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