RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-03031 XXXXXXX COUNSEL: HEARING DESIRED: YES _______________________________________________________________ APPLICANT REQUESTS THAT: He receive the following relief based on being the victim of a substantiated case of reprisal pursuant to DODD 7050.06, Military Whistleblower Protection, and AFI 90-301, Inspector General (IG) Complaints Resolution. 1. His records be corrected to expunge any and all verbiage related to his improper release from the Arizona Air National Guard (AZANG) such as his DD Form 214, NGB 22 and Special Order P-003739). 2. He be reinstated into a similar Air Guard Reserve (AGR) position in the United States Air Force Reserve (USAFR) at Davis-Monthan AFB, AZ through June 2015, or later if promoted to the grade of colonel (O-6). 3. He be considered for a Secretarially directed promotion to the grade of colonel. In the alternative his records be corrected to reflect command credit and he receive supplemental promotion consideration to the grade of colonel. 4. He receive full entitlement to the 44.5 days of terminal leave he was forced to sell due to his reprisal based discharge from the AZANG. Alternatively, the leave balance be reinstated to his leave account. 5. He receive pay and point credit for the period he was illegally discharged from the AZANG to the date he was assessed into the USAFR (from 16 July 2011 to 5 August 2011). 6. His terminated Aviator Continuation Pay (ACP) contract dated 27 September 2009, be reinstated and he be reimbursed for missed ACP bonus installments on 27 September 2011 and 27 September 2012. 7. He receive a separation date commensurate with a mandatory retirement date of 27 May 2015. 8. He be continued with the 2d Special Operations Squadron in an additive AGR billet, or in the alternative he receive continuation as a Traditional Reservist with active duty retirement protections or alternatively, he receive a TERA retirement. 9. He requests protection against any future breaks in service through 20 years of service. _______________________________________________________________ APPLICANT CONTENDS THAT: In a 6-page statement the applicant’s counsel presents the following major contentions: 1. He was selected as the highest scoring candidate for a supplementary AGR tour with the AZANG. However, he was denied placement into the AGR Vacancy. 2. He requested a review of the assignment irregularities by the AZ National Guard (NG) State IG. On 20 April 2011, he elevated his case to SAF/IGS. The AZNG State IG attempted to formally dismiss the case the day after he informed the State IG Inquiry Officer (IO) that the case was elevated to SAF/IGS. 3. Based on the facts supported by the attached IG findings and the referenced AFBCMR precedents, the career injuries associated with the reprisal and hiring violations should be corrected. 4. Had the events not occurred he would have earned command experience, and would likely have been extremely competitive for promotion to the grade of colonel. The applicant’s complete submission, with attachments, is at Exhibit A. _______________________________________________________________ STATEMENT OF FACTS: The AFBCMR’s recommendation regarding disciplinary action is considered For Official Use Only (FOUO), is separate and aside from its recommendations regarding relief, and will not be described in the Record of Proceedings (ROP), or conveyed to the applicant by any other means. Information extracted from the Automated Record System (ARMS) indicates the applicant is currently serving in the Air Force Reserve in the grade of lieutenant colonel (Lt Col, O-5), having assumed that grade effective and with a date of rank of 1 October 2005. On 15 July 2011, he was released from the ANG and on 5 August 2011, he was transferred to the Air Force Reserve. At the time of his separation from the ANG, he had 24 years, 1 month, and 19 days of satisfactory Federal military service. His Mandatory Separation Date (MSD) is 1 June 2015 On 25 March 2011, the applicant filed the first of eight AF IMTs 102, Inspector General (IG) Report Personal and Fraud, Waste & Abuse Complaint Registration, to the AZNG State IG IAW AFI 90- 301, Inspector General Complaints Resolution, complaining about the process of hiring against a newly vacated commander position. All eight complaints constituted protected communications (PC). The third of the eight complaints described previous PCs by the applicant, specifically, a 13 July 2009 IG complaint, a 3 August 2009 communication with the Adjutant General (TAG), AZ National Guard, a 5 February 2010 communication with an auditor, and a 20 August 2010 IG complaint supplemented on 9 December 2010. Furthermore, he met with the TAG in May 2011. As the applicant communicated information about a violation of a regulation to the TAG during the meeting, it constituted a PC. On 6 May 2011, he met with the TAG to discuss alleged violations of DEMA Directive 25-6 during the hiring process of the commander position. On 3 June 2011, the Assistant TAG (ATAG) issued him a Notice of Appointment, forcing him to leave the AZANG on 15 July 2012. On 5 June 2011, he filed an AF IMT 102 that complained about the Notice of Appointment. In June 2011, The Inspector General (TIG) directed an investigation of the additional allegation of reprisal against the ATAG. The applicant claimed that two favorable actions were withheld when he was not selected for the group commander position in 2010 or for the squadron commander position in 2011. In regards to his non-selection for group commander, the State IG found the ATAG properly filled the position as a “key staff appointment.” He did not use and did not have to use the formal vacancy announcement procedure. As there was nothing improper about how the group commander position was filled, his non- selection did not constitute a favorable personnel action withheld from him. In March 2012, a SAF/IGS ROI into the applicant’s allegations against the ATAG determined the following: Allegation 1: That he received a downgraded OPR in reprisal for his protected communications. FINDING: Not substantiated Allegation 2: That he received a Notice of Appointment and subsequent separation from the ANG in reprisal for his protected communications. FINDING: Substantiated. According to the ROI, the preponderance of evidence supported the conclusion that the ATAG did reprise against the applicant by issuing him a Notice of Appointment on 3 June 2011 which led to his separation from the AZANG on 15 July 2011. The applicant made multiple protected communications prior to June 2011. The ATAG knew of these communications and would not have issued the Notice of Appointment had the applicant not made them. In a 21 July 2012 letter to the applicant, SAF/IGS advised him that an investigation of his allegation was conducted under the provisions of Title 10, United States Code, Section 1034, Protected Communications; Prohibition of Retaliatory Personnel Actions. The investigation substantiated his allegation of reprisal. The IG also found that several "procedural violations" of DEMA Directive 25-6 were committed in the hiring of AGR Vacancy Announcement 2011-091A (214 RS/CC). The IG of the Air Force reviewed the ROI and approved its findings. Additionally, the DoD IG conducted a thorough review of the report, found that it adequately addressed his allegations, and concurred with its findings. The remaining relevant facts pertaining to this case are contained in the evaluations prepared by the appropriate office of the Air Force and National Guard Bureau (NGB) and can be found at Exhibits C-G, and K-L and the ROI at Exhibit R. _______________________________________________________________ THE AIR FORCE EVALUATION: NGB/A1PF recommends denial of the applicant’s request for ACP. A1PF states that he was previously approved and awarded a correction for ACP and the documents are included in the Case Management System (CMS) under case number 2455742. The case was originally adjudicated by the AFBCMR on 22 December 2009 and he was granted relief to back date his agreement and be retroactively paid for three months. According to the records he received the additional payment on 25 February 2010 in the amount of $3,750. The complete A1PF evaluation is at Exhibit C. NGB/A1PO states that they cannot comment on nor make recommendations regarding the applicant’s request that he be considered for a Secretarially directed promotion to the grade of colonel. He was transferred to the USAFR on 15 July 2011 and met the promotion board as a USAFR officer not as an ANG officer. The complete A1PO evaluation is at Exhibit D. NGB/A1PP recommends denial of the applicant’s requests regarding his improper AGR separation, TERA and correction of his records related to the improper release. A1PP states that the State met the criteria for removal. IAW ANGI 36-101, AGR Program, the TAG is the final authority for determining whether an individual will be separated from the AGR program except for officers within the sanctuary zone. In this case, the separation must be approved by the Secretary of the Air Force. At the time of his separation from the ANG, he had 17 years and 3 months of Total Active Federal Military Service (TAFMS), which does not qualify for sanctuary. Even though AZNGR 20-3, Retention and Separation Policy for Members of the Army and Air National Guard, does not reference ANGI 36-101, documentation provided by the state and the member showed the state followed the guidance established in ANGI 36- 101 regarding involuntary tour curtailment. While eligible for Selective Retention consideration, his NGB Form 27, Federal Retention Evaluation/Recommendation, and consideration under the Selective Retention Review Board (SRRB) was removed and he was not considered under this program. Moreover, he was not protected by career status as he was on his initial AGR tour which is considered a probationary period. His claim regarding improper removal from AGR status was not substantiated by A1PP. He submitted an appeal upon his Notice of Appointment for involuntary tour curtailment to the TAG for consideration which was disapproved. In regards to retirement under TERA, the authority to implement TERA by the ANG has not been granted by the Secretary of the Air Force. The complete A1PP evaluation is at Exhibit E. ANGRC/JA recommends denial. JA states that based on the facts presented in the NGB opinions, JA finds their responses to be legally sufficient and concurs with the recommendations to deny the applicant's requests for corrective action related to ACP payments, Board# V0611A, AGR separation from ANG Selective Retention Review Board (SRRB) consideration, and TERA. The complete JA evaluation is at Exhibit F. NGB/AIPS concurs with the NGB advisories and does not recommend relief for the applicant’s requests regarding AGR separation, reinstatement as an AGR or traditional reservist, retirement (Sanctuary IAW 10 USC 12686), TERA IAW 10 USC 12302, back pay Leave, ACP, promotion to colonel, and Special Selection Board (SSB) consideration. A1PS has looked into each matter and finds his complaints do not substantiate an error or injustice. Based on the facts that were presented for consideration, A1PS finds that the ANG met the criteria for involuntary separation as outlined in ANGI 36-101, therefore does not recommend relief to his requests. The complete A1PS evaluation is at Exhibit G. _______________________________________________________________ COUNSEL’S REVIEW OF THE AIR FORCE EVALUATIONS: The applicant’s area defense counsel (ADC) states the NGB advisory opinions completely ignored the legal analysis in their advisory opinions. On 3 June 2011, the ATAG issued the applicant a Notice of Appointment. The ATAG did not actually cite what authority in AZNGR 20-3 he was relying upon to fire him. AZ Revised Statute, Title 26, Military Affairs and Emergency Management, Section 26- 102, Powers and Duties of the Adjutant General, Paragraph B2, states that “the Adjutant General, as the Military Chief of Staff, shall... Adopt methods of administration for the national guard that are not inconsistent with laws and regulations of the United States department of defense or any subdivision of the United States department of defense.” AZ Statute states in part that the TAG of the AZANG may not publish instructions or policies that are inconsistent with any laws or regulations of the US DoD. ANGI 36-101 applies to the ANG because it is an Air Guard specific Instruction, and it is an instruction/regulation that is superior to AZNGR 20-3, and thus, to the extent it speaks to the issue of tour curtailment and separation, it supersedes AZNGR 20-3, to the extent there is an inconsistency or non- compliance. To this point then, they are aware the default is that members must serve the entirety of their tour, but may be relieved of so doing, either voluntarily or involuntarily, as long as it is IAW the subparagraphs in AZNGR 20-3. It also states a member can be separated from service by issuing a new Notice of Appointment, and said Notice of Appointment can even involuntarily curtail the tour. However, ANGI 36-101, paragraph 8.5 states that it is mandatory to use quality force management tools (Letters of Counseling, Letters of Reprimand, Article 15’s, etc.) prior to taking steps to involuntary curtail a member’s tour. In this case, no derogatory actions were ever taken against the applicant, and therefore, the ATAG was not permitted to involuntarily curtail his tour — doing so was in direct violation of ANGI 36-101, which is superior to AZNGR 20- 3, and for which compliance was mandatory. He takes significant issue with the NGB advisory opinions and is at a loss to understand how the NGB is ignoring the findings of a very thorough and exhaustive investigation by the IG and essentially taking a position contrary to the findings of the IG. Moreover, the NGB just seems to be completely ignoring the requirements of ANGI 36-101. In the military, there are specific types of commanders that are referred to as “convening authorities.” Convening authorities are the only commanders authorized to “convene” courts-martial and also the only commanders with the authority to “discharge” or “separate” members from the service. All other subordinate commanders simply make recommendations to the convening authority. The TAG is the ultimate convening authority for the AZANG. He does not have special authority to completely ignore the mandatory provisions of ANGI 36-101. The unlawful tour curtailment issued by the ATAG is not magically cleansed just because the TAG denied the applicant’s appeal. The tour curtailment by the ATAG was unlawful and the TAG’s denial of the appeal does not solve the unlawful problem. The unlawful problem is that none of the mandatory steps in ANGI 36- 101, paragraph 8.5 were followed, not to mention that it was reprisal based. The counsel of record fully concurs with the analysis of the applicant’s ADC. The findings by the ANG are clearly contradictory to the facts of the case, Air Force and ANG regulations, common sense, fairness and due process. He is well aware of the abundant relief this Board has and can grant. The opinion of the NGB continues an illegal abuse of power which has incidentally tarnished the image of leadership of the AZANG and its ability to serve its citizens in a legal and effective way. Counsel’s complete response, with attachments, is at Exhibit J. _______________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: ARPC/CV recommends denial of the applicant’s request for direct promotion to the grade of colonel. CV states that he has only competed for one USAFR promotion opportunity and apparently was deemed not yet ready for promotion. The promotion board is the sole recommending authority for promotion and his record did not score high enough to fall above the cut line for promotion. The objective of the Reserve promotion process is to promote fully qualified officers to serve in the next higher grade based on past performance and future potential. Performance, participation, professional qualities, job responsibility, leadership, specific achievements, and education, are factors taken into consideration during the board's review. Board members, using the whole person concept, base their determination of the member's potential to serve in the higher grade on the factors reflected in the officer selection folder and on the officer selection brief. Promotion is a competitive process and the final recommendation is determined through a fair and equitable process by the board members. It cannot be assumed that filling all the squares will guarantee promotion. The applicant applied for and received non-select counseling. A review of the counseling secession notes show that his AF Form 709, Promotion Recommendation, was marked "P" for Promote, and did not contain any stratification; his ANG OPR contained the statements "Ready for increased responsibilities" and·"Continue to challenge," but did not include stratification or strong recommendation for future leadership positions. He had not received any USAFR performance reports; he did complete all developmental education commensurate with his grade; and had received a Meritorious Service Medal in 2011. The results of the CY 2011 board for Line of the Air Force (LAF) officers showed only a 13 percent select rate: 196 selected out of 1502 considered. No LAF officer was selected with a "P" recommendation on the PRF. His date of rank indicates he was eligible for ANGUS position vacancy promotion opportunity as of 1 October 2008. CV finds no indication the applicant was nominated or considered for promotion in the ANG to the grade of colonel. The complete CV evaluation is at Exhibit I. ANGRC/JA states that it is possible that the Board may adopt the SAF/IG findings in ROI S6875P and find that the applicant has suffered an injustice. If accurate, the SAF/IG ROI S6875P findings support the conclusion that some of the personnel actions on which NGB/A1PF, NGB/A1PO and NGB/A1PP based their opinions, while procedurally accurate, were a mere pretext for improper action. It is appropriate for A1P to examine and comment on the procedural actions at issue. It would, however, be inappropriate for A1P to examine the motives behind the actions of the AZANG based on the SAF/IG findings. A determination on the intent and possible remedy of the ANG’s actions in this matter are beyond the purview of A1P. The collective opinions from AlPF, AIPO, and AIPP summarized in the 14 September 2012, JA Memorandum to AlPP address the applicant's request to the Board. These opinions did not address the allegations raised by him regarding the "findings of SAF/IG," due to the fact that the documentation did not contain the complete SAF/IG ROI. Upon receipt and review, the SAF/IG ROI S6875P reveals two findings relevant to his application to the Board: 1) That the ATAG reprised against the applicant by taking action to remove him from the ANG for having made several protected communications, in violation of Title 10 U.S.C. 1034. 2) That six separate procedural violations of DEMA Directive 25-6 were made during the selection process of the Active Guard Reserve (AGR) 214 RS/CC, and that the 214 RG/CC, more likely than not, changed the scores of candidates in order to achieve an outcome more to his liking. ? In sum, the findings contained in SAF/IG ROI S6875P challenge the assumption that all personnel actions relevant to this case were conducted IAW applicable regulations and guidance. The complete JA evaluation is at Exhibit K. NGB/A1P recommends that the applicant be returned to active status for what would have been the remainder of his preexisting order. Expertise resides within policy, and the state followed prescribed policy regarding the applicant as it exists within ANGI 36-101 and AZNGR 20-3. IAW both instructions, the applicant was properly notified of non­continuation/curtailment of his tour, he was not in sanctuary, he was retirement eligible, and in his initial/probationary tour. He was notified of this action within the prescribed timeframe and his appeal was considered and disapproved by the appropriate authority. However, while A1PS states they are not trained in the IG or Equal Employment Opportunity (EEO) arena, it is difficult to discount the substantiated IG complaint alleging his non- retention was reprisal based. As such, and if possible, the A1P recommendation is to return the applicant to an active status for what would have been the remainder of his preexisting order - 30 September 2013. The complete A1P evaluation is at Exhibit L. _______________________________________________________________ APPLICANT’S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION Counsel concurs with the JA conclusion that the ANG violated 10 USC 1034 by reprising against the applicant and that the hiring process precipitating his firing included violations of DEMA Directive 25-6, with emphasis on the admission that the 214 RG/CC appears to have changed the hiring board member's scores to achieve a result more to his liking. It is essential to emphasize that the 214 RG/CC was not a board member and had no authority to alter the scores. The actions by the 214 RG/CC resulted in the withholding of a favorable personnel action with the non-selection as the commander. More importantly, these improper actions also denied him from starting a new four-year AGR tour, one that the hiring board appears to have selected him for as the highest scoring most qualified candidate. Withholding of this favorable personnel action in effect denied a command opportunity that would have reflected favorably for future promotion boards, not to mention a subsequent AGR tour through 2015. Counsel believes the advisories did not fully address the issues, nor did they accurately portray SAF/IGS findings with respect to the procedural correctness of his discharge. Specifically, in "Allegation 2" of the SAF/IGS report on case S6875P, the DoD/IG findings specifically found that the discharge process was not procedurally correct based on the fact that AZNGR 20-3 required that any Notice of Appointment must have been processed consistent with the regulations of the respective services. Counsel made this point in their previous response that AZ Revised Statute, Chapter 26, section 102, also required DoD regulations to be adhered to. Since the IG found that the discharge did not follow the strict rules related to ANGI 36-101 regarding involuntary tour curtailments, contrary to the advisories, the discharge was not procedurally correct in addition to the personnel action violating reprisal laws under 10 USC 1034. The SAF/IG also determined that the ATAG did not have the authority to issue the Notice of Appointment in the first place. Both advisories significantly omitted the analysis of the procedurally incorrect discharge process as found in SAF/IGS ROI for case S6875P. While the AlP advisory does recommend that he be returned to active status, NGB only addresses the involuntarily curtailed tour that he was illegally discharged from, i.e., the existing tour ending in September 2013. NGB does not address the subsequent four-year AGR tour that he was denied as a favorable personnel action that would have taken him from the spring of 2011 to the spring of 2015. This subsequent tour would have guaranteed career status based on NGB's contention that he was on probation, though counsel believes that he was in fact on his second AGR tour, and therefore was already granted career status, as explained in the previous rebuttal. Nevertheless, he has requested to be reinstated to the entire denied tour length through 2015 as well. He was the highest scoring candidate for this position, notwithstanding Col I--‘s apparent alteration of the scores. Any reinstatement to active status should in all fairness include service through 2015, which would have been the expiration of his subsequent AGR tour, and is also commensurate with his mandatory retirement date. The advisories also do not address his lost pay, lost points and terminated bonus (ACP contract) resulting from the illegal termination from his AGR tour, nor do they address his claim for reinstatement of leave. Counsel requests that any decision related to his case make him whole by restoring his leave, less the basic pay allotment, plus reimburse him for his denied pay and points during the approximately one month period prior to his accession into the USAFR. Moreover, his contractually satisfied, but terminated, final two ACP bonus installments should be paid. He dutifully continues to serve on an uninterrupted basis as an MQ-lB Predator pilot, and therefore he continues to make good on his contractual ACP commitment. Regarding the CV advisory, it is entirely possible the author was not privy to the SAF/IGS ROI for case S6875P. Therefore, counsel requests that CV review the SAF/IGS ROI and prepare a supplemental advisory. Any evaluation by ARPC of his potential for promotion would benefit from understanding the reality that he was denied a favorable personnel action for a command position. Counsel requests the Board thoroughly review this case and consideration of the past precedent cases included with his original submission. In that case an ANG Lt Col was recommended for a Secretarially directed promotion to the next higher grade based on an evaluation of the magnitude of injustice suffered by the complainant. This case represents an equal or greater magnitude of injustice where an officer's illegal termination and the apparent denial of an earned and previously recommended command opportunity effectively represent the only deficits in this officer's promotion potential. Counsel’s complete response is at Exhibit N. _______________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: NGB/A1PF recommends denial of the applicant’s request to have his terminated ACP contract dated 28 September 2009, reinstated and he be reimbursed for missed payments improperly denied. A1PF states that after a re-review of his application for correction of military records, A1PF concluded that he should not be paid the remaining balance of his ACP agreement effective 27 September 2009 through 26 September 2013 because he separated from the ANG effective 15 July 2011. IAW the AZANG/CC memorandum dated 3 June 2011, he was informed of the decision to separate him from the ANG based on force management/selective non-retention (not for cause). He was in a probationary tour, eligible for a Drill Status Guardsman (DSG) retirement and was not in sanctuary. Per the FY 2009 ANG ACP policy paragraph 2.5.1.3 regarding involuntary separation due to selective non- retention, "Prior payment is not recomputed or recouped. No future payments are authorized." Although he states that he remained in service with the AF Reserves, the ACP agreement he signed was with the ANG and the commitment can only be fulfilled through service in the ANG. Once affiliated with the AFRC, he may or may not have been eligible to apply for ACP under the AFRC policy, but the ANG agreement was terminated on the day he separated from the ANG. In keeping with his date of separation, he should have received two ACP payments effective 27 September 2009 and 27 September 2010 as payments are made prior to the effective period of service. Therefore, his 27 September 2010 payment was effective through 26 September 2011, thereby covering his service through his 15 July 2011 separation date. The complete A1PF evaluation is at Exhibit O. _______________________________________________________________ ? APPLICANT’S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION In an initial A1PF advisory, dated 20 August 2012, the ANG office responsible for aviation bonuses responded negatively on his ACP contract reinstatement request, while incorrectly denying the existence of the 2009 four year ACP (bonus) contract in question. A1PF now admits there was a 2009 four year ACP contract, and that two payments were made; however, they continue to recommend denying relief, basing this denial on his involuntary termination from the AZANG. A1PF does so without addressing the fact that the termination of the AGR position violated the law according to SAF/IGS, despite the fact that the higher directorate, A1P, is now aware of the existence of those findings and without regard to the fact that A1P altered its previous denial recommendation in his case. More specifically, initially A1P, in their 19 September 2012 advisory, recommended denying his requests for relief, but on 1 November 2013 [sic], after being compelled to review the SAF/IGS findings in his case, they reversed their previous opinion based on the fact that he was reprised against in violation of 10 USC 1034. Therefore, they recommended he be returned to active status. Were the same logic to be applied to the ACP matter, the ACP bonus contract should similarly be recommended for reinstatement if indeed A1PF were compelled to reevaluate the requested lost bonus payments given the fact that he was illegally removed from his previous position, i.e., the ACP contract was improperly terminated as a result of an illegal personnel action. Such a positive and informed recommendation would be in line with the spirit of the corrections case process, and therefore if A1PF could not come to this conclusion, perhaps because they were unaware of the SAF/IGS findings, or because they do not have the authority to address ACP bonus following illegal personnel actions, he respectfully requests the Board utilize its authority to correct the withheld bonus. He renews his request that the ACP contract be reinstated, particularly since he continued to perform the contracted duties. Specifically, he requests the two missing payments, from 27 September 2011 and 27 September 2012, be paid since the contract was wrongfully terminated due to illegal reprisal and improper AGR position termination. The applicant’s complete response is at Exhibit Q. _______________________________________________________________ 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 in regard to the applicant’s request that he be considered for a secretarially directed promotion to the grade of colonel or that his record be corrected to reflect that he be given command credit with SSB consideration. While we note the applicant has been the victim of substantiated reprisal, we are not persuaded that he has been the victim of an error or injustice warranting a direct promotion to the grade of colonel. In this regard, we note that a direct promotion should be granted only under extraordinary circumstances; i.e., a showing that the officer’s record cannot be reconstructed in such a manner so as to permit him/her to compete for promotion on a fair and equitable basis; and that had the applicant not been involuntary released from the ANG, the probability of his being selected for promotion would have been extremely high. After carefully reviewing all the evidence we do not find these factors present in this case. The applicant asserts, in essence, that based on the irreparable harm to his career due to the events in question, his appeal is similar to AFBCMR 2001-03128 and that relief is warranted using the same rationale for a direct promotion to the grade of colonel. However, we disagree. In this regard, every case before this Board is considered on its own merit since the circumstances of each case are seldom identical. In view of this, although we strive for consistency, we are not bound by precedent and evaluate the merits of each individual case to determine whether the applicant has been the victim of an error or injustice. After a careful review of AFBCMR 2001-03128, it was noted that the applicant in this case was the only fully qualified applicant for the vice wing commander position and it was evident that he would have been appointed to the colonel position and recommended for promotion to the grade of colonel as affirmed by his wing commander’s high professional opinion of him as an outstanding officer. Additionally, the testimonies of the assistant adjutant general and another senior officer also verified their intent to promote the applicant to vice wing commander. In the end, the previous Board determined that there were extraordinary circumstances to warrant a direct promotion to the grade of colonel. However, as noted above, we do not find these same circumstances in this case. Therefore, we do not find the case he references supports his request for a direct promotion to the grade of colonel. The applicant also contends that the command position he was erroneously denied would have made him extremely competitive for promotion to the grade of colonel and in the alternative is requesting that his records be corrected to reflect command credit and that he be considered for promotion to the grade of colonel by an SSB. In this regard, we note that ANG officers are only considered for promotion to the grade of colonel if their State puts them in a colonel position and obtains Federal Recognition. Additionally, the State also determines who gets nominated for promotion to the grade of colonel and a member has no right to that promotion consideration, promotion, or even nomination. While the applicant’s contentions and the circumstances surrounding his improper release from the ANG are duly noted, unfortunately, there are situations wherein the ability of the Board to craft relief that will make an applicant completely whole is often times limited by the very circumstances of the case. In this instance, there is no way to completely restore the career opportunities the applicant may have lost. While this Board has authority to direct an SSB for the applicant is his status as an AFR officer, we note that he has already met a promotion board for colonel. The applicant has not claimed an error or injustice in this recent AFR Board, therefore an SSB is not warranted. Regarding his alternative request for a TERA retirement, we note that TERA authorizes members with over 15, but less than 20 years of total active duty service to apply for early retirement. However, as pointed-out by NGB/A1PP, the authority to implement TERA by the ANG has not been granted by the Secretary of the Air Force. In view of this, we find no basis to grant the applicant’s request for a TERA retirement. With respect to his request that he be continued with the 2d Special Operations Squadron in a new AGR billet, the AFBCMR is empowered only to correct records and has no authority to create AGR billets. In regard to his request for reinstatement in the ANG until his MSD on 1 June 2015, this Board lacks the authority to reinstate members into the ANG given the sovereignty of the State over the ANG. However, in view of the circumstances of this case, we believe the relief recommended that includes extended active duty until 1 June 2015 in the Air Force Reserve, provides the applicant full and fitting relief. In view of the foregoing and in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this portion of his request. 6. Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice in regards to the applicant’s other requests. In this respect, we note that the ATAG reprised against the applicant by issuing him a Notice of Appointment which led to his involuntary separation from the AZ ANG. In view of this, the applicant has requested that his records be corrected to expunge any and all verbiage related to his improper release from the AZ ANG, he receive full entitlement to the 44.5 days of terminal leave he was forced to sell, he receive pay and point credit for the period he was illegally discharged from the AZ ANG to the date he was assessed into the USAFR and his terminated ACP contract be reinstated and he receive missed ACP installments. After a careful review of the evidence in this case and noting that the applicant was the victim of reprisal we believe that partial relief is warranted. We note that NGB/A1P recommends the applicant be returned to active status for what would have been the remainder of his preexisting order (30 September 2013); however, we believe he should be returned to active status through his MSD (1 June 2015). With this recommendation, the applicant will receive full entitlement to his leave, pay and point credit for the period he was illegally discharged from the AZ ANG, entitling him to sanctuary protection through 20 years of service. In regard to his ACP contract, we recommend his records be corrected to reflect that per Fiscal Year 2009 ACP contract, he was issued a lump sum payment before separation, thereby ensuring he was paid for missed ACP bonus installments on 27 September 2010 and 27 September 2012. Finally, we recommend that his Federal records be corrected to expunge any and all references to his improper release from the Arizona ANG. In view of the totality of the circumstances in this case, we believe our recommendation constitutes full and fitting relief. Accordingly, we recommend his records be corrected to the extent indicated below. 7. 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 RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that: a. His Federal records be corrected to expunge any and all references to his improper release from the Arizona Air National Guard. b. On 27 September 2009, competent authority approved a single lump sum payment of $100,000 in consideration of the execution of a 4-year Aviation Continuation Pay (ACP) agreement. c. On 15 Jul 2011, competent authority waived recoupment of any unearned ACP in accordance with Section 303(a) of Title 37, United States Code. ? d. On 15 July 2011, he was released from the Air National Guard, and was accessed into the Air Force Reserve on 16 July 2011, ordered to active duty for operational support in accordance with Section 12301 (d) of Title 10, United States Code and assigned to Davis-Monthan Air Force Base, Arizona until 1 June 2015. _______________________________________________________________ The following members of the Board considered Docket Number BC- 2012-03031 in Executive Session on 18 April 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the record as recommended. The following documentary evidence pertaining to Docket Number BC- 2012-03031 was considered: Exhibit A. DD Form 149, dated 20 August 2012, w/atchs. Exhibit B. Applicant’s Master Personnel Records. Exhibit C. Letter, NGB/A1PF, dated 20 August 2012. Exhibit D. Letter, NGB/A1PO, dated 22 August 2012. Exhibit E. Letter, NGB/A1PP, dated 10 September 2012. Exhibit F. Letter, ANGR/JA, dated 14 September 2012. Exhibit G. Letter, NGB/A1PS, dated 19 September 2012. Exhibit H. Letter, SAF/MRBR, dated 24 September 2012. Exhibit I. Letter, ARPC/CV, undated. Exhibit J. Letter, Applicant’s Counsel, dated 20 October 2012. Exhibit K. Letter, ANGR/JA, dated 19 September 2012. Exhibit L. Letter, NGB/A1P, dated 1 November 2012. Exhibit M. Letter, SAF/MRBR, dated 5 November 2012. Exhibit N. Applicant’s Counsel, dated 3 December 2012. Exhibit O. Letter, NGB/A1PS, dated 17 January 2013. Exhibit P. Letter, AFBCMR, dated 22 January 2013. Exhibit Q. Letter, Applicant, dated 23 January 2013. Exhibit R. 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