RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-02324 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: He receive the following relief based on being the victim of a substantiated Secretary of the Air Force Inspector General (SAF/IG) case of abuse of authority pursuant to AFI 90-301, Inspector General Complaints Resolution: He be granted Active Guard Reserve (AGR) Title 32 Career Status in the Puerto Rico Air National Guard (PRANG) effective 21 December 2012. He be returned to active duty status effective 1 October 2013 without a break in service. He be credited with 197 active duty points, and receive the associate pay and entitlements for the period of 1 October 2013 to 15 April 2014. APPLICANT CONTENDS THAT: On 20 December 2012, the AGR Continuation Board (ACB) determined he was granted career status in the PRANG. The Adjutant General (TAG) concurred with the board recommendation and signed the results on 21 December 2012. On 27 March 2013, the newly appointed TAG reconsidered the former TAG’s decision and elected not to grant the applicant career status upon completion of his tour ending on 30 September 2013. On 16 April 2014, he was selected for a statutory tour with the National Guard Bureau (NGB). On 30 April 2014, a SAF/IG investigation found the new TAG’s action to only remove two out of six results from the ACB was in conflict with ANGI 36-101, The Active Guard/Reserve (AGR) Program, paragraph 9.8.3 which requires the entire board to be void upon discovering material errors and procedural deficiencies. His tour will conclude on 15 April 2017 unless he is extended or accepted in the NGB Active Guard Career Status. Upon being granted active career status in the PRANG, he will have 5 years restoration rights from 16 April 2014. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant is currently serving in the ANG in the grade of lieutenant colonel (O-5). The applicant’s DD Form 214, Certificate of Release or Discharge from Active Duty, reflects that he entered active duty on 1 October 2010 and was honorably released on 30 September 2013 with a narrative reason for separation of “Completion of AGR Military Duty Tour.” According to a letter dated 21 December 2012, the TAG approved the ACB results which recommended the applicant for retention. In a letter dated 27 March 2013, JFHQ-PR/J1-HRO advised the applicant that the new TAG reconsidered the results of the ACB and he was not selected for an extension of the AGR program. On 27 March 2013, the applicant filed an IG complaint. In a letter dated 30 April 2014, SAF/IGS informed the applicant that the investigation into his complaint was completed and they found the TAG’s action of revoking his AGR career status was conducted outside the authority granted by applicable regulations. The TAG’s action to only revoke two out of the six results from the ACB was in direct conflict with ANGI 36-101, The Active Guard/Reserve (AGR) Program, paragraph 9.8.3 because he did not disapprove the board in its entirety upon discovering there were substantial material errors and procedural deficiencies. The applicant was advised that per 10 U.S.C. § 1552 that he could request the AFBCMR consider an application for correction of his records. Per NGB Order Number AA-0000368 dated 27 February 2014, the applicant was placed on Extended Active Duty (EAD) for the period of 16 April 2014 to 15 April 2017. ANGI 36-101, Air National Guard Active Guard Reserve (AGR) Program, paragraph 9.8.3. states “The Adjutant General will review the recommendations of the ACB, and approve or disapprove any or all specific recommendations. The Adjutant General is the final approval authority on all actions and may disapprove a board in its entirety if substantial material errors and/or deficiencies are found.” AIR FORCE EVALUATION: NGB/A1PP recommends approval of the applicant’s requests based on the findings of the SAF/IG investigation that the new TAG violated ANGI 36-101, paragraph 9.8.3. The complete A1PP evaluations are at Exhibits D and E. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 16 January 2015 for review and comment within 30 days (Exhibit F). As of this date, no response has been received by this office. ADDITIONAL AIR FORCE EVALUATIONS: On 8 October 2015, NGB/A1P revised their evaluation and recommended the Board leave the final determination of the applicant’s career status to the current TAG and deny the applicant’s requests for reinstatement, back pay and points. Because of the inconsistencies of the ACB held in December 2012, the validity of the board is in question. The current TAG has no requirement to convene a new board for the applicant and providing relief is outside of the AFBCMR’s authority. Conducting an ACB is an option for the states and territories. According to ANGI 36-101, ACBs are normally convened annually (first quarter of current calendar year) to review AGR Airmen who have an AGR order expiration date during the next calendar year. Puerto Rico should have held the board in the January to March 2013 timeframe and the board should not have considered the applicant because his order expired within the current fiscal year. Additionally, per ANGI 36-101, paragraph 9.4.1.1., the board must have at least one chief master sergeant as a member and the ACB in question did not meet this requirement. A complete copy of the NGB/A1P evaluation is at Exhibit G. In another advisory dated 13 October 2015, NGB/A1P again recommends denial indicating the applicant did not have standing to demand career status based on the invalid board findings and should not be granted the relief sought. The December 2012 ACB held in Puerto Rico is invalid based on the failure to adhere to the board requirements outlined in ANGI 36-101. As the ACB is optional for states and territories, it is within the current TAG’s discretion to conduct any future boards. States and territories are not required to hold an ACB. Career status may be granted when a member’s initial probation order is extended. When the state/territory chooses to hold a board, per ANGI 36-101, paragraph 9.5, the board should be held in the first quarter of the calendar year. In this case, Puerto Rico should have scheduled this board in January to March 2013 timeframe which would have occurred during the in-bound TAG’s tenure. Instead, the out-going TAG chose to convene an ACB out- of-cycle. Had the board been conducted properly, it would not have been under the control of the out-going TAG. Additionally, if no board had been held in 2012, the applicant’s orders would have been reviewed under the new TAG. From a policy and administrative process, the board held in December 2012 was invalid. Per ANGI 36-101, paragraph 9.4.1.1, the board must have at least one chief master sergeant as a member and the ACB in question did not meet this requirement. A complete copy of the NGB/A1P evaluation is at Exhibit I. APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: He acknowledges NGB/A1P’s position regarding his requests to the AFBCMR. He concurs with the SAF/IG substantiated allegation documented in ROI S7082P dated February 2014 and has no additional evidence to provide. The applicant’s complete submission is at Exhibit K. 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. We note the Air Force Office of Primary Responsibility (OPR) initially recommended approval of the applicant’s request based on the findings of the SAF/IG investigation. However, due to questions on the Board’s authority to grant AGR Title 32 Career Status in the PRANG an additional advisory opinion was requested. Subsequently, A1P provided two additional advisory opinions. Both advisories contradicts the initial opinion and now recommends the Board deny the applicant’s requests stating the requested relief is outside the AFBCMR’s authority. While the Board lacks the authority to correct the record in the manner requested, if there was substantial evidence of an error or injustice, the Board could recommend the applicant’s record be corrected to change the start date of his Title 10 orders which would eliminate his break in service and allow the applicant to receive the associated pay, points and entitlements. However, despite the fact the SAF/IG substantiated that the TAG violated the procedures in ANGI 36-101, given that A1P has indicated the ACB that selected the applicant for retention in December 2012 was invalid, we find insufficient evidence of an error or injustice. Therefore, we agree with the opinions and recommendations of the Air Force OPR’s evaluations dated 8 and 13 October 2015 and adopt the rationale expressed as the basis for our conclusion the applicant has failed to sustain his burden of proof that he has been the victim of an error or injustice. Absent persuasive evidence that he was denied rights to which he was entitled, we find no basis to recommend granting any of the relief sought in this application. 4. 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 issues involved. Therefore, the request for a hearing is not favorably considered. 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-2014-02324 in Executive Session on 17 March and 12 November 2015 under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-02324 was considered: Exhibit A. DD Form 149, dated 6 June 2014, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. SAF/IG Report of Investigation, February 2014 (Withdrawn). Exhibit D. Memorandum, NGB/A1PP, dated 22 August 2014. Exhibit E. Memorandum, NGB/A1PP, dated 8 December 2014 Exhibit F. Letter, SAF/MRBR, dated 16 January 2015. Exhibit G. Memorandum, NGB/A1PP, dated 8 October 2015. Exhibit H. E-mail, AFBCMR, dated 13 October 2015. Exhibit I. Memorandum, NGB/A1PP, dated 13 October 2015. Exhibit J. E-mail, AFBCMR, dated 13 October 2015. Exhibit K. E-mail, Applicant, dated 3 November 2015.