RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-02765 COUNSEL: NONE HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: 1. He receive back pay and allowances as a result of him being removed from active duty. 2. He be reconsidered {sic} for promotion to the grade of colonel (0-6) and the opportunity to complete the required professional military education for proper qualification. 3. He be retired effective on or about 29 May 11. 4. He be immediately returned to flying duty, if promoted to colonel (0-6) by the board. _________________________________________________________________ APPLICANT CONTENDS THAT: 1. He was illegally removed from active duty and retired after properly filing for sanctuary protection under AFI 36-2131, Administration of Sanctuary in the Air Reserve Components and Title 10 United States Code (USC) 12686. 2. While on long term (greater than 180 days) Title 10 active duty orders at Hurlburt Field Air Force Base, Florida in support of Operation IRAQI FREEDOM, he came into sanctuary. 3. The Utah ANG improperly cut his orders without proper coordination and retired him immediately. 4. The sanctuary waiver he signed was invalid according to AFI 36-2131, paragraph 2.3 sanctuary policy and Title 10 USC 12686(b). The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant was promoted to the grade of lieutenant colonel, effective and with a date of rank of 1 Oct 02. On 1 Jul 09, the applicant was released from the Air National Guard (ANG) and transferred to the Retired Reserve Section. According to Title 10, USC, section 12686 “a member of a reserve component who is on active duty (other than for training) and is within two years of becoming eligible for retired pay or retainer pay under a purely military retirement system, may not be involuntarily released from that duty before he becomes eligible for that pay, unless the release is approved by the Secretary.” The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force, which is attached at Exhibit B. _________________________________________________________________ AIR FORCE EVALUATION: NGB/A1PP recommends denial and states, in part, that although there is evidence to support that an administrative error occurred, there is no evidence to support an injustice occurred. A1PP states the procedures used by the Utah ANG to process special order number R-0000004 for the duration of 270 work days was not accomplished IAW AFI 36-2131. Specifically, the orders should have been accomplished for a period of less than 180 days; in addition the Statement of Understanding to waive member’s sanctuary protection must also cover a period of 180 days or less. However, these actions never occurred. The applicant was on orders beginning 1 Oct 08, and eligible to apply for sanctuary on 28 May 09, which was approximately 7 months and 27 days. A1PP states an administrative error occurred with the processing of the applicant’s orders for 270 days; which was in direct violation of the AFI 36-2131. However, the orders were valid. Once a member reaches 179 days on an order the Air Force Reserve Order Writing (AROW) system automatically generates a hard hold, which notifies the Force Support Squadron (FSS) that an action must take place to both approve the request and allow the member to continue on the order or curtail the order and return the member to their home station. It appears the hard hold was disapproved by the FSS and the applicant was returned to his home station. At this point, the applicant was eligible and should have been afforded the opportunity to claim sanctuary protection. The applicant had a pending Mandatory Separation Date (MSD) of 30 Jun 09. On pages 2 and 9 of his supplemental statement, the applicant states “On 28 May 09, he came into sanctuary and was coming up against his MSD and saw two options. One option was to transfer to the Louisiana Air Guard, 122nd ASOS, as an Air Liaison Officer (ALO). They were willing to allow me to continue on active duty with the special operations mission at the 745th SOS as long as I would go to ALO School and be a qualified name on the books for them. In order to do that, I needed a waiver to my MSD, a process that might take some time.” The applicant knew he had a MSD of 30 Jun 09. If he would have accepted the ALO position, a MSD waiver package would have been submitted to the ANG requesting an extension to the date to allow him to remain on active duty due to his sanctuary protection IAW AFI 36-2131. However, the applicant chose not to take any action to request a MSD extension, which ended his opportunity for continued service past 30 Jun 09. The applicant reached his date of eligibility for sanctuary protection under AFI 36-2131 and Title 10 USC 12686; however, a MSD waiver package was not submitted or approved by the ANG; therefore, he was processed for transfer to the Retired Reserve IAW the governing directives and was not improperly and illegally removed from active duty and retired. The complete A1PP evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The advisory opinion correctly recognizes two key components of his claim. First, his orders were in fact long-term (greater than 179 days) and that he was in fact eligible to apply for sanctuary protection under 10 USC 12686 and AFI 36-2131. Second, the waiver of sanctuary rights (Statement of Understanding) he signed was not valid as it covered a period greater than 179 days. However, the advisory opinion fails to recognize that he had submitted a sanctuary claim and that in doing so, he had fulfilled the requirements of AFI 36-2131 (dated 17 Jan 03 then in effect). The ANG Bureau did not do so, and by its lack of action, failed to comply with AFI 36-2131. The memo from Utah ANG Director of Staff confirms that his Request for Sanctuary was delivered to ANG/DPFO IAW AFI 36-2131. The facts on the second page of the advisory opinion incorrectly refers to the AFI 36-2131, (dated 27 Jul 11) paragraph 2.3. Sanctuary Policy. However, the AFI in effect when he was improperly retired in 2009 while in sanctuary was dated 17 Jan 03. Paragraph 2.3 of the AFI then in effect does not deal with “Sanctuary Policy” in fact it has nothing to do with what the advisory opinion refers to. Therefore, he cannot legally or reasonably be expected to have complied after the fact with rules not in existence at the time he requested sanctuary protection. The following paragraph of the same page, under facts (while still improperly referring to the current AFI and thus not applicable, is nonetheless interesting because it does further clarify Congressional intent regarding short versus long term orders) starting fourth line from the bottom of the page states “while waivers are not required from members or for published orders under Title 10 USC 12301(d) specifying periods in excess of 179 days”, so again, no waiver of his sanctuary rights would be required, nor would one have been legal, since his orders were greater than 179 days. The advisory refers to an MSD and to an option he did not choose. The Louisiana ANG option had he chosen it, would have required him to submit a request for a waiver to his 28-year MSD. He was advised by the Utah JAG on 6 Jun 09, that sanctuary was the better option. So, he chose to apply for sanctuary. Any MSD waiver, if required would have been the responsibility of the National Guard Bureau, not the individual. In further support of his appeal the applicant provides an eight-page supplemental statement. The applicant’s complete submission is at Exhibit E. _________________________________________________________________ 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. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice to warrant promotion consideration to the grade of colonel with the opportunity to compete for PME. After thoroughly reviewing the evidence of record and noting the applicant’s contentions, we are not persuaded that he has been the victim of an error or injustice warranting promotion consideration to colonel. In this respect, we note that ANG officers are only considered for promotion to the grade of colonel if their State puts them in a colonel position and obtains Federal Recognition. Additionally, the State determines who gets nominated for promotion to the grade of colonel and a member has no right to that promotion consideration, promotion, or even nomination. Furthermore, Lt Colonels are not eligible for promotion consideration unless they have completed AWC, which he has not. In view of forgoing, we find no evidence, nor has the applicant provided substantial evidence, to show that had he been afforded the opportunity to claim sanctuary protection he would have completed AWC and been placed in a colonel position. Moreover, the ability of the Board to craft relief that will make an applicant completely whole is often times limited by the very circumstances of the case. In this instance, there is no way to recover the years that have elapsed since the applicant left active duty or to restore completely the career opportunities the applicant may have lost. Therefore, in the absence of evidence to the contrary, we find no basis to grant this portion of the applicant’s request. 4. Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice with regard to his requests for an active duty retirement with back pay and allowances. After a thorough review of the evidence of record, along with the recommendation of the office of primary responsibility, we believe that partial relief is warranted. In this respect, we note the applicant’s orders and statement of understanding were not processed IAW with published guidelines. Consequently, he was not afforded the opportunity to claim sanctuary protection but instead was released from the ANG and transferred to the Retired Reserve Section. Therefore, in order to remove this error and injustice, we recommend his records be corrected to show that on 28 May 09, he was granted sanctuary protection and on 28 May 2011, he qualified for an active duty retirement with the appropriate back pay and allowances. Given the evidence of record and after weighing the circumstances of this case, we believe that the relief we are recommending provides the applicant full and fitting relief. Accordingly, we recommend his record be corrected to the extent indicated below. _________________________________________________________________ THE BOARD RECOMMEMDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that: a. He was granted sanctuary protection on 28 May 2009. b. He was not released from active duty on 26 June 2009, but on that date, he was continued on active duty until 31 May 2011, at which time he was released from active duty and retired under the provisions of Title 10, United States Code, Section 8911, effective 1 June 2011. _________________________________________________________________ The following members of the Board considered Docket Number BC-2012-02765 in Executive Session on 19 Mar 13, under the provisions of AFI 36-2603: Panel Chair Member Member All members voted to correct the records, as recommended. The following documentary evidence pertaining to AFBCMR Docket Number BC-2012-02765 was considered: Exhibit A. DD Form 149, dated 19 Jun 12, w/atchs. Exhibit B. Applicant’s Master personnel Record. Exhibit C. Letter, NGB/A1PP, dated 7 Aug 12. Exhibit D. Letter, SAF/MRBR, dated 26 Nov 12. Exhibit E. Letter, Applicant, dated 12 Dec 12.