RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-00997
            INDEX CODE:  110.03

            COUNSEL:  ZIMMERMAN & LAVIN

            HEARING DESIRED: NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

She be reinstated in the  Texas  Air  National  Guard  (TXANG)  Active
Guard/Reserve (AGR) program, effective 15 April  2002,  with  all  pay
that was lost  (less  her  subsequent  earnings  as  a  civil  service
technician) or in the alternative, she be assigned to active  duty  in
an Air Force Reserve unit or in the Regular Air Force.

_________________________________________________________________

APPLICANT CONTENDS THAT:

She was not processed for involuntary separation  in  accordance  with
the applicable Air  National  Guard  Instruction  (ANGI)  36-101,  The
Active Guard/Reserve Program; that the allegations that served as  the
basis for the improper separation were not  supported  by  the  facts,
and; that the separation was not warranted based on the allegations.

She was ordered TDY to attend a school at Little Rock Air  Force  Base
(AFB), Arkansas from 28  January  2001  to  2  February  2001.   While
attending school, her mother notified her that the child left  in  her
mother’s care was ill but  they  decided  she  should  remain  at  the
school.  She finished the class early on 1 February 2001  and  decided
to fly home that day.  She arrived at Houston and had her mother  pick
her up at the airport.  After they stopped at her  mother’s  house  to
pick up her child, her mother drove them both to her  home.   Her  car
was being repaired at the time.  They were dropped off at her home  in
the early morning hours on 2 February 2001.

She had partially filled out her travel voucher prior to  leaving  for
school based on her itinerary.  When she completed her travel  voucher
on 6 February 2001, she counted 2 February 2001 as a travel day as she
had not arrived home until that date and was under the impression that
she was authorized to use it as her travel day.  As her travel voucher
had been partially completed prior to leaving, she only filled out the
expenses she incurred in Block 18 of the voucher.  She did not go over
the form and admits she made  a  mistake  by  not  examining  it  more
closely before submitting it.  Her voucher should have been changed to
show her departure from Little Rock occurred on  1 February  2001  and
not on 2 February 2001, as originally planned, and then arrived at her
home on 2 February 2001.  She notes that this clerical error in no way
resulted in an economic gain.

ANGI  36-101  establishes  the  procedures  to  be  followed  for  the
involuntary separation.  It provides for the initial recommendation of
the supervisor or commander, referral  to  the  member  for  rebuttal,
recommended approval/disapproval by  the  senior  commander,  and  the
ultimate decision by the Adjutant General (AG).  There is no  evidence
that her immediate supervisor was ever involved in the process and the
only opportunity she had to respond to the charges was via  letter  to
her commander on 9 November 2001.  Her involuntary separation  process
began and ended with her senior  commander,  in  direct  contradiction
with the procedures established by ANGI 36-101.  ANGI 36-101  contains
a provision that allows an AGR member to  be  involuntarily  separated
immediately, while omitting counseling or an LOR, if  the  reason  for
separation warrants immediate separation.  In  this  case,  she  notes
that more than nine months passed until her senior  commander  decided
to process her for involuntary separation.   Therefore,  there  is  no
basis for the immediate separation.

She has shown that  at  every  stage  of  the  involuntary  separation
process, she raised her concerns about the obvious noncompliance  with
ANGI 36-101 and her concerns seemed to have fallen on deaf ears.   She
contends that the alleged misconduct that served as the basis for  her
unlawful separation cannot be supported by any facts.   Any  error  in
judgment by her in this case does not warrant separation  and  is  not
supported by the governing ANGI.

She has served in varying capacities  in  the  military  for  over  16
years.  She asks that due to the noncompliance with ANGI  36-101,  she
be reinstated into the AGR program effective 15  April  2002  and  she
will continue to be an asset to her unit.

In support of her appeal, applicant submits a brief from counsel  with
enclosures.

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

_________________________________________________________________

STATEMENT OF FACTS:

On 21 February 2001, the applicant was accused of falsifying a  travel
voucher following a Temporary Duty  (TDY).   The  filing  of  a  false
travel voucher was considered a violation of Texas  Code  of  Military
Justice, section 432.151, False Official Statement.

In March 2001, she was asked by her vice commander to sign a letter of
resignation from the AGR program for the alleged violations of the  TX
Uniform Code of Military Justice (UCJM).   She  refused  to  sign  the
letter.   On  1  March  2001,  the   Wing   Commander   appointed   an
investigating  officer  (IO)  to  investigate  the  allegations.    On
22 March 2001, the IO substantiated the allegation that the  applicant
made false official statements.  On 28 March 2001, she was assigned an
official area defense counsel (ADC).

On 9 November 2001, applicant’s wing commander notified her by  letter
of his recommendation to involuntarily terminate her AGR tour  due  to
false statements made on her February  2001  travel  voucher  and  for
making false statements, during sworn testimony, during the March 2001
IO investigation.

On 14 December 2001,  her  commander  received  the  rebuttal  to  his
recommendation through her attorney.  On 3 January 2002, her commander
discounted her rebuttal in a letter to  the  Adjutant’s  General  (AG)
Human  Resources  Office  (HRO)  and  recommended  her  AGR  tour   be
terminated.

On 15 April 2002, she  was  terminated  from  the  AGR  program.   She
remained a traditional guardsman however, in the TXANG.

On 5 May 2002, she exercised her reemployment rights under Public  Law
103-353, Uniformed Services Employment and Reemployment Rights Act and
accepted a civil service  technician  position  with  her  unit  as  a
military pay technician.

On 28 February 2003, the TXANG requested a command investigation  into
the alleged improper termination of her tour.  In a memorandum dated 5
May 2003, the TX AG found “…no additional  extenuation  or  mitigation
that would cause the TXANG to amend or change its original  decision.”


On 27 December 2003, the applicant voluntarily transferred to the  Air
Force Reserve.  She has accumulated approximately 19 years of combined
active and Reserve service.

_________________________________________________________________

AIR FORCE EVALUATION:

ANG/DPPI recommends denial.  DPPI contacted the TXANG  and  notes  the
comments made by the AG regarding this case that  their  investigation
was conducted in accordance with the appropriate ANG  regulations  and
remains  valid.   Further  comments  were  that  there  had  been   no
additional extenuation or mitigation that would  cause  the  TXANG  to
amend or change its original  decision.   DPPI  queried  the  National
Guard Bureau’s Chief Counsel who replied “We are unable to  render  an
opinion on whether or not applicant had demonstrated the existence  of
material error or injustice…The members  separation/removal  from  the
AGR program was entirely a State process under State law and the basis
for the member’s removal was a violation of the Texas Code of Military
Justice and not any federal law or regulation.  As such, the  member’s
remedies may only be provided  by  the  State  or  the  TXANG.”   DPPI
concurs with the Chief Counsel’s opinion noting that the applicant was
only removed from the AGR program under the  Texas  Code  of  Military
Justice.

DPPI’s complete evaluation is at Exhibit C.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel for applicant states the recommendation  for  the  denial  for
relief in the advisory opinion  is  based  on  the  premise  that  the
applicant “was only removed from the AGR program under the Texas  Code
of Military Justice.”  Counsel states she was not  removed  under  the
Texas Code of Military Justice.  She  was  processed  for  involuntary
separation under  ANGI  36-101,  a  federal  regulation.   It  is  the
noncompliance with  this  ANGI  that  serves  as  the  basis  for  the
application.  Despite the fact that it has been  more  than  one  year
since the filing of the application, both the AG and the NGB Office of
Chief Counsel completely ignore the basis for the application.

Applicant’s 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 timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the
existence of error or injustice to warrant partial relief.  We believe
the applicant’s case, at a minimum, was mishandled  by  her  chain  of
command  as  evidenced  by  the  results   of   a   Command   Directed
Investigation that substantiated  her  allegation  that  she  was  not
properly terminated and/or notified  of  her  involuntary  termination
from her AGR position.  She admitted to making a mistake that, in  her
words, amounted to no more than an administrative  error  and  we  are
inclined to agree.  Additionally,  we  are  concerned  that  the  Vice
Commander, who asked her to resign from  her  AGR  tour,  waited  over
eight months until after he became the  Wing  Commander,  to  initiate
involuntary separation from the AGR  program  procedures  against  the
applicant and a total of 14 months to actually complete the separation
action.  Nevertheless, involuntary separation from her AGR tour  seems
a disproportionate punishment to the alleged offense and we  would  be
inclined to grant her request  for  reinstatement  to  her  AGR  tour.
However, this Board lacks the authority to grant  such  relief.   This
was explained to the applicant  whereupon  she  amended  her  request,
indicating she would be willing to serve on active duty with  the  Air
Force.  Based on the apparent mishandling of this case and  to  offset
any possibility of an injustice, we recommend she be allowed to enlist
in the Regular Air Force for a period of four years  provided  she  is
otherwise qualified.
_________________________________________________________________

THE BOARD RECOMMENDS THAT:

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

            a.  Special Order AH-53, dated 14 March 2002, relating  to
Special Order AH-13 (AGR TOUR) of 23 October 1998, be, and hereby  is,
declared void and removed from her record.

        b.  On 15 April 2002, her Active Guard/Reserve (AGR) tour  was
not curtailed  but  on  that  date  she  continued  to  serve  in  her
assignment with the Texas Air National Guard until 24 May 2004.

        c. Provided she is found morally and physically qualified  for
duty, it is further directed that on 25 May 2004, she  was  discharged
from the Texas Air National Guard and  enlisted  in  the  Regular  Air
Force in the grade of Technical Sergeant (E-6) for a  period  of  four
(4) years and was ordered Permanent Change of  Station  (PCS)  to  her
home of record pending further orders.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 25 May 2004, under the provisions of AFI 36-2603:

      Mr. Robert S. Boyd, Panel Chair
      Mr. James E. Short, Member
      Mr. Albert C. Ellett, Member

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

    Exhibit A.  DD Form 149, dated 19 Mar 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ANG/DPPI, dated 24 Mar 04.
    Exhibit D.  Letter, SAF/MRBR, dated 2 Apr 04.
    Exhibit E.  Letter, Counsel, dated 12 Apr 04.




                                   ROBERT S. BOYD
                                   Panel Chair












AFBCMR BC-2003-00997




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.  Special Order AH-53, dated  14  Mar  02,  relating  to
Special Order AH-13 (AGR TOUR) of  23  Oct  98,  be,  and  hereby  is,
declared void and removed from her record.

                   b.  On 15  April  2002,  her  Active  Guard/Reserve
(AGR) tour was not curtailed but on that date she continued  to  serve
in her assignment with the Texas Air National Guard until 24 May 2004.

                   c.  Provided she is found  morally  and  physically
qualified for duty, it is further directed that on 25  May  2004,  she
was discharged from the Texas Air National Guard and enlisted  in  the
Regular Air Force in the grade  of  Technical  Sergeant  (E-6)  for  a
period of four (4) years and was ordered Permanent Change  of  Station
(PCS) to her home of record pending further orders.





     JOE G. LINEBERGER

     Director

     Air Force Review Boards Agency