RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:	DOCKET NUMBER:	BC-2008-01868 INDEX CODE:	133.30

COUNSEL:	HEARING DESIRED: YES

APPLICANT REQUESTS THAT:
His demotion to the grade of technical sergeant prior to his retirement be set-aside and his grade of master sergeant be restored with all pay and allowances to include retired pay.

APPLICANT CONTENDS THAT:
At the time of his demotion he was serving on an Active Guard Reserve (AGR) tour with the Texas Air National Guard (TXANG) under Federal orders and with over 18 years of active Federal service. Citing fundamental administrative due process denial, counsel for the applicant makes the following contentions:

1.	The applicant was not given the opportunity to overcome his deficiencies before the demotion action was initiated.

2.	Because he was on active duty orders, the applicant could not be demoted under the provisions of Air National Guard Instruction (ANGI) 36-2503, Administrative Demotion of Airmen.

3.	His commander failed to cite AFI 36-2503 in the letter of notification (LON) as is required when seeking to demote a service member on “active duty”.

4.	In subject LON, the commander failed to state how the applicant allegedly failed to fulfill Non-Commissioned Officer (NCO) responsibilities.

5.	Also regarding the LON, the commander failed to notify the applicant that he could submit written materials for his consideration.

6.	The initiating commander failed to consider the applicant’s entire military record in deciding whether or not demotion was appropriate.

7.	The commander failed to notify the applicant that he could request a hearing before the initiating commander to dispute the specific reasons for the demotion.
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8.	After receiving the applicant’s acknowledgement, the commander failed to notify the applicant in writing of his decision to continue processing the demotion action.

9.	The applicant was not afforded the opportunity to view the case file before it was forwarded to the discharge authority in order to correct errors or to add to the case file.

10.	The commander of the TXANG could not act as the discharge authority as the applicant was on active duty.

11.	The Governor of the State of Texas could not “Order” the applicant be demoted as he was on active duty at the time.

12.	The commander failed to notify the applicant of his right to appeal his demotion.

13.	The applicant’s demotion was not approved by the Secretary of the Air Force (SECAF) or his designee.

In support of his appeal, the applicant provides a statement from counsel, with numerous attachments.

Applicant’s complete submission is attached.

STATEMENT OF FACTS:
Applicant began his military career on 27 August 1975. He was progressively promoted to the grade of master sergeant (MSgt).

On 24 June 2004, the applicant was presented with a Notification of Intention to Demote letter from his commander. The specific reason for the demotion was that he failed to maintain the standards of personal integrity and leadership required of NCO’s both on and off duty. In particular, the commander noted:

1.	On 10 December 2002, the applicant was convicted of the offense of Driving While Intoxicated (DWI) by the Bexar County Court.

2.	On 19 February 2003, the applicant made material misrepresentations on his National Guard Bureau (NGB) Form 17, Statement of Reenlistment/Extension in the ANG, in that he failed to inform unit officials he had been arrested, convicted, and sentenced to a term of probation for the December 2002 DWI offense and such misrepresentation might have resulted in the rejection of his reenlistment.

3.	On 30 May 2003, he was convicted of DWI (Second Offense) by the Bexar County Court.

The LON notified the applicant that he had five calendar days with which to acknowledge receipt of the LON and attachments. He

also had to indicate his concurrence or non-concurrence with the proposed demotion action. If he consulted with counsel prior to making his decision to concur or non-concur, the commander gave him until the end of the work day on 27 June 2004 to inform him of his choice.  The LON notified the applicant that his opportunity to present written statements on his behalf within
20 days after indicating his decision. He was also notified that should he desire a meeting with the commander, that request should be forwarded along with his written statements.

The applicant was demoted effective 3 October 2004 with a date of rank (DOR) of 3 October 2004.

On 25 May 2005, the applicant was removed from his active duty AGR tour and discharged from the TXANG.	On 25 September 2005, he submitted an application to the AFBCMR asking the Board to either retire him or reinstate him to duty allowing him to accrue enough service to make him retirement eligible.		The NGB found that he had over 19 years of active duty service with the TXANG at the time of his discharge and was in Sanctuary (more than 18 years of service	but	less	than	20 years).		NGB	noted	that	only	the Secretary of the Air Force (SECAF) could remove a member from an AGR tour if they were subject to sanctuary protection.	As the applicant was not given the protections and due process afforded by sanctuary, NGB recommended and the SECAF directed that his records be corrected to show he was not relieved from active duty with the TXANG on 25 May 2005, but on that date, he continued to serve on active duty unt i l	31  Mar ch  2006,		at	whi ch  t i me  he  was di schar ged	and	r et i r ed	f or		l engt h	of	ser vi ce ef f ect i ve		1	Apr i l 2006.	He had served over 30 years for pay at the time of his retirement.

AIR FORCE EVALUATION:
The National Guard Bureau received this application for an advisory opinion on 19 May 2008. To date, they have not provided one.

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. Counsel has based many of the applicant’s contentions of error on his active duty status at the time with regard to the authority of his chain of command. Guardsmen serving on active duty in an Active Guard Reserve (AGR) position are governed by Title 32, United States Code  (U.S.C.)  and  therefore  do,  in  fact,  fall  under  the
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jurisdiction of the governor of the State they are serving in and therewith fall under the jurisdiction of the Adjutant General (TAG) and the remaining chain-of-command as it pertains to the applicant. Consequently, the TAG and the applicant’s commander acted under the authority vested in them by Federal statute.

4.	The evidence of record indicates that proper protocol with regard to his demotion was followed. Two convictions for DWI and knowingly making material misrepresentations on official Federal documents more than convince us of the applicant’s failure to fulfill his NCO responsibilities. Further, the contention the applicant was not given the opportunity to overcome his deficiencies prior to his demotion is not borne out by the evidence of record. Nor has the applicant provided evidence the Secretary of the Air Force was obligated to approve his demotion.

5.	The remaining issues dealing with a lack of fundamental administrative due process are not supported by the evidence of record. Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

6.	The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue(s) involved. Therefore, the request for a hearing is not favorably considered.

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.

The following members of the Board considered AFBCMR Docket Number BC-2008-01868 in Executive Session on 29 July 2009, under the provisions of AFI 36-2603:

Panel Chair 
Member 
Member

The following documentary evidence, with regard to AFBCMR Docket Number BC-2008-01868, was considered:

Exhibit:	DD Form 149, dated 14 May 08, w/atchs.