AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

c:  %:q 
I ! ' !  
$ J ; g k , -   k 5  i d L J  

IN THE MATTER OF: 

DOCKET NUMBER:  95-02957 

HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT: 

1.  He be reinstated into the Texas Air National Guard. 
2.  He  be  reinstated  to  the  grade  of  technical  sergeant  (E-6) 
with back pay and allowances from the date of  separation to the 
date of reinstatement. 
3.  He  receive  credit  for  the  time  served  from  the  date  of 
separation to the date  of  reinstatement for pay, promotion and 
retirement purposes. 

APPLICANT CONTENDS THAT: 
The contracting office  (for funds to repair a mock-up of an F-4 
fighter) did not  challenge the contract awarded to the civilian 
maintenance shop which made the repairs to the display model.  He 
(applicant) never misled  any  recruits  into believing  that  they 
would be receiving a bonus for which they were not entitled.  The 
allegations  of  a  female  recruit  of  applicant's unprofessional 
behavior represent nothing more than a slanderous attack upon his 
creditability.  Also, he  submitted his  leave  form  pursuant  to 
applicable regulations. 

Applicant's complete submission is attached at Exhibit A. 

STATEMENT OF FACTS: 

Applicant enlisted in the Regular Air Force on 1 June 1983  for a 
period  of  four  years  in  the  grade  of  airman  basic.  He  was 
subsequently honorably released from active duty on 31 July 1986 
under the provisions of AFR  39-10  (Separated to the Air National 
Guard) and transferred to the Air Force Reserve in the grade of 
senior airman  (E-4).  He served 3  years, and 2 months of  active 
duty. 

Applicant  enlisted in  the Texas Air National Guard  on 1 August 
1986 in the grade of senior airman  (E-4).  He entered active duty 

on 3  June 1990 as a technician in the Active Guard/Reserve  (AGR) 
Program for a military duty tour. 
In a letter, dated 1 8   February 1994, applicant's Group Commander 
submitted a  Recommendation  for  Involuntary Separation upon  the 
applicant.  The commander stated he was recommending applicant's 
release from the position of Recruiter based on his  (applicant's) 
recent involvement in the repair of government property and moral 
and professional dereliction as a  recruiter.  Specifically, he 
withheld information vital to the expenditure of government funds 
and he  (applicant) conducted himself in an unprofessional manner 
in dealing with two recruits of this organization.  Applicant was 
given five  ( 5 )   working days to reply in writing to the separation 
recommendation. 

Applicant was subsequently honorably released from active duty on 
14 July 1994 under the provisions of ANGI 36-101  (Termination of 
AGR  Military  Duty  Tour)  and  transferred  to  the  ANG,  State  of 
Texas, in the  grade of  technical  sergeant  (E-6).  He  served 4 
years, 1 month and 12 days of active duty. 
On  12  July  1994,  applicant's  Group  Commander  recommended 
applicant's involuntary discharge from the Air National Guard and 
as  a  Reserve  of  the  Air  Force,  for  a  pattern  of  misconduct 
according to ANGR  39-10.  The commander stated that his reasons 
(a)  Knowing  and  willful  falsification of  records  to 
were : 
include a cover-up, concealment, misrepresentation, and omission 
of  material  facts  from  both  written  and  oral  statements  and 
documents  involving  the  expenditure  of  government  funds  and 
misuse  of  government property; and,  (b)  Inappropriate conduct 
unbecoming  of  a  recruiter  and  non-commissioned  officer.  The 
Group  Commander recommended  that  applicant  receive a  discharge 
Under  Other  Than  Honorable  Conditions.  The  Adjutant  General 
(TAG)  of  Texas  is  the  discharge  authority  for  this  action. 
Applicant was afforded his rights to submit written statements in 
his  behalf,  present  his  case  to  an  Administrative  Discharge 
Board,  consult  with  legal  counsel  before  waiving  any  rights. 
Legal  counsel was  obtained to assist  the  applicant.  Applicant 
was  informed  to  sign  his  acknowledgment  receipt  and  of  a 
conditional  or  unconditional  waiver. 
The  Group  Commander 
indicated  that  applicant  failed to  receipt  for the  involuntary 
discharge recommendation correspondence. 

There  is  no  documentation  submitted;  however,  the  Texas  ANG 
indicated that applicant's dismissal  from the AGR  position, and 
subsequent discharge from the Texas Air National Guard was fully 
substantiated by an Administrative Discharge Board Hearing.  They 
state that  applicant was  released  eleven months  early  from  his 
AGR  tour based  on the  inappropriate conduct.  He was  separated 
from the Texas Air National Guard with a general under honorable 
conditions discharge for misconduct, following the completion of 
the Administrative Discharge Board proceedings. 

2 

Applicant  received  a  General  discharge  from  the  Air  National 
Guard of Texas and as a Reserve of  the Air  Force on 26 January 
1995 under  the  provisions  of  AFI  36-3209  (Misconduct), in  the 
grade of  technical sergeant.  He served 8 years 5 months and 26 
days  of  active  duty  with  12  years  4 months  and  18  days total 
service for pay. 

Available documentation is attached at Exhibit B. 

AIR FORCE EVALUATION: 

The  Chief,  Utilization,  ANG/MPPU,  states  that  the  Group 
Commander's Memorandum, dated  12 July  1994, fully explains the 
charges of inappropriate conduct of the applicant while assigned 
to recruiting duty.  Charges of this nature are considered to be 
inconsistent with the strict personal conduct required of a Non- 
commissioned Officer, especially a  recruiter, in  the  Texas Air 
National Guard.  Applicant was released eleven months early from 
his  AGR  tour  based  on  the  inappropriate  conduct. 
He  was 
discharged  from  the  Texas  Air  National  Guard  with  a  General 
discharge,  for  misconduct,  following  the  completion  of  the 
Administrative  Discharge  Board  proceedings.  ANG/MPPU  believes 
that applicant's request is not valid and should be denied. 

A copy of the Air Force evaluation is attached at Exhibit C. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

Applicant's counsel states, in part, that the ANG/MPPU advisory 
opinion, dated 25 June 1996, failed to address the effect of the 
prior  honorable  discharge  on  the  subsequent  Administrative 
Discharge Board and subsequent general discharge, both of which 
involved the same command.  Counsel asserts that a member cannot 
be  administratively  separated  for  conduct  allegedly  occurring 
during  a  time period  for which  the  service member  has  already 
been discharged and has received an honorable characterization of 
service. 

A  copy of the counsel's response, with attachments, is attached 
at Exhibit E. 

ADDITIONAL AIR FORCE EVALUATION: 

The Chief, Utilization, ANG/MPPU, states that the AFBCMR may not 
order  the  reinstatement of  a member  into an AGR  position  in  a 
State  Air  National  Guard  Unit. 
That  power  is  reserved 
exclusively  for  the  TAG  who  is  the  final  authority  for 
determining  whether  individuals  in  the  AGR  program  will  be 
separated  or  retained. 
The  Texas  TAG  concurred  with  the 

3 

recommendations of  the  commanding officer  to  process  applicant 
for involuntary separation based  on the evidence of misconduct. 
Termination  from  the  AGR  program  is  strictly  a  state  matter, 
governed  by  the  provisions  of  Air  National  Guard  Regulation 
The  record  shows  that  the  state  complied  with  the 
35-03. 
applicable  policies  and  procedures  in  the  regulation  when  it 
processed  applicant  for  involuntary  separation. 
The  state 
informed applicant of the proposed recommendation to the TAG and 
gave the applicant the requisite opportunity to respond and rebut 
the allegations contained in the recommendation.  His separation 
was consistent with ANG  regulations. 
On 1 8   February 1994, the Group Commander recommended applicant be 
separated  from  his AGR  tour as  a  recruiter due  to misconduct. 
The  evidence  shows  applicant  wrongfully  concealing  information 
regarding a contract for equipment repairs.  When confronted with 
evidence  that  a  close  family  member  was  the  contractor 
(applicant's father), he denied or concealed information from his 
superiors and  unit  contracting officials.  Applicant  committed 
further  acts  of  misconduct  with  two  Texas  ANG  recruits.  He 
wrongfully misled one recruit into believing he would receive an 
enlistment bonus.  The recruit was not eligible for the bonus and 
had  to  be  released  from  his  enlistment  contract  due  to 
applicant's misconduct.  Applicant  had  an unprofessional  sexual 
relationship with a female recruit.  Further, applicant failed to 
properly be approved for leave and did not report for work.  He 
received an honorable separation from his recruiter AGR tour and 
was returned to the Texas ANG. 

Counsel misstates the facts of this case when he asserts the same 
basis  (misconduct) was  used  for  the  separation action  and  the 
discharge.  The Group Commander's memorandum  clearly sets forth 
the  reasons for the discharge.  The memorandum  alleges further 
acts of misconduct that occurred after applicant was recommended 
for  separation from his AGR  tour.  Applicant  wrongfully used  a 
government vehicle to travel 2,100 miles and used 173 gallons of 
gas when  the  official  travel distance was  only  750 miles.  He 
wrongfully  used  excessive  alcohol  which  resulted  in  an  auto 
accident on or about  12 May  1994.  ANG/MPPU believes these are 
legally sufficient reasons for discharging applicant under ANGR 
39-10.  According  to  paragraph  20  [ANGR  para.  1-61  of  that 
regulation, after determining a sufficient basis for discharge in 
the present term of enlistment, applicant's whole military record 
could be considered in determining the proper characterization of 
discharge. 
Based  upon  his  whole  record,  a  general  under 
honorable  conditions  discharge  could  legally  be  granted. 
Applicant  was provided  the opportunity to contest the discharge 
action and characterization of discharge by presenting his case 
to an Administrative Discharge Board hearing.  They believe there 
was  sufficient  basis  for  the  general  discharge  by  the 
Administrative Discharge Board. 

4 

. 

A  copy  of  the  additional  Air  Force  evaluation  is  attached  at 
Exhibit F. 

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 

In  response  to  the  additional  Air  Force  evaluation,  counsel 
states  that  the  applicant's  claim  is  that  after  serving  a 
specific period of time, he was separated from the service with a 
discharge characterized as honorable for that specific period of 
time  and  for  his  earlier  service.  He  was  then  subsequently 
separated  from  the  service with  a  general  characterization for 
the  same  period  of  time  after  having  already  received  the 
honorable  characterization  for  that  same period  of  time.  The 
advisory opinion states that two different characterizations of 
separation for the same period of time were not wrongful, but the 
advisory opinion  fails to provide  any authority for giving  two 
types of characterizations for the same period of  time.  Absent 
such authority, applicant's claim  for relief  should be  granted 
for such an error or injustice. 

A copy of applicant's response is attached at Exhibit H. 

THE BOARD CONCLUDES THAT: 

The applicant has exhausted all remedies provided by existing 

1. 
law or regulations. 
2.  The application was timely filed. 
3 .   Insufficient  relevant  evidence  has  been  presented  to 
demonstrate the existence of probable error or injustice.  After 
a  thorough  review  of  the  evidence  of  record  and  applicant's 
submission, we  are  not  persuaded  that  he  should  be  reinstated 
into  the  Texas  Air  National  Guard  in  the  grade  of  technical 
sergeant;  receive  back  pay  and  allowances  from  the  date  of 
separation to the date of reinstatement; or, upon reinstatement, 
that  he  receive  credit  for  the  time  served  for  promotion  and 
retirement  purposes.  Applicant's counsel also  states that  the 
relief  requested  includes  reinstatement  into  active  federal 
reserve  status  with  the  Air  National  Guard  as  an  E-6  and 
withdrawal  of  the  General  under  honorable  conditions  discharge 
with the Texas Air National Guard to show that he is eligible for 
reinstatement into the Texas Air National Guard.  At  the outset, 
it  should  be  noted  that  this  Board  does  not  have  statutory 
authority to reinstate an individual into an Air National Guard 
position.  Applicant's and counsel's contentions are duly noted; 
however, we do not  find these assertions, in and by  themselves, 
sufficiently persuasive to override the rationale provided by the 
Air  Force.  Counsel  for the applicant  states that  the advisory 
opinion  failed  to  address  the  effect  of  the  prior  honorable 

5 

discharge on the  subsequent Administrative Discharge  Board  and 
subsequent  general  discharge, both  of  which  involved  the  same 
command.  It should be noted that applicant enlisted in the Texas 
Air National Guard in 1 9 8 6   and was subsequently ordered to active 
duty on  3  June  1 9 9 0   in the Active Guard/Reserve  (AGR) program. 
When he was terminated from his AGR  active duty tour on 1 4   July 
1 9 9 4 ,   it was a "Release From Active Duty" under the provisions of 
ANGI  3 6 - 1 0 1   with  an honorable characterization of  service.  At 
that point, applicant remained in the Air National Guard and as a 
Reserve of  the Air Force.  When  the applicant was  subsequently 
separated on 2 6   January 1 9 9 5 ,   he was  I1discharged1l from the Texas 
Air National  Guard and as a Reserve of  the Air Force under the 
provisions of ANGI 3 6 - 3 2 0 9 .   As stated by the Chief, Utilization, 
ANG/MPPU, according to paragraph  2 0   [para 1 - 6 1   of Air National 
Guard  Regulation  3 9 - 1 0   (ANGR  3 9 - 1 0 ) ,   after  determining  a 
sufficient basis for discharge in the present term of enlistment, 
applicant's  whole  military  record  could  be  considered  in 
determining the proper characterization of discharge.  Based upon 
his whole record, a General Under Honorable Conditions discharge 
could  legally  be  granted. 
We  therefore  agree  with  the 
recommendations  of  the  Air  Force  and  adopt  the  rationale 
expressed as the basis  for our decision that  the applicant has 
failed to sustain his burden that he has suffered either an error 
or  an  injustice.  Therefore, we  find  no  compelling  basis  to 
recommend granting the relief sought. 

4.  The documentation provided with  this case was  sufficient to 
give the Board a clear understanding of the issues involved and a 
personal  appearance,  with  or  without  counsel,  would  not  have 
materially  added to that understanding.  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  probable  material  error  or 
injustice;  that  the  application was  denied  without  a  personal 
appearance; and  that  the  application will  only be  reconsidered 
upon  the  submission of  newly  discovered  relevant  evidence  not 
considered with this application. 

The following members of the Board considered this application in 
Executive Session on 1 2   May 1 9 9 8 ,   under the provisions of AFI 3 6 -  
2 6 0 3 .  

Mr. Thomas S. Markiewicz, Panel Chair 
Mr. Richard A. Peterson, Member 
Mr. Loren S. Perlstein, Member 

The following documentary evidence was considered: 

I 

6 

Exhibit A. 
Exhibit  B. 
Exhibit  C. 
Exhibit  D. 
Exhibit  E. 
Exhibit  F. 
Exhibit  G. 
Exhibit  H. 

DD Form 149, dated 1 Sep 95, w/atchs. 
Applicant's Master Personnel Records. 
Letter, ANG/MPPU, dated 25 Jun 96. 
Letter, AFBCMR, dated  15 Jul 96. 
Counsel's Letter, dated 26 Feb 97. 
Letter, ANG/MPPU, dated 2 Dec 97. 
Letter, AFBCMR, dated 5 Jan 98. 
Counsel's Letter, dated 11 Feb 98. 

Panel Chair 

7 

DEPARTMENT OF THE  AIR  FORCE 
A I R   NATIONAL  GUARD  R E A D I N E S S   CENTER 

MEMORANDUM FOR AFBCMR 

FROM:  ANG/MPPU 

3500 Fetchet Avenue 
Andrews AFB, MD  20762-5157 

Correction of Military Records 

The attached Application for Correction of Military Records submitted by Mr. 

a former member of the Texas Air National 
and action. 

seeks reinstatement to the Texas Air National Guard with 

and allowances and credit for service to the 
rgues that the separation was involuntary 

and not justified on the basis of misconduct. 

case, we believe that 
In reviewing the records concerning 
the applicant's request is not vahd.  His di 
GR position, and 
subsequently from the Texas Air National Guard was fully substantiated by an 
Administrative Discharge Board hearing. 

The 147 SUGlCC Memorandum fo 
dated 12 July 1994, Subject:  Recommen 
explains the charges of inappropriate conduct while assigned to recruiting duty. 
Charges of this nature are considered to be inconsistent with the strict personal 
conduct required of  a Non-Commissioned Officer, especially a recruiter, in the 
Texas Air National Guard. 

was released eleven months early from his AGR tour based 

on the inappropriate conduct.  He was separated from the Texas Air National 
Guard with a General (under honorable conditions) Discharge, for misconduct, 
following the completion of the Administrative Discharge Board proceedings. 

Questions should be directed to MSgt Gowdy, ANGNPPUR, DSN 278-7300. 

FOR THE COMMANDER 

Chief, Utihzation 

DEPARTMENT OF THE AIR  FORCE 

AIR NATIONAL GUARD 

MEMORANDUM FOR AFBCMR 

0 2  DEC  1997 

Mhtary Records- 

FROM:  ANGMPPU 

3500 Fetchet Avenue 
Andrews AFB MD  20762-5157 

-serts 

- 

This is an addendum to our 25 Jun 96 advisory, per your request.  This 

addendum is in coordmation with the National Guard BureadJA's office. 

through  counsel  that  he  was  wrongfully  separated 
from  an AGR  tour as a recruiter  and that he was wrongfully  ducharged from the 
Texas  Ar National  Guard.  He asserts that he was  discharged based  on  conduct 

served  as  the  basis  for  his  separation  from  his  AGR  tour 
eceived  an  honorable  separation  effective  14  Jul  94  an 
dscharged with  a  general  discharge  on  26  Jan  95.  He  stated  the 

same command was responsible for both actions and that the command kne 
alleged  misconduct  before  the  honorable  separation  was  granted  to  hi 

uests, (1) reinstatement to the rank of Technical Sergeant (E- 

b a c l ; y a y o w a n c e s   from  the date of  separation to the date of  reinstatement, 
(2)  creht  for  the  time  served  from  the  date  of  separation  to  the  date  of 
reinstatement for pay, (3) promotion  and (4) full reinstatement into the Texas Ar 
National Guard. 

We initially note  the AFBCMR  lacks jurisdxtion  to gran 

request for reinstatement into an AGR position. 

The  Board  may  not  order  the  reinstatement  of  a  member  into  an  AGR 
position in a State Am National Guard unit.  That power is reserved exclusively for 
the TAG who is the final authority for determining whether individuals in the AGR 
program  w i l l  be  separated or retained.  ANGR  35-03, para. 6-ld.  Here, the 
concurred  with  the  recommendations  of  the  commandmg  officer  to  proces 

involuntary separation based 
the  act 
at  the TAG  does  not  believe  the 
highly unlikely that the TAG would reinstat 

Termination from the AGR  program  is strictly  a state matter,  governed by 
the provisions  of  Azr  National  Guard Regulation 35-03.  The record shows that the 
able policies  and procedures in ANGR  35-03 when it 

the  requisite  opportunity  to  respond  and  rebut  the  allegations  c 
recommendation.  Therefore, his separation was consistent with ANG regulations 

involuntary  separation.  The  state  infor 
ommendation to the TAG and gav 

Even  If the  AFBCMR  finds  it  has  the  power  t o   grant 
request, we  recommend  the request be  denied.  Our review  doe 

e  termination  of  his  AGR  tour  and  subseq 
were  wrongful.  On  18 .Feb  94,  the  147  ST/CC 
separated from his AGR tour as a recruiter due to 

information  regarchng  a  contract  for  equi 
evidence that a close fahily member was the contractor 

mitted further acts of misconduct with two Texas ANG recruits. 
sled  one  recruit into  believing  he would  receive  an  enlistment 

bonus.  The recruit was 
,enlistment  contract  du 

approved  for  leave  and  &d  not  report 

orable separation from his recruiter AGR  tour anc$was 

- 

Respondent’s  counsel  misstates  the facts  of  this  case  when  he  asserts  the 
ion and the discharge.  On  12 Jul 94, the 
t he was recommendm 
T

same basis was use 
147 SUG/CC notlfi 
be  hscharged  from 

for  misconduct. 

W

s in the file, clearly sets forth the reasons for  the 
ommander  uses  the  same 
d from  his AGR  tour  with  an 
G/CC  alleges  further  acts  of 
as recommended for  separation 
d a government vehicle to travel 
cial travel distance was only 
resulted in an auto accident 
e  believe  these  are  legally  sufficient  reasons  for 
cording to paragraph 20 of 
ciebt  basis  for  chscharge  in  the  present 
rd could be  considered in 
ed upon his whole record, 

misconduct  that  o 
from his AGR tour. 
2,100 miles and us 

a .  General  Under  Honorable  Conhtions  dmcharge  could  legally  be  grante 
was provided the opportunity to contest the hscharge action and 

cha3;acterization  of  hscharge by presenting his case to an administrative dlscharge 
board  h 
there  was  sufficient  basis  for  the  general  hscharge 
panted 
the administrative hscharge board.  .5c 

Questions should be duected to MSgt Gowdy, ANGMPPUR, DSN 278-7500, 

or E-mad:  gowdyt@ang.af.mil. 

.C' 

FOR THE COMlVLANDER 

;+. 

NILDA E. URRUTIAk.Lt Col, U$kF 
Chief, Utihzation 

*9 

4: 

c 

5. 

c 

t