ADDENDUM TO
                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  96-01737

            COUNSEL:  DANIEL M. SCHEMBER

            HEARING DESIRED:  YES


_________________________________________________________________

RESUME OF CASE:

On 16 October 1997, the Board considered  and  denied  applicant’s  requests
that his records be corrected to show that he was not  denied  reenlistment;
he was not  discharged;  he  served  continuously  to  the  present;  he  is
entitled to back pay, benefits, and credit; and he is eligible  to  reenlist
(Exhibits A through E).

On 26 August 1997, the applicant filed suit in the  United  States  District
Court for the Northern District of New York.

On 19 January 2000, the Court remanded the case to  the  Board  for  further
inquiry, reconsideration and findings.  Specifically, the Court directs  the
Board to address the following:

      a.    Whether applicant’s Air Guard superiors were hostile toward  him
because of his past union activities;

      b.    Whether applicant’s Air Guard superiors punished  him,  but  not
other Air Guard members, for minor transgressions;

      c.    Whether  applicant’s  Air  Guard  superiors  sought  to  suspend
applicant  for  purported  misconduct  that  was  far  less   serious   than
misconduct by other Air Guard members that they ignored;

      d.    Whether applicant’s Air Guard  superiors  desired  to  retaliate
against him because he defeated their attempt to suspend him; and,

       e.     Whether  applicant’s  Air  Guard  superiors  denied  applicant
reenlistment in the Air Guard,  and  thus  terminated  his  employment,  for
pretextual reasons that would apply to many Air Guard members who  were  not
denied reenlistment-pretextual reasons that were “far less significant  than
misconduct by others” who were not barred from reenlistment.

The Court also directed the Board to make specific and numbered findings  of
fact, and conclusions of law based on such  factual  findings,  on  each  of
applicant’s claims  as  detailed  in  the  Court’s  Memorandum-Decision  and
Order.  The Court stated the Board should obtain and make available  to  the
applicant, records of members of his Air Guard unit who have in  a  relevant
time period been granted or denied reenlistment, with respect to  (1)  their
“performance in a military capacity,” (2) the bases  for  the  decisions  to
grant and deny them reenlistment, and (3)  in  each  case  whether  the  Air
Guard member was also employed as a technician and  had  ever  served  as  a
union official.  A complete copy  of  the  Court’s  Memorandum-Decision  and
Order is attached at Exhibit F.

_________________________________________________________________

AIR FORCE EVALUATION:

The Deputy Staff Judge Advocate, ---th  Airlift  Wing,  Deputy  Staff  Judge
Advocate (---th AW/SJA), reviewed the application and  states  the  decision
to deny the applicant reenlistment was based upon  his  significant  pattern
of  disciplinary  infractions,  and  not  upon   any   retaliatory   intent.
Therefore, they believe the initial decision to deny reenlistment should  be
upheld.   In  this  respect,  the  ---th  AW/SJA  states  that  contrary  to
applicant’s claims, he was not “punished” in any manner for his  misconduct.
 No rights or privileges were revoked, no liberties were restricted  and  no
charges were preferred.   Rather,  the  commander  denied  his  reenlistment
because his on-duty conduct was not consistent with good order,  morale  and
discipline,  as  documented  by  the  numerous   disciplinary   infractions.
Furthermore, continued retention in  the  Air  National  Guard  (ANG)  is  a
command prerogative and not an inherent right of any individual.   Based  on
the applicant’s significant disciplinary  record,  the  commander  exercised
his  discretion,  in  which  he  relied  on,  in  part,  the  input  of  his
[applicant’s] supervisors.  In a letter, dated 11 May 1994, the  applicant’s
direct supervisor wrote, “SSgt --- is  anti-establishment.   He  refused  to
follow certain policies and  procedures.   When  approached  about  mistakes
he’s made he refuses to accept responsibility.”  Applicant’s assertion  that
he was denied reenlistment  in  retaliation  for  his  Union  activities  is
without merit.  Applicant’s claims are based upon his  bare  and  conclusory
allegations that his supervisors were “hostile” towards him.  Assuming  that
to be true, his supervisors’ hostility does not excuse his  insubordination.
 Moreover, it does not provide a basis for disturbing the  initial  decision
not to reenlist the applicant, especially here where  it  is  not  supported
and not true.  With regard to the specific  questions  the  court  requested
the Board address, they submit the following:

      a.    The applicant’s Air Guard superiors  were  not  hostile  to  the
applicant because of his union activities.  Indeed, his superiors  were  not
hostile to him in any manner.  These are merely the applicant’s  unsupported
conclusory allegations.

       b.     The  applicant’s  superiors  did  not  “punish”  him  for  any
transgressions.  The  actions  contained  in  the  file  are  administrative
actions intended to rehabilitate the applicant and conform  his  conduct  to
military standards.  Other members who  committed  similar  misconduct  were
treated in the same manner.  However, others were not as frequent  violators
of military standards as the applicant.

      c.    The Air Guard sought to suspend the applicant because there  was
credible evidence of a very  serious  act  of  misconduct  (e.g.,  Applicant
shoved a co-worker while on the open edge of a maintenance platform 20  feet
above the concrete floor).

      d.    All of the administrative actions taken  against  the  applicant
were based upon his repeated violations of military standards, and  not  for
any retaliatory intent.

      e.    The applicant’s reenlistment was denied because his conduct  was
not  consistent  with  that  required  of  a  military  member,  no  less  a
Noncommissioned Officer in Charge (NCOIC).   The  overwhelming  evidence  in
the file supports that determination.  Retaliatory intent was not  a  factor
in denial of reenlistment.

      f.    Although regulations do not require the  ---th  AW  to  maintain
individual  reenlistment  records  for  separated  individuals,  they   have
thoroughly  researched  their  files  and  located  the  records   on   five
individuals whose reenlistments were denied.

      g.    The Report of Separation indicated the applicant was  ineligible
to reenlist.  Subsequently, the --- ANG corrected the applicant’s Report  of
Separation to reflect that he was eligible to  reenlist.   They  spoke  with
the approving authority, Major R--,  who  provided  a  statement  indicating
that the NCOIC of enlisted programs told him that the -- ANG  ESSO  directed
the correction.  Upon that information,  and  only  upon  that  information,
Major R-- made the correction.  Major R-- did not  receive  any  application
from the applicant, nor did he receive any staffing package from  the  ---th
AW.  Indeed, the ---th AW was not consulted on the  correction.   They  have
written the NCOIC and ESSO for further information, but do not,  as  of  yet
have a response.  They believe the correction was  an  administrative  error
and should have no bearing on the merits of this matter.

Complete copies of the evaluations are at Exhibits G and H.

The --- ANG, Staff Judge Advocate, ---  ANG/SJA,  reviewed  the  application
and states that applicant was denied reenlistment based upon  a  pattern  of
disciplinary infractions, which made him unsuitable for  continued  military
service.  When the applicant separated, his Record of Separation  was  coded
to reflect that he was  ineligible  to  reenlist,  as  was  the  commander’s
prerogative.  The -- ANG subsequently corrected the  applicant’s  Record  of
Separation to reflect that he  was  eligible  to  reenlist.   However,  they
concur with the ---th AW/SJA  that  the  correction  was  an  administrative
error by the -- ANG.  They interviewed the  Assistant  State  Adjutant,  the
NCOIC of  enlisted  programs,  the  Inspector  General,  and  one  Executive
Support Staff Officer from that time.  Their  investigation  indicated  that
the Assistant State Adjutant  approved  the  correction  to  the  Record  of
Separation upon the oral statement of the NCOIC of  enlisted  programs  with
no  further  support  or  justification.   As  such,  the  change   was   an
unjustified amendment which was completed without any  support.   Therefore,
they conclude the original Record of Separation  indicating  that  applicant
was ineligible to reenlist, was correct and should  stand.   The  denial  of
reenlistment was supported by the record - the correction was not.

A complete copy of the evaluation is at Exhibit I.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

The applicant’s counsel reviewed the Air Force evaluations and  states  that
the applicant was denied reenlistment due to his  willingness  to  stand  up
and speak up for himself and others,  his  highly  effective  service  as  a
union steward, and his success in defeating the attempt to suspend him  from
his job.  In this regard, counsel states, in part, that:

      a.    The inquiry conducted by the ---th  AW/SJA  neither  sought  nor
obtained any evidence relevant to  assertions  that  applicant’s  Air  Guard
superiors were hostile toward him because of his union  activities  or  that
they desired to retaliate against him because he defeated their  attempt  to
suspend him, as directed by the Court.  Applicant had  presented  voluminous
evidence regarding incidents in which his Air Guard  superiors  either  made
explicit  statements  manifesting  hostility  to   the   applicant’s   union
activities or threatened to retaliate against him.

      b.    Although approximately 80 members of applicant’s ANG  unit  were
due  to  reenlist  or  extend  shortly  before  or  after  he   was   denied
reenlistment, only the records of five members who were denied  reenlistment
have been provided.  None of the records of those selected  to  reenlist  or
extend have been provided.   Furthermore,  the  advisory  opinions  fail  to
address the military performance of these members,  the  reasons  they  were
denied reenlistment, or whether they had been union officers.   Based  on  a
stipulation, the applicant is precluded from submitting these  documents  to
the  Board  or  disclosing  their  contents;  however,  the  State  and  its
officials, including the author of the advisory opinion, are  not  precluded
from doing so.

      c.    No evidence has been presented to  support  the  assertion  that
other members who committed similar misconduct  were  treated  in  the  same
manner.  While the advisory opinion points out  that  during  the  contested
period the applicant missed three  Unit  Training  Assemblies  (UTAs),  they
fail to mention this was due  to  illness.   The  advisory  opinion  further
notes instances of tardiness, but presents no evidence that anyone else  was
denied reenlistment for being late, or missing UTAs due to illness.

      d.    Although the  advisory  opinions  state  there  is  overwhelming
evidence that applicant was denied reenlistment because his conduct was  not
consistent with that required of a military member, no  less  an  NCO,  they
provide no evidence to support this contention.  In addition,  the  advisory
opinions ignore that Sgt C--- and CMSgt P--- were not  denied  reenlistment,
despite their egregious misconduct - misconduct that was  far  more  serious
than applicant’s minor transgressions.

      e.    There is no evidence provided to support the statement that  the
14 December 1995 correction of the applicant’s record to  show  that  he  is
eligible to reenlist was an administrative  error.   To  the  contrary,  the
correction was supported by the presumption of regularity that supports  all
official records.  The absence  of  information  rebutting  the  presumption
means the determination must be deemed to be valid, not erroneous.

Counsel’s complete response is at Exhibit K.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The Chief, General  Law  Division,  AF/JAG,  reviewed  the  application  and
states that it is well  settled  that  the  Board’s  correction  powers  are
limited to military  records.   Guard  technicians  are  full-time  civilian
employees who are also members of the ANG unit in which they  are  employed.
Consequently, this dual Title 5 and Title 32 status limits the authority  of
the Board to grant relief.  In other words, the  Board  does  not  have  the
authority to correct the civil service records  of  a  guard  technician  in
Title 5  status,  it  may  only  correct  those  records  that  concern  the
technician’s Title 32 military status.  In this  case,  that  would  include
only those records regarding the denial of applicant’s reenlistment.

A complete copy of the Air Force evaluation is at Exhibit N.

_________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The  applicant’s  counsel  reviewed  the  evaluation  and  states  that  the
applicant does not  request  correction  of  any  non-military  record.   He
requests that his military records be corrected to  show  that  he  was  not
denied reenlistment  and  not  discharged  effective  8 October  1994.   The
advisory opinion erroneously states that applicant was  a  guard  technician
in Title 5 status.  Applicant’s technician employment was  under  Title  32,
United States Code, Section 709, not Title 5.

Counsel’s complete response is at Exhibit P.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.    Since the applicant was serving in a federally excepted service  Guard
technician position as a full-time civilian employee, his dual status  under
Title 5  (civilian  status)  and  Title  32  (military  status)  limits  the
authority of this Board to his military records.   Furthermore,  this  Board
does not have the authority to reinstate an individual in the  ANG,  as  the
National Guard is a State agency, under State authority and control.

2.    Pursuant to the remand order of the United States District  Court  for
the Northern District of New York, we have  reconsidered  the  documentation
in the applicant’s case, including more in-depth advisory opinions from  the
---th Airlift Wing Deputy Staff Judge Advocate,  the  ---  ANG  Staff  Judge
Advocate, and the Chief, General Law Division.  The majority  of  the  Board
is not persuaded that the applicant has been the victim of an  error  or  an
injustice.  The findings by the majority of the Board addresses the  Court’s
questions in the order posed:

      a.    Whether applicant’s Air Guard superiors were hostile toward  him
because of his past union activities.

            Response:  Because of the applicant’s  involvement  in  numerous
union disputes on behalf of his fellow workers, it is reasonable  to  assume
that he may  have  incurred  a  degree  of  hostility  from  his  superiors.
However, in consideration of all the evidence  in  this  case  collectively,
i.e., the results of the Inspector General  inquiry  which  found  that  the
actions  taken  against  the  applicant  were  within  a  military  context,
separate  of  technician  considerations,  and  within  the  scope  of   the
governing regulation; numerous detailed memoranda  of  records  showing,  at
the least, a lack of judgment on the applicant’s part; and his own  admitted
lack of military deportment (referring to  a  chief  master  sergeant  on  a
first name basis), we are not convinced that the denial of his  reenlistment
was driven  by  hostility.   Given  his  numerous  infractions  of  military
discipline, we find the conclusion that he was  not  suitable  for  military
service neither arbitrary nor capricious.

      b.    Whether applicant’s Air Guard superiors punished  him,  but  not
other Air Guard members, for minor transgressions.

            Response:  We are not  persuaded  that  his  superiors  punished
him, and not other ANG members  for  minor  transgressions.   Although  Sgt.
C*** was not  denied  reenlistment,  he  was  stripped  of  his  supervisory
position and  reassigned  elsewhere.   In  addition,  Letters  of  Reprimand
(LORs) were issued to other military members as a result  of  a  fist  fight
between a supervisor and a shop chief.  While other  members  may  not  have
received an LOR, as the applicant did, given his  repeated  infractions,  it
is  reasonable  to  conclude  that  the  commander  felt  that  an  LOR  was
warranted, especially since the applicant had previously received  a  Letter
of Admonishment (LOA)  and  his  pattern  of  disciplinary  infractions  had
continued.

      c.    Whether  applicant’s  Air  Guard  superiors  sought  to  suspend
applicant  for  purported  misconduct  that  was  far  less   serious   than
misconduct by other Air Guard members that they ignored.

            Response:  The Air Guard suspended the applicant  for  a  period
of 30-days because there was credible evidence of  a  very  serious  act  of
misconduct; i.e., he shoved  a  co-worker  while  on  the  open  edge  of  a
maintenance platform 20 feet above the concrete floor.  Although an  Adverse
Action Hearing concluded that he did not shove the  individual  with  either
the force or malicious behavior that could have  caused  serious  injury  or
loss of life, the applicant admitted to touching the individual and  turning
him around.  While the applicant may not have been found to  have  exhibited
malicious intent, his actions were inappropriate and were  in  violation  of
established safety procedures.  As  such,  we  believe  there  was  probable
cause for his commander to react as he did.  We note that the evidence  from
the  hearing  also  indicates  that  there  was  no  disagreement  that  the
applicant touched the other individual on  a  platform  20  feet  above  the
ground.  In addition, there were some  words  exchanged  previously  between
the two individuals.  There was also evidence of other incidents  with  this
same individual in which the applicant, on one occasion shoved/slid a  knife
towards  him and on another occasion, grabbed his shirt and  pushed  him  to
the wall.  In his  findings,  the  hearing  examiner  also  noted  that  the
credibility of the alleged victim and the perpetrator [the  applicant]  were
in serious doubt and that while the applicant was a more  credible  witness,
he appeared to be an aggressive  individual  with  a  belligerent  attitude.
Moreover, there were instances of the applicant’s “martial  arts  horseplay”
which some Guard members found to be intimidating, annoying, or  too  rough.
While the record  indicates  there  were  incidents  involving  other  Guard
members involving fist fights and the throwing of a sugar  container,  these
incidents, unlike the applicant’s repeated actions, were not caused  by  the
same individuals.


      d.    Whether applicant’s Air Guard  superiors  desired  to  retaliate
against him because he defeated their attempt to suspend him.

            Response:  While it is reasonable to assume that management  was
disappointed with the outcome of the Adverse  Action  Hearing,  we  are  not
convinced the applicant’s superiors sought to retaliate against him  because
of his successful appeal.  To the contrary,  the  applicant  was  issued  an
LOA, an LOR, and the vast majority of the memoranda of record (i.e.,  18  of
23)  documenting  his  numerous  infractions  of  military  discipline  were
prepared prior to the results of  the  Adverse  Action  Hearing  ever  being
released.  Moreover, the applicant has not alleged that the incidents  cited
in the memoranda for  record  did  not  take  place.   Therefore,  as  noted
earlier, given the applicant’s numerous infractions of military  discipline,
we do not find the commander’s determination that he was  not  suitable  for
military service unreasonable.

       e.     Whether  applicant’s  Air  Guard  superiors  denied  applicant
reenlistment in the Air Guard,  and  thus  terminated  his  employment,  for
pretextual reasons that would apply to many Air Guard members who  were  not
denied reenlistment-pretextual reasons that were “far less significant  than
misconduct by others” who were not barred from reenlistment.

            Response:   We  do  not  find  that  the  applicant  was  denied
reenlistment for pretextual reasons that  would  apply  to  many  Air  Guard
members who were not denied reenlistment  Continued retention in the ANG  is
a command prerogative and not an inherent right of any  individual.   Absent
a showing of evidence that the denial of his reenlistment was  an  abuse  of
the commander’s discretionary authority, we find no basis to  overturn  this
decision.   His  reenlistment  was  denied  because  his  conduct  was   not
consistent with that required of a military member.   In  addition,  all  of
the  administrative  actions  taken  against  him  and  the  denial  of  his
reenlistment were based upon his repeated violations of military  standards.
 We have not seen, nor have we been shown any evidence  that  suggests  that
any member with  an  extensive  record  of  bearing  and  behavior  problems
comparable to the applicant, was permitted to reenlist in the ANG.

      f.    When the applicant  separated,  his  Record  of  Separation  was
coded to reflect that he was ineligible to reenlist, as was the  commander’s
prerogative.  The -- ANG subsequently corrected his Record of Separation  to
reflect that he was eligible to reenlist.   The  --ANG/SJA  interviewed  the
Assistant State Adjutant, the NCOIC  of  Enlisted  Programs,  the  Inspector
General and one Executive Support  Staff  Officer  from  that  time.   Their
investigation disclosed that  the  Assistant  State  Adjutant  approved  the
correction to the Record of Separation upon the oral statement of the  NCOIC
of  Enlisted  Programs,  with   no   further   support   or   justification.
Furthermore, there is no evidence of any application, staffing packages,  or
meetings concerning the change.  As such, the change appears  to  have  been
unjustified,  completed  without  any  support,  and  was,   therefore,   an
administrative error.

3.    The Court also stated that we should obtain and make available to  the
applicant records of members of his Air Guard unit who have, in  a  relevant
time period, been granted or denied reenlistment, with respect to (1)  their
“performance in a military capacity,” (2) the bases  for  the  decisions  to
grant and deny them reenlistment, and (3)  in  each  case  whether  the  Air
Guard member was also employed as a technician and  had  ever  served  as  a
union official.  Applicant’s counsel states the ANG  failed  to  provide  us
all of the available records of individuals denied  reenlistment.   However,
it appears that the governing regulations do not require  the  retention  of
individual   reenlistment   records   for   separated   individuals    whose
reenlistments are denied.  Nonetheless, the ---th AW/SJA asserts  that  they
have thoroughly researched their files and been able to locate  the  records
pertaining  to  five  individuals  whose  reenlistments  were  denied.    In
addition, they have provided computer print  outs  of  reenlistment-eligible
Guard members for the period January 1994  through  June  1994.   Given  the
limited documentation available, however, we are unable  to  determine  with
any degree of certainty, the bases for  the  decisions  to  grant  and  deny
reenlistment to these individuals, and whether they were  also  employed  as
technicians and served as union  officials.   Of  these  five  records,  one
individual was denied reenlistment  for  nonparticipation  and  another  for
reaching the maximum age limit.  Although the  bases  for  the  reenlistment
denials of the three remaining individuals are  unclear,  they  were  denied
reenlistment and retired.

4.    In summary, based on the additional documentation provided, we do  not
find that the applicant has substantiated that he has been the victim of  an
error or injustice.  Accordingly, we find no basis upon which  to  recommend
favorable consideration of the applicant’s requests.

_________________________________________________________________

RECOMMENDATION OF THE BOARD:

A majority of the Board 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 23 January and 29 May 2001, under the provisions of AFI 36-2603:

                  Mr. David W. Mulgrew, Panel Chair
                  Mr. Patrick R. Wheeler, Member
                  Mr. Henry Romo, Jr., Member

By majority vote, the Board recommended  denial  of  the  application.
Mr. Romo voted to correct the records and  has  submitted  a  minority
report which is attached at  Exhibit  Q.   The  following  documentary
evidence was considered:

      Exhibits A-E.  Record of Proceedings, w/atchs.
      Exhibit F.  Letter, AFLSA/JACL-MP, dated 28 Feb 00, w/atchs.
      Exhibit G.  Letter, --th AW/SJA, dated 9 Jul 00, w/atchs.
      Exhibit H.  Letter, --th AW/SJA, dated 27 Aug 00, w/atchs.
      Exhibit I.  Letter, -- ANG/SJA, dated 10 Sep 00.
      Exhibit J.  Letter, AFBCMR, dated 15 Sep 00.
      Exhibit K.  Letter, Counsel, dated 13 Oct 00.
      Exhibit L.  Letter, AFBCMR, dated 20 Feb 01.
      Exhibit M.  Letter, AFBCMR, dated 26 Feb 01.
      Exhibit N.  Letter, AF/JAG, dated 14 Mar 01.
      Exhibit O.  Letter, AFBCMR, dated 15 Mar 01.
      Exhibit P.  Letter, Counsel, dated 12 Apr 01.
      Exhibit Q.  Minority Report.





                                   DAVID W. MULGREW
                                   Panel Chair


MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:    AFBCMR Application of APPLICANT

      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.




                                        JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency





MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR
             CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  APPLICANT, DOCKET NO: 96-01737

      The majority of the  panel  recommends  the  applicant’s  requests  be
denied; however, I believe he should receive the requested relief.
      After thoroughly reviewing the  evidence  of  record,  I  believe  the
applicant was denied reenlistment in retaliation for his actions as  a  shop
union steward and/or to prevent his continued  employment  in  his  civilian
job. In this respect, I note the following:

      a.    I believe the  applicant’s  Air  Guard  superiors  were  hostile
towards him because of his past union activities.  In  1992,  Sergeant  C***
expressly threatened to retaliate  against  him  by  damaging  his  military
career.  Master Sergeant D*** rendered a sworn statement indicating that  he
heard Sergeant C*** state, “I can’t get you on the civilian side,  but  I’ll
get you on the military side.”  In addition,  Master  Sergeant  M***  stated
that “higher level supervisors were hostile to  [applicant],”  and  a  sworn
statement executed by 22 other guard members indicates there  was  perceived
official hostility toward the applicant.

      b.    It appears the minor infractions used as a basis to justify  the
applicant’s poor military performance would not, as a matter of  course,  be
used to deny reenlistment to other ANG personnel.  In January 1993,  he  was
the only one given a Letter of Reprimand (LOR) for not  working  (i.e.,  not
enough tools), whereas,  others  were  given  either  verbal  counseling  or
nothing at all.  In addition, in October  1993,  Master  Sergeant  M***  was
directed to write up the applicant  for  not  putting  chocks  on  vehicles.
However, the indication was that  putting  chocks  on  vehicles  in  similar
circumstances was not a general practice and  management  seemed  to  coerce
personnel into stating otherwise.

      c.    I also believe his Air Guard superiors  sought  to  suspend  him
for purported misconduct that was far less serious than misconduct by  other
Air Guard members that was ignored.  The  applicant  was  suspended  for  30
days for  allegedly  shoving  a  coworker  while  on  the  open  edge  of  a
maintenance platform.   He  was  subsequently  exonerated  for  the  alleged
incident, with the hearing examiner finding that the  only  witness  against
him was not a credible witness.  The hearing examiner  also  found  that  in
management’s pursuit of discipline, the most  severe  sanction  proposed  by
Lieutenant Colonel H***, in his 29-year career, was discriminatory and  that
conduct by others  far  more  serious  (i.e.,  that  those  alleged  by  the
applicant was only given token or no concern by management).   For  example,
documented cases of fistfights and the hurling of  sugar  containers  toward
other personnel were not dealt with.


            d.    I find that the applicant’s Air Guard superiors desired to
retaliate against him because he defeated their attempt to suspend him.
Lieutenant Colonel H*** testified at the hearing that if the hearing
examiner declined to rule that what occurred warranted his suspension for
30 days, “it would have a negative impact on the organization in that by
reversing a management decision of this magnitude, it probably would send a
message to the labor force that management’s decisions will not be upheld.”
 Additionally, 22 guard members have indicated that his vindication at the
hearing “was a humiliating defeat” for management which strengthened even
further management’s motive to retaliate against him.


            e.    I also find that the applicant’s Air Guard superiors
denied him reenlistment in the Air Guard for pre-textual reasons that would
apply to many Air Guard members who were not denied reenlistment.  The
evidence of record indicates that his reenlistment denial was purportedly
based on a lack of performance in a military capacity.  This lack of
performance included: 6 absences due to illness (over four years); 6
instances of not wearing a hat or shirt; 1 instance of missing a scheduled
rifle qualification, 1 unauthorized coffee break, 2 work errors, 1 instance
of failure to sign out, and 1 LOR for not working during a slow day.
Whereas, a chief master sergeant was not denied reenlistment even though he
forged military activation papers.  Additionally, a sergeant was not denied
reenlistment even though he forged a civilian employee’s pay records and
was relieved of his supervisory position after complaints by many guard
members of unlawful conversion of government property.


      In view of the above, I firmly believe the applicant should be
provided relief.  I note, however, that this Board does not have the
authority to reinstate the applicant in the ANG as requested.  I believe
the circumstances in this particular case warrant that this Board recommend
that the applicant be reinstated in the ANG and the Reserve, with back pay
and allowances.








                                              HENRY ROMO, JR.
                                              Panel Member