RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-00702
            INDEX CODE:  112.10

            COUNSEL:  ANTHONY W. WALLUK

            HEARING DESIRED: NOT INDICATED

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APPLICANT REQUESTS THAT:

His denial of reenlistment be reversed and his record  be  changed  to
show he was not retired but continued to serve as a Reserve of the Air
Force Non-Commissioned Officer (NCO) to include reinstatement  to  his
full-time military technician position.  Additionally, he requests  he
be properly compensated for lost income, credit, and  opportunity  for
promotion.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The reasons for his denial of reenlistment and the procedure by  which
his  reenlistment  was  denied  were  improper  and  unjustified.   In
November 2002, he signed a National Guard  Bureau  (NGB)  Form  173-1,
Retention Interview Form, indicating his intention to  reenlist.   The
request  was  processed  but  the  counseling  requirements   of   ANG
Instruction (ANGI) 36-2607, Air National Guard Retention Program, were
not followed.  His squadron commander never interviewed him  prior  to
his separation.   In  February  2003,  the  civilian  side  (full-time
military technician) of the TXANG  initiated  suspension  and  removal
actions against him.  Those actions were reversed on  appeal,  however
at the same time, his commander annotated on  another  NGB  Form  173,
that he recommended denial of reenlistment as he had  lost  confidence
in the applicant’s ability  to  perform  his  duties.   There  was  no
counseling, no advisement of rights,  only  “you’re  fired”  after  25
years of service.

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

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

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STATEMENT OF FACTS:

The applicant, a former member of the TXANG began his military  career
on 24 April 1978.  He attained the grade  of  master  sergeant  (MSgt)
with a date of  rank  of  22  January  1998.   On  8 January  2003  he
accomplished an NGB Form 173-1 wherein  he  indicated  his  desire  to
reenlist to regain his supervisory position and to serve for 30 years.
 His Estimated Time of Separation (ETS) was 18 April 2003.

In March 2003, he was recommended for Indefinite Suspension &  Removal
(from his civilian military  technician  position)  for  being  Absent
Without  Leave  (AWOL)  on  the  morning  of  21  February  2003,  for
Discourtesy by interrupting a meeting in progress by walking into  the
meeting and putting his military ID card in front of his commander and
stating that “he quit.”  Further, and also on 21 February 2003, he was
charged with Fighting: Creating a Disturbance, when he  “got  in”  his
supervisor’s face and accused him of causing problems.  He  then  left
the unit without permission (did not submit an  approved  leave  slip)
leading to the AWOL charge.

A subsequent investigation into the above allegations shows the  State
Headquarters’ reviewing official dropped the fighting  allegation,  as
the State did not  prove  their  case.   He  did  however  uphold  the
remaining  two  charges  of  AWOL  and  Discourtesy.   He  noted   the
punishment of Indefinite Suspension  and  Removal  were  overly  harsh
under the circumstances.  He also noted the unit commander had  denied
the applicant’s request for reenlistment.  His decision therefore, was
to enforce the punishment he believed should have been levied  against
the applicant: One-day suspension for the Discourtesy finding and five
days for the  finding  of  AWOL.   Therefore,  instead  of  Indefinite
Suspension and  Removal,  the  recommendation  was  to  reinstate  the
applicant to his civilian position effective 31 March 2003  until  his
ETS of 30 April 2003 with a total of 23  days  of  back  pay  (29  day
reinstatement minus the 6 days of suspension).

Examiner’s Note:  The  ANG  Instructions  noted  by  counsel  in  this
application contain the following instructions regarding reenlistment:

      ANGI 36-2607 – paragraph 2.1.1.3, Reenlistment  Interview.  “At
least 6 months before a member's ETS, The commander  will  conduct  a
reenlistment recommendation interview with each enlisted person  that
is not retirement eligible at ETS. Follow-up interviews  by  the  UCA
and/or the ROM may  be  required  until  reenlistment  or  separation
occurs. Documentation of this interview will serve as a record of the
member's intent to reenlist at ETS as well as  the  unit  commander's
selection for reenlistment.  Signatures of both the  member  and  the
commander, with the date of the interview, are  required.  Commanders
of large units may delegate this duty to the deputy commander.”

      ANGI 36-2002 – Paragraph 4.1, Voluntary Reenlistment or Extension
of Enlistment, “When an individual desires to continue in  his/her  ANG
status without a break in service, they  may  request  to  reenlist  or
extend their current enlistment. This request will be initiated by  the
member and sent to their commander.  No individual will  be  reenlisted
or extended without the concurrence of the commander. A  commander  may
approve or deny reenlistment  or  extension  to  any  member  of  their
command. Continued retention in the ANG is a command prerogative and is
not an inherent right of any individual”.

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AIR FORCE EVALUATION:

ANG/DPFOC recommends  denial.   DPFOC  notes  the  commander  did  not
recommend  the  applicant  for  reenlistment.   He   was   given   the
opportunity to transfer to the Retired Reserve or face discharge.   He
chose to be transferred.  DPFOC notes he  was  not  processed  for  an
administrative discharge due to disciplinary infractions as is implied
in his application.  Therefore, the commander did not posses a  burden
of proof for initiating the transfer action.   DPFOC  notes  terms  of
service are governed under the principle of  administrative  finality.
If he had planned to appeal his commander’s decision, he  should  have
done so prior to his Expiration Term of Service (ETS).   Further,  any
compensation, including retirement credit or money can only be awarded
for service that is actually performed.  DPFOC notes his  request  for
promotion consideration and, under the circumstances, considers such a
request to be speculative and impractical.  DPFOC refers to his  claim
of not being counseled and contends  the  counseling  referred  to  is
counseling reserved for members with less than 20  years  of  service.
The governing Instruction clearly states counseling  is  optional  for
members with more than 20 years of service.  Instructions also dictate
members be notified of their  non-retention  by  their  supervisor  or
commander one month  prior  to  their  ETS.   Clearly,  his  commander
notified him one month prior to his ETS.

DPFOC’s complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 2
December 2005 for review and comment within 30 days.  As of this date,
this office has received no response.

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing  law
or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented  to  demonstrate
the  existence  of  error  or  injustice.   We  took  notice  of   the
applicant's complete submission in judging the  merits  of  the  case;
however, we agree with the  opinion  and  recommendation  of  the  Air
National  Guard  office  of  primary  responsibility  and  adopt   its
rationale as the basis for our conclusion that the applicant  has  not
been  the  victim  of  an  error  or  injustice.   Upon  reaching  his
Expiration Term of Service (ETS) he was not selected for retention  in
the TXANG and, because he was retirement eligible, he was offered  and
he accepted transfer to the  Retired  Reserve  where  he  is  awaiting
Retired pay at age 60.  His argument he was  not  counseled  has  been
shown to be without merit as he had over 20 years of service (eligible
for retirement) and according to regulation a counseling  session  was
not required.  He was not punished and  consequently  not  allowed  to
reenlist; he was simply not selected for retention, the responsibility
of which lies with the commander.  In arriving at our decision, we are
keenly aware that we lack the authority to reinstate the applicant  to
his  fulltime  military  technician  position  in  the  TXANG  or   to
compensate him for lost wages even if we were predisposed  to  do  so.
Therefore, in the absence of evidence to  the  contrary,  we  find  no
compelling basis to recommend  granting  the  relief  sought  in  this
application.

_________________________________________________________________

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-
2005-00702  in  Executive  Session  on  2  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 27 Jan 05, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ANG/DPFOC, dated 12 Oct 05.
    Exhibit D.  Letter, SAF/MRBR, dated 2 Nov 05.




                                   RICHARD A. PETERSON
                                   Panel Chair