RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-05055 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His discharge date from the Air National Guard (ANG) be changed to 24 February 2012, to reflect the date of his minimum retirement age and he be provided back pay and retirement points for that period. ________________________________________________________________ APPLICANT CONTENDS THAT: 1. On 23 Nov 2009, he received a Notice of Appointment letter, signed by Brigadier General (Brig Gen), Retired, C, which removed him, militarily, from the Arizona Air National Guard (AZANG) at the end of the year. This action resulted in his involuntary retirement from his civil service job prior to his minimum retirement age. He was one of four senior AZANG officers removed from their military positions without cause by use of the Notice of Appointment letter. His situation parallels that of the former 162nd Fighter Wing (FW) commander who was also relieved of his command. The analysis in a Report of Investigation, reflected that Brig Gen C's action adversely affected him. The report concluded that Brig Gen C abused his authority when he issued the Notices of Appointment and that this action was both arbitrary and capricious in comparison to how other members of the AZANG were treated. 2. The actions of Brig Gen C adversely impacted his civil service employment and retirement, and his military retirement and benefits. His rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA) were violated since he was not allowed to return to his civil service job after an involuntary mobilization as required by law, unless there was cause to relieve him, which was never indicated. As he testified to the investigating officer during the analysis in the Report of Investigation, Brig Gen C stated; “our choice was to find him another home or not and we picked not.” He lost his GS-14 position and retired prior to his minimum retirement age, which negatively affected his income and future retirement annuity. Since he had less than three years of time in grade as an O-6, his future military annuity will be reduced to that of an O-5. This result directly affects his family's financial health and his future military retirement earnings. The requested change of his official military separation date will allow him to receive the O-6 retirement he would have been entitled to if not for Brig Gen C’s wrongful actions. 3. He was appointed commander of the 214th Reconnaissance Group (RG) at Davis-Monthan AFB in early 2007. Accordingly, he was promoted to the rank of Colonel on 28 Sep 2007. The unit was created from scratch. Members were brought in from across the nation to operate the MQ-1 Predator Group. Due to the nature of the combat support mission, traditional guardsmen who were ordered to Title 10 U.S.C. active duty status and resided outside the official commuting distance were offered per diem and lodging allowances. In one instance, he disagreed with his boss, Brig Gen C, regarding the entitlement for one of his officers. He was subsequently told he would be removed from his position as the 214th RG commander and also removed from AZANG. In support of his request, the applicant submitted a personal statement, copies of his Notice of Appointment Letter, Advance Notice of Termination as a Technician, a redacted copy of the Inspector General (IG) of the Air Force, Report of Investigation on BG C, dated March 2012, and documents extracted from his Military Personnel Record (MPR). The applicant’s complete submission, with attachments, is at Exhibit A. The SAF/IG Report of Investigation is at Exhibit C. ________________________________________________________________ STATEMENT OF FACTS: 1. According to documents extracted from his Military Personnel Record, the applicant is a former Air National Guard commissioned officer who was progressively promoted to the grade of Colonel, (O-6), with an effective date of rank and pay grade of 28 September 2007. Effective 31 December 2009, the applicant was assigned to the Retired Reserve section awaiting pay at age 60, (24 February 2016). 2. The SAF/IG Report of Investigation, submitted by the applicant, was directed in response to a complaint from Brig Gen S of the AZANG. The initial complaint alleged improper conduct on the part of Brig Gen C, and was filed on 14 October 2010. ________________________________________________________________ AIR FORCE EVALUATION: 1. NGB-J1/TN recommends denial of the applicant's request. J1- TN states as a consequence of his involuntary loss of military membership, the applicant no longer met the statutory requirement to continue fulltime technician employment with the Arizona National Guard and was subsequently terminated from Federal civilian employment. After a thorough and careful review of the documentation provided, they determined that the Arizona Human Resources Office (HRO) took the appropriate actions relative to the applicant’s fulltime technician employment. 2. As a direct result of an involuntary loss of military membership, the Arizona HRO properly issued the applicant a 30- day notice of separation from technician employment in accordance with Title 32 U.S.C Section 709. Based on his years of technician service, and the disposition of separation (other than for removal for cause), the applicant was eligible to apply for a Discontinued Service Retirement (DSR) through the Office of Personnel Management. Given that his loss of military membership was involuntary and not for cause, the applicant was eligible to receive an immediate unreduced retirement annuity supplement as a Federal Employees Retirement System (FERS) employee. 3. Based on the information provided, the applicant’s Mandatory Separation Date (MSD) from military service was in September 2010. An extension beyond his MSD, with Adjutant General approval, would have allowed him to reach the minimum retirement age for a Federal civilian retirement. However, as a result of his receiving a Notice of Appointment memorandum, which expired on 31 December 2009, he was separated approximately nine months prior to his MSD. 4. If the applicant is requesting to change his military separation date from the Arizona National Guard, from 31 December 2009 to 24 February 2012, he would not have been eligible for a DSR with an effective date of 1 January 2010. More importantly, any retirement monies received since that time may have to be collected. The complete NGB-J1/TN evaluation is at Exhibit D. 1. NGB/A1PO recommends denial. A1PO states the applicant alludes to the issuance of a Notice of Appointment being an arbitrary and capricious act. However, the evidence provided does not pertain to the applicant. As this request lacks evidentiary support such as signed statements of witnesses or copies of records to support the case they recommend denial of relief. 2. The applicant's request includes an Air Force Inspector General Report dated March 2012 to substantiate his allegation. The Air Force Inspector General's report substantiates abuse of authority against the 162nd FW commander. No evidence provided supports the allegation of similar action being taken against the applicant. The state followed prescribed policy regarding the applicant’s issuance of Notice of Appointment, as it exists within the AZANG Regulation 20-3. In accordance with this instruction, the applicant was properly notified on 23 November 2009 of non-continuation per paragraph 2.2. “Consistent with the regulations of their respective service, members of the National Guard of Arizona who have twenty creditable years of service for retirement shall be separated from state service upon expiration of any issued Notice of Appointment unless a new Notice of Appointment is timely issued.” The complete NGB/A1PO evaluation is at Exhibit E. 1. ANGRC/JA does not provide a recommendation but states the applicant attributes his separation from the AZANG and the resulting termination from his technician position to a disagreement with Brig Gen C. The applicant references a SAF/IG Report of Investigation (ROI) S6875P, as proof of the impropriety of Brig Gen C’s actions. While the applicant does not assert that the personnel actions relevant to his application are detailed in ROI S6875P, he does claim the IO findings are relevant to his situation. He asserts that his situation parallels that of the former 162nd FW commander who was also relieved of his command. The applicant describes the actions of the AZANG as arbitrary and capricious and states that the manner in which Brig Gen C issued Notices of Appointment constituted an abuse of authority. 2. ANGRC/JA further states, if accurate, the SAF/IG ROI S6875P findings support the conclusion that some of the AZANG personnel actions were, while procedurally accurate, a mere pretext for improper action. As he states himself, the applicant is not specifically identified in ROI S6875P and bases his request for consideration on the similar circumstances surrounding the 162nd FW commander's separation from the AZANG as described in ROI S6875P. The question of whether the findings of ROI S6875P should apply to the applicant's case is a factual determination reserved for judgment beyond that of NGB/A1P. It is proper for NGB/A1P to examine and comment on the procedural actions at issue. It would, however, be improper for NGB/A1P to examine the motives behind the actions of the AZANG based on the SAF/IG findings in ROI S6875P. Furthermore, a determination on the intent and possible remedy of AZANG actions in this matter are beyond NGB/A1P’s purview. The complete ANGRC/JA evaluation is at Exhibit F. 1. NGB/A1P states they have looked into the matter of the applicant’s request and find the complaint does not substantiate an error or injustice. 2. Based on the facts that were presented for consideration, they find that the AZANG followed prescribed policy regarding the applicant’s selective early removal from the Reserves of the Air Force and the Arizona National Guard, therefore they concur with the NGB subject matter experts and do not recommend relief for the applicant's request for corrective actions. The complete NGB/A1P evaluation is at Exhibit G. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 1. In his response, the applicant offers an outline of how the substantiated findings of the SAF/IG report regarding the former 162nd FW commander directly apply to his case. The applicant states his 23 Nov 09, Notice of Appointment is listed in Section IV of the page 13 chronology in the IG report. Additionally, the arbitrary and capricious method used to remove Brig Gen S which was previously used to remove him from his affiliation with the AZANG is listed on page 14. As annotated by the IO, the acid test involved answering the following Analysis. a. Question 1: Did the Responsible Management Official's (RMO) actions (a) adversely either affect any person or (b) result in personal gain or advantage to the RMO? (1). Yes. In order to affect the removal of Brig Gen S as the commander of the 162nd FW, Brig Gen C issued a Notice of Appointment. In accordance with paragraph 2.7 of AZNG Regulation 20-3, “a member shall be separated from the National Guard of Arizona upon the expiration date of the member's Notice of Appointment unless a new Notice of Appointment is tendered to the member prior to that expiration date.” Brig Gen C issued Brig Gen S the Notice of Appointment on 30 Sep 10 with an expiration of 31 Oct 10. Brig Gen S was not issued a subsequent notice and was separated from the AZANG on 31 Oct 10. (2). Due to the fact that Brig Gen S was made to separate from the AZANG prior to desiring to do so, the issuance of a Notice of Appointment by Brig Gen C did adversely affect Brig Gen S. In his case, Brig Gen C issued the 23 Nov 09, Notice of Appointment with an expiration of 31 Dec 09. He was not issued a subsequent notice and was separated from the Arizona National Guard on 31 Dec 09. As with Brig Gen S, this adversely affected him as he lost not only his military affiliation but also his civilian federal technician position. b. With the answer to question 1.(a) of the “acid test” being yes, the IO must then answer questions 2 and 3. c. Question 2: Did the RMO act within the authority granted under applicable regulations, law or policy? (1). No. Paragraph 2.8 of AZNG Regulation 20-3 states that “the Adjutant General may delegate to a designated representative all or part of his authority under this Article to tender Notices of Appointment. Such delegation should be in writing and may be withdrawn by the Adjutant General at any time.” From this paragraph, the IO finds that as the ATAG-Air, in order to issue any Notice of Appointment, Brig Gen C must be granted the authority to do so in writing by the TAG. In fact, Brig Gen C was granted limited authority in writing on 16 Nov 09, by the TAG. The Notice of Appointment Delegation Letter states, “In accordance with Arizona National Guard Regulation 20-3, paragraph 2.8 the Adjutant General may delegate his authority to tender Notices of Appointment. The Adjutant General has delegated this authority to the Commander, Arizona Air National Guard [Brig Gen C] to be conducted in his absence.” (2) The IO found that the issuance of the notice by Brig Gen C was outside of his authority as he only had the authority in the “absence” of the TAG. The TAG was not absent at the time the notice was issued to Brig Gen S, and the TAG did not sign the Notice. This was the same in his situation. He personally witnessed that the TAG was in his office on 23 Nov 09, the date of his Notice of Appointment. d. Question 3: Was the action arbitrary and capricious? (1). Considering the factors of reasons, reasonableness, consistency, and motive, the IO found that Brig Gen C’s removal from command of Brig Gen S by issuing him a Notice of Appointment was arbitrary and capricious. The IO finding indicated that the fact that Brig Gen S was separated for having twenty creditable years for retirement and an expired Notice of Appointment while 653 members of the AZANG with the same number of years of service were allowed to serve because they were never issued a Notice of Appointment is both arbitrary and capricious. For these same reasons, his own separation should be considered arbitrary and capricious. 2. The applicant reiterates that he was included as one of the four officers who were issued Notices of Appointment by Brig Gen C for which the IO stated was an arbitrary and capricious act. For the same reasons as stated above, Brig Gen C's harmful actions toward him represented an abuse of his authority. In using this approach, he was denied an opportunity to rebut his dismissal, which would have been available to him if he had pursued a dismissal for cause, and therefore, resulted in his loss of military status and removal from his federal technician civil service position. Thus, Brig Gen C's actions represent an injustice that he requests the Board rectify. The applicant’s complete response is at Exhibit I. ________________________________________________________________ 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 error or injustice. We took careful notice of the applicant’s complete submission pursuant to Title 10, United States Code, Section 1552 (10 USC § 1552) in support of his requests and the evidence of record. The applicant’s contention that the actions of the Adjutant General (TAG) adversely impacted his civil service employment and retirement, his military retirement and benefits, and violated his rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA), are duly noted; however, we do not find the evidence provided sufficiently persuasive to override the rationale provided by the Air Force offices of primary responsibility. We further note the applicant alleges that he was one of four senior Arizona Air National Guard (AZANG) officers removed from their military positions without cause by use of the Notice of Appointment letter. The applicant also submitted an Air Force Inspector General's (IG) report that substantiated abuse of authority against two of the four officers. The Board noted that although the findings in the IG report were not specific to the applicant, the investigation indicated issues of instances of alleged fiscal impropriety on the part of the applicant. Consequently, it appears there was a basis for the TAG to question his judgment and, correspondingly, make an administrative decision. However, no evidence provided supports the allegation of any adverse personnel action taken against the applicant. To the contrary, the evidence established indicates that as a direct result of an involuntary loss of military membership, the applicant was properly issued a 30-day notice of separation from technician employment in accordance with Title 32 U.S.C § 709, and separation and retirement actions were duly fulfilled. The applicant has not provided evidence to persuade us to the contrary and we agree with the opinions and the recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Therefore, in consideration of the sum of evidence provided, there is no valid basis in which we can support granting the requested relief sought in this application. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that 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 this application in Executive Session on 12 September 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in AFBCMR Docket Number BC-2012-05055: Exhibit A. DD Form 149, dated 22 October 2012, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. IG Complaint dated March 2012 (Withdrawn). Exhibit D. Letter, NGB/J1-TN, dated 10 December 2012. Exhibit E. Letter, NGB/A1PO, dated 12 December 2012. Exhibit F. Letter, ANGRC/JA, dated 14 December 2012. Exhibit G. Letter, NGB/A1P, dated 19 December 2012. Exhibit H. Letter, SAF/MRBR, dated 21 December 2012. Exhibit I. Letter, Applicant, dated 10 January 2013.