RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2002-02537
            INDEX CODE:  110.02

            COUNSEL:  NONE

            HEARING DESIRED: NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His separation from active duty on 30 April 2000, as  a  result  of  a
reduction-in-force  (RIF)  action,  be  changed  to  an  active   duty
retirement.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The RIF action used to separate him  from  extended  active  duty  was
inappropriate and  incorrectly  administered.   A  request  to  retire
(Temporary  Early  Retirement  Authority  –  TERA)  should  have  been
approved by the Air National Guard (ANG) and the U.S. Air Force.

His active duty management analyst (MA) position was ordered  unfunded
by NGB in order to fund  the  new  Community  Manager  (CM)  position.
After being assured by his wing, State, and NGB that he would not lose
his job - the MA incumbent was allowed to remain in the position - the
position  was  eventually  unfunded.   This  action  resulted  in  his
Active/Guard Reserve (AGR) tour being terminated two years early.   He
had met with the State and wing commander’s to  try  and  resolve  his
situation by finding employment elsewhere in the State  but  had  been
unsuccessful.

In November 1999,  he  was  given  two  options  by  the  State  Human
Resources Officer (HRO): 1.  Participate in a Reduction-in-Force (RIF)
action, or 2.  Apply for early retirement under  the  Temporary  Early
Retirement Authority (TERA).  He was informed at first by the HRO that
TERA was not available to him; the HRO later recanted and offered  him
TERA, supposedly with NGB’s verbal approval.   He  accepted  an  early
retirement and began retirement out-processing.  The  State  and  Wing
assisted in the retirement processing in  the  normal  manner  and  he
applied for, and was granted, terminal leave and permissive  TDY.   He
sold his home, relocated his family, took post-service employment, and
bought a new home.  In March 2000, he was  told  his  application  for
TERA had been disapproved by the NGB.  Their disapproval was based  on
the policy at the time that no TERA would be approved  for  incumbents
of unfunded positions unless there was a concurrent  net  loss  of  an
Employment Authorization (EA).  In his case, the EA did not  go  away,
it was simply reapplied to a different unfunded position, making  that
position funded.

The state argues he was given the opportunity to  apply  for  the  new
position and failed to do so.  He states that he was not made aware of
the new position vacancy (the position was already encumbered  as  the
state had filled it early - prior to NGB identifying funds to do  so.)
He never saw the position vacancy  announcement  while  it  was  being
offered, he found out later it had been offered  as  a  civilian  (GS-
Technician) position and not an active duty position - which may  have
kept  him  from  applying  for  it  anyway.   Further,   the   vacancy
announcement had a closing date of 1 February 2000 and  he  had  begun
approved PTDY and terminal leave in November 1999.

When TERA was denied, he was sent a RIF notice.  He states the RIF was
a result  of  the  state  trying  to  fix  the  situation  they  found
themselves in.  They had procured a verbal approval from NGB to  allow
him to retire early under TERA - he met all the requirements  demanded
by law, to do so.  The state had allowed him PTDY, terminal leave, and
had  disbursed  funds  for  his  PCS,  all  apparently,  without   the
authorization to do so.  He states the RIF  was  not  carried  out  in
accordance with (IAW) established ANG Instructions.  The  instructions
only allow RIF action to take place for those members losing positions
where the EA is also being  lost.   Established  RIF  procedures  also
require a RIF board, consisting of three board members, to analyze all
retirement eligible personnel.  To his knowledge,  no  RIF  Board  was
ever formed, no other retirement eligible personnel  were  considered,
and the  EA  originally  funding  his  position  was  not  lost,  only
reapplied elsewhere.

He wrote letters to the state HRO, and two of his  elected  officials.
All three were returned with responses not  acceptable  to  him.   The
response from  Senator  Miller,  through  NGB,  restated  he  had  the
opportunity to apply for the new position created by NGB and failed to
do so.  It also restated the denial of  TERA  was  based  on  the  ANG
policy that required a loss of an  EA,  and  that  he  was  offered  a
voluntary  Special  Separation  Benefit  (SSB).   He  disputes   these
responses as inaccurate.  He never “voluntarily” accepted a RIF or  an
SSB, nor to serve for three additional years in the Ready  Reserve  (a
requirement to receive an SSB).  He did receive  Readjustment  pay  as
indicated on his final leave and earnings statement that  he  believes
is not the same as an SSB.  He notes the RIF and the SSB both  require
the loss of an EA to be offered - which did not happen.  How could the
unit RIF him or offer him an SSB  when  he,  by  ANG  policy  did  not
qualify for either?  The requirement of serving three additional years
in the Ready Reserve for receipt of an SSB was also  disproved  as  he
only served two additional years (in  traditional  guard  status)  and
that only because  he  needed  the  time  to  qualify  for  a  Reserve
retirement at age 60.  He was completely discharged from the  military
effective 1 June 2002 and  subsequently  transferred  to  the  Retired
Reserve only then.  He argues that if  he  could  qualify  for  a  RIF
and/or SSB, then he should have qualified for early  retirement  under
TERA.

In support of his  appeal,  the  applicant  has  provided  a  personal
statement and:

           1. A memo from the Georgia State HQ Human Resources  Office
(HRO) dated  20  Apr  99,  establishing  the  Community  Manager  (CM)
position.
           2. 116th  Support  Group  Commander  (SPTG/CC)  memo  dated
25 May 99, questioning the intent of the State HQ in dealing with  the
incumbent of the Management Analyst (MA) position.
            3.  Select  copies  of  his  Officer  Performance  Reports
(OPR’s).
           4. Memo from applicant to SPTG/CC and Wing CC dated  7  Nov
99, summarizing his position and asking for guidance.
           5. A copy of the ANG Separation Incentive Program (SIP).
           6. Memo from applicant to SPTG/CC and Wing CC dated  1  Dec
99, requesting TERA.
           7. A copy of the Transition  Assistance  Program  Table  of
Contents.
           8. A  copy  of  the  Robins  AFB  Pre-Separation/Retirement
Briefing.
           9. Copies of various out-processing documents.
          10. Copies of Leave Form requests, including those  normally
required by retirement - Permissive  TDY  (PTDY)  and  terminal  leave
requests.   Also  a  copy  of  document   establishing   retired   pay
procedures.
          11. Memo from Georgia ANG (GA ANG) State  HRO  to  applicant
dated 29 Mar 00, notifying  applicant  of  impending  RIF  action  and
consequent  termination  of  applicants  Active/Guard  Reserve   (AGR)
position.
          12. Chapter 4 of ANG  Instruction  (ANGI)  36-101,  Priority
Placement, and Reduction in Force.
          13. Correction to request for terminal leave.
          14. Copy of ANG/DP memo to GA ANG State HRO,  dated  16  May
00, denying applicant’s request for TERA and reiterating the  original
policy that allowed the State to grandfather  the  MA  position  until
vacated.
          15. Copy of Public  Law  102-484,  Section  4403,  Temporary
Early Retirement Authority, and associated documents.
          16. Memo from GA State HRO to applicant informing him  there
is no appeal of the TERA denial.
           17.  Technician  Vacancy  Announcement  for   a   temporary
technician position of the CM position.
          18. Letter from  Representative  Max  Cleland  to  applicant
dated 27 Nov 00, with attached memo from GA ANG Adjutant General  (AG)
explaining GA ANG’s position on applicant’s separation.
          19. Letter from  Representative  Zell  Miller  to  applicant
dated 8 Dec 00, with attached memo from National  Guard  Bureau  (NGB)
Office of Policy and Liaison explaining NGB’s position on  applicant’s
case.
          20. Applicant’s 1030 Apr 00  Leave  and  Earnings  Statement
(LES).
          21. Honorable discharge certificate, NGB Form 22, Report  of
Separation and Record of Service, and Special  Order  A-078  relieving
applicant from assignment effective 31 May 02.

His complete submission, with attachments, is at Exhibit A.

_________________________________________________________________



STATEMENT OF FACTS:

The applicant, while a fulltime active duty member of the Georgia  Air
National Guard (GA  ANG),  occupied  a  management  analyst  position.
ANG/XPM, in a memo dated 22 Mar 99, directed  the  management  analyst
position be unfunded and that the employment authorization be used  to
fund a new community manager position.  The  memo  stated  should  the
State choose to retain the management analyst position  and  not  move
funding to the community manager  position  that  a  local  management
change  to  their  fulltime  unit-manning  document  was   authorized.
Applicant was in the fourth year of a six-year active duty  tour  with
the 116th Bomb Wing.  The State decided to fund the  CM  position  and
the applicant’s tour was subsequently terminated early,  effective  30
Apr 00.  His application to retire early under  TERA  was  disapproved
and he subsequently accepted an SSB as a result of an involuntary  RIF
action.  He remained in the GA ANG as a traditional guardsman until he
was honorably discharged effective 1 June 2002.  He had served a total
of 20 years, 3 months and 26 days.

_________________________________________________________________

AIR FORCE EVALUATION:

ANG/DPPI recommends denial.  DPPI queried the GA ANG  for  information
surrounding applicant’s case.  GA ANG declined to provide any  further
details concerning  his  case  stating  the  case  had  “already  been
thoroughly investigated.”  DPPI notes the denial  of  the  applicant’s
TERA application was based on ANG policy at the time requiring the net
loss of an EA as justification for approval  of  a  TERA  application.
DPPI states it is not clear to them how the applicant received an  SSB
(implicit in this response is the  fact  that  an  SSB  approval  also
required a net loss of an EA).  DPPI notes the policy at the  time  as
being clear on the requirements for application of TERA.

DPPI’s complete evaluation, with attachment, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant points out that the ANG/DPPI advisory  does  not  appear  to
have addressed his contention that he  was  inappropriately  separated
nor has it offered a potential remedy.  He identifies  two  misleading
statements included in the advisory.  The first statement, that he was
separated  “…based  on  termination  (through  an  amendment)  of  his
original active duty orders” is confusing as he was actually separated
as a result of the application of an inappropriate  RIF.   The  second
statement, that a “…Memorandum, issued 29 March 2000 (was  issued)  as
justification for curtailing the original AGR tour”  was wrong in fact
as the memorandum was actually titled  “Reduction  in  Force  Notice.”
These two statements contribute to the false assumption  that  he  was
separated  simply  as  the  result  of  a  curtailed  tour   and   the
administrative change of some orders.  The fact is that his  full-time
career was ended by an inappropriate RIF action - which, he notes, the
advisory never mentions.  IAW with ANG Instructions, a RIF is only  to
take place on the net loss of an EA.  Since the unit did not  lose  an
EA, the application of RIF action against him was essentially illegal.
 He is very disappointed the advisory does not address this issue  and
that the resultant paradox had never been explained to him.

He disputes the State's contention that a thorough  investigation  has
been conducted and doubts that it ever occurred at  all.   He  assumes
whatever findings ensued from  the  thorough  investigation  were  not
significant as they were not documented and  sent  to  ANG/DPPI  as  a
result of their request for more information.

The DPPI statement “116th Wing commander elected to fund  the  new  CM
position and according to Georgia (ANG) the applicant  did  not  apply
for the position when the vacancy was announced.”  He  began  terminal
leave in January 2000 with the expectation of retiring in April  2000.
He since found that the position was announced as a temporary position
and for a GS civilian technician - not a  full  time  AGR.   While  he
states he didn’t know the position was being announced  at  the  time,
because of the way  it  was  announced  he  probably  would  not  have
qualified as he was an active duty member.  Further, if, as the  State
contends, he was the subject of a RIF, the State, by  regulation,  was
bound to notify him in writing of the vacancy and that he be given the
opportunity to apply.  This did not happen as his  leadership  already
considered him gone.

He corrects the DPPI advisory’s statement that his active duty at  the
time was fifteen years and ten months as he actually had sixteen years
and two months.  He reiterates his qualification for TERA at the  time
and states that the law does not require a net loss of an EA.  He also
finds it interesting that the ANG continues to state  he  received  an
SSB.  He states that his military leave and earnings  statement  refer
to the payment as readjustment pay.  In order to  distinguish  between
the two, he contacted  the  Defense  Accounting  and  Finance  Service
(DFAS) and was told that the  transaction  coded  on  his  record  was
Readjustment Pay with a Special Program Designator (SPD) of LGH which,
defined, is Involuntary Release.

The benefit he received, $93,325.05, was automatically paid  by  DFAS.
He never voluntarily asked for or accepted the  benefit  as  the  DPPI
advisory implies.  There was nothing voluntary about  his  separation.
Should the Board agree to relief, he states the Readjustment Pay could
be recouped (by the government).  The DPPI discussion on this issue is
completely inaccurate.  DPPI has mentioned several times over the past
year that he was authorized an SSB when, in  fact,  their  own  policy
prohibits any program under TERA, including SSB’s, unless there  is  a
net loss in EA’s.  He decries the fact that DPPI continues to  say  he
accepted a voluntary  SSB  when  he  actually  involuntarily  received
Readjustment pay.

He  lists  three  scenario’s  that  could  result  from  the   Board’s
deliberations:

            1.  If the Board finds  the  RIF  action  appropriate  and
denies the request for retirement then no relief would be provided and
justice would not be done.

            2.  If the Board finds the retirement not possible but the
RIF action inappropriate then he could be ordered back to active duty.
 A return to active duty would create a  significant  and  devastating
financial hardship.  This scenario could only work  if  the  financial
impact of physically returning to  service  could  be  addressed.   He
would rather  this  solution  address  the  actual  need  for  him  to
physically return to the service and would prefer a return to  service
be avoided.

            3.  Should the Board grant the requested  relief  then  he
would be officially retired effective 1 May 2000.   The  retired  back
pay should be sufficient to repay the  readjustment  benefit.   Should
this option be selected he would ask that $48,219.00  be  waived  from
the readjustment benefit payback as he has paid this amount of medical
expenses for his wife  since  his  separation  that  would  have  been
covered by an active duty retirement.  He states  that  recouping  the
medical expenses is not the critical issue; the critical issue is that
he was wrongfully separated from the service and unjustly  denied  the
opportunity of early retirement under TERA.

He is proud of his past service - much of which was performed  TDY  in
support of small training exercises to the likes of DESERT STORM.   He
believes the evidence he has present is sufficient for  the  Board  to
render him a favorable decision.

Applicant’s complete response is at Exhibit D.

_________________________________________________________________

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.  After an  extensive  review  of  the
facts of this case, it is apparent to the majority of the  Board  that
the applicant's separation from his active duty tour on 30 April  2000
was error.  In this  regard  the  majority  of  the  Board  notes  the
following:

      a.  The facts of the case reveal that the Georgia  Air  National
Guard (GAANG) mismanaged the applicant’s separation, as did,  to  some
extent, the National Guard Bureau (NGB).  The applicant's position was
unfunded in an effort to fund another position on the State's  manning
document. However, the State did not lose an employment authorization.
 The applicant was offered two options: participate in a Reduction-in-
Force (RIF) or apply for early  retirement.   In  November  1999,  the
applicant accepted and applied for retirement under  the  auspices  of
the  Temporary  Early  Retirement  Authority  (TERA)  and  began   the
retirement process with the full support and assistance of the  GAANG.
Upon  notification  from  NGB  that  ANG  policy  made  the  applicant
ineligible to retire under TERA, the GAANG  decided  to  separate  the
applicant via a RIF.  Although the applicant was sent a RIF notice, we
could find no evidence where RIF procedures, clearly outlined  in  the
Active/Guard Reserve (AGR) management program, were ever  followed  to
their conclusion.

      b.  Subsequently, the GAANG then shortened the  applicant's  AGR
tour by more than two years and separated him  from  the  AGR  program
with a Special Separation Benefit (SSB)  of  over  $93,000.   However,
based upon ANG policy at  that  time  it  does  not  appear  that  the
applicant was eligible for the SSB.

      c.  The applicant has requested that he  be  allowed  to  retire
under TERA as he was originally informed.  However, based on our above
findings and to provide the applicant with full and fitting relief, we
belive he should be continued on active duty until he reaches 20 years
of active duty service.  In this regard, we note had  the  applicant's
tour not been inappropriately shortened; he  would  have  remained  on
active duty until 31 May 2002.  On 31 May 2002, applicant  would  have
had over 18 years of active  duty  service  and  would  have  been  in
sanctuary.  Therefore, by law, he would have been continued on  active
duty until he reached 20 years and hence eligible for an  active  duty
retirement.  In view of the above, we recommend that  his  records  be
corrected to the extent indicated below.

4.  In view of our determination that the applicant should  have  been
continued  on  active  duty,  the   applicant   should   provide   any
documentation to the appropriate agency for possible reimbursement  of
his medical expenses incurred after his separation of 30  April  2000.
With respect to the SSB received, applicant will  have  to  repay  the
monies received.
______________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT be corrected to show that:

      a.  On 30 April 2000, his Active Guard/Reserve  (AGR)  tour  was
not curtailed but on that date he continued to serve in his assignment
with the Georgia Air National Guard.

      b.  On 20 May 2002, he requested an extension of  his  AGR  tour
for a period  of  two  years  and  competent  authority  approved  his
request.

      c.  On 29 February 2004, he was discharged from the Air National
Guard and transferred to the Air Force Reserve  and  was  retired  for
length of service effective 1 March 2004.
______________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 20 January 2004, under the provisions of AFI  36-
2603:

      Mr. Robert S. Boyd, Panel Chair
      Ms. Jean A. Reynolds, Member
      Ms. Carolyn B. Willis, Member

By a majority vote, the Board voted to grant the request.  Ms.
Reynolds voted to deny the request and did not desire to submit a
minority report.  The following documentary evidence was considered:


    Exhibit A.  DD Form 149, dated 5 Aug 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ANG/DPPI, dated 22 Jul 03, w/atch.
    Exhibit D.  Letter, Applicant, dated 1 Nov 03.



                                   ROBERT S. BOYD
                                   Panel Chair



                         DEPARTMENT OF THE AIR FORCE
                                WASHINGTON DC




[pic]
Office Of The Assistant Secretary

BC-2002-02537




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 APPLICANT, be corrected to show that:

            a.  On 30 April 2000, his Active Guard/Reserve (AGR)  tour
was not curtailed but on that  date  he  continued  to  serve  in  his
assignment with the Georgia Air National Guard.

            b.  On 20 May 2002, he requested an extension of  his  AGR
tour for a period of two years and competent  authority  approved  his
request.

                   c.  On 29 February 2004, he was discharged from the
Georgia Air National Guard and transferred to the Air Force Reserve and
retired for length of service effective 1 March 2004.






     JOE G. LINEBERGER

     Director

     Air Force Review Boards Agency