RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-03571 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: He be reinstated as an Active Guard Reserve (AGR) member to obtain 20 years of service for a reserve retirement and receive back pay commencing 14 Jul 13. ________________________________________________________________ APPLICANT CONTENDS THAT: His AGR curtailment was unjust. There were previous attempts to curtail his AGR tour, but they were set aside by his JAG attorney. However, his commander initiated an involuntary curtailment “for cause” from the AGR program due to a pending criminal investigation for felony charges of grand theft of military property. During his career he has not received any administrative reprimands, such as, Letter of Counseling (LOC), Letter of Reprimand (LOR), Unfavorable Information File (UIF), or nonjudicial punishment under Article 15. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 6 Oct 97, the applicant commenced his enlistment in the AGR program. On 14 Dec 12, the applicant’s commander notified him that he was recommending him for involuntary curtailment for cause from the AGR program. The reason for the action was the applicant’s arrest by the Jacksonville Sheriff’s Office and his pending felony case in Duval County for grand theft of military property. Additionally, the applicant violated a no contact order and created a hostile work environment for his co-workers. On 14 Dec 12, the applicant acknowledged receipt of the action and both he and his counsel provided lengthy rebuttals to the action, dated 14 Dec 12 and 23 Dec 12, respectively. On 19 Feb 13, the applicant’s commander notified him that he was recommending him for involuntary curtailment for cause from the AGR program. The specific reasons for the action were as follows: a. Between 27 Mar 12 and 24 Apr 12, the applicant stole more than $10,000.00 in proceeds from government owned metal that was sold to a recycling company, for which he was arrested by the Jacksonville Sheriff’s Office and charged with grand theft of military property. b. The applicant violated AFI 64-117, between on or about 15 Jan 11 and 19 Nov 11 by using a Government Purchase Card to purchase food; and on or about 9 Mar 12, by making repeat buys of boots, to avoid the $3,000 limitation for purchasing. c. On or about 22 Nov 11, the applicant submitted a receipt to Air Combat Command (ACC) financial management auditors for DJ services that you altered to deceive them. d. On or about 10 Dec 10 and on or about 15 Jan 11, the applicant violated AFI, paragraph 4.3.5.3.1.1, by failing to properly document Government Purchase Card purchases. e. On numerous occasions between Apr 11 and May 12, the applicant wrongfully sold spent ammunition shell casings to a recycling center instead of returning them to the Army Ammunition Supply Point, as required by AFI 21-201 and local procedures. f. The applicant was derelict in the performance of his duties by willfully failing to submit the recycled material sales proceeds to the Defense Finance and Accounting Service for deposit in a recycle program account, as it was his duty to do. g. The applicant was derelict in the performance of his duties by failing to maintain equipment accounts that he was responsible for in accordance with his responsibilities established by AFI 23-111, as it was his duty to do so, and fraudulently submitting documents to cover up his dereliction. h. The applicant was derelict in the performance of his duties by failing to properly dispose of government property in accordance with AFI 34-204, by directing the disposal of government owned Individual First Aid Kits by throwing them into the trash instead of turning them into the Defense Reutilization and Marketing Office (DRMO), as it was his duty to do so. i. Between on or about 3 Mar 12 and on or about 9 Mar 12 he wrongfully used two tarps that belonged to the government to cover his own personal property. On 16 Apr 13, the Adjutant General (TAG) approved the applicant’s termination from the AGR program. On 14 Jun 13, the applicant was released from his AGR tour and reverted to his traditional (part-time) status as a member of the Florida Air National Guard (ANG). He was credited with 17 years, 2 months, and 11 days of active service. On 21 Aug 13, according to documentation provided by the applicant, the State of Florida entered a Nolle Prosequi (will not prosecute) decision on the applicant’s case. ________________________________________________________________ AIR FORCE EVALUATION: NGB/A1PP recommends denial indicating there is no evidence of an error or an injustice. The Report of Investigation (ROI) revealed the applicant stole over $10,000.00 in proceeds from government owned metal, and on numerous occasion misused his Government Purchase Card to include unauthorized and improper, split purchases. Although the governing instruction states commanders considering involuntary curtailment must use all quality force tools available prior to initiating a involuntary curtailment, this was not intended to force a commander to exhaust all lesser disciplinary tools prior to taking administrative actions, such as in the applicant’s case where a felony occurred. While the applicant’s previous evaluations did not note any concerns or inability to meet standards, his command was not aware of these discrepancies until the completion of the ROI. The curtailment was not a violation of any administrative requirements as the “for cause” was substantiated and therefore the tour curtailment was legally warranted. A complete copy of the NGB/A1PP evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant argues the subject matter experts have mishandled his case from the beginning. The statement that the investigation concluded criminal activity had occurred is false. There was no evidence to support grand theft. The original arrest report indicates that the arrest for grand theft was for INTENT to steal $10,000.00. The investigators admitted that there was never any money missing, but believed his INTENT was to steal the money in five or six months. The statement indicating he stole more than $10,000.00 in proceeds is false as there was never any missing money, only accusations of INTENT, and the State Attorney’s office dismissed the case on 21 Aug 13. In regards to the accusation of split purchases, construction boots had been order for 100 members of the unit who were scheduled to deploy overseas. It was determined the boots did not meet safety standards and needed to be reordered. The boots were reordered via a split purchase because they needed to be received before the unit members deployed in a week. His commander supported his decision and the contacting office excused the split purchase due to the extenuating circumstances. He disputes the statement "this is not intended to force a commander to exhaust all lesser disciplinary tools prior to taking administrative action, such as in the current case when a felony has occurred; because a felony did not occur. One of his responsibilities as the Supply/Logistics Noncommissioned Officer in Charge (NCOIC), was opening and operating a Morale, Welfare and Recreation (MWR) account, as well as turning in scrap metal found on base material. The applicant’s complete response, with attachments, is at Exhibit E. ________________________________________________________________ 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. The applicant makes a variety of arguments intended to undermine the basis of his involuntary removal from the Active Guard/Reserve (AGR) program; however, after a thorough review of the evidence of record and the applicant’s complete submission, to include his rebuttal response, we do not find the evidence he has presented is sufficient to convince us that he is the victim of an error or injustice. The applicant argues that his case has been mishandled from the beginning as evidenced by the fact that previous attempts to remove him from the AGR program have been set aside. While it appears the action was served on the applicant twice, apparently because the first iteration of the notification did not specifically describe the misconduct which formed the basis of the action, in our view, the commander’s second notification letter to the applicant describes his misconduct in more than sufficient detail to ensure the applicant had a reasonable ability to mount a vigorous and fulsome defense of the action. Therefore, while the applicant would like us to believe the fact the action was served twice is somehow indicative ineptitude on the part of his command, we are not convinced that his case has been mishandled or that he has been denied any rights to which he was entitled. The applicant also argues the action was disproportionate to the circumstances in that governing instructions require a progressive approach to discipline before separation action is initiated; however, we find this argument disingenuous as the crimes and misconduct committed by the applicant, in our view, formed a legitimate basis for his immediate removal from the AGR program, regardless of the quality of his previous service or whether or not his command saw fit to employ lesser administrative measures in advance of their decision to pursue his removal from the AGR program. Finally, with respect to the applicant’s arguments that the findings of the investigation are erroneous, other than argument and conjecture, the only evidence he has provided to undermine the basis for the action is a determination by the State Attorney’s office to not prosecute the applicant for the crimes he allegedly committed. However, in our view, the fact the State of Florida decided not to prosecute the applicant, in and of itself, does not constitute a conclusive finding that he did not commit the misconduct which formed the basis of his removal from the AGR program. Therefore, in the absence of evidence the applicant was deprived of rights to which he was entitled, the action was disproportionate to the circumstances, or that there was an abuse of discretionary authority, 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(s) 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-2013-03571 in Executive Session on 10 Jul 14, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2013-03571 was considered: Exhibit A. DD Form 149, dated 22 Jul 13, w/atchs. Exhibit B. Applicant's Master Personnel Records Exhibit C. Letter, NGB/A1PP, dated 26 Aug 13. Exhibit D. Letter, SAF/MRBR, dated 14 Nov 13. Exhibit E. Letter, Applicant, dated 18 Nov 13, w/atchs. Panel Chair