RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-01881
            INDEX CODE:  110.03

            COUNSEL:  TIMOTHY D. MATHENY

            HEARING DESIRED: NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be reinstated into the Texas  Air  National  Guard  (TXANG)  Active
Guard/Reserve (AGR) program with all due back pay and allowances.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The procedures used by the Human  Resources  Office  (HRO),  State  of
Texas Adjutant General’s  Department  for  Non-Renewal  of  AGR  Tour,
violated his rights  to  procedural  due  process  for  the  following
reasons:

             a.  The  action  initiated  to  non-renew  his  AGR  tour
originated from the Texas State HQ Human Resources Office  (HRO)  (not
his unit) and was based on old and outdated information compiled  from
an earlier unsuccessful separation action for the same reason.

             b.  The  State  HQ  did  not  provide   any   appropriate
documentation regarding their action until it was  too  late  for  his
counsel to mount an effective defense.   Consequently  his  subsequent
appeal opportunities afforded under ANG Instruction (ANGI) 36-101, The
Active Guard/Reserve Program, have been exhausted, and/or denied.

            c.  He  was  not  given  a  90-day  notice  prior  to  his
separation required by ANGI 36-101.  The  State  HQ  used  22 November
2002, the date of his notification of non-renewal, as  their  starting
point for his 90-day notice.  When they discovered he had  not  signed
the notice until 11 December 2002, the State HQ extended his  tour  an
additional 12 days until 11 March 2003.

            d. ANGI 36-101 requires any appeal of a non-renewal action
to be submitted no later than 30 days prior to  the  separation  date.
He was not able to submit an appeal under these time  constraints,  as
the supporting documentation, frequently requested by his counsel, did
not arrive  until  28  February  2003,  only  11  days  prior  to  his
separation.

Applicant contends he had been diagnosed with diabetes  that  required
he take medication that could account for rapid weight gain,  increase
in appetite, and problems with rapidly losing weight.   He  states  he
was separated prior to his reaching 18-years of service  in  order  to
keep him from reaching sanctuary (immune from  involuntary  separation
without cause).

In support of his  appeal,  the  applicant  has  provided  a  personal
statement with attachments.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant was placed on the Weight and Body Fat Management Program
(WBFMP) in August 2001.  He remained in Phase  I  of  WBFMP  until  12
February 2002, when he met weight standards and was moved to Phase  II
(a six month observation period).  On 1  August  2002,  after  meeting
weight standards for the required six-month observation period, he was
discharged from the WBFMP.

On 28 August 2001, his request for renewal of his AGR tour was  denied
and his current AGR tour was set to expire on 28 September 2001.  On 8
September 2001 however, a request from his commander that his tour  be
extended for 120 days due to stop-loss, through 26 January  2002,  was
approved.

On 25 January 2002, his AGR tour was  extended,  again  in  compliance
with stop-loss, for 120 days through 26 June 2002.  In July  2002,  he
was affected by stop-loss once more and was extended through  February
2003.

On 7 November 2002, he was weighed and found to be exceeding  the  Air
Force weight standard.  It should be noted that from  7 November  2002
through 8 January 2003 his case was held in suspense due to  a  change
of command and establishment of a new First Sergeant.

His unit had planned on extending him to FY05  in  order  for  him  to
reach his 20 years for retirement.  However, on 22 November 2002,  the
TXANG State Headquarters notified him by letter that his AGR tour  was
not being renewed  for  failure  to  maintain  medical  qualification,
physical fitness, or weight standards as required by ANGI 36-101.   He
did not acknowledge receipt of the letter until 11 December  2002,  so
the State extended his tour by 12 days  (through  11  March  2003)  to
ensure he had the allotted 90 days prior to  his  separation  date  to
submit an appeal.

On 4 January 2004, his counsel submitted a letter  to  the  State  HRO
requesting any and/or all documentation being used  as  the  basis  to
support the non-renewal action so that the  applicant  could  build  a
meaningful  response.   Counsel   also   requested   copies   of   any
recommendations for renewal or non-renewal of his  AGR  tour  and  any
documentation establishing he was advised of the alleged  failure  and
given a chance to remedy any alleged deficiencies prior  to  the  non-
renewal action being initiated.  Counsel made note in the memo that no
one at the applicant’s unit seemed to  be  aware  of  the  non-renewal
action the State had initiated.

On  8 January  2003,  his  unit  placed  him  on  the  90-day   Health
Improvement Program (HIP).  If he did not meet standards by the end of
this period he would be reentered into the WBFMP, Phase I.

On 27 February 2003, counsel requested that the State  AG  extend  the
applicant’s tour by 90 days in accordance with ANGI-36-101,  in  order
to give him time to consult counsel and  build  an  appeal.   He  also
asked that the AG withdraw the non-renewal action and reinitiate it 90
days later.  On 2 March 2003, the TX AG, in a memorandum  to  counsel,
denied counsel’s request for the 90-day extension.

Counsel received the documentation requested to support an appeal,  on
27 February 2003, approximately two weeks prior to the  expiration  of
the applicant’s AGR tour and two weeks beyond the 30-day  deadline  to
submit an appeal.  Consequently, on 17 April 2003, the AG  denied  the
applicant’s appeal.  He  was  subsequently  discharged  from  the  AGR
program effective 11 March 2003 after serving 17 years, 11 months, and
24 days of active duty.  He is  currently  serving  as  a  traditional
guardsman in the TXANG with an expiration of term of service (ETS)  of
May 2005.  At that time he  will  have  completed  over  35  years  of
combined active and Reserve service and  be  eligible  for  a  Reserve
retirement at age 60.

_________________________________________________________________

AIR FORCE EVALUATION:

ANG/DPP recommends denial.  DPP notes the applicant was given 90  days
notice with the concurrence  of  the  Wing,  Vice  and  Support  Group
Commanders.  Because  he  did  not  indicate  receipt  of  the  letter
notifying him of his non-renewal until 11 December 2002, his tour  was
extended to ensure he received the 90 days.  DPP indicates  the  TXANG
initiated disciplinary actions on a number  of  occasions  to  address
applicant’s unsatisfactory  participation  in  the  Weight  Management
Program (WMP).  He was  ineligible  for  a  subsequent  AGR  tour  for
failing to  meet  weight  standards  and  was  duly  notified  of  the
consequences for not meeting weight standards as long ago as 1995.

DPP finds the applicant has failed to produce sufficient  evidence  to
establish a probable material error or injustice under AFI 36-101, and
is of the opinion that his rights were not violated.  DPP  also  notes
that the AFBCMR lacks the jurisdiction to reinstate the  applicant  to
the TXANG AGR program.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant’s counsel requests the record show he  is  not  representing
the applicant as civilian counsel  but  as  military  defense  counsel
(MDC).  Counsel continues to be appalled by the fact that the NGB  and
TXANG continue to insist the applicant has been  afforded  substantive
and procedural due process.  Counsel  contends  the  advisory’s  claim
that applicant’s case underwent a  thorough  review  is  not  correct.
Counsel states the applicant was not  provided  any  of  the  evidence
purporting to support the adverse  actions  until  after  the  alleged
deadline for appeal (Counsel’s emphasis).  The fact that  neither  the
applicant  nor  counsel  received  any  of  the   alleged   supporting
documentation until February 27, 2003 is in  direct  contradiction  to
the instructions under which these combined  actions  were  processed.
Counsel contends applicant’s substantive and  procedural  due  process
rights, including his right to assistance of counsel, were violated.

Counsel reiterates the  application  clearly  sets  forth  the  myriad
procedural violations that  occurred  under  the  various  regulations
involving the adverse actions  against  the  applicant.   The  adverse
action depended on “stale” information from an earlier action  and  is
considered to be woefully inadequate and improperly documented  so  as
to be unusable by any current attempt at a defense.  The fact that the
applicant has  diabetes,  the  impact  of  which  was  not  adequately
documented in his record, nor the impact of which  was  considered  in
making the decision to  proceed  with  the  adverse  action.   Counsel
contends that a careful and  thorough  review  of  this  matter  would
establish that the applicant’s rights have been grossly violated in  a
rushed attempt to remove him before he gained sanctuary.

Counsel contends that  a  written  decision  had  not  been  completed
regarding this case until he (counsel) had continued  to  demand  that
one  be  accomplished.   The  written  decision  concluded  that   the
applicant had not submitted an appeal through  command  channels.   In
fact, the State HQ made any  attempt  at  an  appeal  through  command
channels impossible.  Counsel  was  not  able  to  provide  timely  or
effective advice due to the State Adjutant General and his  staff  who
engaged in conduct and action that  severely  biased  and  disregarded
applicant’s rights throughout the entire affair.

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  his  chain-of-
command as evidenced by  instances  of  miscommunication  between  the
State and the unit,  the  use  of  outdated  evidence  with  which  to
implement  and  maintain  the  non-renewal   action,   extending   the
applicant’s  tour  while  beginning  non-renewal  and/or   involuntary
separation action, and the apparent delay of certain actions in  order
to hasten his separation prior to him entering the 18-year  sanctuary.
The near total lack of regard  for  counsel’s  repeated  requests  for
pertinent evidence to help form a defense and submit an appeal to  the
TXANG is disturbing.  Especially  in  light  of  the  fact  that  when
counsel finally did receive documentation from the State, he  received
it just after the applicant’s appeal deadline had expired.  The amount
of time the applicant was given to respond to the TXANG’s  non-renewal
action and the amount of time he  was  given  to  appeal  the  State’s
decision is suspect and so is the fact that after  years  of  approved
extensions to remain on active duty, he was denied an extra 90 days to
build a rebuttal/appeal.  While we would  be  inclined  to  grant  his
request for reinstatement to the TXANG AGR program, this  Board  lacks
the authority to grant such relief. However,  based  on  the  apparent
mishandling  of  this  case  and  to  offset  any  possibility  of  an
injustice, we recommend that the records  be  corrected  as  indicated
below.

______________________________________________________________

THE BOARD RECOMMENDS THAT:

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

            a.  He enlisted in the Regular Air Force on 1 August  1984
in the grade of master sergeant; on 28 September 1986, he was released
from active duty and on 29 September 1986, he was transferred  to  the
Air National Guard Active/Guard Reserve Program.

            b. On 31 March 2003, he was discharged from the Texas  Air
National Guard and transferred  to  the  Air  Force  Reserve  and  was
retired for length of service effective 1 April 2003.

______________________________________________________________

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 28 May 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ANG/DPP, dated 12 Apr 04, w/atch.
    Exhibit D.  Letter, SAF/MRBR, dated 16 Apr 04.
    Exhibit E.  Letter, Rebuttal, dated 23 Apr 04.



                                   ROBERT S. BOYD
                                   Panel Chair


AFBCMR BC-2003-01881




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.  He enlisted in the Regular Air Force on 1 August  1984
in the grade of master sergeant; on 28 September 1986, he was released
from active duty and on 29 September 1986, he was transferred  to  the
Air National Guard Active/Guard Reserve Program.

            b. On 31 March 2003, he was discharged from the Texas  Air
National Guard and transferred  to  the  Air  Force  Reserve  and  was
retired for length of service effective 1 April 2003.





     JOE G. LINEBERGER

     Director

     Air Force Review Boards Agency