RECORD OF PROCEEDINGS 

SEP 111998 

IN THE MATTER OF: 
A 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 
DOCKET NUMBER:  96-00558 
COUNSEL : 
HEARING DESIRED:  Yes 

APPLICANT REQUESTS THAT: 
In an application, dated 25 May 93: 
1.  His  DD  Form  214  (Release or  Discharge  From  Active  Duty), 
dated 28 May 93, be revoked. 

He be restored to active duty nunc pro tunc 28 May 93  (sic). 

2. 
[Reinstatement to 
Air National Guard AGR tour]. 
3 .   Restoration of his leave balance as of 28 May 93. 
4.  Back pay from 28 May 93. 
5.  Payment  of  medical  and  dental  obligation  incurred  since 
28 May 93. 
In an application, dated 23 Feb 96: 
1.  The Officer Performance Report  (OPR) rendered for the period 
15 Jan 92 through 1 Dec 92 be declared void and removed from his 
records. 

2.  His  corrected  record  be  considered  by  a  standby  promotion 
board that convened in Mar 93. 

APPLICANT CONTENDS THAT: 

25 May  93:  The allegations of misconduct are  false and  fail to 
state  a  claim  of  misconduct  and  there  is  no  evidence  of 
dereliction of duty.  There was  no  Secretarial approval of  his 
honorable  discharge  for  misconduct  nor  due  process  pre- 
termination hearing on allegation of misconduct.  The  discharge 
was  in  retaliation for protected whistle blowing  activity.  He 
was denied an impartial decision maker because the decision maker 
failed to consider his evidence  in exoneration, mitigation, and 
extenuation. 
The  decision  maker  prejudged  the  issue  of 
misconduct. 
The  allegations  of  profession  neglect  were  not 
referred to The Judge Advocate General of the Air Force  (TJAG-AF) 
as  required by  service  regulations.  He  lost  severance pay  in 
excess  of $30,000 without  due process  of  law.  The  allegations 

AFBCMR 96-00558 

regarding financial responsibility were resolved in his favor by 
the Air Force Office of Special Investigation (AFOSI). 
Applicant's  complete submission is attached at Exhibit A. 
23 Feb 96:  The contested OPR refers to matters occurring outside 
the  rating period,  to  wit:  inquiry  about  creditor claims  was 
made on 4 Dec 92, 3  days after the rating period and he was not 
provided with a copy of the report when he was given 24 hours to 
respond to it.  The report was not delivered to him until 15 Mar 
93,  over  3  months  outside  the  rating  period. 
He  and  judge 
advocates  of  the 
and  Air  National  Guard  (ANG) 
participated  in  a 
create  a  Commanders  Guide  for 
ANG  during  the period  6 -12 Dec 
Military  Justice  in  the 
92,  more  than 
side  the  rating  period  and 
"implementation" of  military  justice  was  to  commence  sometime 
after the completion of the Commander's  Guide.  Inclusion of the 
evaluation of his job  performance as a state employee in an Air 
Force OPR is inappropriate.  He was the staff judge advocate to 
the  organized  militia  of  the  State  of -. 
Inclusion  of 
matters  arising  out  of  an  incomplete  Defense  Investigative 
Service  (DIS)  periodic  reinvestigation  of  security  clearance 
eligibility is prohibited by Air Force regulations. 
Applicant's  complete submission is attached at Exhibit A1 . 

STATEMENT OF FACTS: 
The applicant's  Total Federal Commission Service Date  (TFCSD) was 
24 Jun 73. 
a request for a  conditional release was 
On  16 Jun 82, 
on  the  applicant  for  the  purpose  of  appointment  in  t 
ANG . 
On 29 Dec  82, applicant was approved  for appointment as  a Judge 
Advocate, Staff, in the grade of captain. 

On 4 Apr 83, the applicant was appointed a captain in the 
ANG/ Judge Advocate. 
On  10 Nov  84, the applicant was promoted to  the grade of major, 
effective, and with a date of rank  (DOR) of 9 Nov 84. 
Applicant's  Officer  Effectiveness  Reports  (OERs)  and  Officer 
Performance Reports  (OPRs) since 1986 follows: 

PERIOD ENDING 

OVERALL  EVALUATION 

3 Apr 86 
3  Apr 87 
3  Apr 88 

1-1-1 
1-1-1 
1-x-1 

2 

. 

AFBCMR 96-00558 

3 Apr 89 
3 Apr 90 
3 Apr 91 
*  1 Dec 92 
17 Oct 93 

Meets Standards 
Meets Standards 
Meets Standards 

Does Not Meet Standards (Referral Rpt) 
Does Not Meet Standards (Referral Rpt) 

*  Contested report. 
On 22 Feb  93, the applicant was notified by the Executive Support 
Staff  Officer  that  he  was  recommending  the  applicant  be 
involuntarily  terminated  from  full-time  Active  Guard  Reserve 
(AGR) duty  in  accordance  with  the  provisions  of  ANGR  35-03, 
paragraph 6-5c(1).  The reasons for this action were as follows: 
He failed to timely and properly respond to allegations 
of personal financial irregularities which were discovered during 
a  security reinvestigation.  As  a  result of  these  allegations, 
his access to classified information was withdrawn on 6 Nov  92. 
Although he  knew that his  supervisors considered this situation 
serious, he  took  no  action  to  respond  to  their  concerns.  The 
dilatoriness of his  response and  the  inadequacy of his  answers 
resulted  in  a  breach  of  trust  between  the  leadership  of  the 
Alaska ANG and him as a full-time staff judge advocate. 

a. 

b. 

On 19 Nov 92, he had General C--- sign a leave slip for 
himself  which  he  then  failed  to  properly  process. 
When  he 
returned  to  work  on  4 Jan  93,  he  did  not  file  his  leave 
completion  until  his  supervisor  inquired  into  this  matter  on 
21 Jan 93.  An  explanation was  also requested of his  failure to 
obtain a leave authorization number and an explanation of why he 
delayed in closing out the leave transaction.  Applicant did not 
provide such an explanation.  He was given a letter of reprimand 
(LOR) for  his  actions pertaining  to  the  leave  incident.  This 
misconduct  further  eroded  the  relationship  that  should  exist 
between his employer and him. 
On 22 Feb 93, applicant acknowledged receipt of the above letter. 

On 28 May  93, the applicant was  released from active duty under 
the provisions of ANG  Regulation  (ANGR) 36-05  (Misconduct) with 
an honorable characterization of  service in the grade of major. 
He was credited with 15 years, 11 months, and 24 days of active 
federal military service. 

the  applicant was  charged by  the Municipality  of 
of  on  or  about  12 Mar  94,  unlawfullv 
commitfing the offense of trespassing, to wit:  He did willfully 
and  unlawfully  enter  the  office  of  Colonel  J----  G---- 
and 
verbally requested/ordered to do SO, 
refused to leave 
nicipal Code 08.30.010 A.  There is 
in violation of 
was prosecuted for the above. 
no indication th 

3 

AFBCMR 96-00558 

AIR FORCE EVALUAT I ON : 
On 10 Dec 96, the Deputy Director, Personnel, ANG/MPPUR, provided 
an  advisory  opinion  for  the  Board's  review.  However,  the Air 
Force Board  for Correction of Military  Records'  (AFBCMR) staff 
noted  inaccuracies  in  the  opinion and  returned  the  application 
for clarification (Exhibit C). 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

Counsel for the applicant reviewed the Air  Force evaluation and 
provided an 8-page rebuttal letter disagreeing with the advisory 
opinion  (see Exhibit E) . 

ADDITIONAL AIR FORCE EVALUATION: 
The Chief, Utilization, ANG/MPPU,  reviewed  this  application and 
recommends denial of relief. 
In  the  May  93  application,  with  respect  to  the  applicant's 
request for restoration or reinstatement in a full-time National 
Guard  duty  capacity  as  an AGR  in  the ANG,  they  note  that  the 
Board  has  no  jurisdiction to  grant  the  relief  requested.  The 
AFBCMR  is  limited  to  making  a  non-binding  recommendation  of 
reinstatement to the state, but there is no reason to do so here. 
Before a member can be reinstated as an AGR,  they must  first be 
reinstated in the ANG.  The Board may not order the reinstatement 
of a member into an AGR position in a State ANG Unit.  That power 
is reserved exclusively for The Adjutant General  (TAG) who is the 
final authority  for  determining whether  individuals in  the AGR 
program  will  be  separated  or  retained,  ANGR  35-03  (now ANG 
Instruction  36-101), paragraph  6-ld.  Here,  the  TAG  concurred 
with the recommendations of the commanding officer to process the 
applicant for involuntary separation.  Indeed, it was the TAG who 
prepared  the  OPR,  which  documented  some  of  the  adverse  events 
prompting the applicant's  release from the AGR  tour.  Given the 
facts that the TAG does not believe the OPR  to be  in error,  it 
appears  highly  unlikely  that  the  TAG  would  reinstate  the 
applicant.  Accordingly,  the  applicant's  removal  from  the  AGR 
position  is  consistent with ANG  regulations.  His  reference  to 
"fruit of the poisonous tree" is misapplied.  That legal doctrine 
is employed in the criminal law arena.  The legal doctrine holds 
that evidence that is "tainted," Le., illegally obtained through 
or derived from use of illegal measures, cannot be considered in 
a criminal court proceeding.  The applicant was not charged with 
criminal  offenses. 
He  was  administratively  separated  for 
misconduct.  He  refers to an -state 
court decision, which 
stated  the  applicant  should  have  been  provided  a  termination 
hearing  as  a  state  employee notwithstanding the  terms  of  ANGR 
35-03.  The Board should be  informed that case was  appealed and 

4 

AFBCMR 96-00558 

ANG. 

the Air  Force Litigation Division informed MPPU that  the 
state appeals court overturned the case. 
MPPU  firmly believes  the applicant was not wrongfully  separated 
from  the  AGR  position. 
Termination  from  the  AGR  program  is 
strictly  a  state  ANG  headquarters  procedure,  govern 
provisions of ANGR  35-03.  The record shows that th 
Headquarters complied with the applicable policies a 
rocessed  the  applicant  for  involuntary 
in ANGR  35-03  whe 
G Headquarters informed the applicant 
separation.  The 
of  the  proposed  recommendation  to  the  TAG  and  gave  him  the 
requisite  opportunity  to  respond  and  rebut  the  allegations 
contained  in  the  recommendation.  Nevertheless,  the  applicant 
contended in the application and in the lower state court hearing 
that  he  was  entitled  to  a  pretermination  hearing  on  the 
allegations of misconduct.  MPPU disagrees.  ANGR  35-03 does not 
require that a hearing be held prior  to involuntary separation. 
The applicant dwrongfully relies upon a state court decision that 
was  overturned  on  appeal. 
Consequently,  his  contention  is 
unfounded.  Furthermore, he  was  not  wrongfully  discharged  from 
the 
ANGR  35-03 requires members  who  are  separated 
for  cause,  such  as  the  applicant, be  considered  for  discharge 
processing  from the ANG  utilizing the criteria outlined in ANGR 
36-014. 
Evidence  supplied  by  the  State  of  Alaska  shows  an 
Efficiency Board  (EB) under ANGR  36-014 was  convened in Jul  94, 
which  specifically  considered  the  allegations  of misconduct  in 
addition to the other allegations against the applicant.  The EBs 
findings were  approved by  the  PACAF Commander  and  forwarded to 
the Secretary of the Air Force for final decision.  On 19 Apr 96, 
the  Secretary  directed  the  applicant  be  discharged  from  all 
appointments held  in  the ANG  and  Reserve  of  the Air  Force  and 
that he receive a general discharge under honorable conditions as 
of 23 Apr  96.  The National Guard Bureau  (NGB) discharge order, 
Special Order #AW-6, dated 24 Apr 96, clearly shows the effective 
date of the applicant's  discharge was 23 Apr 96. 
With respect to the applicant's  request that his DD Form 214 be 
revoked,  MPPU  recommends  denial. 
While  his  DD  Form  214 
separating him from active duty references AFR 36-05, instead of 
ANGR  35-03,  the  proper  separation  authority,  this  error  is 
harmless in that the procedures from ANGR 35-03 were followed and 
the applicant was correctly separated from active duty on 28 May 
93.  Consequently, this error  simply requires that  the  form be 
corrected not revoked. 
Regarding his request for back pay dating back  to  28 May  93, no 
AGR pay  is justified.  However, this does not resolve the issue 
of whether any M-day back pay is justified.  Unless the applicant 
was denied drills and active training  (AT) pursuant to regulatory 
authority, he should have been allowed to perform drills and AT 
and been paid  for that  service.  However,  if he was  rightfully 
denied drills and AT, he is not owed anything.  In any event, it 
is the ultimate responsibility of the Board  and Defense Finance 
and Accounting Service  (DFAS)  to determine what payments, if any, 

5 

, 

AFBCMR 96-00558 

the applicant is entitled to, consistent with the general policy 
that paid service should reflect actual performance of duty. 
In the Feb 96 application, the AFBCMR lacks jurisdiction to hear 
the  applicant‘s  application  regarding  the  1 Dec  92  OPR. 
He 
admits in the rebuttal that he did not exhaust the administrative 
remedies as to correction of the OPR pursuant to AFI  36-2401.  In 
an ANG/MPPU memorandum, dated 17 Jun 96, the inquiry was made as 
to whether an appeal to the OPR had been filed and whether it had 
been  completed in accordance with AFI  36-2401 and AFI  36-2607, 
paragraph  2.  This  fundamental question had  to be  answered  and 
addressed if the Board is to even consider his application,  At 
that time, the  file lacked any information as to  an  OPR  appeal 
being filed or processed.  MPPU had earlier checked with various 
offices but  they  could not  find any  evidence concerning an OPR 
appeal  filed  by  the  applicant  or  acted  upon  by  appeal 
authorities. 
In  the  applicant’s  rebuttal  comments,  he 
acknowledges  that  he  did  not  file  an  appeal  to  the  OPR. 
Therefore, he must concede the AFBCMR does not have jurisdiction 
over  his  case  regarding  the  1 Dec  92  OPR  and  his  request  for 
removal of the contested report should be denied.  His contention 
that the OPR refers to matters that occurred outside the rating 
period is unsupported.  Evidence supplied by the State of Alaska 
shows  that  inquiries  into  the  applicant‘s  creditor’s  claims 
occurred well within the rating period and that the conference on 
the state military  justice system, although occurring after the 
rating period closed, was not the basis for the adverse rating in 
this area. 
The  applicant’s  request  that  the  record  be  considered  by  a 
standby  promotion  board  is  contingent  upon  a  finding  that  a 
correction is warranted.  This request should likewise be denied 
since the Board lacks jurisdiction to hear the appeal concerning 
the OPR  and thus, is unable to  fashion a correction.  Since no 
correction  is being  recommended, no  standby promotion  board  is 
called for. 
A  complete  copy  of  the  Air  Force  evaluation  is  attached  at 
Exhibit F. 

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 
Counsel provided a 16-page response, with attachments (see 
Exhibit H) . 

THE  BOARD CONCLUDES THAT: 
1. 
law or regulations. 

The applicant has exhausted all remedies provided by existing 

6 

AFBCMR 96-00558 

2.  The application was timely filed, 
3 .   Insufficient  relevant  evidence  has  been  presented  to 
demonstrate the existence of probable error or injustice.  After 
thoroughly  reviewing  applicant's  numerous  contentions  in  both 
applications, to  include the  letters of  support, a majority  of 
the Board does not  find these assertions, in and by  themselves, 
sufficiently compelling to recommend granting the relief sought. 
In coming to this conclusion, the Board majority is keenly aware 
of  its somewhat limited jurisdiction in cases involving members 
of  the Air  National Guard  (ANG); specifically, the  Board  lacks 
the authority to reinstate an individual to a Guard position, as 
requested by  the applicant.  Therefore, a majority of the Board 
agrees with the recommendation of the Air Force on this issue and 
adopts 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. 
4.  With respect to the OPR issue, we are not convinced that the 
Board  lacks  jurisdiction to  act  on  this portion  of  applicant's 
request, as promulgated by the Air Force.  However, since we find 
no  compelling basis  upon which  to  remove  the  contested  report, 
this issue is moot. 
5.  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: 
A majority of the panel  finds insufficient evidence of error or 
injustice and recommends the application be denied. 

The following members of the Board considered this application in 
Executive Session on  14 July  1998, under  the provisions of Air 
Force Instruction 36-2603: 

Ms. Patricia J.  Zarodkiewicz, Panel Chair 
Mr. Loren S. Perlstein, Member 
Mr. Dana J. Gilmour, Member 
Mrs. Joyce Earley, Examiner  (without vote) 

By  a majority vote,  the Board  recommended denial  of  the  entire 
application.  Mr.  Gilmour voted  to  grant applicant's  request to 
be  restored to his active Guard position, to be  allowed to  take 
terminal  leave,  to  be  allowed  to  retire  at  the  conclusion  of 
terminal leave, and, to be issued a new DD Form 214, but does not 

7 

. 

AFBCMR 96-00558 

minority  report. 
considered: 
The following documentary evidence was considered: 

The  following  documentary  evidence  was 

Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 

A. 
A1 . 
B. 
C. 
D. 
E. 
F. 
G. 
H. 

- .  

DD Form 149, dated 25 May 93, w/atchs. 
DD Form 149, dated 23 Feb 96, w/atchs. 
Applicant's Master Personnel Records. 
- 
Letter, ANG/MPPU, dated 10 Dec 96. 
Letter, AFBCMR, dated 13 Jan 97. 
Letter fr counsel, dated 12 Feb 97, w/atchs. 
Letter, ANG/MPPU, dated 7 Oct 97. 
Letter, AFBCMR, dated 29 Dec 97. 
Letter fr counsel, dated 27 Apr 98, w/atchs. 

8 

DEPARTMENT OF THE AIR FORCE 

WASHINGTON, DC 

Office of the Assistant Secretary 

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD 

FOR CORRECTION OF MILITARY RECORDS 
(AFBCMR) 

SUBJECT:  AFBCMR Application 
Docket Number 96-00 

I have carefully reviewed the evidence of record and the recommendation of the Board 

members.  A majority found that applicant had not provided sufficient evidence of error or 
injustice and recommended the case be denied.  I concur with that finding and their conclusion 
that relief is not warranted.  Accordingly, I accept their recommendation that the application be 
denied. 

Please advise the applicant accordingly.