RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-01200 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His military service be recomputed so that he may qualify for a reserve retirement. 2. By amendment, he requests that he be credited with satisfactory reserve service for retirement for the period 15 Mar 01 through 11 Aug 05 and consideration for any promotion to E-9 he would have received during such service. 3. He be given back pay, allowances, and any promotions he would have earned had he been commissioned a warrant officer one (W-1) in the Maryland Army National Guard (MDARNG). ________________________________________________________________ APPLICANT CONTENDS THAT: His conditional release from the New Jersey Air National Guard (NJANG) to join the MDARNG was mis-handled and caused him to be unable to finish his military career. He was recruited for a warrant officer position with the MDARNG. He obtained a conditional release from the NJANG and took the Oath of Office with the MDARNG. Unfortunately, due to a variety of circumstances beyond his control over the course of several months, he was unable to be accessed into the MDARNG. In the interim, he was erroneously discharged from the NJANG in a way that rendered him ineligible to return to complete his service. He originally petitioned the Army Board for Correction of Military Records (ABCMR) for relief, only to be told he needed to submit his application before the AFBCMR. He contends that he has over 18 years of reserve service and therefore should not have been discharged by the NJANG, but been allowed to complete his service under the provisions of 10 USC 1176(b) which provides sanctuary to reserve enlisted members who have between 18 and 20 years of service. In support of his request, the applicant provides a voluminous submission, which includes an expanded statement, copies of his previous applications to the ABCMR, as well as correspondence related thereto. The applicant’s complete submission, with attachments, is at Exhibit A. _________________ ______________________________________________ STATEMENT OF FACTS: Available military personnel records indicate the applicant submitted a request for a conditional release from the NJANG on 9 Mar 01 and competent authority approved his request the same day. On 15 Mar 01, the applicant completed the oath of office with the MDARNG as a warrant officer one (W-1). On 11 Aug 05, the applicant was honorably discharged from the ANG, effective 14 Mar 01, in the grade of senior master sergeant (E-8) and was credited with 17 years, 11 months, and 9 days of total satisfactory reserve service; and 18 years, 10 months, and 23 days of service for pay. His NGB Form 22, National Guard Bureau Report of Separation and Record of Service, Block 26, Reenlistment Eligibility, indicated he was ineligible for reenlistment. On 27 Mar 06, and again on 29 Mar 06, via applications to the ABCMR, the applicant requested his records be corrected to reflect he was commissioned a warrant officer in the MDARNG, effective the date of his oath of office, with all back pay, allowances, promotions, and appropriate service credit for retirement purposes. On 7 Apr 06, the NJANG issued a NGB Form 22A, Correction to NGB Form 22, changing the applicant’s reenlistment eligibility to “Eligible.” On 5 Sep 06, the Chief, ABCMR Case Management Division notified the applicant that he had not exhausted all his administrative remedies as required by Army Regulations and therefore returned his applications without action. On 18 Mar 09, the applicant submitted a request to the ABCMR requesting his military service be recomputed to show that he had attained the requisite service for a reserve retirement. On 8 Sep 09, the Chief, ABCMR Case Management Division notified the applicant the ABCMR lacked authority to act on his application, noting the action sought would require correction of an Air Force record. Accordingly, the applicant was advised to submit an application to the AFBCMR. The remaining relevant facts pertaining to this application are contained in the letter prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit E. ________________________________________________________________ AIR FORCE EVALUATION: NGB/A1POE makes no recommendation, indicating the applicant has not provided sufficient documentation upon which to weigh the merits of his case. While it appears that he believes he should not have been discharged and wants to be credited with sufficient time in service to qualify for a reserve retirement, he has not provided sufficient documentation to make a determination at this time. As such, he should obtain the appropriate supporting documentation to clarify the circumstances surrounding his request. A complete copy of the NGB/A1POE evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant refutes certain facts described in the NGB/A1POE evaluation, indicating that his only desire is to complete his twenty years of military service and retire. If the MDARNG had stuck with its commitment, he would have retired by now. His desire is to receive all back pay and benefits and be afforded the opportunity to retire with dignity and pay, something he has earned throughout his service in the military. Through no fault of his own, he was prevented from being accessed into the MDARNG, an injustice compounded by the NJANG’s action to erroneously discharge him with a reenlistment code that precluded his return. Furthermore, he reiterates that according to his NGB Form 22, he attained over 18 years of service, thus entitling him to the protections of enlisted sanctuary under the provisions of 10 USC 1176(b). In support of his response, the applicant provides an expanded statement and copies of two affidavits related to the matter under review, a fact sheet regarding 10 USC 1167(b), his NGB Form 22, DD Forms 214, point credit accounting summary, and various records and correspondence related to his conditional release from the NJANG and attempted appointment into the MDARNG (Exhibit E). ________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: NGB/A1PO recommends some form of relief be granted, indicating the information provided substantiates that an error took place. The evidence indicates the applicant applied for and was initially accepted for a warrant officer position with the MDARNG; he was granted a conditional release from the NJANG; and he subsequently took an Oath of Office with the MDARNG, effectively releasing him from his commitment to NJANG in accordance with DoDI 1205.19, Procedures for Transfer of Members Between Reserve and Regular Components of the Military Services. While it is unclear what guidance he received, it would be difficult to hold the applicant totally responsible for the outcome of his present situation. He could have continued to participate in normal drills while he was waiting for the ARNG to settle its internal issues related to his pending appointment, thereby continuing to build up satisfactory service toward eligibility for a reserve retirement. However, there does not appear to be any evidence that he was contacted regarding the impact of his lack of participation in normal drill activities. Furthermore, because he took the oath of office with the MDARNG, it would appear he had a legal obligation to them and he may have believed he could not return to his unit to participate. As such, he could have been processed for separation from the ARNG in a more timely fashion, thereby allowing him an opportunity to return to his unit since the provision of his conditional release had not been met. In view of the above, the applicant should be allowed to return to his unit to complete his service, or be credited for the time he would have served while waiting for the ARNG to resolve the disconnect with the position for which he applied. As regards to his contention there is a disparity between the satisfactory service credited on his point summary versus the service reflected his NGB Form 22, the latter reflects total service for pay purposes, regardless of how much of that service is satisfactory service. His point credit summary accurately reflects that he did not attain the requisite 18 years of satisfactory service to qualify for the enlisted sanctuary provision. A complete copy of the NGB/A1PO evaluation is at Exhibit F. ________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: The applicant agrees that he should be credited with satisfactory service for the time he waited for the MDARNG to resolve their issues and believes he should receive service credit from 15 Mar 01 through 11 Aug 05 and be considered for any promotion to E-9 he would have received during such service. He also contends that under NGB Equal Employment Opportunity (EEO) and Inspector General (IG) policy, a person affected by an impropriety should be made whole. Therefore, he believes that he should be afforded all pay, allowances, and promotions as if he were commissioned a warrant officer with the MDARNG. In support of his response, the applicant provides an expanded statement and a copy of a letter related to his attempted appointment with the ARNG (Exhibit H). ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of a probable error or injustice warranting corrective action. The applicant contends that his conditional release from the New Jersey Air National Guard (NJANG) to join the Maryland Army National Guard (MDARNG) was mis-handled in such a way as to preclude him from attaining the requisite service for a reserve retirement. After a thorough review of the evidence of record and the applicant’s complete submission, including his responses to the Air Force evaluations, we agree. In this respect, we note the comments by NGB/A1PO indicating that while the applicant could have returned to the NJANG to continue to participate, the fact he was allowed to take an Oath of Office with the MDARNG could have led him to believe he had an obligation to the MDARNG and, thus, could not return to the NJANG to participate while the issues regarding his accession to the MDARNG were resolved. It is also apparent that NJANG officials did not have a clear understanding of how these circumstances affected his status as a member of the NJANG. In this respect we note the Air Executive Officer of the NJANG executed an affidavit indicating the applicant was still a member of the NJANG on 6 May 03, only for other NJANG officials to publish orders in 2005, effecting his 14 Mar 01 discharge. Given these circumstances, we believe there was significant confusion on the part of the parties involved as to the applicant’s status and find it unreasonable to hold him completely responsible for his failure to return to the NJANG to complete his service requirements while he was attempting to resolve his issues with the MDARNG. Therefore, to preclude the possibility of an injustice to the applicant, we believe it is appropriate to resolve any doubt in his favor and credit him with sufficient satisfactory service to attain eligibility for a reserve retirement. In arriving at the appropriate amount of credit to be awarded, we calculated the average of his participation during the five years preceding his 14 Mar 01 discharge. While the applicant has consistently indicated his desire for sufficient service credit to attain retirement eligibility, his latest rebuttal indicates he is requesting service credit for the period from his discharge through the date of his initial discharge order (14 Mar 01 through 11 Aug 05); however, after a thorough review of the facts and circumstances of this case, we believe the former remedy represents full and fitting relief in this case. We also note that promotion to chief master sergeant (E-9) is among the applicant’s requests; however, other than his own speculative assertions, he has provided no evidence to indicate that he would have been promoted to chief master sergeant had he been allowed to return to the NJANG. We also note that back pay, allowances, and any promotions he would have earned had he been commissioned a warrant officer in the MDARNG are among the applicant’s requests; however, such relief is outside our authority as it would involve the correction of official records of the Department of the Army. Accordingly, we believe these requests would fall under the purview of the Army Board for Correction of Military Records (ABCMR). Therefore, we recommend the applicant’s records be corrected to the extent indicated below. 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 RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT, be corrected to show that: a. On 14 March 2001, he was not discharged from the Air National Guard and as a Reserve of the Air Force, but continued to serve in an active status until 4 November 2002, at which point he submitted an application for transfer to the Retired Reserve, which was accepted by competent authority, and he was transferred to the Retired Reserve, effective 5 November 2002, with service characterized as “Honorable,” authority and reason for separation as “Retirement,” with the appropriate reenlistment eligibility and separation program designator (SPD) code. b. He be awarded an additional 31 unpaid active duty points and 34 unpaid inactive duty training (IDT) points for the retention/retirement (R/R) year 4 September 2000 through 3 September 2001, resulting in 92 total retirement points and one year of satisfactory Federal reserve service for retirement. c. He be awarded an additional 31 unpaid active duty points and 46 unpaid IDT points for the R/R year 4 September 2001 through 3 September 2002, resulting in 92 total retirement points and one year of satisfactory Federal reserve service for retirement. d. He be awarded an additional 16 unpaid active duty points and three unpaid membership points for the R/R year 4 September 2002 through 4 November 2002, resulting in 19 total retirement points and two months of satisfactory Federal Reserve service for retirement. e. As regards to the election of Reserve Component Survivor Benefit Plan (RCSBP) options, the record will be corrected in accordance with his subsequently expressed preferences and/or as otherwise provided for by law or the Code of Federal Regulations. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-01200 in Executive Session on 25 Aug 11, under the provisions of AFI 36-2603: All members voted to correct the records as recommended. The following documentary evidence pertaining to AFBCMR Docket Number BC-2010-02395 was considered: Exhibit A. DD Form 149, dated 22 Feb 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, NGB/A1POE, dated 17 Nov 10. Exhibit D. Letter, SAF/MRBR, dated 4 Feb 11. Exhibit E. Letter, Applicant, dated 14 Feb 11, w/atchs. Exhibit F. Letter, NGB/A1PO, dated 26 Jul 11. Exhibit G. Letter, AFBCMR, dated 27 Jul 11. Exhibit H. Letter, Applicant, dated 27 Jul 11, w/atch.