RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  00-03048
            INDEX CODES:  100.06, 110.02,
                          110.03

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

Special Order A1-175, dated 19 Aug 99, honorably discharging him  from
the  Puerto  Rico  Air  National  Guard  (PRANG)  on  19  Aug  99   be
invalidated.

The information in Block 18 of NGB Form 22 (Report of  Separation  and
Record of Service) be eliminated.

He be compensated for the period 8 Jan 99 to 19 Aug 99.

His  reenlistment  eligibility  be  changed   from   “Ineligible”   to
“Eligible.”

_________________________________________________________________

APPLICANT CONTENDS THAT:

The Federal  Labor  Relations  Authority  (FLRA)  decision  and  order
rendered the causes for his involuntary separation “null and void.”

The  procedures  leading  to  his  involuntary  separation  were   not
followed, in violation of PRNG REG 635-100.

He did not receive all the procedural benefits required prior  to  his
involuntary separation, in violation of DOD 5200.2.

The PRANG used the suspension of his Secret clearance  as  a  pursuant
point for his involuntary separation.

In  support  of  his  appeal,  the  applicant  provided  an   expanded
statement, copies of his  NGB  Form  22,  Special  Order  A1-175,  the
AFLSA/JACL letter, the United States Court of Appeals decision
and order, FLRA decision, and numerous other documents associated with
the matter under review.

Applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The available documentation indicates that on 8 Dec 98, the  applicant
and other members of the PRANG participated in a picketing activity at
Muniz Air National Guard Base.

On 8 Jan 99, the applicant was notified that his access to  classified
information/unescorted entry to restricted areas had  been  suspended.
This action was taken because he willfully participated in a picketing
and trespassing of government property, disobeying the  lawful  orders
of the Assistant Adjutant General.

On 10 May 99, the applicant was notified by his commander that he  was
recommending disciplinary action against him pursuant to PRNG 635-100.

On 24 Jun 99, the Commander,  156  Maintenance  Squadron,  recommended
that the applicant be involuntarily discharged from  the  PRANG.   The
commander indicated that the picketing activity was conducted  without
authorization within the premises of Muniz Air  National  Guard  Base.
During this activity, malicious, false, and defamatory allegations and
statements were made against  the  Military  Forces  of  Puerto  Rico,
specifically the Puerto Rico National Guard (PRNG), the PRANG, and its
senior leadership and supervisors.   The  allegations  and  statements
made by the group and its individual participants  were  of  a  nature
which brought discredit upon the PRNG and the PRANG,  as  well  as  it
leadership and  members.   Besides  the  general  group  conduct,  the
specific conduct attributable to the applicant was that he wore  a  T-
shirt with the stenciled words “No ala Corrupcion,” and carried a sign
with a statement which  read”  Capt.  M---,  Dominicano  Perseguidor,”
referring to a commissioned officer.

On 17 Aug 99, the  Office  of  the  Staff  Judge  Advocate  found  the
recommendation  for  separation  legally  sufficient  and   that   all
proceedings were done correctly according to regulations.

On 19 Aug 99, the applicant was relieved from his current  assignment,
honorably  discharged  from  the  PRANG  in  the  grade  of  technical
sergeant, and transferred to the United States Air Force Reserve.   He
was credited with 22 years, 4 months, and 17 days of total service for
retired pay.

Because of the Guard’s  actions,  the  Union  filed  an  unfair  labor
practice complaint with the FLRA.  On 21 March  00,  pursuant  to  its
authority over federal labor/management issues,  the  Authority  ruled
that the technicians had engaged in lawful informational picketing  on
8 Dec 98 and ordered corrective action,  Specifically,  the  Authority
ordered the PRANG to rescind its Jan 99 decision to suspend access  to
classified information.

_________________________________________________________________

AIR FORCE EVALUATION:

The  Chief,  Personnel  Force  Management,  ANG/DPFP,  reviewed   this
application and indicated that, according to the decision rendered  by
the Federal Labor Relations Authority (FLRA) on 21 Mar 00  (quoted  by
the Air Force Legal Services on their 18 Oct 00 (correspondence),  and
the enclosed copy of the notice ordered to posted  by  the  FLRA,  the
PRANG  was  ordered  to  rescind  the  suspension  of   the   security
clearances.  The FLRA also determined that the technicians had engaged
in lawful informational picketing.  Therefore, DPFP, recommended  that
the applicant’s reenlistment eligibility (Block 26) on his NGB Form 22
(Report  of  Separation  and  Record  of  Service)  be  changed   from
“Ineligible” to “Eligible.”

DPFP recommended that relief be denied for the issues relating to  pay
and Special Order A1-175.  According to DPFP, the state was within its
authority to separate the  applicant.   Final  authority  for  members
enlisting in or separating from the Air National Guard rests with  the
Adjutant General.  Consequently, Block 18 of the NGB  Form  22  should
not be changed, since it refers to paragraph 3.13.12 of  AFI  36-3209,
Provisions of State Law.

A complete copy of the ANG/DPFP evaluation, with  attachments,  is  at
Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the  advisory  opinion  and  furnished  a  response
which is attached at Exhibit E.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the
existence of probable error or  injustice.   The  evidence  of  record
reflects that the  applicant  was  subsequently  discharged  from  the
Puerto Rico ANG after participating in a picketing activity  at  Muniz
Air National Guard Base.  We note
that final authority for members enlisting in or separating  from  the
ANG rests with the Adjutant General  and  the  state  was  within  its
authority to discharge the applicant.  No evidence has been  presented
which has shown to our satisfaction that  the  applicant’s  separation
was contrary to the  prevailing  directive.   Furthermore,  the  Board
lacks the authority to reinstate the applicant back into the state Air
National  Guard.   Therefore,  the  applicant’s  requests   that   his
honorable discharge from the Puerto Rico ANG be invalidated,  Item  18
of his NGB Form 22 be eliminated, and he receive compensation, is  not
favorably considered.  While we did note that the FLRA determined  the
applicant had engaged in lawful informational  picketing,  it  appears
that discharge action was taken against the  applicant  based  on  his
misconduct during the picketing.  Notwithstanding this, in view of the
determination by the FLRA, we are inclined to agree with the office of
primary   responsibility’s   recommendation   that   the   applicant’s
reenlistment eligibility be changed  from  “ineligible”  to  eligible.
This would allow the applicant to again enter the ANG if  they  desire
to enlist him.  Accordingly, we recommend that the applicant’s records
be corrected as indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show  that  his  NGB  Form  22,
Report of Separation and Record of Service,  be  amended  in  Item  26
(Reenlistment   Eligibility)   to   read   “Eligible,”   rather   than
“Ineligible.”

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 18 Jul 01, under the provisions of AFI 36-2603:

      Mr. David C. Van Gasbeck, Panel Chair
      Mr. Richard A. Peterson, Member
      Mr. Roscoe Hinton, Jr., Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 29 Oct 00, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, ANG/DPFP, dated 31 May 01, w/atchs.
     Exhibit D.  Letter, SAF/MIBR, dated 15 Jun 01.
     Exhibit E.  Letter, applicant, dated 9 Jul 01.




                                   DAVID C. VAN GASBECK
                                   Panel Chair










AFBCMR 00-03048




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat 116), it is
directed that:

      The pertinent military records of the Department of the Air
Force relating to , be corrected to show that his NGB Form 22, Report
of Separation and Record of Service, be amended in Item 26
(Reenlistment Eligibility) to read “Eligible,” rather than
“Ineligible.”







    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency