RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  00-00876
            INDEX CODE:  135.03
            COUNSEL: NO

            HEARING DESIRED: YES

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APPLICANT REQUESTS THAT:

Two years of Title 10 military service from March 1979  through  March  1981
be reinstated on his official records.

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APPLICANT CONTENDS THAT:

He was on a Title 10 tour from March 1979 to March  1981  and  it  has  been
stricken from his records.  Further, he did not  get  his  day  in  military
court on the termination of his service on 28 February 1990.

In support of his submission, the applicant submits a copy of  his  DD  Form
214 Certificate of Release or Discharge from Active Duty, and a copy of  his
NGB Form 22, Report of Separation and Record of Service (Exhibit A).

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STATEMENT OF FACTS:

The applicant contracted his initial enlistment in the  Air  National  Guard
and the Air Force Reserve on 2 May 1972.  He continued to serve in  the  Air
National Guard and the Air Force Reserve, entering his last enlistment on  2
March  1987,  when  he  reenlisted  for  a  period  of  3  years.   He   was
progressively promoted to the grade of staff sergeant  (E-5)  and  performed
duties as a Security Specialist.

By Orders issued by Office of the Adjutant General  of  the  State  National
Guard Bureau, dated 12 March 1979, effective 25 June 1979,  he  was  ordered
to active duty under  the  provisions  of  Title  32,  United  States  Code,
Section 503 and “Msg dtd 09067A Feb  79.”   On  17  Feb  1981,  orders  were
issued to continue the applicant in an active duty status  under  Title  32.
On 2 Jul 1981, the orders were amended to show that the  authority  for  his
active duty service tour was Title 10, United States Code,  Section  672(d),
rather than Title 32 and that his active duty was characterized Active  Duty
(Federal) rather than Special Training (State).

On 25 Jun 1988, the applicant was denied the Air Force  Reserve  Meritorious
Service Medal.  By letter dated  13  Jan  1989,  the  Office  of  the  state
Adjutant General notified the applicant’s group commander that, in  view  of
the modification of a conviction imposed on the applicant from a  felony  to
a gross misdemeanor, he should be removed from duties that required  him  to
be armed and, because of the court’s judgment and  sentence,  he  should  be
advised that his future service with the National Guard was contingent  upon
strict compliance with the provisions of the  court’s  modification  of  the
sentence.  In an endorsement dated 16 May 1989, the  applicant  acknowledged
he had been counseled concerning the foregoing.

On 28 February 1990,  the  applicant  was  released  from  active  duty  and
transferred to the Air National  Guard  by  reason  of  “Completion  of  AGR
Military Duty Tour.”  He was credited with 11 years, 8 months  and  20  days
of total active duty service and 10 years, 11 months and 4  days  of  active
duty service for the period 25 Mar 1979 to 28 Feb  1990.   His  reenlistment
eligibility was “ineligible.”  On 1 March 1990, the applicant was  honorably
discharged from the Air National Guard and the Air Force Reserve  by  reason
of Expiration of Term  of  Service.   He  was  credited  with  18  years  of
satisfactory Federal service and service for pay.

In a 2 March 1990 letter, the  applicant’s  former  commander  informed  him
that his discharge was due to his ineligibility to reenlist because  of  his
felony conviction in a County District Court.   The  applicant  was  further
advised that because the characterization of his service was  honorable  and
his separation was mandated by Federal regulation, there  was  no  provision
for an administrative hearing.  The applicant was further advised  that,  if
his felony conviction was overturned,  he  could  apply  to  the  Board  for
relief.

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AIR FORCE EVALUATION:

The Chief, Personnel Operations Branch, ANG/DPFOC, reviewed the  application
and recommended denial.  DPFOC stated that reference the 2 years of  alleged
Title 10  service  that  the  applicant  requests  reinstating,  the  record
indicates that he was in  Active/Guard  Reserve  (AGR)  status  during  that
period as reflected on his DD Form 214.   As  such,  granting  relief  would
result in no additional benefit to  the  member  in  terms  of  satisfactory
service  toward  retirement.   Even  if  evidence  existed  to  support  his
contention, granting relief would only serve to  convert  that  period  from
AGR status (Title 32) to Active Duty status (Title 10), which are  identical
in terms of satisfactory years and computation points for retirement.

As for the applicant’s separation, DPFOC indicates that  the  applicant  was
not qualified for reenlistment due to a felony conviction.   When  a  member
is not  qualified  for  reenlistment,  there  is  no  provision  of  law  in
Department of Defense (DOD), Air Force, or  Air  National  Guard  directives
that requires the member  be  afforded  an  administrative  discharge  board
prior to separating the member at the expiration of the  current  enlistment
contract.  Hence, the North Dakota  ANG  observed  applicable  guidance  and
properly discharged the applicant (Exhibit C).

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air National Guard  evaluation  and  states  that
granting  relief  would  result  in  a  great  additional  benefit  to   his
retirement.  He did serve the two years in Title 10 status and not Title  32
status.  The benefits vary greatly under the different status.

He  should  have  had  an  administrative  discharge  board  prior  to   his
separation  because  he  did  not  truly  have   a   conviction   that   was
disqualifying.  He states the military failed to aid him in the stopping  of
wrongful acts against him by the local authorities and the Air Guard  turned
a blind eye to the facts and did nothing (Exhibit E).

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing  law  or
regulations.

2.  The application was not timely filed; however, it is in the interest  of
justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of probable error or injustice with  respect  to  the  applicant's
contentions that his records are in error in that they do not reflect  Title
10 military service from March 1979 through March 1981.  We agree  with  the
opinion and recommendation of the  Air  National  Guard  office  of  primary
responsibility  that  the  record  indicates   that   he   was   in   Active
Guard/Reserve (AGR) status during  the  period  in  question  and,  even  if
evidence existed to  support  his  contention,  granting  relief  would  not
result in any additional benefit to  the  member  in  terms  of  credit  for
active duty service for retirement purposes.   Other  than  the  applicant's
assertions, we have seen no evidence, which would lead  us  to  believe  the
records are inaccurate and that granting relief is warranted.

4.  Although the applicant has not requested a  correction  of  the  records
with  respect  to  his  reenlistment  eligibility  status,  because  of  the
seriousness of the applicant's assertions concerning the  actions  taken  to
deny him the opportunity to reenlist, we  believe  it  is  appropriate  that
they should be
  addressed.   The  reason  he  was  barred  from  reenlisting  is   clearly
documented in the record and, other than his assertions, the  applicant  has
provided no documentary evidence showing that the record in this  regard  is
in  error  or  that  state  ANG  authorities  abused   their   discretionary
authority.   The  applicant  believes   that   he   should   have   had   an
administrative discharge board.  However, the applicant was  not  discharged
for cause -- based on his ineligibility to reenlist, he  was  discharged  at
the  expiration  of  his  term  of  service.   We  are  aware  of  no  board
entitlement that attaches to such actions.   Accordingly,  in  view  of  the
above and in the absence  of  evidence  by  the  applicant  showing  he  was
deprived of any right to which he was entitled, action on the  above  matter
is not contemplated.

5.  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  involved.   Therefore,  the  request  for  a
hearing is not favorably considered.

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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.

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The following members of the Board considered this application in  Executive
Session on 21 November 2000, under the provisions of AFI 36-2603:

      Mr. Patrick R. Wheeler, Panel Chair
      Mr. E. David Hoard, Member
      Ms. Patricia D. Vestal, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 29 Mar 00, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ANG/DPFOC, dated 21 Aug 00.
    Exhibit D.  Letter, SAF/MIBR, dated 8 Sep 00.
    Exhibit E.  Applicant's Rebuttal, dated 19 Sep 00, w/atch.



                                   PATRICK R. WHEELER
                                   Panel Chair