RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-01312 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. She be allowed to enlist in the Michigan Air National Guard (ANG) and retrain into the Paralegal Career Field. 2. She be allowed to begin the Paralegal Apprentice Course (PAC) as soon as possible. ________________________________________________________________ APPLICANT CONTENDS THAT: The applicant’s counsel lays out the applicant’s case in a 6- page brief of counsel, with attachments. The applicant interviewed for a paralegal position with the MI ANG. Both the Law Office Superintendent and the Staff Judge Advocate expressed a desire to hire her to join their unit. On 13 Aug 12, the applicant’s recruiter informed her that her application was denied because of her age based on return of cost of benefit to the Guard. On 20 Sep 12, the ANG Paralegal Career Field Functional Manger (CFFM) disapproved her accession. Concerns raised included the applicant’s age, which was incorrectly cited as 56 at the time of application when it was in fact 55, and the amount of mandatory training the applicant would undergo for the position. A colleague of the applicant, also seeking a paralegal position while over 50 years of age with over 20 years of service, did receive approval to accept a position with the Delaware ANG. The applicant still has more than two years to fulfill this obligation, and will not reach her mandatory retirement date until 2017. The ANG Paralegal CFFM cited one reason justifying the applicant’s denial. The primary reason given was that according to the ANG Paralegal CFFM, the applicant would be 58 by the time she completed the minimum requirements, making such a transition “fiscally irresponsible” in light of the mandatory retirement age of 60. An airman retraining into the paralegal career field could complete all training to the 7-skill level in less than one and a half years. During that time, the paralegal would be available for duty for all but 12 weeks. The applicant meets the required qualifications. Her multiple positions as a linguist, as an office manager, including for the Commander of US Pacific Fleet Command, as an editor for the Defense Language Institute, in addition to her numerous positions in public affairs for both the National Naval Medical Center and the Intelligence Community describes the applicant as exactly who should work as a paralegal. Regardless of the concerns outlined by the ANG Paralegal CFFM regarding return on investment, the MI ANG found the applicant more than qualified and expressed excitement at the prospect of her addition to their office. While budgetary concerns should always be considered, a Staff Judge Advocate is best positioned to assess the needs of that particular office to meet mission goals, as well as to review potential applicants. While the denial has created a reduction of the amount of time the applicant would serve the MI ANG that fact does not negate that she will still provide a quality return on investment. In support of her request, the applicant provides a counsel’s brief, copies of the paralegal interview, a request for reconsideration into the paralegal career field, paralegal accession disapproval, and letters of recommendation. The applicant's complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant interviewed for a paralegal position with the Michigan ANG. On 13 Aug 12, according to the applicant, her recruiter informed her that her application was denied by the ANG Paralegal CFFM because of her nearing her High Year Tenure (HYT) and based on the analysis of return of cost benefit to the ANG. On 16 Oct 13, the applicant transferred to the Retired Reserve, awaiting pay at age 60, after completing 24 years, 2 months, and 3 days in the Air Force Reserve. ________________________________________________________________ AIR FORCE EVALUATION: NGB/A1PP recommends denial. A1PP states there is no injustice on behalf of the ANG Paralegal CFFM and they did not violate ANG policy. According to AFI 51-802, Section B, paragraph 8, “The ANG Paralegal CFFM is the primary point of contact for all individuals seeking assignment into TJAGCR as ANG paralegals, and for reassignments of paralegal within the ANG.” Section 24.3 in Section D, for the same instruction notes, for ANG paralegal positions, the approval authority is the ANG Paralegal CFFM. If the application is disapproved, the ANG Paralegal CFFM notifies the applicant and returns the application package to the unit. The applicant will reach her HYT in 2016. Her legal counsel stated that four years is sufficient time to recoup its training investment in the Air Force; however, non-prior service ANG members are required to enlist for six years, not four, in accordance with ANGI 36-2002, Enlistment and Reenlistment in the Air National Guard and as a Reserve of the Air Force. Additionally, applying to the paralegal career field is not a guaranteed acceptance into the career field. While the applicant may meet the standards noted in AFI 51-802, Management of the Judge Advocate General’s Corps Reserve, the ANG Paralegal CFFM is the approving authority and unless the applicant can substantiate an injustice occurred, the decision cannot be overruled. The CFFM also stated that the JAG Corps would only have one year with the applicant as a fully trained 7-level paralegal after completing the apprentice course in addition to required upgrade training. Therefore, the return of investment would be limited as there would be no option to retain her beyond her mandatory separation date, unlike a new accession or more junior airman that could choose to stay beyond their initial enlistment. The complete A1P evaluation, with attachment, is at Exhibit B. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: NGB/A1PP recommends denial because of the short period of time that the applicant would be able to serve as a paralegal. They note that the applicant’s HYT is 2016 and that she would only have one year as a fully trained 7-level paralegal before she would have to retire. This is a specious argument as all prior service enlistees need only serve four years. The applicant applied as a paralegal in 2012 at that point she would have been able to serve as a paralegal for four years and the Air Force does not consider that a poor return on investment. NGB/A1PP notes that non-prior service airmen have to serve six years, but the applicant is a prior service airman not a non- prior service enlistee. Potential paralegals who are similarly situated to the applicant need only serve four years, the amount of time the applicant could have served had she been properly considered. The JAG and Paralegal at the unit level weighed the applicant’s abilities and potential for service and advised that they wanted her to serve in their unit. The ANG CFFM denied that request for no good reason. Another paralegal in the same situation was allowed to join the paralegal career field. The CFFM claims that allowing the other paralegal to join the career field was the result of a mistake. Given that a prior service airman only needs to serve four years, this argument is not persuasive. The applicant is a highly successful airman who would provide quality service to her new unit immediately. There appears to be no valid reason to deny her that opportunity except her age. While age discrimination is not necessarily improper in the Air Force, in this case it contributed to an arbitrary and capricious decision that should be overturned. The counsel’s complete response is at Exhibit D. ________________________________________________________________ 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. After carefully reviewing the evidence of record and the applicant’s complete submission, we are not persuaded that corrective action is warranted. As such, 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 that the applicant has failed to sustain her burden of proof that she has suffered an error or injustice. The applicant’s counsel is correct that the applicant is a prior service airman and would only be required to enlist for four years. However, as pointed- out by the Air Force OPR, reassignment into the Paralegal Career Field is at the discretion of the Career Field Functional Manager and we do not find his/her decision to disapprove the applicant’s request to be arbitrary or unjust. Therefore, in the absence of persuasive evidence to substantiate that an injustice occurred or that she was denied rights to which she was entitled, we find no basis to recommend granting 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 issue involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ 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 Docket Number BC-2013-01312 in Executive Session on 9 Jan 14, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 11 Mar 13, w/atchs. Exhibit B. Letter, NGB/A1P, dated 19 Apr 13, w/atch. Exhibit C. Letter, SAF/MRBR, dated 5 Nov 13. Exhibit D. Letter, Counsel, dated 10 May 13. 1 2