RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-03580
            INDEX CODE:  100.06, 131.09

            COUNSEL:  NONE

            HEARING DESIRED: YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

The following changes be made to his military record:

            a. His demotion from technical sergeant  (TSgt)  to  staff
sergeant (SSgt) be removed from his record and that  he  be  paid  the
difference in the two grades from the date of his demotion forward.

            b. He be considered for promotion to the grade  of  master
sergeant (MSgt).

            c. Block 26 (Reenlistment  Eligibility)  of  his  National
Guard Bureau (NGB)  Form  22,  Report  of  Separation  and  Record  of
Service,  be changed from “Ineligible” to “Eligible.”

            d. He be given credit for two  years  of  working  in  the
federal system so he would be eligible for his  20-year  pension.   If
not, assistance in gaining federal employment for  two  years  to  the
same end.

            e. He receive financial compensation for undo  stress  and
character defamation.

            f. He receive an honorable discharge certificate.

_________________________________________________________________

APPLICANT CONTENDS THAT:

After serving honorably for over 20 years in the U.S.  Air  Force  and
the California Air National Guard  (CAANG),  his  career  came  to  an
abrupt end at the hands of his morally corrupt commander.  He contends
his commander thought he knew something about his commander’s  affairs
with  a  female  co-worker.   Consequently,  his  commander  used  his
authority to deny him reenlistment based  on  the  assumption  he  was
spreading rumors about the affair.  He was not spreading  rumors,  but
the commander did what it took to get rid of him.  His  commander  has
since been removed for sexual harassment.   Around  January  2000,  he
received word from an administrative  law  judge  regarding  an  Equal
Employment  Opportunity  Commission  (EEOC)  complaint  he  had  filed
regarding his position.  The settlement agreement discussed  with  the
base commander and the base Judge Advocate General (JAG) was  for  him
to be moved to another technician position on the base.   On  16 March
2000, on advice from his doctor, he went on sick leave until 10  April
2000.  He contends his illness was stress-related due to five years of
waiting for the conclusion of the EEOC findings.  On  29  March  2000,
his commander placed him on orders and over the phone ordered him back
to duty.  He states the  commander  gathered  some  witnesses  in  his
office to hear him order the applicant back to work.  He  contends  he
explained to his commander he was on  sick  leave  by  orders  of  his
doctor.  He then called the HRO office at the CA  State  HQ.   He  was
told to stay home.  He called his base commander and was asked to come
in the next day to discuss the matter.  On 30 March 2000, he met  with
his commander and the base commander.  On 11 July 2000 he was  demoted
from TSgt to SSgt for not reporting to work as ordered.  He  wrote  to
his congressman and received a reply  with  a  letter  from  his  unit
attached that included lies and statements that defamed his character.
 On 8 August 2000, he began  his  new  position  (resulted  from  EEOC
settlement agreement) and applied for technical training school (TTS).
 His TTS application went through normal channels until it reached his
former commander whereupon the application stalled until  it  was  too
late for him to turn it in.  On 12 October 2000, he was given a letter
of non-retention by his squadron commander and told he was  not  being
retained due to an established pattern of misconduct.

In  support  of  his  appeal,  the  applicant  has  provided  personal
statements, copies of performance appraisals, award of the  Air  Force
Good Conduct Medal (AFGCM), a letter from his doctor,  an  Article  15
action,  retention  interviews,  a  letter  of   response   from   his
representative, a timeline, letters of support and  apology  from  co-
workers, his resume, letters  of  appreciation,  training  and  awards
certificates,  and  copies  of  his  NGB  22  and  his  DD  Form  214,
Certificate of Release or Discharge from Active Duty.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant, a former  member  of  the  California  Air  National  Guard
(CAANG), began his military career on 27 July 1977.  After 4 years,  8
months, and 9 days of active Air Force service, he transferred to  the
ANG in April 1982.   He  was  eventually  promoted  to  the  grade  of
technical sergeant (TSgt) but was demoted to staff sergeant  effective
and with a date of rank (DOR) of 11 July 2000 for  failing  to  report
for duty.  On 9 September 2000, his commander notified him he was  not
to be retained in the CAANG in  accordance  with  Air  National  Guard
Instruction (ANGI) 36-2002, Enlistment and  Reenlistment  in  the  Air
National Guard and as a Reserve of the  Air  Force.   He  acknowledged
receipt of the non-retention action on 12 October 2000.   On  3  April
2001, he voluntarily initiated and signed the AF Form 131, Transfer to
the Retired Reserve.  His chain of command approved  the  request  for
transfer on 4 April 2001.  He was  subsequently  honorably  discharged
from the CAANG effective 15 June 2001, in the  grade  of  SSgt,  after
having served for 24 years.

_________________________________________________________________

AIR FORCE EVALUATION:

DPFOC contends the applicant was notified in writing by the  commander
of  his  unit’s  intent  to  non-retain  him   and   he   acknowledged
notification  of  receipt  on  12  October  2000.   Therefore,   DPFOC
specifically recommends denial of  his  request  to  reenlist,  to  be
restored to the grade of TSgt,  consideration  for  promotion  to  the
grade of master sergeant (MSgt),  and  his  request  for  a  discharge
certificate.  DPFOC  contends  his  request  for  reinstatement  is  a
civilian issue  and  should  be  addressed  by  the  California  Human
Resource Office.  Finally, DPFOC contends his  request  for  financial
compensation is a civil matter and notes the ANG has no  authority  to
authorize financial compensation.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant contends the notification of  non-retention  he  signed  was
ludicrous.  He  was  demoted  because  he  failed  to  come  to  work.
However, he had told his immediate commander he was on doctor’s orders
to stay home.  Further, he had called the  Human  Resource  Office  in
Sacramento and they also had told him to stay home.

Regarding the issue he voluntarily applied for transfer to the Retired
Reserve list, he contends his application was not voluntary  and  that
he was told that upon signing the application he would  have  no  more
trouble.  He questions  the  ANG  advisory  opinion’s  contention  his
application to the Retired Reserve  excludes  him  from  reenlistment,
rank restoration, and promotion consideration and questions  the  ANGI
supporting the ANG’s contention.

He questions, since he was honorably discharged, why he should not  be
able to receive a discharge certificate.

Applicant’s complete response, with attachments, 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.  Insufficient relevant evidence has been presented  to  demonstrate
the existence of error or injustice.  After a thorough review  of  the
evidence of record and applicant's submission, we  are  not  persuaded
that his uncorroborated assertion of command retribution  denying  him
reenlistment, in and by itself, sufficiently  persuasive  to  override
the rationale provided by the Air National Guard.  Therefore, we agree
with the opinion and recommendation of the Air National  Guard  office
of primary responsibility and adopt its  rationale  expressed  as  the
basis for our decision that the applicant has failed  to  sustain  his
burden of having suffered  either  an  error  or  injustice.   He  was
considered for reenlistment but was recommended for  non-retention  by
his  commander  whereupon  he  voluntarily  applied  for  the  Retired
Reserve.  Further, his commander’s issuance of  intent  to  non-retain
him, of which he acknowledged receipt, excludes him from reenlistment,
rank  restoration,  and  promotion.   Reinstatement  to  his  fulltime
military technician position and to financial compensation, while  not
within the Board’s purview, may be addressed  by  the  State  HRO  and
civil authorities, respectively.  Issuance of  discharge  certificates
are the responsibility of the member’s unit although the  Air  Reserve
Personnel Center (ARPC) may also be able to provide assistance in this
regard.  Therefore, in the  absence  of  persuasive  evidence  to  the
contrary, we find no compelling basis to recommend granting the relief
sought in this application.

4.  The applicant's case is adequately documented and it has not  been
shown  that  a  personal  appearance  with  or  without  counsel  will
materially  add  to  our  understanding  of  the  issue(s)   involved.
Therefore, the request for a hearing is not favorably considered.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of material error  or  injustice;  that  the
application was denied without a personal  appearance;  and  that  the
application will only be reconsidered upon  the  submission  of  newly
discovered relevant evidence not considered with this application.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2004-03580  in  Executive  Session  on  1  December  2005,  under  the
provisions of AFI 36-2603:




      Mr. Richard A. Peterson, Panel Chair
      Mr. James W. Russell, III, Member
      Mr. Joseph D. Yount, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 16 Nov 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ANG/DPFOC, dated 28 Jul 05, w/atch.
    Exhibit D.  Letter, SAF/MRBR, dated 5 Aug 05.




                                   RICHARD A. PETERSON
                                   Panel Chair