RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2003-00343
INDEX CODE: 110.03
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
The following changes be made to his record:
1. Correct Standard Form-50B (SF-50B), Notification of
Personnel Action, for military administrative errors.
2. Declare invalid a civilian’s resignation of a military
commission.
3. Declare the commander’s order to resign as illegal and
coercive.
4. Declare his resignation as involuntary and invalid.
5. Declare invalid the Air Force (AF) authority cited as reason
for discharge.
6. Correct National Guard Bureau Form 22 (NGB 22), Report of
Separation and Record of Service, administrative errors.
7. Declare invalid his military discharge.
8. Declare invalid the removal of his federal recognition.
9. His mandatory promotion date to Lieutenant Colonel (05) be
changed from 1 June 1998 to a date three years from the date a
decision is reached by the AFBCMR.
_________________________________________________________________
APPLICANT CONTENDS THAT:
There are two significant events that occurred back-to-back while he
was a member of the Michigan Air National Guard (MI ANG) that has led
to this application. First, in September 1995, his fulltime military
technician position was terminated as a result of false claims by his
commander that he had lost his flying status and his security
clearance. In fact, he had not lost his flying status; a fact later
revealed by HQ USAF/XOOT, the Office of Primary Responsibility (OPR)
for Air Force flying status matters. His Top Secret security
clearance was also confirmed active and valid. The Air Force Central
Adjudication Facility (AFCAF) confirmed his standing and also reported
that no adverse information had been reported on him since his last
periodic review in 1994. Therefore, his position was terminated on
two false claims made by his commander.
Second, in October 1995, his commander illegally ordered him to travel
to Wright-Patterson Air Force Base (W-P AFB) for the purpose of
undergoing unprescribed medical treatment for alcohol abuse. He was
notified that if he did not undergo treatment he would be required to
resign or face dishonorable discharge proceedings. He did not travel
to W-P AFB for treatment and after a final warning from his commander;
he resigned his commission and was discharged on 31 January 1996 under
the auspices of AFI 36-3209 wherein the authority for discharge was
listed as voluntary resignation.
His resignation was not voluntary but due solely to the commander’s
order to resign if he refused his commander’s order to report to W-P
AFB. He contends his commander’s order was illegal because he was not
in military status. As a Guardsman, he would have to be ordered to
active duty for a period of 30 days in order to comply with said
order. He was not ordered to active duty. Further, he contends a
memorandum from AFMOA/SGOA confirmed the appropriate process for a
command directed mental health evaluation was not followed and that
the commander’s order for the evaluation was not objectively based on
any observed behavioral lapses. Finally, he contends his commander
avoided every opportunity to comply with regulations governing fitness
for duty, including a requirement that his own base medical squadron
evaluate him.
In support of his appeal, the applicant has provided a personal
statement, statements from a number of officer’s both in and out of
his chain of command, select excerpts from Air Force Instructions
(AFI’s), Air National Guard Instructions (ANGI’s), and National Guard
Bureau Technician Personnel Regulations (TPR’s), as well as several
excerpts of testimony from an NGB-IG and an Department of Defense
(DoD) IG investigation, and numerous other pertinent documents.
Applicant’s complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant transferred to the Michigan Air National Guard (MI ANG)
from the Wisconsin Air National Guard (WI ANG) in 1992. He was a
fulltime military technician with the MI ANG and served as an
Instructor Pilot (IP) until 31 January 1996 when his ANG technician
employment was terminated, he resigned his military commission and was
honorably discharged from the MI ANG. At the time of his discharge,
he had earned the rank of major (0-4) with a date of rank of
3 December 1988 and had served a total of 18 years, 8 months and 21
days of combined active and Reserve component service.
On 31 January 1996, he filed a complaint with the Air Force Inspector
General (IG) alleging the MI ANG denied him due process and violated
the Privacy Act, among other allegations. The AF IG eventually
forwarded the complaint to the Chief, NGB who, on 13 June 1996,
directed NGB-IG to conduct an investigation into the allegations. NGB-
IG concluded their investigation and substantiated the actions of the
MI ANG leadership in their handling of the applicant’s resignation and
subsequent discharge.
In September 1998, the applicant filed a Congressional Inquiry through
the office of Congressman (C/M) N--- S--- of Michigan, alleging the
NGB-IG investigation was flawed. On 28 October 1998, C/M Smith
forwarded the allegations to the Assistant Secretary of Defense that
resulted in the commencement of a December 1998 Department of Defense
(DoD) IG investigation. The DoD IG investigation took three years to
complete and ultimately found that the NGB-IG findings were not
correct in stating that the applicant’s termination was in accordance
with regulatory provisions in effect at that time.
_________________________________________________________________
AIR FORCE EVALUATION:
ANG/DPPI, after an exhaustive review of the results of consultations
and reports from several outside agencies by the NGB Judge Advocate
(NGB-JA), found that while the propriety of the civilian technician
termination lies outside the purview of the AFBCMR, the evidence
supports a conclusion that the basis for the termination (loss of
flying status and security clearance) were inaccurately stated on the
SF 50B. Further, the evidence also supports the allegation that his
resignation was not voluntary but was the result of coercion.
DPPI, based on NGB-JA’s findings, recommends relief be granted. DPPI
notes that if the Board decides to grant relief, the applicant should
be awarded the retirement points and pay and allowances he would have
earned had he not resigned his commission and his employment had not
been terminated. Further, DPPI states the applicant would have been
eligible for mandatory promotion to Lieutenant Colonel (Lt Col/0-5) on
1 June 1998.
DPPI’s complete evaluation is at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant notes he is not required to respond to the ANG/DPPI
advisory opinion, but would like to address two issues that were in
the opinion. The first concerns his mandatory promotion (to Lt Col)
date of 1 June 1998. If the Board chooses to approve his appeal, he
requests his mandatory promotion date to Lt Col be adjusted to three
years after the Boards decision. Had he not been coerced into
resigning he would have been able to compete for promotion well prior
to the mandatory promotion date of 1 June 1998. He notes that without
this three-year adjustment of his mandatory promotion date, upon the
Board’s approval of his application, he would be immediately retired
from the ANG. His goal is to continue serving. To that end, he notes
that the MI ANG’s current extraordinary effort to return him to duty
(possibly as soon as 21 February 2004) would be for naught if his
mandatory promotion date were not extended. As a result, his unfair
discharge would merely end up being effective on June 1998 instead of
January 1996 thereby making the requested relief of undoing all the
harm caused by the coerced resignation contradictory. He states the
MI ANG has the authority to promote as promotion is a state function,
but promotion dates are determined only under the auspices of federal
regulations prescribed by the Secretary of the Air Force. Therefore,
the extension of his mandatory promotion date is well within the
authority of the Board to approve.
Second, he is concerned the Board might consider not granting his
request to correct the known errors on the SF-50B as the Board may
only correct military records - not civilian records. He states the
corrected SF-50B will directly affect the outcome of an issue
currently under review in the Court of Federal claims. The Court is
reviewing his civilian severance pay, which is determined by a
voluntary or involuntary termination. Should the Board decide to
remove the three false statements in the SF-50B concerning flying
status, security clearance, and “voluntary action” their action would
enable the court to properly review the matter with truthful evidence.
He states that corrective action by the Board regarding the SF-50B
may also assist the current Adjutant General in making his
determination to reinstate his civilian position. He feels it is
right and in the interest of justice for the Board to give the AG the
opportunity to correct the error of his predecessor.
Applicant's complete response is at Exhibit E.
_________________________________________________________________
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. Sufficient relevant evidence has been presented to demonstrate the
existence of error or injustice. In this respect, we note the
following:
a. After reviewing the evidence submitted by the applicant and
noting the findings of the Department of Defense/IG and the, Secretary
of the Air Force/IGQ investigations, it is apparent that the
applicant’s commander abused his authority and the applicant’s
resignation of his military commission was the result of coercion and
not voluntary and his termination was not in accordance with
regulatory provisions in effect at the time. Based on the evidence of
record, had the applicant not been separated, he would have continued
to serve in the Air National Guard (ANG). Since he was not allowed to
serve, we believe that his record should reflect that he received
credit for satisfactory years of service for his retirement/retention
years 1995 through 2004. In this regard, we believe he should be
given an average of active and inactive duty points of his last four
years of guard service.
b. Under most circumstances, this Board believes the decision
regarding an applicant’s prospects for promotion should be addressed
by the promotion selection process. However, there are instances
where the magnitude of the injustice is such that it can only be
rectified by a Secretarial directed promotion. We believe this is
such a case. In this respect, we believe that had the applicant been
retained, he would have been considered for promotion to lieutenant
colonel by the FY98 Line and Non-Line Lieutenant Colonel Selection
Board. As redress, the AFBCMR normally would have placed the
applicant’s record before a Special Selection Board (SSB) and have the
SSB compare his record with his contemporaries. However, in this
instance recommending his consideration by an SSB would not be
practical since the applicant’s record would not have any current
performance reports. Based on the above and in view of the damaged
caused by his commander’s abuse of authority, we believe he should be
promoted to the Reserve grade of lieutenant colonel by the FY98 Line
and Non-Line Lieutenant Colonel Selection Board. In arriving at our
decision, we are keenly aware that the courts have held that
correction boards have an abiding moral sanction to determine, insofar
as possible, the true nature of an alleged injustice and take steps to
grant thorough and fitting relief. We note applicant’s request that
he be promoted to lieutenant colonel three years from the date of the
Board. However, by law, the applicant must be considered by the FY
1998 mandatory lieutenant colonel slection board, the board which we
are directing his promotion.
c. In regard to applicant's request for reinstatement in the
Air National Guard, this Board lacks the authority to grant that
relief. However, the Air Commander, 127th Wing Michigan ANG, has
provided a letter of intent informing the Board that ANG Headquarters
and the 127th Wing are currently working to find a valid vacant
officer position for the applicant within the Michigan ANG.
Therefore, we recommend that he be discharged from the ANG effective 1
March 2003 and transferred to the active reserve. If the ANG has a
vacant position in which the applicant qualifies for they can take the
necessary action to have him assigned.
d. With respect to the applicant’s request to correct his
Standard Form-50 (SF-50B), Notification of Personnel Action, 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.
Because of this dual status, the Board does not have the authority to
correct the civil service records of a guard technician. In this
regard, the applicant may seek a remedy through the Michigan ANG Human
Relation office that has the authority to make corrections to the SF-
50B in question.
______________________________________________________________
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force
relating to APPLICANT be corrected to show that:
a. All references of his resignation of his commission on
8 November 1995 be declared void.
b. On 31 January 1996, he was not honorably discharged but
continued to serve in his assignment with the Michigan Air National
Guard.
c. He was considered and selected for promotion to the Reserve
grade of lieutenant colonel by the FY98 Air National Guard Line and
Non-Line Lieutenant Colonel Selection Board and upon appointment by
the President, he be given an effective and date of rank of 1 October
1997.
d. He was credited with an additional 44 paid active duty
points, 58 paid inactive duty points, and 15 membership points for
retention/retirement year 25 October 1994 to 24 October 1995,
resulting in a 140 total points; and, that the period 25 October 1994
to 24 October 1995 was a satisfactory year of Federal service.
e. He was credited with 48 paid active duty points, 77 paid
inactive duty points, and 15 membership points for
retention/retirement years 25 October 1995 to 24 October 2003,
resulting in 140 total points; and, that the periods 25 October 1995
to 24 October 2003 are satisfactory years of Federal service.
f. During retirement/retention year 25 October 2003 to
29 February 2004 he was awarded 20 paid active duty points and 34 paid
inactive duty points for the period 25 October 2003 to 28 February
2004.
g. He was discharged from the Michigan Air National Guard on 29
February 2004 and transferred to the Active Air Force Reserve Section
effective 1 March 2004.
______________________________________________________________
The following members of the Board considered this application in
Executive Session on 2 March 2004, under the provisions of AFI 36-
2603:
Mr. Roscoe Hinton, Jr., Panel Chair
Ms. Martha Maust, 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 1 Dec 02, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, ANG/DPPI, dated 6 Jan 04.
Exhibit D. Letter, SAF/MIBR, dated 9 Jan 04.
Exhibit E. Letter, Applicant, dated 27 Jan 04.
Exhibit F. Letter, Michigan ANG, dated 3 Mar 04.
ROSCOE HINTON JR.
Panel Chair
BC-2003-00343
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. All references of his resignation of his commission on
8 November 1995, be, and hereby are, declared void.
b. On 31 January 1996, he was not honorably discharged but
continued to serve in his assignment with the Michigan Air National
Guard.
c. He was considered and selected for promotion to the
Reserve grade of lieutenant colonel by the FY98 Air National Guard Line
and Non-Line Lieutenant Colonel Selection Board and upon appointment by
the President, he be given an effective and date of rank of 1 October
1997.
d. He was credited with an additional 44 paid active duty
points, 58 paid inactive duty points, and 15 membership points for
retention/retirement year 25 October 1994 to 24 October 1995, resulting
in a 140 total points; and, that the period 25 October 1994 to 24
October 1995 was a satisfactory year of Federal service.
e. He was credited with 48 paid active duty points, 77 paid
inactive duty points, and 15 membership points for retention/retirement
years 25 October 1995 to 24 October 2003, resulting in 140 total
points; and, that the periods 25 October 1995 to 24 October 2003 are
satisfactory years of Federal service.
f. During retirement/retention year 25 October 2003 to 29
February 2004 he was awarded 20 active duty points and 34 paid inactive
duty points for the period 25 October 2003 to 28 February 2004.
g. He was discharged from the Michigan Air National Guard
on 29 February 2004 and transferred to the Active Air Force Reserve
Section effective 1 March 2004.
JOE G. LINEBERGER
Director
Air Force Review Boards Agency
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