RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2021-03801

XXXXXXXXXXXXX	COUNSEL:  NONE
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

1.  His Selective Reenlistment Program (SRP) appeal be honored allowing immediate reenlistment.

2. His 9 Jul 21 discharge from the Air Force Reserve be voided.

3.  He be reinstatement to his Air Reserve Technician (ART) position. (Not within the Board’s authority to adjudicate)

4.  His nine (9) unexcused virtual Unit Training Assembly (UTA) absences be removed from his record and he receive pay and points for these UTAs.

5.  Backpay and retirement points for missed UTAs and Annual Training (AT) duty days from Aug 20 to present.

6.  He be given retroactive eligibility for promotion to the rank of master sergeant (E-7).

APPLICANT’S CONTENTIONS

His SRP appeal was not honored and wrongly withheld by the unit commander after his appeal was granted by an Appeal Board and the AFRC/CD as final Appeal Authority.  The denial of his reenlistment ultimately led to his honorable discharge from the Air Force Reserve and as a result he was removed from his ART position.  He complied with the appeal process in accordance with AFI 36-2606,  Reenlistment and Extension of Enlistment in the United States Air Force, and was granted his appeal, which was properly routed and processed, to include a legal review.  He was approved for reenlistment by the AFRC/CD on 15 Mar 21.  The AFI states the appeal authority has final reenlistment selection or non-selection authority.  This approval terminated the denial process and restored his reenlistment eligibility.   

These actions caused an error and injustice because Air Force Instructions (AFI) were not followed. Additionally, the Jun 21 Administrative Discharge Board (ADB) recommendation considered information/conduct that pre-dated his granted reenlistment appeal approved in Mar 21.  If he had been allowed to reenlist after his appeal was granted, the ADB would not have been able to consider those events as part of the discharge basis.  Therefore, the ADB’s recommendation is improper.  The initiation of the discharge action was erroneous, unfair, and excessive compared to his overall record of service and honorable characterization.  In addition, as a result of the discharge, he missed  UTA and AT duty days that have impacted his pay and points, and his eligibility for promotion to master sergeant.

He received written guidance from AFRC/A1K and HAF/REP offices that also confirmed his eligibility to reenlist but the command believed he was still ineligible to reenlist, despite his granted appeal.  However, there is no governing regulation or provision citing it is acceptable to deny reenlistment after an appeal has been granted. This undermines the decision made by the appeal authority.  A member whose reenlistment code is anything other than eligible, is ineligible to reenlist.  Per AFI 36-2606, paragraph 8.1.9, his granted appeal restored his reenlistment eligibility and authorized his reenlistment per AFI 36-2606, paragraph 7.2.11.2.5, overriding the provisions of 8.1.9.

According to Department of Defense Instruction (DoDI) 1332.14, Enlisted Administrative Separations, and AFI 36-3209, counseling and rehabilitation efforts are to be implemented and documented prior to initiation of discharge action.  Also, involuntary administrative discharge is not a substitute for disciplinary action.  The unit alleged several incidents of minor disciplinary infractions but failed to document these incidents or present valid documentation to confirm their allegations.  Within a span of three UTAs (months), he received a letter of counseling (LOC) dated 17 May 20, one letter of reprimand (LOR) dated 16 Jul 20, and then the commander began discharge action in Aug 20.  In that short amount of time, he was not afforded a fair opportunity to overcome their perceived deficiencies.  The unit also failed to issue or document proof of formal counseling/rehabilitation efforts or the results of these efforts.  Considering the minor nature of these alleged offenses, the commander had other administrative actions to consider; therefore, he feels the discharge action was indeed a substitute for other disciplinary action and excessive in nature.

The unsatisfactory participation did not happen in his case.  The Department of Defense and Air Force define an unexcused absence as “one 4-hour period of the UTA for which the member has not contacted their unit to receive an excused absence. Unexcused absences result when a member fails to report for the UTA without prior approval."  The unit alleged he accumulated nine unexcused absences; however, he provided evidence of reporting in for virtual UTA, and duty performed for Jun 20 – Aug 20.  All evidence he presented was unfairly disregarded.  He cannot be deemed absent after reporting for virtual UTA and performing military duty.  

Due to his denied reenlistment and placement in “no pay, no points” status, he was unable to participate in UTAs or AT.  He requests he be retroactively compensated and granted retirement points for missed UTAs and AT from Aug 20 – present.  The lost time also would have counted toward his eligibility for promotion to master sergeant.  He was unable to attend the Noncommissioned Officer Academy in-residence and could not complete the correspondence tests due to military participation restrictions.  The loss of promotion eligibility time should be supplemented as well.  He enjoyed serving as a member of the  Air Force Reserve, and as of his separation date of 9 Jul 21, had honorably served 11 years, with the highest rank of technical sergeant.  He also served as an ART from Jan 14 – Aug 21.  During this period, he received numerous awards and decorations for his outstanding duty performance and excellent service.  All of his Enlisted Performance Reports were ranked 5/Exceeds Most, If Not All Expectations, and many of his peers expressed their appreciation for his consistent hard work and diligent duty performance.  He respectfully requests the Board provide full and fitting relief with respect to the errors and injustices that have resulted from the unit commander’s failure to properly allow his granted reenlistment appeal to be processed.
The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an honorably discharged  Air Force Reserve technical sergeant (E-6).

On 13 May 16, according to DD Form 4, Enlistment/Reenlistment Document – Armed Forces of the United States, the applicant reenlisted with the Air Force Reserve for a period of four years.

On 17 May 20, the applicant was issued an LOC for failure to communicate to his command that his Common Access Card (CAC) was inoperable, and he was not monitoring his official email.

On 11 Jul 20, the applicant was issued an LOR for failure to communicate with his commanding officer and chain of command after being ordered to do so.

On 16 Jul 20, according to a squadron commander memorandum, the applicant was notified of failure to report to  UTA  on 6-7 Jun 20, for a total of three (3) unexcused absences.  The applicant responded on 4 Sep 20.

On 16 Jul 20, according to a squadron commander memorandum, the applicant was notified of failure to report to UTA on 11-12 Jul 20, for a total of seven (7) unexcused absences.  The applicant responded on 4 Sep 20. 

On 8 Aug 20, according to a squadron commander  memorandum, the applicant was notified of failure to report to UTA on 8 Aug 20, for a total of nine (9) unexcused absences.  The applicant responded on 4 Sep 20.

On 8 Aug 20, according to a squadron commander  memorandum, the applicant was notified of denial of participation for pay and points.

On 28 Oct 20, the applicant was notified his commander recommended he be discharged from the  Air Force Reserve under the provisions of AFI 36-3209, chapter 3, paragraph 3.21.1. and paragraph 3.13.2. for:
(1) Pattern of minor disciplinary infractions; specifically, lack of responsiveness, failure to communicate and follow direction in reporting to his supervisor and commanding officer; and 
(2) Unsatisfactory participation; between Jun 20 – Aug 20, accumulated 11 unexcused absences for UTAs within the relevant time periods.

On 6 Nov 20, the applicant acknowledged the discharge action and elected to have his case heard by an ADB.

On 16 Nov 20, according to AF Form 418 provided by the applicant, he was not selected for reenlistment.  On 18 Nov 20, the applicant appealed.  

On 2 Dec 20, according to AF Form 1411, Extension of Enlistment in the Air Force, the applicant requested his second extension to his enlistment, for a period of  7 month, totaling 14 months under his enlistment, establishing a new date of separation of 12 Jul 21, to allow for due process under an ADB, in accordance with AFI 36-2606, Table 9.1., Rule 10.

On 6 Dec 20, according to a squadron commander memorandum, provided by AFRC/JA, the applicant’s commander responded to an Article 138, UCMJ, complaint filed by the applicant on or about 18 Sep 20.

On 10 Jan 21, the wing commander recommended the applicant be discharged from the AFR with a general (under honorable conditions) discharge and be denied probation and rehabilitation.  The package was forwarded to the ADB per the applicant’s request.

On 20 Jan 21, according to a Numbered Air Force (NAF) commander memorandum, provided by AFRC/JA, the applicant’s request for relief filed under Article 138, UCMJ, on 23 Oct 20, was denied.

On 26 Jan 21, according to AFRC/JA an Appeal Board convened to review the reenlistment denial package and recommended the applicant’s appeal be granted, and the applicant be allowed to reenlist.

On 15 Mar 21, according to AF Form 418 the AFRC/CD approved the applicant’s appeal.

On 6 May 21, the applicant was issued an LOR, for being untruthful to the NAF command chief and his unit commander.  The applicant responded by memorandum, dated 17 Jun 21.

On 21-22 Jun 21, an ADB was convened, and the board members reviewed 25 government exhibits and 45 exhibits from the applicant. The ADB recommended the applicant receive an honorable discharge, and not be offered probation and rehabilitation with a conditional suspension of the discharge.

On 6 Jul 21, the NAF judge advocate found the discharge package to be legally sufficient and recommended the NAF commander approve the ADB findings and discharge the applicant with an honorable character of service, without probation and rehabilitation.

On 7 Jul 21, the NAF commander directed the applicant be honorably discharged without probation and rehabilitation.

On 9 Jul 21, according to Reserve Order XXXX, dated 8 Jul 21, the applicant was honorably discharged from the Air Force Reserve.

On 23 Feb 22, according to DD Form 4, provided by the applicant, he reenlisted in the Air Force Reserve for a period of six years.

On 5 Jul 22, according to an ARPC/DPT memorandum, the applicant’s reenlistment contract, dated 23 Feb 22, was voided because the applicant’s previous misconduct based “separation for cause” was a bar to his reenlistment per Air Force Manual 36- 2032, Military Recruiting and Accessions; therefore,  AFRS/RSO did not have the authority to approve the requested waiver.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C and F.

AIR FORCE EVALUATION

AFRC/JA recommends denying the application.  Based on a review of the case file and analysis of the facts, there is no evidence of an error or injustice.  On 13 May 16, the applicant began serving a four-year enlistment, which was subsequently extended to 12 Jul 21.  On 28 Oct 20, involuntary discharge action was initiated against the applicant based on Minor Disciplinary Infractions and Unsatisfactory Participation.  On 16 Nov 20, the applicant’s supervisor signed AF Form 418 indicating the applicant was not recommended for reenlistment, and the applicant’s commander concurred.  The basis for denial of reenlistment cited on the AF Form 418 was Minor Disciplinary Infractions and Unsatisfactory Participation.  The applicant signed his acknowledgement and intent to appeal on 18 Nov 20.  On 26 Jan 21, an Appeal Board convened to review the reenlistment denial package and unanimously recommended his appeal be granted, and the applicant be allowed to reenlist.  The Appeal Board’s rationale was the commander’s justification was insufficient and poorly lacking in reference points to support the denial.  With regard to the allegation of Pattern of Minor Disciplinary Infractions, the Appeal Board found the unit failed to provide any supporting documentation showing a pattern of minor disciplinary infractions.  Regarding the allegation of Unsatisfactory Participation, the Appeal Board found the Military Personnel Data System (MilPDS) SURF the unit provided as evidence of the applicant’s alleged unsatisfactory participation was outweighed by the countervailing evidence provided by the applicant showing he had, in fact, participated.  The Board reasoned, confusion over the applicant’s participation was likely caused by the challenges of teleworking required by COVID-19 protocols.

On 4 Mar 21, AFRC/JA performed a legal review of the reenlistment denial and the Appeal Board’s proceedings.  The legal review found the package to be procedurally and substantively sufficient and recommended the appeal be granted, deferring to the Appeal Board’s findings as “not clearly erroneous.” Of significance here, the legal review expressly noted that the Appeal Board’s findings had “no bearing” on the separate administrative discharge proceedings.  AFRC/CD, as the final appellate authority, granted the applicant’s appeal.  On 17 May 21, the NAF commander ordered a discharge board be convened to consider discharge action against the applicant.  The board convened 21-22 Jun 21, and a board of three commissioned officers recommended the applicant be involuntarily separated with an honorable discharge, which was executed effective 9 Jul 21.  The applicant alleged the initiation of discharge was erroneous, unfair, and excessive.  In this case, there was substantial evidence to support a conclusion, at the time the discharge action was initiated, he should have been considered for the discharge.  The applicant received an LOC, dated 17 May 20, for irresponsibly failing to maintain open and effective communication with his leadership and an LOR dated 11 Jul 20, for continually and deliberately failing to communicate with his leadership as well as willfully disobeying orders.  Regarding the unsatisfactory participation, the record contains a memorandum dated 8 Aug 20, indicating, as of that date, the applicant had accumulated nine unexcused absences.  When the commander initiated voluntary discharge action he had a rational basis, as such his actions were neither arbitrary or capricious, nor were they erroneous, unfair, or excessive.

The applicant also alleged the appeal of reenlistment denial was not honored.  As of 28 Oct 20, the applicant was under consideration for administrative discharge, and automatically ineligible to reenlist until such time as the involuntary discharge process concluded.  As noted in an AFRC/JA legal review, dated 4 Mar 21, the reenlistment denial process had no bearing on the administrative discharge proceedings.  The two processes are separate and distinct.  Whereas a reenlistment denial Appeal Board considers a member’s eligibility for future service, an ADB considers whether a member should be involuntarily separated before the expiration of the current term of service.   A reenlistment denial Appeal Board considering one casefile should not, and does not, dictate or compel the findings and conclusions of an ADB making a wholly separate inquiry and considering a completely different casefile.  Simply put, when a reenlistment denial appeal is granted, it does not trump, obviate, or supersede a separately initiated administrative discharge action.  Here, the ongoing administrative discharge proceedings rendered the applicant ineligible for reenlistment, regardless of the result of the separate reenlistment denial appeal process.

Finally, the applicant alleged the ADB erroneously considered information that should have been excluded.  AFI 36-3209 provides that at ADBs, the legal advisor rules on all matters of evidence, procedure, and challenges.  In making rulings, the legal advisor is not bound by the formal rules of evidence.  The Record of Board Proceedings indicates the legal advisor admitted three pieces of evidence over the applicant’s objections.  The first, a nine-page document was a squadron bulletin, dated 13-14 Jul 19, which discussed the squadron policies for UTA attendance and rescheduling.  The applicant objected, noting the bulletin was dated 2019, before the UTAs he was alleged to have missed.  The government responded it was relevant as it showed the applicant was aware of UTA attendance policies.  The second exhibit was a two-page document, dated 15 Jul 19, showing the applicant’s supervisor documenting her attempts to contact the applicant prior to an unexcused absence.  The applicant objected stating it was irrelevant because the letter of notification did not allege unexcused absences as far back as 2019.  Government counsel rebutted the document showed the applicant’s leadership was in the regular practice of actively trying to contact Airmen who failed to show.  And finally, the third exhibit was a one-page memorandum from the applicant’s supervisor documenting his second late arrival to duty in that fiscal year.  The applicant again objected on the grounds of relevance; however, the legal advisor overruled the objection.  The legal advisor committed no error or injustice in admitting certain documents over the applicant’s objection.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 12 May 22, for comment (Exhibit D) and the applicant replied on 25 May 22.  In his response, the applicant contended while commanders have the authority and discretion to initiate discharge action, proper procedures are required to be followed, factually and timely documented prior to initiation, to include any counseling efforts, corrective/rehabilitative actions, and a reasonable opportunity to overcome deficiencies.  Additionally, per AFI 36-3209, “involuntary discharge action should not be used as a substitute for other disciplinary actions.”  Both bases for discharge action did not meet or follow the appropriate standard.  A separate board, the reenlistment Appeal Board unanimously determined the commander’s basis for denial of reenlistment (and the underlying discharge action) was insufficient, poorly lacking, and failed to provide any supporting documentation showing a pattern of minor disciplinary infractions.  He was issued an LOC dated 17 May 20, for failure to maintain open and effective communication; however, this is not accurate.  It stated he failed to communicate that his CAC was inoperable on 12 May 20, a day he was not on duty.  He considers this unreasonable because at the time of the alleged incident, it was the height of the COVID pandemic and services to resolve his CAC issues were limited and outside his control. The LOR  dated 11 Jul 20, issued to him for continually and deliberately failing to communicate with leadership, as well as disobeying orders, was very vague and lacking in context.  In accordance with AFI 36-2907, Adverse Administrative Actions, an LOR is required to include “what the member did or failed to do, citing specific incidents and their dates.”  Over his 10-year career, these were the only two corrective/disciplinary documents he received, and they were improper and unwarranted.

Regarding the unsatisfactory participation basis, the reenlistment Appeal Board found the limited evidence the unit provided was outweighed by countervailing evidence he provided; thus, showing he had participated.  The Appeal Board considered the confusion over his virtual UTA participation was likely sown by challenges of teleworking during COVID protocols.  The evidence he provided to the unit was arbitrarily and harshly disregarded.  It is agreed that reenlistment in the Air Force Reserve is not an inherent individual right.  It is a privilege and Airmen are only considered for reenlistment when eligible and Airmen under consideration for administrative discharge will not be permitted to reenlist.  However, he was no longer deemed ineligible when the Appeal Board voted in his favor.  His eligibility was restored via the established appeal process, but the unit did not allow him to reenlist.  He was unlawfully ordered to not seek his approved reenlistment even after he met all pre-reenlistment requirements.  He compares an approved retirement, where the ceremony is just a formality, to his reenlistment.  Once approved, the Oath of Enlistment ceremony was just a formality, and the unit prevent the processing of his reenlistment in MilPDS.

The command believed the involuntary discharge and reenlistment appeal processes were two distinct processes.  He agrees; however, the argument against his reenlistment was the involuntary discharge, which is very confusing.  Further, AFRC/JA performed a legal review of his reenlistment denial and the Appeal Board results and found them to be procedurally and substantively sufficient.  While command felt the reenlistment appeal had no bearing on the administrative discharge proceeding, this was disproved by AFI 36-3209, which states, “As a rule, the acts or conditions on which a recommendation for discharge is based will have occurred or existed in the current enlistment.”  It is reasonable to assume the unit was aware of this and actively prevented his granted reenlistment.

Finally, the advisory speaks to the legal advisor and discharge board as a whole.  However, his claim that the discharge board erroneously considered information that should have been excluded was not against the legal advisor, but based on AFI 36-3209, paragraph 3.9.1.  Per his Area Defense Counsel, "the basis for discharge included alleged conduct/information that predated Apr 21, after [applicant] received AFRC/CD approval and met all prerequisite requirements for reenlistment.  Essentially, if [he] had reenlisted in Apr 21, the discharge board would not have been able to consider the alleged events as part of the discharge basis. Therefore, the discharge board erroneously considered information for the basis that should have been excluded if [applicant] was properly allowed to reenlist.”

The applicant’s complete response is at Exhibit E.

ADDITIONAL AIR FORCE EVALUATION

AFRC/JA again recommends denying the application.  The applicant’s rebuttal response, dated 25 May 22, did not contain any information to change the previously submitted advisory opinion.  Based on the documentation provided by the applicant, and analysis of the facts, there is no evidence of an error or injustice.  On multiple occasions and by various individuals, the applicant was informed, by subject matter experts, that the 5I reenlistment code would not and could not be removed until the involuntary discharge board convened and rendered a decision.  As a result of the applicant randomly contacting individuals in AFRC/A1, AFRC/JA, and AF/RE, he was ordered on 27 Apr 21, to work all efforts to ensure he was eligible for reenlistment through the squadron first sergeant.  The order specifically informed him that it did not prevent him from seeking redress through appropriate official channels, to include, but not limited to, his chain of command, the Inspector General, Equal Opportunity, and/or a Member of Congress.  The applicant filed an informal Article 138, UCMJ complaint with his commander, followed by a formal Article 138 complaint with the NAF commander, and wrote to his representatives on three occasions.  In Oct 20, the applicant inquired about his unexcused absences from Jun – Aug 20.  On or about Mar 21, he claimed he was treated unfairly by the wing Inspector General, and the following month he sought assistance from a different representative, combining two prior requests into one.  On 13 Apr 21, the applicant filed an informal Article 138 complaint alleging a failure of command to assist with completing his reenlistment. The squadron commander responded on 12 May 21.  The NAF judge advocate provided the NAF command chief a synopsis of ineligibility for reenlistment versus a denial of reenlistment on 3 May 21.  On 18 Nov 21, AF/JA determined the command action taken in the matter by the NAF commander was in compliance with applicable laws and regulations, thus concluding the formal Article 138 complaint.

The applicant was notified, on 28 Oct 20, that separation action was being initiated for minor disciplinary infractions and unsatisfactory participation, which he acknowledged on 28 Oct 20, and requested an ADB on 6 Nov 20.  As a result of the initiation of administrative discharge action, the applicant’s request to reenlist was denied on 16 Nov 20.  Subsequently, the applicant denied knowledge of any pending administrative discharge action during a discussion with the NAF command chief, as evidenced by the LOR, dated 6 May 21.  The ADB convened 21-22 Jun 21, and the board determined both allegations formed a basis for discharge, recommended the applicant be separated with an honorable discharge characterization, and he not be offered probation and rehabilitation.  The applicant was discharged from the Air Force Reserve on 9 Jul 21.

Unconvinced of the propriety of his discharge action, the applicant once again corresponded with individuals from AFRC/A1, AFRC/JA, AF/RE, and SAF/MR, using various personas and names, as a civilian defense attorney, and when asked to verify his licensure as an attorney, he identified himself as a paralegal.  Despite being discharged, in Jan 22, he began corresponding with AF/RE and SAF/MR, claiming to be a technical sergeant in the Air Force Reserve.  On 5 Feb 22, the applicant contacted the Force Support Squadron (FSS) inquiring about his reenlistment and was informed he did not meet all reenlistment eligibility criteria; therefore, his reenlistment could not be processed.  On 7 Feb 22, the applicant contacted AF/REP with selective documentation, resulting in a determination that he should have been allowed to reenlist.  However, once more facts and context were provided, the AF/REP representative confirmed his response would have been different.  Finally, in his response to the advisory opinion, the applicant provided copies of email correspondence from his Area Defense Counsel and a copy of a DD Form 4, dated 23 Feb 22, while not commenting on its relevance.  Once again, the applicant selectively provided information and outright withheld information to obtain an illegal reenlistment.

The complete supplemental advisory opinion is at Exhibit F.

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 22 Jun 22, for comment (Exhibit G), and the applicant replied on 22 Jul 22.  In his response, the applicant contended the additional advisory opinion contained various arbitrary policies, unfounded accusations and claims to inaccurately and negatively portray him to the Board.  It also mentions information that is largely irrelevant to his request of error and injustice regarding the denial of his approved reenlistment appeal and being discharged without proper, documented adherence to procedures.  AFRC/JA had not provided evidence that corrective/rehabilitative efforts were offered and documented within a reasonable timeframe to overcome any perceived deficiencies before discharge action was taken.  Additionally, AFRC/JA did not provide a reference, AFI, or regulation that overrides or states it is permissible to disregard AFRC/CD’s approval of his reenlistment.  The “Presumption of Regularity” principle was disregarded by command, first after AFRC/CD’s approval of his reenlistment appeal, then regarding his recruiting process.  The advisory opinion states he was informed the 5I code would not and could not be removed; however, it does not mention he was also informed by different subject matter experts, to include the FSS, AFRC/A1K, and AF/RE, that the 5I code did not prevent his reenlistment and was not a limiting factor due to AFRC/CD’s approval.  Further, the order issued on 27 Apr 21 was deemed invalid by the Area Defense Counsel due to the issuer and recipient not being on official military status in accordance with Article 2, UCMJ, and the content of the order ran counter to AFRC/CD’s approval of his reenlistment appeal.  When the unit made clear they were not going to assist him, it led to his reaching out to subject matter experts for support.  His contact with AFRC/A1, AFRC/JA, and AF/RE were not random, as he was advised to make these contacts by each office in order of hierarchy, due to the conflicting, arbitrary, and inconsistent information he was receiving from the unit level.

Per the Air Force policy, he was granted the right to reenlist, but command did everything in their power to ensure it did not occur.  His complaints and congressional inquiries were efforts to have his concerns properly addressed and to seek relief, though neither happened.  While he received responses to his complaints, his concerns were never fully addressed or answered with applicable AFI or regulatory guidance and were always subtly ignored.  Regarding the reenlistment, the terms “ineligible” and “denial” are synonymous.  AFI 36-2606, paragraphs 8.1.10 states if a member is not eligible (ineligible) for reenlistment, the unit commander has an option to deny the member reenlistment.  If a member is denied reenlistment, the member's right to appeal becomes available per AF Form 418 and AFI 36-2606.  His Feb 22 conversation with the wing career advisor is another example of conflicting and inconsistent information.  He was told he did not meet all reenlistment requirements, but when he showed his reenlistment worksheet and asked which requirements he did not meet, he did not receive a response.  Additionally, the AF/RE representative did not say his response would have been different, he said he would have recommended a different course of action since he [the applicant] was discharged at the time of their correspondence.  The guidance he provided remained unchanged and still applied to the reenlistment appeal process.

He provided DD Form 4 to show the Board he has since been allowed to reenter the Air Force Reserve on 23 Feb 22.  The allegation that he selectively provided information and outright withheld information to obtain an illegal reenlistment is completely inflammatory and without merit.  AFRC/JA does not state what information he withheld, or how anything he or the recruiter followed for his reenlistment was illegal.  He went to an AFRC recruiter and completed the full enlistment process, to include an approved waiver.  He contacted the AFRCRS/RSO office and has been assured his current enlistment is 100 percent legally sufficient.  Since re-joining, he has been arbitrarily restricted from UTA participation and not allowed to report for military duty.  On 5 Jul 22, he was informed the Air Reserve Personnel Center has determined his enlistment contracted will be voided.  However, the justification is inaccurate.  The command believes the recent contract is a reenlistment and AFRC/CD was the approval authority for his reentry waiver.  Due to his break in service, he did not reenlist in the technical sense.  According to AFMAN 36-2032, he was considered an applicant/prospect, which resulted in his accession back into the  Air Force Reserve; another example of the error, mistreatment, and injustice he continues to have to endure from the command.

His honorable discharge was improper and involved error because: (1) the commander did not follow proper preliminary and rehabilitative procedures before discharge and not providing documentation of such actions; (2) the commander’s basis for discharge was an error of fact, insufficient, poorly lacking, and lacked documentation; and (3) if the commander had allowed his reenlistment, the basis for discharge would have no longer applied due to the new enlistment contract.  In light of his overall service record, the reenlistment board’s unanimous vote and AFRC/CD’s approval of his reenlistment appeal, the COVID-19 pandemic, his honorable characterization, and his reentry into the  Air Force Reserve, the discharge action was unfair and severely excessive in nature.  Also, he met the criteria for Probation and Rehabilitation, but was not provided the opportunity at the discharge board level.

The applicant’s complete response is at Exhibit H.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

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

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The applicant contends his discharge was unjust and he was denied due process because Air Force policy was not followed.   Therefore, his reenlistment was not honored and wrongly withheld by the unit commander after his appeal was granted by the appeal authority. Contrary to approval of his reenlistment, the applicant believes he suffered an error or injustice because he was wrongfully denied reenlistment, which ultimately led to his honorable discharge from the Air Force Reserve.  Consequently, he was removed from his ART position, did not receive pay and points for the missed UTA/AT days, and is not ineligible for promotion to the rank of master sergeant.  However, the Board disagrees. Specifically, as of 28 Oct 20, the applicant was being considered for an administrative discharge; therefore, he was automatically ineligible to reenlist until such time as the involuntary discharge process concluded.  On 16 Nov 20, after the discharge proceedings had already commenced, the applicant was denied reenlistment.  He did appeal the decision and subsequently a  reenlistment Appeal Board convened, recommended his appeal be approved, and the AFRC/CD signed the approval on 15 Mar 21.  Nevertheless, the reenlistment appeal was a separate and distinct function and had no bearing on the administrative discharge proceedings, which preceded his request for a reenlistment appeal.  In addition, although the applicant provided a copy of DD Form 4 to show the Board he has since been allowed to reenter the Air Force Reserve on 23 Feb 22, the evidence shows once the applicant was discharged on 9 Jul 21, he was barred from reenlistment due to his misconduct-based separation for cause.  As such, AFRS/RSO did not have the authority to approve the applicant’s reenlistment waiver. Consequently, the applicant’s enlistment contract dated 23 Feb 22, was voided.  

The applicant contends his reenlistment and administrative discharge were  not in compliance with Air Force policy; however, the Board finds insufficient evidence the applicant was denied any rights entitled to him under the ADB process.  In fact, the ADB reviewed over 44 exhibits provided by the applicant and 25 exhibits provided by the government and contrary to the wing commander’s recommendation to discharge the applicant with a  general (under honorable conditions) service characterization, the ADB instead recommended he be honorably discharged without probation and rehabilitation.   In cases of this nature, the Board is not inclined to disturb the judgments of commanding officers absent a strong showing of abuse of discretionary authority.  The Board does not find the commander or discharge authority abused their discretionary authority, the action was arbitrary or capricious, and notes the NAF legal review found the discharge action legally sufficient.  Therefore, the Board concurs with the rationale and recommendation of AFRC/JA and finds a preponderance of the evidence does not substantiate the applicant’s contentions.

Finally, the Board considered the applicant’s numerous contentions and did an extensive review of the voluminous case file.  However, based on the totality of the evidence, the Board finds the applicant failed to sustain his burden of proof of an error or injustice.   Given there is no basis to recommend approval of his request to remove the discharge action, there exists no basis to recommend relief for the applicant’s remaining requests.  Therefore, the Board recommends against correcting the applicant’s record.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

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 Docket Number BC-2021-03801 in Executive Session on 15 Dec 22:

, Panel Chair 
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 23 Nov 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFRC/JA, dated 9 May 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 12 May 22.
Exhibit E:	Applicant’s Response, w/atchs, dated 25 May 22.
Exhibit F:	Additional Advisory Opinion, AFRC/JA, w/atchs, dated 21 Jun 22.
Exhibit G:	Notification of Advisory, SAF/MRBC to Applicant, dated 22 Jun 22.
Exhibit H:	Applicant’s Response, w/atchs, dated 22 Jul 22.

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