RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-04573

 	COUNSEL: NONE

 	HEARING: NO

APPLICANT REQUESTS THAT:

Her records be corrected as follows based on allegations of reprisal pursuant to DODD 7050.06, Military Whistleblower Protection, and 10 U.S.C. § 1034: 

	Her reinstatement to the Active Guard Reserve (AGR) program in the Missouri Air National Guard (MOANG) be effective 6 Sep 15, instead of 1 Oct 16 to eliminate her break in service.   

	Her leave balance on 9 Jun 15 be restored.  

	Her AGR orders reflect “continuation” instead of “initial” tour (REQUEST WITHDRAWN).

	Her 3-year service obligation in the Individual Ready Reserve (IRR) be canceled.   

	Her enlisted performance reports (EPRs) from May 07 to May 14 be removed from her records (REQUEST WITHDRAWN).  

APPLICANT CONTENDS THAT:   

She was a career status AGR with the MOANG when she was released from active duty on 5 Sep 15.  On 1 Oct 16, she was reinstated by The Adjutant General (TAG) after her inspector general (IG) complaints and a commander directed investigation (CDI) found she had been wronged.  

In Aug 13, she received her first reprimand for conduct unbecoming a senior noncommissioned officer (SNCO) because she stated she was being set up for failure by being assigned an overwhelming workload.   

In Sep 13, she met with the Equal Opportunity (EO) office and was advised a judge advocate general (JAG) would be assigned to represent her and any negative actions against her would be thoroughly investigated.  However, the reprimand was allowed to stand.  During this time, she was performing the work of two and a half airmen.  She began to falter under the enormous workload.

In Jan 15, she filed five IG complaints in hopes of getting some relief from the anxiety and pressure she had faced for several years.  

In Mar 15, she received notice she was non-continued in the AGR program.  She filed an appeal with the TAG, which was denied in Apr 15.  The notice of non-continuation was incorrect and had to be reaccomplished three times.  She received four different notices from the human resources (HR) director.  The final notice on 9 Jun 15 rescinded all other notices.  Her tour extension should have been through 5 Dec 15 to comply with the required 180 day notice required by ANGI 36-101, Air National Guard Active Guard (AGR) Program.    

The allegation of reprisal was not substantiated by the Secretary of the Air Force (SAF) IG due to management’s claim of unsatisfactory/poor performance.  Her civilian attorney filed a civil law suit against the MOANG and the individuals involved.   

In May 16, she submitted a redress of her IG complaint with the TAG.  On 8 Sep 16, she received a letter from the TAG offering to reinstate her to the AGR program effective 1 Oct 16.  She should not have a break in service and her AGR orders should state “continuation” since “initial” puts her in a probationary instead of career status.  

She understands she will incur a debt for separation pay, inactive duty pay and active duty pay for annual training, travel pay and VA disability compensation should her request be approved.  Upon approval of her application, she will submit a request for waiver of the debt.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant is a master sergeant in the ANG.  

On 23 Feb 12, she entered a period of active duty as an AGR under 32 U.S.C. § 502(f) and was honorably released from active duty on 5 Sep 15, with a narrative reason for separation of “Involuntary Tour Not Renewed.”   

Per 10 U.S.C. § 1034 and AFI 90-301, Inspector General Complaints Resolution,  reprisal against military members for making protected disclosures is prohibited.  The applicant provides SAF IG Report of Investigation (ROI) prepared in Oct 15 which found the applicant’s allegation she was reprised against when non-continued in the AGR Program was unsubstantiated and there was no abuse of authority.  The ROI states the applicant’s non-continuation from the AGR program was processed in accordance with regulation and was based on her performance.   

In response to the AFBCMR advising the applicant she had failed to exhaust administrative remedy by applying to the Evaluations Report Appeals Board (ERAB) for removal of her EPRS prior to submitting her application to the AFBCMR, she submitted a revised DD Form 149, Application for Correction of Military Records, dated 31 Oct 16 and an e-mail dated 27 Oct 17, withdrawing her requests for removal of her EPRs.  She also withdrew her request for her AGR order to state “continuation” instead of “initial.”  

In a letter dated 7 Sep 16, the TAG informed the applicant that based on her complaint in accordance with 40.435 RSMO and the CDI, he authorized the MOANG to place her on AGR orders effective 1 Oct 16 and ending 31 May 19 to allow her to receive an active duty retirement. 

The applicant’s pay records show she had 45 days of leave on 9 Jun 15 and received a lump sum payment for a half day of leave at the end of her tour on 5 Sep 15.  For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory opinions at Exhibits C, E and F.  

AIR FORCE EVALUATION:  

NGB/A1PP recommends denial for reinstatement to the AGR program effective 6 Sep 15 as there was no error or injustice in the execution of policy.  

The TAG is the final authority for determining whether individuals will be separated from the AGR program, except for officers within the sanctuary zone whose separation must be approved by the SAF.

While the applicant’s removal from the AGR program with over 17 years of active duty seems harsh, it was done within the guidelines of policy.  The TAG had the final authority after reviewing the applicant’s appeal with the recommendation to release her from her AGR tour.  The allegations of reprisal per 10 U.S.C § 1034 were not substantiated and the applicant provides no evidence she was reinstated based on the finding of wrongdoing by her leadership.

She did not incur a 3-year commitment to serve in the IRR.  Members are only placed into the IRR for certain situations and acceptance of continuation pay is not one of them.   Additionally, her subsequent re-hiring into the AGR program voids her qualification for separation pay and an amount will be deducted from each payment of that retired or retainer pay until the amount deducted equals the total amount of separation.

The applicant was given a set of orders to 31 May 19, which qualifies her for an AGR retirement.     The complete advisory is at Exhibit C.

In an additional advisory, NGB/A1PP states should the Board grant her request for reinstatement, her unit has orders experts capable of amending her orders as necessary.  They also indicated the restoration of her leave balance was not in their purview, she did not incur a 3-year IRR obligation so no correction was required and the applicant’s request for removal of her EPRs should be directed to the ERAB.  The complete advisory is at Exhibit E.  

NGB/A1PS states the applicant’s request for restoration of her leave is contingent upon the decision to restore her AGR service time.  The complete advisory is at Exhibit F.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent copies of the Air Force evaluations to the applicant on 23 Feb 18 for comment (Exhibit G).   She asks the Board to approve her application so she can retire immediately and conclude her military service.   

On 8 Sep 16, the TAG authorized her to be placed on orders as a result of the CDI and a complaint filed in accordance with Revised Statue of Missouri 40.435.  Prior to agreeing to return to the AGR program, she was advised by NGB/A1 they could not restore her lost time.  She has been given the daunting task to correct this injustice without facilitation by the TAG or his staff.  The Missouri Attorney General’s Office is waiting for the outcome of the BCMR due to the TAG’s office stating she had not exhausted administrative remedies.

The past three years have been extremely stressful and financially devastating.  It is hard for her to comprehend how with over 17 years of active duty service she could be simply tossed aside and her career tainted by a non-continuation before obtaining retirement.   The applicant’s complete submission is at Exhibit H.  

THE BOARD CONCLUDES:

1.  The application was timely filed.  

2. The applicant exhausted all available avenues of non-judicial relief before applying to the Board.  

3.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  The allegations of reprisal were investigated under 10 U.S.C. § 1034 and there was no evidence of any reprisal or abuse of authority.   Due to questions on the Board’s authority to grant AGR Title 32 Career Status in the MOANG, the Board could recommend the applicant’s record be corrected to show she was on Title 10 orders to change her start date to eliminate the break in service and allow her to receive the associated pay, points and entitlements.  However, given there is no evidence of reprisal and proper procedures were followed in the applicant’s non-continuation from the AGR program, we find no reason to grant the applicant’s request to backdate the start date of her current AGR tour.  With respect to the applicant’s request that her 3-year obligation to the IRR be canceled, as pointed out by NGB/A1PP, the applicant will not incur a 3-year IRR obligation and therefore no action is required by the Board.  With respect to the applicant’s request for restoration of her leave balance effective 9 Jun 15, since we find no reason to backdate her AGR tour we also find no reason to restore leave.  Furthermore, the applicant has not provided any evidence she lost leave as a result of non-continuation of her AGR tour on 5 Sep 15.   In view of the above, we agree with NGP/A1PP and NGB/A1PS and adopt the rationale expressed as our conclusion the applicant has failed to sustain her burden of proof to warrant granting any of the requested relief.  Therefore, the Board recommends against correcting the applicant’s records.  

THE BOARD RECOMMENDS:  

The APPLICANT be informed that the evidence did not demonstrate material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

CERTIFICATION: 

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered AFBCMR Docket Number BC-2016-04573 in Executive Session on 24 Apr 18 and 11 May 18:

 , Panel Chair
 , Panel Member
 , Panel Member

All members voted not to correct the record.  The panel considered the following:

Exhibit A: Application, DD Forms 149, dated 31 Oct 16, w/atchs.
Exhibit B: Documentary evidence, including excerpts from official records.
Exhibit C: Advisory opinion, NGB/A1PP, dated 8 Sep 17.
Exhibit D. Notification of Failure to Exhaust, SAF/MRBC, dated 13 Oct 17
Exhibit E. Advisory opinion, NGB/A1PP, dated 21 Feb 18.
Exhibit F.  Advisory opinion, NGB/A1PS, dated 22 Feb 18.  
Exhibit G: Notification of Advisory, SAF/MRBC to applicant, dated 23 Feb 18.
Exhibit H.  Applicant’s response, w/atchs, dated 16 Mar 18.  

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9.