orders.

                                                                            
                                                                            Director
                                                                            Air Force Review Boards Agency