RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-00685 XXXXXXX COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ THE APPLICANT REQUESTS THAT: 1. His 10 Oct 10 discharge date be voided. 2. He be allowed to remain in the Air National Guard (ANG) until his Mandatory Separation Date (MSD) of 1 Jun 12, with all back pay, allowances, and benefits. ________________________________________________________________ THE APPLICANT CONTENDS THAT: He was involuntarily discharged without the proper authority, which was substantiated by the Secretary of the Air Force, Inspector General (SAF/IGS). His discharge resulted in an error in his records and an injustice by terminating his career along with the loss of wages and benefits earned between 10 Oct 10 through 1 Jun 12. In support of his appeal, the applicant provides a personal statement, copies of his retirement orders, discharge certificate, the SAF/IGS Report of Investigation (ROI), and various other documents. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The following information was noted in the ROI provided by the applicant. In the fall of 2009, the applicant, while serving as an Air Guard Technician (AGT) and the Military Personnel Management Officer (MPMO), for the Joint Forces Headquarters (JFHQ), informed the Assistant to the Adjutant General (ATAG), Wyoming ANG (WYANG), of his intentions to retire in Sep 10. On 22 Jan 10, the applicant submitted a request to hire his replacement as the full-time MPMO. On 14 Mar 10, the applicant submitted an electronic application to retire from the ANG, effective 13 Sep 10, his 60th birthday. On 25 Apr 10, the applicant’s replacement was hired to fill his position. On 5 Jun 10, the applicant’s replacement signed his orders to separate him from the ANG, effective 10 Sep 10. On 22 Jun 10, the applicant sent an email to the National Guard Bureau (NGB/A1PO) indicating that he was considering staying until his MSD, 1 Jun 12. On 24 Jun 10, the applicant emailed the then-Vice Chief of the Joint Staff, WYANG, notifying her that he intended to work until his MSD of 1 Jun 12, and withdrew his AGT retirement application. On 10 Jul 10, the applicant acknowledged that he was being assigned as an “excess” in his position with an expiration of 10 Oct 10. The notice was signed by the Vice Chief of the Joint Staff, on the ATAG’s behalf. At that time, he was presented with a NGB 31-11, Statement of Understanding (SOU) – Excess/Overgrade Condition; however, he refused to sign the SOU. On 11 Jul 10, the applicant and the ATAG met to discuss his desire not to retire in Sep 10. On 23 Jul 10, the applicant met with the WYANG Inspector General (WYANG/IG) and filed a complaint against the Vice Chief of Joint Staff and the ATAG. On 3 Aug 10, the Vice Chief of Joint Staff signed an order amending the applicant’s separation from the ANG and transfer to the Air Force Reserve to reflect his discharge from the WYANG and as a Reserve of the Air Force effective 10 Oct 10, under the provisions of AFI 36-3209, para 2.25.2, ANG Unique Separations. On 6 Oct 10, the applicant traveled to the Air Reserve Personnel Center (ARPC) and submitted an ARPC Form 83, Application for Retired Pay, with an effective date of 11 Oct 10. On 10 Oct 10, the applicant was discharged from the WYANG and transferred to the Air Force Reserve. On 11 Oct 10, his name was placed on the USAF Retired List, with authorization for retired pay. He was credited with 39 years, 4 months, and 21 days of satisfactory Federal service (Reserve Order EL-0082, dated 6 Oct 10). On 21 Mar 12, SAF/IGS found that the ATAG did not violate AFI 36-2606, Selective Retention of Air National Guard Officer and Enlisted Personnel, by not having a Selective Retention Review Board (SRRB) because the applicant was exempt from consideration by the 2010 SRRB because he served as a recorder and member of the Board (Allegation 1). However, SAF/IGS found that the ATAG did violate AFI 36-3209 by directing the separation of the applicant without initiating proper discharge actions (Allegation 3). Regarding Allegations 2 and 4, SAF/IGS did not find that the Vice Chief of Joint Staff reprised against the applicant because she would have ordered his discharge even if he had not made any protected communications. However, they did determine that she abused her authority when she signed the orders that discharged the applicant from the WYANG and the Air Force Reserve. In addition, they found that the discharge adversely affected the applicant and was outside the Vice Chief of Joint Staff’s authority. In addition, no one had the authority to discharge the applicant from the Reserve of the Air Force (See SAF/IG Report at Exhibit B). ________________________________________________________________ THE AIR FORCE EVALUATION: NGB/A1P concurs with the Subject Matter Expert (SME) and recommends denial based on the governing AFI and documentation provided by the applicant. A1PP agrees with the findings of SAF/IGS in that the Vice Chief of Joint Staff, WYANG, did not act in retaliation for the applicant formalizing a complaint with the WYANG/IG. They note that SAF/IG did not substantiate the allegation(s) of reprisal, but did find that both the ATAG and the Vice Chief of Joint Staff were in error in the way in which they handled the applicant’s involuntary separation from the WYANG. According to AFI 36-3209, “the authority to separate ANG assigned member from state status rest with the State Adjutant General.” The Vice Chief of Joint Staff did not have authority to discharge the applicant as a discharge package is required by the commander, then forwarded to the ATAG, then to the TAG for final approval. The IG states the applicant’s discharge was an unfavorable personnel action because it ended his military career before his MSD and discharged him from the Reserve of the Air Force, but attested the action was not an act of retaliation. According to AFI 36-3209, members placed as excess or overgrade can be separated if not placed into another position upon reaching the expiration date; therefore, the applicant being forced to retire was not in violation of ANG policy. The complete A1P evaluation, with attachments, is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: The applicant notes that there are four methods to separate a member involuntarily from the military: 1) by expiration of their MSD; 2) by findings of the Medical Evaluation Board (MEB) determining the member is not fit for duty; 3) administrative discharge for cause; or 4) the concurrence by the TAG of an SRRB’s recommendation. He believes two areas need further clarification; the response from A1PP and the manipulation of the policy and procedure by the ATAG and the Vice Chief of Joint Staff. It is clear that A1PP only addresses the process regarding members in an excess status, but, ignores as in his case, the only authorized method to discharge him involuntarily was to use his MSD as his separation date. Obviously, missing in A1PP’s consideration are the actions taken by the ATAG and the Vice Chief of Joint Staff showing their plan to have him removed from military service without cause. The procedure they use to place him in an excess status was not implemented correctly. So he did not sign the SOU as required. The ATAG’s actions were based on improper administration of the personnel policies as stated in ANG Instruction (ANGI) 36-2101, Assignments Within the Air National Guard (ANG), dated 11 Jun 04, paragraph 2.3, Assignment of Full-Time Personnel, states, "Under no circumstances will military technicians or AGR personnel be assigned in an excess status without written approval from ANG/DP, to include projected losses within 24 months." The ATAG did not have approval from ANG/DP to place him into an excess status, on 10 Jul 10. Paragraph 4.1, Retention in an Excess Status, states, "The member placed in the excess condition will not be a military technician or Active Guard Reserve (AGR). Only in rare circumstances will a military technician or AGR member, be placed in an excess condition. Prior to making an assignment action that would result in a military technician or AGR becoming excess, ANG/DPFOM review and approval is required." In addition, A1PP states, ANGI 36-2101, “... members placed as excess or overgrade can be separated if not placed into another position upon expiration date ...” the ATAG intentionally did not fulfill his mandatory obligation to place him into a valid position that he was qualified for, the existing commander vacancy, as stated in the enclosed Memo-For-Record (MFR) of their 11 Jul 10 discussion about this position (enclosure #5). This is a violation of Technician Program Administration 303 dated 24 Aug 05, paragraph 2-1b, (enclosure #6), "The full- time support member is the primary occupant of the military position and is not coded as excess." It is also a violation of ANGI 36-2101, paragraph 2.20.4, "It is incumbent on the unit commander to keep members informed of their status and to continually try to rectify the excess or overgrade situation." The ATAG’s direction/guidance to the Vice Chief of Joint Staff, per A1PP’s message, "by not placing you into another billet prior to the expiration date of your excess" is an unlawful direction from the ATAG, the commander of the WYANG, to the Vice Chief of Joint Staff. The Vice Chief of Joint Staff misused her authority by discharging him involuntarily as stated in the SAF/IG report. This lack of authority is a violation of policy and procedure and not authorized by the Air Reserve Personnel Center (ARPC). He goes on to discuss the following areas of the IG report to substantiate his request: 1. Page 4, seventh bullet: “I informed Col C. I intended to be employed through the date of my MSD. I withdrew my technician retirement form.” 2. Page 16, paragraph #2, the discharge ended his career before his MSD. 3. Page 18, third paragraph, the discharge was unreasonable. 4. Page 19 - 20, paragraph 5, the discharge was unreasonable and not correct procedurally. In addition to the SAF/IG report, the MFR from the meetings and discussions with Vice Chief of Joint Staff substantiates that she was determined to remove him from his position at her earliest opportunity, when she stated, “I cannot wait 2 years." She made him choose between retiring voluntarily and remaining to his MSD. He informed her he would remain until his MSD. His decision was followed by a concerted effort between the ATAG and her to manipulate policy and procedure to their advantage and was an abuse of their authority and misconduct by senior officials. This resulted in his termination without cause and a significant monetary loss and personal stress to him and his family. The applicant’s complete response, with attachments, 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 timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. The applicant alleges he has been the victim of reprisal and has not been afforded full protection under the Whistleblower Protection Act (10 USC 1034). The Inspector General investigated the allegations of reprisal against the applicant’s state military officials; however, while they determined that the ATAG and the Vice Chief of Joint Staff did abuse their authority by separating the applicant without initiating the proper discharge actions, they did not find the allegations were an act of reprisal or retaliation because of protected communication. We considered the allegations by the applicant and based on our own independent review, we note that although it appears the applicant’s separation was not properly executed, the evidence reflects that the TAG was aware and agreed with this action. Therefore, we did not find that the actions to separate the applicant were motivated by retaliation for making a protected communication. As such, we find no basis to grant the applicant’s request under 10 USC 1034. Additionally, while we note the apparent error made by state military officials, we do not believe the error in this case rises to the level of an injustice to warrant the relief the applicant is seeking. In this respect, we note that while the ATAG and the Vice Chief of Joint Staff did not properly execute the applicant’s separation, in our view, it appears that had the separation been carried out properly by the TAG that the outcome would have been the same. Therefore, we conclude that although an error was made in executing the applicant’s discharge, we consider the error to be harmless in regards to its impact on the applicant and that it does not constitute an injustice that should be remedied by this board. In view of the above and absent evidence to the contrary, we find no basis exists upon which to recommend granting the relief sought in this application. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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-2013-00685 in Executive Session on 22 Nov 13, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 4 Feb 13, w/atchs. Exhibit B. SAF/IG Report, WITHHELD. Exhibit C. Letter, NGB/A1P, dated 26 Apr 13, w/atchs. Exhibit D. Letter, SAF/MRBR, dated 3 May 13. Exhibit E. Letter, Applicant, dated 25 May 13, w/atchs. 7 8