RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-00944 COUNSEL: HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His 30 December 2010 involuntary early retirement from the Michigan Air National Guard (MIANG) be set aside. 2. He be reinstated to his former status as a full-time Air National Guard (ANG) technician, with appropriate back-pay and allowances. 3. In the alternative, he be reinstated to a comparable status in the Air Force Reserve ________________________________________________________________ APPLICANT CONTENDS THAT: 1. The decision of the Selective Retention Review Board (SRRB) to non-retain him was in reprisal for his efforts to correct his civilian personnel records to reflect he was in the Civil Service Retirement System (CSRS) instead of the Federal Employees’ Retirement System (FERS). 2. His inability to participate in the Operational Readiness Inspection (ORI) was due to his father’s terminal illness, but was used as an excuse to initiate the non-retention action. 3. The stated basis for the decision to not retain him was faulty. While the rationale for the decision was that his continued retention would adversely affect unit manning (hindering promotions), his continued service would not have precluded others from being promoted. The command’s claim that his forced retirement would allow the unit to promote other members is simply untrue. There are a variety of personnel force management alternatives the commander could have employed to ensure his continued service. While there were two technical sergeants occupying master sergeant positions who could not be promoted under the ordinary promotion criteria because the unit had exceeded the authorized percentage of assigned master sergeants, the commander could have promoted them under the Deserving Airman Promotion Program (DAPP), regardless of these manning concerns. Additionally, this decision flies in the face of the high regard his technician superiors held for him as exemplified by their efforts to obtain an extension for him. The applicant’s complete submission, with attachments, is at Exhibit A. _________________ ______________________________________________ STATEMENT OF FACTS: Information extracted from the Military Personnel Data System (MilPDS) indicates the applicant served with the Air National Guard (ANG) in the grade of master sergeant (E-7) during the matter under review. According to documentation provided by the applicant, on 21 June 1987, he was hired as a dual-status technician with the California Air National Guard (CANG). A military technician (dual status) is a Federal civilian employee who, (a) is employed under 5 USC § 3101 or 32 USC § 709(b); (b) is required as a condition of that employment to maintain membership in the Selected Reserve; and (c) is assigned to a civilian position as a technician in the organizing, administering, instructing, or training of the Selected Reserve or in the maintenance and repair of supplies or equipment issued to the Selected Reserve or the armed forces. According to documentation provided by the applicant, on 2 October 1988, he transferred to the Michigan Air National Guard (MANG). In July 2002, the applicant made an inquiry to the Office of Personnel Management (OPM) for corrective action under the Federal Erroneous Retirement Coverage Corrections Act (FERCCA) due to erroneous enrollment into FERS. On 17 May 2006, an Administrative Judge issued an initial decision affirming the Department of the Air Force’s denial of the applicant’s request to correct his retirement coverage and the applicant petitioned for review. On 20 December 2006, the Merit Systems Protection Board (MSPB), Central Regional Office, found the Department of the Air Force violated the applicant’s reemployment rights under the Vietnam Era Veteran’s Readjustment Assistance Act of 1974 in that they had him under FERS instead of CSRS. On 30 January 2007, the applicant petitioned for enforcement of the MSPB final decision. On 16 February 2007, the MIANG indicated they would not comply with the MSPB decision, indicating the Adjutant General was a state employee and did not fall under the jurisdiction of the federal MSPB. On 23 February 2007, the Department of the Air Force indicated it had decided to cooperate and the applicant withdrew his petition for enforcement. The applicant’s spouse filed a second petition of enforcement of the MSPB decision in December 2007. In 2008, the MIANG agreed to comply over a six-month period, and filed a settlement agreement. On 22 January 2009, the applicant reenlisted in the MIANG and as a Reserve of the Air Force for a period of three years. On 11 April 2010, the applicant’s commander initiated an NGB Form 27, Federal Retention Evaluation/Recommendation, recommending the applicant separate on 1 December 2010 because his retention would limit the promotion potential of two technical sergeants (E-6) who occupied master sergeant (E-7)/shop chief slots. On 16 June 2010, the applicant was notified of the results of the MIANG Enlisted Selective Retention Review Board, which did not approve his continued retention in accordance with ANGI 36- 2606. Accordingly, he would be separated from the MIANG, effective 31 December 2010. On 7 October 2010, the applicant requested to stay on military orders for no more than one year. On 7 November 2010, the applicant and his spouse inquired about the applicant’s request to stay on military orders for one year or elevating their concerns to the Adjutant General due to the sensitivity of the matter. On 14 November 2010 and 22 November 2010, the applicant and his spouse submitted appeals to the Adjutant General requesting he be granted an extension. On 29 November 2010, the Adjutant General notified the applicant’s spouse of his determination that the Selective Retention Board acted consistent with all regulations and arrived at a purely military decision in not retaining the applicant. As such, his requested extension was not granted. On 3 December 2010, the applicant was informed that his employment as an Aircraft Engine Mechanic was terminated, effective 1 January 2011, due to his loss of his military membership. He became eligible for an immediate civil service retirement annuity. On 30 December 2010, the applicant was honorably discharged from the MIANG and transferred to the USAF Reserve Retired List to await retired pay at age 60 under the provisions of AFI 36-3209. He was credited with 33 years, 8 months, and 16 days of total reserve service for retired pay. On 19 January 2011, the applicant filed an appeal with the MSPB, Central Regional Office, indicating he involuntarily retired from the Department of the Air Force. The applicant indicated he was coerced into retirement; however, the appeal was dismissed for lack of jurisdiction. On 17 February 2011, the National Guard Bureau office of Legislative Liaison informed the applicant’s representative that the Air National Guard Manpower and Personnel Directorate reviewed the applicant’s letter and determined the procedures employed by the Michigan National Guard to non-retain the applicant were completed in accordance with Air National Guard Instruction 36-2606. He was determined eligible to meet the board and given the opportunity to respond. The information received concerning the inquiry indicated that he did not respond to the decision within the allotted time of 30 days. On 21 March 2011, the applicant was ordered by an administrative judge to provide evidence that the MSPB had jurisdiction to adjudicate his claim. In response, the applicant indicated that he held a Title 32 dual-status position and was not a Title 5 civilian employee. As such, the applicant does not have appeal rights under MSPB and the Board does not have jurisdiction over the applicant’s removal due to the failure to maintain a compatible military position involving a National Guard technician. In August 2011, the MSPB dismissed the applicant’s appeal for lack of jurisdiction to review loss of his ANG membership. The MSPB only had jurisdiction to hear loss of membership as a civil service employee-technician and retirement benefits. ________________________________________________________________ AIR FORCE EVALUATION: NGB/A1PP recommends denial, indicating there is no evidence of an error or injustice. In this case, the state of Michigan followed the appropriate procedural and program requirements during the selective retention process of the applicant. The applicant was properly notified by The Adjutant General of his non-continuation/curtailment of his tour as a result of the Enlisted Selective Retention Review Board (SRRB). He elected not to provide an official request for reconsideration. In accordance with ANGI 36-2606, there is no appeal beyond the TAG. Therefore, the decision not to retain the applicant was within the authority of TAG and cannot be overruled by the NGB. Consequently, as a dual status technician, the applicant was required to be terminated from his full-time position upon the loss of his military affiliation. A complete copy of the NGB/A1PP evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant argues the Board can review Air National Guard (ANG) actions and reinstatement to ANG status or to a comparable Federal Reserve status is within its authority. He compared his circumstances with other cases presented before the AFBCMR and offered their results as a possible resolution in his defense. Also, the timeliness of his reconsideration submission to his non-retention action should be excused, because he was under the credence that the action was going to be rescinded or suspended, it was reconsidered by TAG, and the non-retention action was reprisal. Although it appears that the non-retention procedures were followed properly, the AFBCMR must look beyond the surface of the action and determine any personal bias or reprisal. It is implied that force management reasons (the unit could not promote one technical sergeant to master sergeant since it would exceed the 100 percent force manning goal of 14 authorized and assigned master sergeants) led to the non-retention action; however, there are exceptions, such as the 120 percent DAPP promotion or retention of valuable over grade members. In addition, at the time of the non-retention action, the manning level was less than 100 percent due to the departure of master sergeant. Once it was revealed that the commander had other options rather than the non-retention action, and there was the contention of reprisal, he contradicted his original reason for non-retention. Since the Selective Retention Review Board and TAG made their non-retention decisions on criteria other than what the commander originally stated, relief should be granted. A complete copy of applicant’s response 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 an error or injustice. The applicant alleges he has been the victim of an error or injustice (10 USC 1552) and that he has been the victim of reprisal and has not been afforded full protection under the Whistleblower Protection Act (10 USC 1034). He contends that his non-selection for retention by the Selective Retention Review Board (SRRB), which resulted in his retirement from both his full-time civilian (technician) and military positions, was in reprisal for his administrative and legal efforts to ensure that he was placed in the correct civilian retirement program. After a thorough review of the evidence before us, and noting the applicant has not availed himself of the Inspector General (IG) process, we do not find his assertions or the documentation provided sufficient to establish that his non-selection by the SRRB rendered him either the victim of an error or an injustice as defined in 10 USC 1552, or that he was the victim of reprisal as defined in 10 USC 1034. While the applicant contends his inability to participate in the Operational Readiness Inspection (ORI) was used as an excuse to recommend he not be retained by the SRRB, we are not convinced that his commander’s decision to recommend he be non-retained was motivated by anything other than the goal of achieving the force management objectives of his unit. In this respect, we note the SRRB is essentially a force management tool whereby the Adjutant General of a State’s National Guard evaluates the impact on a unit’s force management objectives of the continued retention of members, such as the applicant, who have attained sufficient service to qualify for retirement. In this case, it appears the SRRB determined that the applicant’s retention beyond his more than 33 years of service would serve to diminish the promotion opportunities of lower ranking individuals within his organization. The stated basis of the Board’s decision to non-retain the applicant was well within their discretionary authority and we do not find the applicant’s argument that his commander could have employed a variety of other force management tools to create the specific set of circumstances required to allow his retention without any resultant adverse impact on promotion opportunities of junior members of the unit. In our view, while a commander has several force management tools at his or her disposal, he or she must formulate the best force management strategy based on overall needs of his or her unit manning. While the applicant contends the commander could have employed Deserving Airman Promotion Program (DAPP), promotion under this program is predicated on an agreement to retire if not reassigned to a vacancy commensurate with the new grade within two years of the effective date of the promotion and there are likely secondary and tertiary effects that the commander thoughtfully considered in exercising his discretionary authority in choosing which force management programs to utilize for the overall health of his unit. Ultimately, while it may be true the commander could have moved heaven and earth to create the specific circumstances required to ensure the applicant’s retention beyond his 33 years of service, we are not convinced that the commander abused his discretionary or that the SRRB decision to non-retain the applicant was arbitrary, capricious, or an act of reprisal for the applicant’s previous efforts to correct his civilian personnel records. Therefore, we find no basis 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-2013-00944 in Executive Session on 8 August 2013, under the provisions of AFI 36-2603: Vice Chair Member Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 18 February 2012, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, NGB/A1PP, dated 12 March 2013. Exhibit D. Letter, SAF/MRBR, dated 22 April 2013. Exhibit E. Letter, Applicant’s Counsel, dated 19 May 2013 Vice Chair