RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-03386

						COUNSEL:  NONE

						HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

His record be corrected to reflect promotion to Colonel (O-6) as of 4 Jun 2014.

APPLICANT CONTENDS THAT:

He was unjustly denied promotion to Colonel based on abuse of authority, reprisal, and misuse of the Air National Guard Instruction governing Active Guard Reserve (AGR) control grades.

On 21 Dec 15, the applicant provided an update to his DD Form 149 contending that he was involuntarily separated from active duty (AD) status on 31 Oct 15, and retired effective 1 Nov 15.  He argues the termination of his fulltime employment with the Air National Guard was unjust, resulting in him working under unacceptable conditions and preventing him from performing the Mission Support Group (MSG) Commander position that he was awarded. 

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 29 Jul 81.

On 30 Aug 84, the applicant was furnished an honorable discharge, credited with three years, one month, and two days of active service, and transferred to the New Mexico Air National Guard (NMANG). 

On 31 Oct 15, the applicant was relieved from assignment, retired effective 1 Nov 15, transferred to the Retired Reserve, and credited with 20 years, 1 month, and 1 day of active service. 

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.    

AIR FORCE EVALUATION:

NGB/A1PO recommends denial indicating there is no evidence of an error or an injustice.  On 2 Nov 13, the applicant boarded for and was selected for the 150th FW Mission Support Group Commander position.  He subsequently met and was recommended for promotion by a Federal Recognition Examining Board on 10 Mar 14.  The NM JFHQ HRO issued a memorandum dated 20 Mar 14 notifying the applicant that he would be considered by the AGR Continuation Board in Jun 14.  The applicant was awarded a Certificate of Eligibility (COE) effective 22 May 14.  On 10 Jun 14, the Adjutant General presided over the AGR Continuation Review Board.  On 16 Jun 14, the applicant was notified of selection for non-continuation and appealed the decision on 9 Jul 14.  On 5 Aug 14, he received notification that his appeal was rejected and that his AGR tour would be ended on 31 Oct 15 upon completion of 20 years total active federal service.  

The applicant then filed an IG complaint of reprisal by the NMANG Director of Staff and NM Adjutant General on 27 Aug 14.  Since the applicant’s allegations involved an Air Force Senior Official, the matter was referred to SAF/IG.  On 7 Nov 14, SAF/IG issued a memorandum to the applicant notifying him that that his complaint regarding receiving less than 90 days’ notice of AGR Continuation Board proceedings would not be included in the investigation as he was not harmed by the less than 90 days’ notice.  However a collateral issue letter was forwarded to the Director of the Air National Guard emphasizing the importance of States HQs ensuring they follow instructions and guidance when conducting boards of this nature.  Additionally, the SAF/IG determined that the applicant’s complaint regarding the HRO AGR Control Grade Allocation/Promotion policy would also not be included in the investigation as it is within the Adjutant General’s authority to establish such local policies on the management of AGR control grades.  

On 19 Jun 15, the SAF/IG issued their final report regarding the applicant’s reprisal complaint concerning his selection for non-continuation on the AGR Program.  The investigation concluded that neither the Director of Staff nor the Adjutant General had reprised against the applicant; but rather their decisions were based on and supported by the force management needs of the NMANG.  

The applicant’s contention that a COE is used when a projected promotion is pending a 0-6 AGR control grade, is contrary to ANGI 36-2504, Officer Promotion, Continuation and Selective Early Removal in the Reserve of the Air Force.  Additionally, the applicant’s statement “my package was then sent to meet the 2014 Air Force Spring Promotion Board and was confirmed by the Air Force to the rank of Colonel” is also mistaken; rather, the board awarded him a COE finding him qualified and eligible for promotion to the grade of Colonel, at the discretion of the applicant’s chain of command.  The applicant’s leadership did not execute his COE.  IAW ANGI 36-2504, the purpose of the COE is to assist the states’ force management plan by pre-qualifying officers for a Colonel position and subsequent Federal recognition, thus reducing the time it takes to promote individuals to the grade of Colonel upon assignment to a vacant Colonel position.  It must be understood that circumstances are subject to change, therefore, the fact that an individual holds a COE does not mandate promotion to the higher grade or warrant mandatory assignment to a higher graded position.  The NMANG never executed the applicant’s COE; therefore, the applicant never promoted to the grade of Colonel.

A complete copy of the NGB/A1PO evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 26 Jul 16 for review and comment within 30 days (Exhibit D).  As of this date, no response has been received by this office.

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 took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility (OPR) and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  The applicant’s contention that he was unjustly denied promotion to Colonel based on abuse of authority, reprisal, and misuse of the Air National Guard Instruction governing Active Guard Reserve (AGR) control grades, and was involuntarily separated from active duty (AD) status on 31 Oct 15 are duly noted.  Additionally noted is his contention that this termination was administered unjustly and due to this action he was not awarded the mission support group (MSG) commander position which he was awarded and assigned to work under unacceptable conditions.  However, we do not find the evidence provided sufficient to override the rationale provided by the Air Force office of primary responsibility.  Therefore, in the absence of persuasive evidence to the contrary, we find no basis to recommend granting the requested relief.

4.  The applicant alleges he has been the victim of reprisal concerning his selection for non-continuation from the Active Guard and Reserve (AGR) program beyond 20 years of active duty service.  By policy, reprisal complaints must be filed within 60 days of the alleged incident or discovery to facilitate the IG’s investigation.  We note the applicant filed an IG complaint; and the investigation concluded that neither the Director of Staff nor the Adjutant General had reprised against the applicant; but rather their decisions were based on and supported by the force management needs of the NMANG.  Nevertheless, we reviewed the evidence of record to reach our own independent determination of whether reprisal occurred under the provisions of 10 U.S.C., section 1034.  We note the applicant’s contentions, however, based on our review of the evidence presented, we do not conclude that he has been the victim of reprisal.  The applicant has not established that he was unjustly denied promotion to Colonel based on abuse of authority, reprisal, and misuse of the Air National Guard Instruction governing Active Guard Reserve (AGR) control grades.  Therefore, in the absence of persuasive evidence to the contrary, the Board does not find the applicant has been the victim of reprisal pursuant to Title 10, U.S.C., Section 1034.  

5.  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-2015-03386 in Executive Session on 22 Sep 16 under the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-03386 was considered:

	Exhibit A.  DD Form 149, dated 4 Aug 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, NGB/A1PO, dated 29 Jun 16.
	Exhibit D.  Letter, SAF/MRBR, dated 26 Jul 16.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.