RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-01881
		INDEX CODE:  110.03

		COUNSEL: 

		HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

He be reinstated into the XXXXX Air National Guard (XXANG) Active Guard/Reserve (AGR) program with all due back pay and allowances.

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APPLICANT CONTENDS THAT:

The procedures used by the Human Resources Office (HRO), State of XXXXX Adjutant General’s Department for Non-Renewal of AGR Tour, violated his rights to procedural due process for the following reasons:

		a. The action initiated to non-renew his AGR tour originated from the XXXXX State HQ Human Resources Office (HRO) (not his unit) and was based on old and outdated information compiled from an earlier unsuccessful separation action for the same reason.

		b. The State HQ did not provide any appropriate documentation regarding their action until it was too late for his counsel to mount an effective defense.  Consequently his subsequent appeal opportunities afforded under ANG Instruction (ANGI) 36-101, The Active Guard/Reserve Program, have been exhausted, and/or denied.

		c. He was not given a 90-day notice prior to his separation required by ANGI 36-101.  The State HQ used 22 November 2002, the date of his notification of non-renewal, as their starting point for his 90-day notice.  When they discovered he had not signed the notice until 11 December 2002, the State HQ extended his tour an additional 12 days until 11 March 2003.

		d. ANGI 36-101 requires any appeal of a non-renewal action to be submitted no later than 30 days prior to the separation date.  He was not able to submit an appeal under these time constraints, as the supporting documentation, frequently requested by his counsel, did not arrive until 28 February 2003, only 11 days prior to his separation.

Applicant contends he had been diagnosed with diabetes that required he take medication that could account for rapid weight gain, increase in appetite, and problems with rapidly losing weight.  He states he was separated prior to his reaching 18-years of service in order to keep him from reaching sanctuary (immune from involuntary separation without cause).  

In support of his appeal, the applicant has provided a personal statement with attachments.

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

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STATEMENT OF FACTS:

The applicant was placed on the Weight and Body Fat Management Program (WBFMP) in August 2001.  He remained in Phase I of WBFMP until 12 February 2002, when he met weight standards and was moved to Phase II (a six month observation period).  On 1 August 2002, after meeting weight standards for the required six-month observation period, he was discharged from the WBFMP.

On 28 August 2001, his request for renewal of his AGR tour was denied and his current AGR tour was set to expire on 28 September 2001.  On 8 September 2001 however, a request from his commander that his tour be extended for 120 days due to stop-loss, through 26 January 2002, was approved.  

On 25 January 2002, his AGR tour was extended, again in compliance with stop-loss, for 120 days through 26 June 2002.  In July 2002, he was affected by stop-loss once more and was extended through February 2003.    

On 7 November 2002, he was weighed and found to be exceeding the Air Force weight standard.  It should be noted that from 7 November 2002 through 8 January 2003 his case was held in suspense due to a change of command and establishment of a new First Sergeant.  

His unit had planned on extending him to FY05 in order for him to reach his 20 years for retirement.  However, on 22 November 2002, the XXANG State Headquarters notified him by letter that his AGR tour was not being renewed for failure to maintain medical qualification, physical fitness, or weight standards as required by ANGI 36-101.  He did not acknowledge receipt of the letter until 11 December 2002, so the State extended his tour by 12 days (through 11 March 2003) to ensure he had the allotted 90 days prior to his separation date to submit an appeal.

On 4 January 2004, his counsel submitted a letter to the State HRO requesting any and/or all documentation being used as the basis to support the non-renewal action so that the applicant could build a meaningful response.  Counsel also requested copies of any recommendations for renewal or non-renewal of his AGR tour and any documentation establishing he was advised of the alleged failure and given a chance to remedy any alleged deficiencies prior to the non-renewal action being initiated.  Counsel made note in the memo that no one at the applicant’s unit seemed to be aware of the non-renewal action the State had initiated.

On 8 January 2003, his unit placed him on the 90-day Health Improvement Program (HIP).  If he did not meet standards by the end of this period he would be reentered into the WBFMP, Phase I.  

On 27 February 2003, counsel requested that the State AG extend the applicant’s tour by 90 days in accordance with ANGI-36-101, in order to give him time to consult counsel and build an appeal.  He also asked that the AG withdraw the non-renewal action and reinitiate it 90 days later.  On 2 March 2003, the XX AG, in a memorandum to counsel, denied counsel’s request for the 90-day extension.

Counsel received the documentation requested to support an appeal, on 27 February 2003, approximately two weeks prior to the expiration of the applicant’s AGR tour and two weeks beyond the 30-day deadline to submit an appeal.  Consequently, on 17 April 2003, the AG denied the applicant’s appeal.  He was subsequently discharged from the AGR program effective 11 March 2003 after serving 17 years, 11 months, and 24 days of active duty.  He is currently serving as a traditional guardsman in the XXANG with an expiration of term of service (ETS) of May 2005.  At that time he will have completed over 35 years of combined active and Reserve service and be eligible for a Reserve retirement at age 60.

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AIR FORCE EVALUATION:

ANG/DPP recommends denial.  DPP notes the applicant was given 90 days notice with the concurrence of the Wing, Vice and Support Group Commanders.  Because he did not indicate receipt of the letter notifying him of his non-renewal until 11 December 2002, his tour was extended to ensure he received the 90 days.  DPP indicates the XXANG initiated disciplinary actions on a number of occasions to address applicant’s unsatisfactory participation in the Weight Management Program (WMP).  He was ineligible for a subsequent AGR tour for failing to meet weight standards and was duly notified of the consequences for not meeting weight standards as long ago as 1995.

DPP finds the applicant has failed to produce sufficient evidence to establish a probable material error or injustice under AFI 36-101, and is of the opinion that his rights were not violated.  DPP also notes that the AFBCMR lacks the jurisdiction to reinstate the applicant to the XXANG AGR program.

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant’s counsel requests the record show he is not representing the applicant as civilian counsel but as military defense counsel (MDC).  Counsel continues to be appalled by the fact that the NGB and XXANG continue to insist the applicant has been afforded substantive and procedural due process.  Counsel contends the advisory’s claim that applicant’s case underwent a thorough review is not correct.  Counsel states the applicant was not provided any of the evidence purporting to support the adverse actions until after the alleged deadline for appeal (Counsel’s emphasis).  The fact that neither the applicant nor counsel received any of the alleged supporting documentation until February 27, 2003 is in direct contradiction to the instructions under which these combined actions were processed.  Counsel contends applicant’s substantive and procedural due process rights, including his right to assistance of counsel, were violated.  

Counsel reiterates the application clearly sets forth the myriad procedural violations that occurred under the various regulations involving the adverse actions against the applicant.  The adverse action depended on “stale” information from an earlier action and is considered to be woefully inadequate and improperly documented so as to be unusable by any current attempt at a defense.  The fact that the applicant has diabetes, the impact of which was not adequately documented in his record, nor the impact of which was considered in making the decision to proceed with the adverse action.  Counsel contends that a careful and thorough review of this matter would establish that the applicant’s rights have been grossly violated in a rushed attempt to remove him before he gained sanctuary.  

Counsel contends that a written decision had not been completed regarding this case until he (counsel) had continued to demand that one be accomplished.  The written decision concluded that the applicant had not submitted an appeal through command channels.  In fact, the State HQ made any attempt at an appeal through command channels impossible.  Counsel was not able to provide timely or effective advice due to the State Adjutant General and his staff who engaged in conduct and action that severely biased and disregarded applicant’s rights throughout the entire affair.  

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 his chain-of-command as evidenced by instances of miscommunication between the State and the unit, the use of outdated evidence with which to implement and maintain the non-renewal action, extending the applicant’s tour while beginning non-renewal and/or involuntary separation action, and the apparent delay of certain actions in order to hasten his separation prior to him entering the 18-year sanctuary.  The near total lack of regard for counsel’s repeated requests for pertinent evidence to help form a defense and submit an appeal to the XXANG is disturbing.  Especially in light of the fact that when counsel finally did receive documentation from the State, he received it just after the applicant’s appeal deadline had expired.  The amount of time the applicant was given to respond to the XXANG’s non-renewal action and the amount of time he was given to appeal the State’s decision is suspect and so is the fact that after years of approved extensions to remain on active duty, he was denied an extra 90 days to build a rebuttal/appeal.  While we would be inclined to grant his request for reinstatement to the XXANG AGR program, this Board lacks the authority to grant such relief. However, based on the apparent mishandling of this case and to offset any possibility of an injustice, we recommend that the records be corrected as indicated below.

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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.  He enlisted in the Regular Air Force on 1 August 1984 in the grade of master sergeant; on 28 September 1986, he was released from active duty and on 29 September 1986, he was transferred to the Air National Guard Active/Guard Reserve Program.

		b. On 31 March 2003, he was discharged from the XXXXX Air National Guard and transferred to the Air Force Reserve and was retired for length of service effective 1 April 2003.

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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:

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

    Exhibit A.  DD Form 149, dated 28 May 03, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ANG/DPP, dated 12 Apr 04, w/atch.
    Exhibit D.  Letter, SAF/MRBR, dated 16 Apr 04.
    Exhibit E.  Letter, Rebuttal, dated 23 Apr 04.

                                   

AFBCMR BC-2003-01881

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.  He enlisted in the Regular Air Force on 1 August 1984 in the grade of master sergeant; on 28 September 1986, he was released from active duty and on 29 September 1986, he was transferred to the Air National Guard Active/Guard Reserve Program.

		b. On 31 March 2003, he was discharged from the XXXX Air National Guard and transferred to the Air Force Reserve and was retired for length of service effective 1 April 2003.