RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  01-00344
            (CASE 2)

            COUNSEL:  RONALD J. LASKOWSKI

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

By amendment, he be promoted  to  the  grade  of  lieutenant  colonel,
effective 17 Jul 97, and returned to active duty status via the Active
Guard Reserve (AGR) program or by order to the active duty Air  Force;
or, in the alternative, he be  given  Special  Selection  Board  (SSB)
consideration for promotion to the grade  of  lieutenant  colonel  for
Fiscal  Year  1997  (FY97)  and  retired  under  the  Temporary  Early
Retirement Authority (TERA) effective 31 Jan 99.

_________________________________________________________________

APPLICANT CONTENDS THAT:

As established by a previous Board decision (AFBCMR 97-00814), he  has
suffered a serious injustice.  The record clearly indicates he was the
victim of flawed investigations and he suffered a continued  injustice
through the withholding of  his  promotion  and  denial  of  immediate
retirement.  The record also presents disturbing evidence of abuse  of
command authority with regard to the conduct of the investigations and
denial of legal counsel to the applicant.  He had invested substantial
time in the service of his country and had a full-time career ahead of
him.  Because of erroneous command action, he will never enjoy a  full
career in the service of his country.  The evidence compels the  Board
to correct this injustice and lay to rest the unfortunate incident.

In support of his appeal, the applicant provided  a  counsel’s  brief,
documentation pertaining to  a  previous  Board  decision,  supportive
statements, copies of his officer performance reports (OPRs), and  his
separation document.

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant was appointed a second lieutenant, Air  National  Guard  and
Reserve of the Air Force on 3 Apr 82.  On 8 Mar 96,  he  was  released
from active duty under the provisions of AFI 36-3209 (Misconduct) with
service characterized as honorable.  He was transferred to the  Kansas
Air National Guard, effective 2 Apr 96, in the grade of major.

On 2 Jan 97, the  applicant’s  commander  notified  him  that  he  was
recommending his separation from the Kansas Air National Guard.

On 23 Jun 97, the applicant was  notified  by  the  Executive  Support
Staff Officer, Kansas Air National Guard, that he was not approved for
retention by the Kansas Air National Guard Selective Retention  Review
Board.

On 31 Jul 97, the applicant  was  relieved  from  his  assignment  and
separated from the Kansas Air National Guard.

On 30 Jan 98, a Report of Investigation  prepared  by  the  Air  Force
Inspection Agency (AFIA) concerning abuse of authority in  the  Kansas
Air National  Guard  was  released  indicating  that  on  3 Jun 97,  a
complainant  wrote  to  the  Secretary  of  the  Air  Force  Inspector
General(SAF/IG)  and  alleged  a  lack  of  integrity  and  inadequate
procedures of the National Guard Bureau (NGB) Inspector  General  (IG)
system, inconsistencies in officer career programs at NGB and the  Air
National Guard Readiness Center; abuse of authority by the NGB-IG  and
NGB Chief of Staff; unauthorized disclosures of an  IG  investigation;
reprisal; coercion and intimidation and compromise of office/position.
 On 4 Jun 97, another complainant wrote to SAF/IG and alleged waste of
government resources by NGB-IG and NGB-JA and abuse of the IG  system,
abuse of authority by NGB-IG and NGB Chief of  Staff.    On  4 Sep 97,
SAF/IG tasked the Air Force Inspection Agency  (AFIA)  to  conduct  an
investigation into the allegations made  by  both  complainants.   The
allegations concerned the processing, thoroughness,  objectivity,  and
accuracy of an NGB-IG investigation of IG complaints filed by a  major
assigned to the Kansas Air National Guard which alleged wrongdoing  by
personnel assigned  to  the  Kansas  Air  National  Guard.   The  AFIA
investigation officers examined the facts and circumstances leading to
the major’s separation and ultimate retirement and his  subsequent  IG
complaints.  The  investigation  officers  reviewed  six  interlocking
investigations of alleged wrongdoing of a former Kansas  Air  National
Guard wing commander and alleged wrongdoing by the major.   They  also
reviewed the actions taken against the major.  The AFIA  investigation
covered 21 allegations.  The complainants’ primary concerns  were  the
alleged collapse of the confidential relationship between  the  NGB-IG
and complainants and  the  improper  influence  the  NGB-IG  tried  to
exercise over local, state personnel actions.  The AFIA  investigation
officers concluded that although the investigative processes  employed
by the NGB-IG were flawed, the problems were not as pervasive  as  the
complainants alleged (Exhibit C).

On 21 Oct 99, the Board considered an application  pertaining  to  the
applicant in which he requested that  he  be  reinstated  to  the  AGR
program effective 8 March 96, with back  pay  and  allowances;  he  be
promoted to the grade of lieutenant colonel effective  14 Oct 95;  the
word Misconduct be removed from his DD Form 214, and all references to
this matter be expunged from his records; and, upon his  reinstatement
to the AGR program, he be permitted to retire immediately under the 15-
year active duty retirement program.   The  Board  directed  that  the
applicant’s records be corrected to reflect that he was  not  released
from active duty on 8 Mar 96  under  the  provisions  of  AFI  36-3209
(Misconduct), transferred to the Kansas Air National  Guard  on  2 Apr
96, discharged from the Kansas Air National Guard  on  31 Jul 97,  and
assigned to the Retired Reserve on 2 Aug  97;  but  was  continued  on
active duty until 31 Jan 99; and, that he  was  released  from  active
duty  on  31  Jan  99  for  the  Convenience  of  the  Government  and
transferred to the Air Force Reserve and assigned to such  a  position
for which he is qualified on the earliest practicable date.

By a corrected Memorandum  for  the  Chief  of  Staff,  the  applicant
records were corrected to reflect that he  was  released  from  active
duty on 31 Jan 99 under the provisions of AFI 36-3207  (Completion  of
Required Active Service), rather  than  for  the  Convenience  of  the
Government.

Information extracted from the Personnel Data System  (PDS)  indicates
that the applicant is currently assigned to the Inactive  Status  List
Reserve Section (ISLRS) of the Air Force Reserve.

_________________________________________________________________

AIR FORCE EVALUATION:

ANG/DPFP  recommended  denial  indicating  that  the   applicant   was
ineligible for position vacancy promotion based on  the  documentation
that there was no intent by his immediate commander to  recommend  him
for promotion.  ANG/DPFP noted the applicant’s assertion that  he  was
not promoted because of unsounded investigations.  ANG/DPFP  indicated
that there was no evidence  showing  that  the  applicant’s  promotion
would have been approved even if no investigations occurred.  Although
the applicant had accumulated 15 years of service, under the ANG  TERA
policy, he would not have been eligible for a  TERA  retirement.   ANG
TERA policy stipulates that a state must have sustained reductions  in
its Active Guard Reserve (AGR) employment authorizations in  order  to
be eligible for TERA consideration.  Kansas had not suffered  any  AGR
losses, therefore, the applicant would not have been considered.

ANG/DPFP also provided comments from AGKS/AIR who indicated  that  the
applicant’s claim is totally  disingenuous.   The  applicant  and  his
counsel clearly know that the NGB-IG investigation was  overturned  by
the Air Force Inspection Agency investigation.  This matter  has  been
previously adjudicated and at that time the Board denied  the  request
for promotion and early retirement, and there  was  no  evidence  that
would change the opinion of the previous Board.  The  applicant  would
not have been promoted but for the arguable  investigations  since  he
was reprimanded for another matter by the  wing  commander.   Further,
the 15-year retirement was not appropriate for  him  then  nor  is  it
appropriate for him now.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the advisory opinion and furnished a  response  and
additional documentary evidence which is attached at Exhibit F.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

ANG/DPFP reiterated their denial indicating  that  the  applicant  was
ineligible for a position vacancy promotion based on the documentation
(letter of  reprimand)  provided  and  there  was  no  intent  by  his
immediate commander to recommend  his  promotion.   He  was  also  not
eligible for an ANG TERA and he did not have the support of his  chain
of command, TAG, or ANG/DP.  According to ANG/DPFP, in order  for  the
applicant to return to active duty, he has the right to apply  for  an
AGR tour,  but  he  must  locate  a  unit  with  a  military/full-time
resource, and meet the eligibility criteria in ANGI 36-101, The Active
Guard/Reserve Program (AGR).

A complete copy of the ANG/DPFP evaluation is at Exhibit G.

ARPC/DPA indicated that based on previous experience and duty history,
the  applicant  may  be  qualified  to  fill  positions  in  the  21XX
(Logistics), 65FX (Finance), or 36PX (Personnel) career field and also
indicated the IMA positions that are available for  the  applicant  to
consider.

ARPC/DPA stated that there are several non-pay, points only  (Category
E) options available to the applicant and they provided information on
each of the programs.

According to ARPC/DPA, the Air Force Reserve recruiters  would  assist
the applicant in securing either an IMA or traditional unit  position.
The recruiters will provide assistance in identifying  other  unit  or
IMA positions for the applicant and arrange for  interviews  or  other
necessary meetings to secure an assignment.  They will  also  complete
the necessary documentation to reassign the applicant from his current
assignment in the Nonaffiliated Reserve Section of the Standby Reserve
to the Selected Reserve.  A recruiter is not necessary for  assignment
to Category E.  The applicant would have  to  accomplish  an  AF  Form
1288, Application for Ready Reserve Assignment, and submit it  to  the
appropriate program.

A complete copy of the ARPC/DPA evaluation is at Exhibit H.

AFPC/DPAS indicated that upon reviewing the  applicant’s  package,  he
could be utilized as a core Personnel (36P)  or  Financial  Management
(65F) officer if returned to the active duty Air Force (Exhibit I).

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant indicated that the advisory opinions submitted  by  the  Air
Force Reserve and the Air National Guard are regrettably unresponsive.
 They do not provide a means for the Board to completely  correct  the
injustice it found in its previous decision (AFBCMR 97-00814).

The  ANG/DPPP  advisory  response   is   in   error   concerning   his
ineligibility for promotion based on the letter of reprimand and on no
intent by the immediate commander to recommend promotion.  It is  also
misleading as to the applicability of the TERA program with regard  to
the Air National Guard.  He knows of at  least  one  officer  who  was
allowed to retire under the TERA without regard  to  the  stipulations
outlined in the advisory.  The negative recommendation for  relief  as
outlined in the ANG/DPPP advisory has already been found in  error  by
the previous Board decision.  The chain of command noted is  the  same
that erroneously terminated  him  and  it  continues  its  prejudicial
treatment.  Also, the inconsistent application  of  the  TERA  program
within the ANG is on its face discriminatory.

Applicant’s complete response is at Exhibit K.

_________________________________________________________________

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 error or injustice concerning the applicant’s request for
SSB consideration.  We note that  in  a  previous  appeal  before  the
Board, the applicant requested that he be reinstated into  the  Active
Guard Reserve (AGR) program effective 8 Mar  96,  with  back  pay  and
allowances;  he  be  promoted  to  the  grade  of  lieutenant  colonel
effective 14 Oct 95; the word Misconduct be removed from his  DD  Form
214, and all references to this matter be expunged from  his  records;
and, upon his reinstatement to the AGR program,  he  be  permitted  to
retire immediately under the 15-year active duty  retirement  program.
The Board determined that corrective action was warranted based on the
fact that the applicant’s AGR tour was wrongfully terminated.  In this
respect, the evidence of record revealed that the tour termination was
the result of an LOR the applicant received for misconduct.   However,
the action taken appeared to have been based on  a  commander-directed
inquiry into allegations against the applicant that was  not  thorough
and unbiased.  The Board concluded that the appropriate  relief  would
be to correct the applicant’s records to show  that  he  continued  on
active duty until the end of his original AGR tour, change the  reason
for his separation, and transfer to the Air Force Reserve and have him
assigned to a position for which he was qualified.  Since  it  appears
that the applicant has met the eligibility requirements for  mandatory
consideration by a central selection board, we believe that he  should
also be afforded SSB consideration  for  promotion  to  the  grade  of
lieutenant colonel beginning with the Fiscal Year 2001 (FY01) Line and
Health Professions Lieutenant Colonel Selection  Board,  the  earliest
board for  which  he  would  have  been  in-the-promotion  zone  (IPZ)
eligible.  We took note of the applicant’s request that  he  be  given
SSB consideration by the FY97 board.  However,  eligibility  for  this
board required a promotion service date (PSD) of 30 Sep 90 or earlier,
and a total years  service  date  (TYSD)  of  30 Sep  76  or  earlier.
Although the applicant’s PSD date is 17 Jul 90, his TYSD is 12 Jun 81.
 Therefore, he was not eligible for consideration by  the  FY97  board
based on his TYSD.

4.  Insufficient relevant evidence has been presented  to  demonstrate
the  existence  of  error  or  injustice  concerning  the  applicant’s
requests that he be promoted  to  the  grade  of  lieutenant  colonel,
effective 17 Jul 97, and returned to active duty status  via  the  AGR
program or by order to the active duty Air Force or retired under TERA
effective 31 Jan 99.

       a.  With  regard  to  his  request  for  promotion  and   early
retirement under TERA, we note that the Board denied an earlier appeal
containing these requests.  After a thorough review of  the  available
evidence, to  include  the  statements  from  the  applicant’s  former
supervisor  and  the  former  director  of  personnel,  we   are   not
sufficiently persuaded that the applicant was not promoted or  allowed
to retire under TERA based on flawed investigations,  as  he  alleges.
In this respect, we note that in addition to the  LOR  which  was  the
basis for the termination of his AGR tour, he received another LOR for
inappropriate behavior; i.e., retaliating against  an  individual  for
providing information against him  in  an  official  investigation  by
attempting to deface the professional reputation of  that  individual.
This LOR, in all likelihood, would have rendered  him  ineligible  for
promotion.  Furthermore, we find no evidence which convinces  us  that
he would have been recommended for promotion by his commander but  for
the  alleged  flawed  investigation,  which  is  also  an  eligibility
requirement.  We also  note  that  the  applicant  did  not  meet  the
eligibility criteria for early retirement under TERA,  notwithstanding
his assertion that another individual in a similar circumstance as his
was allowed to retire early.  In view of the  foregoing,  and  in  the
absence of clear-cut evidence  to  the  contrary,  we  adhere  to  the
Board’s previous determination concerning the applicant’s requests for
promotion and early retirement.

      b.  We note the applicant’s  request  that  he  be  returned  to
active duty status via the AGR program or by order to the active  duty
Air Force.   However,  we  are  not  persuaded  that  such  action  is
warranted.  Although the previous Board found that the  applicant  had
been the victim of an error or injustice, it took what we believe  was
proper and fitting relief.  As indicated above, he  was  continued  on
active duty until the end of his original AGR tour, the reason for his
separation was changed, and  he  was  transferred  to  the  Air  Force
Reserve to be assigned to a position for which he was qualified, since
the Board lacks the authority to reinstate him to the Guard.  While it
does not appear that the Air Force Reserve has yet acted on the  Board
directive to find the applicant a job, they have identified  positions
for which he is qualified, and have  indicated  their  willingness  to
assist him in finding an appropriate position.  Although the applicant
believes he is entitled to continue in an active duty  status  because
he was on an AGR tour which was wrongfully terminated, we know  of  no
policy or program which would have guaranteed  him  another  AGR  tour
upon completion of the previous one.  The applicant is  encouraged  to
work with the Air Force Reserve in order  that  the  previous  Board’s
recommendation can be implemented, thereby finding him a position  for
which he is qualified.  In view  of  the  foregoing,  the  applicant’s
request that he be returned to active duty status via the AGR  program
or by order to the active duty Air Force is not favorably considered.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be considered for promotion  to  the  grade  of
lieutenant colonel by a Special Selection Board for  the  Fiscal  Year
2001 (FY01) Line and Health Professions Lieutenant  Colonel  Selection
Board; and, if not selected by the FY01 Line  and  Health  Professions
Lieutenant Colonel Selection Board, he be considered for promotion  to
the grade of lieutenant colonel by a Special Selection Board  for  the
Fiscal Year 2002 (FY02) Line and Health Professions Lieutenant Colonel
Selection Board.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number 01-
00344 in Executive Session on 16 Jul 02, under the provisions  of  AFI
36-2603:

      Ms. Peggy E. Gordon, Panel Chair
      Mr. James E. Short, Member
      Ms. Carolyn B. Willis, Member

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

     Exhibit A.  DD Form 149, dated 2 Dec 00, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  AFIA Report of Investigation, dated 30 Jan 98
                 (withdrawn).
     Exhibit D.  Letter, ANG/DPFP, dated 21 Aug 01, w/atchs.
     Exhibit E.  Letter, SAF/MIBR, dated 21 Sep 01.
     Exhibit F.  Letter, applicant, dated 15 Oct 01, w/atch.
     Exhibit G.  Letter, ANG/DPFP, dated 1 Feb 02.
     Exhibit H.  Letter, ARPC/DPA, dated 19 Feb 02.
     Exhibit I.  Letter, AFPC/DPAS, dated 4 Apr 02.
     Exhibit J.  Letter, SAF/MRBR, dated 12 Apr 02.
     Exhibit K.  Facsimile, AFBCMR, dated 14 May 02.
     Exhibit L.  Letter, applicant, dated 3 Jun 02.




                                   PEGGY E. GORDON
                                   Panel Chair



AFBCMR 01-00344




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 considered for promotion to the grade of
lieutenant colonel by a Special Selection Board for the Fiscal Year
2001 (FY01) Line and Health Professions Lieutenant Colonel Selection
Board; and, if not selected by the FY01 Line and Health Professions
Lieutenant Colonel Selection Board, he be considered for promotion to
the grade of lieutenant colonel by a Special Selection Board for the
Fiscal Year 2002 (FY02) Line and Health Professions Lieutenant Colonel
Selection Board.






    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency