RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2007-02023
							     INDEX CODE:  110.03, 128.10,
                                                 128.14, 135.03 
	XXXXXXXXXXXXX				COUNSEL:  XXXXXXXXXXXXXXXXXX

								HEARING DESIRED:NOT INDICATED

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APPLICANT REQUESTS THAT:

He be placed back on his Active Guard Reserve (AGR) tour, given back pay, and absolved from any alleged debt owed to the U.S. Government.

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APPLICANT CONTENDS THAT:

AF/REAMO violated its own instruction, AFI 36-2132, paragraph 2.7, and AFI 36-3209, paragraph 3.12.5.1.2, by discharging him from an AGR tour.  

He did not receive, in a timely manner, proper orders, a properly completed DD Form 214, or a final pay and accounting.  

He was paid from October 2006 – January 2007 while he was undergoing medical testing.  In January 2007, his pay was stopped, he received notice that he was discharged in September 2006, and DoD FAS [sic] alleges he owes the government more than $11,700. 

In support of his appeal, he has provided copies of two statements from his counsel to SAF/MRBR, dated 23 February 2007 and 25 June 2007, his AGR Tour Curtailment Worksheet, his DD Form 368, Request for Conditional Release, an e-mail from AF/REAMO to the 434th MSF/DPM, addressing his reentry into the AFR and AGR Program, an e-mail trail between ARPC/DPAAB and the 434th MSF/DPMSA addressing his AFR status, an AF/REAMO document, Procedures for Tour Curtailment Requests, an AGR Tour Curtailment Fact Sheet, an AF/REAMO Talking Paper on AGR Retirement and Separation Process, an AF Form 422, Physical Profile Serial Report, an e-mail trail between his counsel and AF/REAMO addressing his request for the applicant’s re-instatement to his AGR position and his indebtedness to the U.S. Government, a letter from his counsel to AFRC/JA addressing his discharge from the AFR, an e-mail trail between his counsel and AFRC/JA addressing his discharge from the AFR and reinstatement to his AGR position, a letter from the Care Group LLC addressing his diagnostic cardiac catheterization, an e-mail trail between his counsel and DFAS-JED addressing his rebuttal of his indebtedness to the U.S. Government, a letter from his counsel to DFAS-JEDC/DE addressing his indebtedness to the U.S. Government, a statement to DFAS-JEDC/DE that his counsel represents him and his interests in all matters pertaining to his account, and a letter from DFAS-JEDC/DE notifying him of his indebtedness to the U.S. Government. 

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

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STATEMENT OF FACTS:

The AGR Program was established by Title 10, United States Code, and is administered by Air Force Instruction 36-2132, Full-Time Support (FTS) Active Guard Reserve (AGR) Program, a copy of which is at Exhibit H.  The Program consists of FTS personnel who are responsible for assisting in the organization, administration, recruitment, instruction, training, supply, and maintenance support to the Air Force Reserve (AFR).  All AGR personnel are counted against authorized Selected Reserve (SELRES) end-strength as authorized by Congress each year, and all AGR personnel must be accounted for in end-strength and personnel reporting systems.  The Chief of the Air Force Reserve (AF/RE) provides oversight, policy, and guidance on AGR career management, and the AGR Management Office (AF/REAMO) is the central point of contact for all AGR matters and is responsible for managing the day-to-day administration of the overall AGR Program.

Initial entry into the AGR Program is by individual application for selection for assignment to a funded, validated, Unit Manpower Document (UMD) position (overages and overgrades are not authorized), and an applicant must meet all AFR accession standards and be selected and approved by AFRC/CC as the best-qualified among other qualified individuals to support AFR mission requirements.  Members selected for initial AGR tours must meet the physical qualifications outlined in AFI 48-123, Medical Examination and Standards, and each AGR applicant will have a medical examination prior to entry on an AGR tour.  Initial tours are normally for four years, and, unless the individual is serving on an occasional AGR tour or a one-time AGR tour, all enlisted and officer AGR personnel are normally reviewed by the AGR Review Board (ARB) 10-15 months prior to their date of separation (DOS) for possible entry into the AGR Career Program which could lead to a military retirement after attainment of the required years of active Federal Military Service.

AGRs may request an early release from their AGR tour based on position realignment, personal hardship, or other valid reasons.  AGRs submit a curtailment request through their chain of command to arrive at AF/REAMO no later than 180 days prior to the requested DOS, and exceptions to the 180-day rule are considered on a case-by-case basis.  An AGR must normally serve at least two years of their current assignment and complete applicable service commitments before being approved for release.  Curtailment packages must contain a detailed written request with justification, a requested DOS, and appropriate supervisor and commander endorsements through the appropriate chain of command.  

A review of the applicant’s records indicates that he was serving on an initial AGR tour at Grissom ARB, IN, which commenced on 1 Jan 2006, with a DOS of 31 Jan 2010.  On 14 August 2006, he signed a DD Form 368, Request for Conditional Release, for enlistment/appointment into the Active Duty U.S. Army, which was approved on 20 September 2006, valid until 14 November 2006.  On 26 August 2006, he signed an AGR Tour Curtailment Worksheet, requesting that his AGR tour be curtailed so he could enlist in the Active Duty Army, with a desired DOS of 30 September 2006.  

The applicant was released from his AGR tour on 30 September 2006, and, instead of being conditionally released (pending acceptance by the U.S. Army) from the AFR, he was erroneously unconditionally discharged from the AFR on 30 September 2006.  He was subsequently found to be medically disqualified for entrance into the U.S. Army, and was re-accessed by the AFR as a Traditional Reservist in the 434th Air Refueling Wing, Grissom ARB, IN.  He continued to erroneously receive active duty (AGR) pay totaling $11,714.72 after his AGR tour curtailment date of 30 September 2006 

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AIR FORCE EVALUATION:

AFRC/A1B recommends denial of any relief, and references an AFRC/JA memorandum to the applicant’s counsel, dated 8 March 2007, which they have attached.

AFRC/JA advised that the applicant’s request for voluntary AGR tour curtailment, subsequent discharge, and request for AGR pay debt forgiveness are three distinct and separate actions.  His request for voluntary AGR tour curtailment was for the purpose of seeking enlistment in the Active Duty Army, and, in order for that to happen, two actions had to occur; he had to request voluntary curtailment of his AGR tour and he had to be conditionally released from the AFR.  On 26 August 2006, the applicant completed and submitted the AGR Tour Curtailment Worksheet which, unlike his conditional release request, is unconditional and its acceptance independent of any underlying basis.  AF/REAMO normally requires the referenced worksheet to be submitted at least 120 days {sic} prior to the requested date of curtailment; however, the applicant was anxious and insistent that action on his voluntary curtailment request occur on or before 30 September 2006.  They accommodated his request and approved his desired AGR curtailment date of 30 September 2006.  Once his AGR tour was curtailed, he became just like any other AFR member and became eligible to apply for any qualified position assuming he is medically qualified.  Application and medical qualification do not guarantee acceptance, they simply mean he may be considered among any and all qualified candidates.

In order to enlist in the Army, the applicant was required to submit a DD Form 368, Request for Conditional Release, from the AFR, which he did on 14 August 2006 and which was approved on 20 September 2006.  A conditional release is only effective for entrance into another military service component, and is ineffective if the applicant is not accepted by the other military service component.  In the applicant’s case, he was erroneously unconditionally discharged from the AFR on 30 September 2006, and was subsequently found to be medically disqualified for entrance into the Army.  Thereafter, the AFR, upon learning that he had been mistakenly discharged, re-assessed him into the AFR as a Traditional Reservist with the 434th Air Refueling Wing at Grissom ARB, IN.  However, his re-assessment into the AFR did not entitle him to being restored to his previous AGR tour from which he voluntarily requested curtailment.  They advise that it is their understanding that the applicant currently suffers from a medical condition necessitating Physical Evaluation Board (PEB) review and, as a consequence, is not medically qualified at this time for an AGR tour.

The applicant continued to receive active duty (AGR) pay after his AGR curtailment date of 30 September 2006; in essence, he received pay but did not perform duty, and the United States now seeks recoupment of the unearned pay.  Although this was an administrative error, it is, nonetheless, a legitimate debt owed, and the applicant may submit a waiver of claims for erroneous payments of pay and allowances by working with the 434th Air Refueling Wing Financial Management Section.

The AFRC/A1B evaluation, with attached AFRC/JA advisory, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

AFRC offers no regulatory, statutory, or other authority for the Air Force’s wrongful termination of his AGR tour, for its refusal to acknowledge the wrong-doing of its staff personnel, or for its refusal to cite authority for the summary denial of his request for reinstatement.  Instead, they contend that AF/REAMO merely complied with his alleged “insistence” that he be released from the Air Force so that he could enter the Army.

AFRC asserts that “he had to request voluntary AGR curtailment which would release him from his contract of current active duty service (AGR Tour) with the Air Force Reserve, and he had to be conditionally released from the AFR for each of the acronyms stated there.  Otherwise, with his AGR Tour curtailed, he would simply become a traditional reservist…On August 26, 2006, he completed his voluntary request for curtailment of his AGR Tour.”  AFRC conveniently glosses over the fact that he was told these documents were required in order for him to merely be considered for an Army tour.  They fail to disprove his contention that a sergeant assigned to the 434th MSF, in fact, completed the form and inserted the “short notice” request, and they also fail to address the fact that AF/REAMO policy and regulation require a curtailment request to be submitted 120 days before the requested date of curtailment.  Contrary to AFRC’s assertion, AF/REAMO did not accommodate his short-notice request; rather, the sergeant at the 434th MSF and AF/REAMO expedited his exit from his AGR tour for their own purposes.  AF/REAMO sought to discharge him before the end of the fiscal year for monetary reasons, and has ignored this fact each time it was brought up.  

AF/REAMO failed to follow their own regulations and improperly discharged him from his full-time occupation as an AGR at Grissom ARF, IN.  Specifically, AF/REAMO negligently and improperly discharged him and refused to accept responsibility for their negligence, and as a result of that negligent discharge, he has incurred a debt of over $11,000, and AF/REAMO initiated procedures to permanently discharge him under the pretext of a non-service connected medical disability.  He recently received a medical waiver from the Air Force Surgeon General and there is, therefore, no legal or medical impediment to reinstating him to his AGR position.

The Air Force discharged him as of 30 September 2006 without providing to him proper notice or completing of the three significant out-processing events which make a discharge effective:  a properly executed DD Form 214, orders releasing him from active duty from the AGR Program, and a final pay and accounting.  They also failed to administer to him any exit dental, medical, or mental health examinations.  Accordingly, they contend that he was never properly discharged from the Air Force, and he continues to lose benefits and pay, and incur additional expenses as he asserts his rights and attempts to rectify the Air Force’s unlawful discharge of him.

The applicant’s complete response is at Exhibit E, F, and G.

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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.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  The applicant’s contentions are noted; however, he has not provided evidence to substantiate these contentions.  Of significance to the Board is the fact that although he claims his AGR Tour was wrongfully terminated, he completed and submitted the AGR Tour Curtailment Worksheet on 26 August 2006, with a stated reason for his request being to enlist in the Active Duty Army and a desired DOS of 30 September 2006.  Curtailment of an AGR Tour is unconditional and its acceptance independent of any underlying basis.  Once a member curtails their AGR tour, they become just like any other AFR member and must apply, be considered, and be selected for any qualified AGR position among any and all qualified candidates, and his re-assessment into the AFR as a Traditional Reservist and recent medical waiver from the Air Force Surgeon General do not entitle him to being restored to his previous AGR tour from which he voluntarily requested curtailment.  His contention that he was never properly discharged from the Air Force since he did not receive, in a timely manner, a properly executed DD Form 214, orders releasing him from active duty from the AGR Program, and a final pay and accounting, and that they failed to administer to him any exit dental, medical, or mental health examinations, is without merit and does not alter the fact that he voluntarily curtailed his AGR tour on 30 September 2006, and continued to receive AGR pay thereafter but did not perform AGR duty.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered Docket Number BC-2007-02023 in Executive Session on 4 December 2007, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 27 Jul 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFRC/A1B, dated 4 Sep 07, w/atch.
    Exhibit D.  Letter, SAF/MRBR, dated 14 Sep 07.
    Exhibit E.  Letter, Applicant’s Counsel, dated 18 Sep 07.
    Exhibit F.  Letter, Applicant’s Counsel, dated 25 Sep 07.
    Exhibit G.  Letter, Applicant’s Counsel, dated 1 Oct 07.
    Exhibit H.  AFI 36-2132, dated 19 Apr 05.