RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-01849
            INDEX CODE:  110.03

            COUNSEL:  VICTOR KELLEY

            HEARING DESIRED: YES



_________________________________________________________________

APPLICANT REQUESTS THAT:

His record be corrected to show:

            a. His reinstatement to his former technical job with  the
Alabama Air National Guard (ALANG), or in the alternative, that he  be
allowed to appeal his commander’s decision  to  remove  him  from  his
aircraft mechanic position.

            b. His transfer to the Retired Reserve with all rights and
privileges thereto.

_________________________________________________________________

APPLICANT CONTENDS THAT:

While on temporary duty (TDY) with the ALANG in  Turkey,  he  lawfully
purchased 21 shotguns which he brought back to the United States on  4
March 2002.  He claimed only 10 of the shotguns  on  a  customs  form.
According to court records, by  not  claiming  all  the  guns  in  his
possession  he  underpaid  his  tariff  fees  by  $192.00.    He   was
consequently indicted and pleaded guilty to smuggling merchandise into
the United States.  At his sentencing hearing on  6  March  2003,  the
Court was forced to use Federal sentencing guidelines that resulted in
him being sentenced to 12 months  and  1  day  of  incarceration.   It
should be noted that on 5 November 2001, well in advance of the  above
events, he had been notified by the Department of the Air  Force  that
he was eligible for Reserve retirement at age 60.

On  18  December  2002,  his  commander   recommended   administrative
separation from the ANG with a service characterization of Under Other
Than Honorable Conditions  (UOTHC).   Subsequently,  he  submitted  an
application for transfer to the Retired  Reserve  that  he  failed  to
sign.  On 16 May 2003, his commander notified him by  memorandum  that
his application needed  to  be  signed  and  returned.   However,  the
memorandum was sent to the wrong address and he never received it.  On
19 May 2003, his commander placed him in a non-duty status and  barred
him from access to the base.  On 11 June 2003, his commander  directed
he be removed  from  his  military  technician  position  of  aircraft
mechanic.  On 14 July 2003, he began his incarceration.

Notwithstanding that his command had originally intended to refer  him
to an administrative separation board with a recommendation he receive
an UOTHC discharge, on 4 August 2003, he was honorably discharged from
the ALANG.  After his release  from  incarceration  in  May  2004,  he
immediately initiated contact  with  military  authorities  requesting
transfer to the Retired Reserve  as  should  have  been  done  a  year
earlier.  He  was  told  to  submit  an  application  to  the  AFBCMR.
Attempts by the applicant  and  his  counsel  to  contact  his  former
commander and Judge Advocate (JA) personnel at his  former  unit  have
either gone unanswered or, in the case of the JA, he was again advised
to submit application to the  AFBCMR.   Due  process  and  fundamental
fairness require that he should have been  given  the  opportunity  to
respond to the commander’s notification.

In support of his appeal, the applicant has provided a statement  from
counsel and  copies  of  court  documents,  his  20-year  letter,  his
commander’s  various  recommendations   for   involuntary   separation
including a request to place him in a  non-duty  status,  a  debarment
letter, removal from his technician position and  honorable  discharge
action as well as pertinent  email  trails,  correspondence  from  his
counsel and a copy of  a  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 enlisted in the ANG on 5 August 1981 and  was  progressively
promoted to the grade of technical sergeant with a date of rank  of  3
January 1996.  On 5 November 2001, he was notified of his  eligibility
for retired pay at age 60.  On 27 September 2002, he was indicted by a
Grand Jury for violating Title 18 United States Code Section 545.   He
entered into a plea agreement wherein he would plead guilty  to  Count
One of the indictment and, on 8 May 2003, was sentenced  to  one  year
and one day to be served in  Federal  prison.   On  9  May  2003,  his
commander requested approval to place him in a  non-duty  status  with
pay.  Also on 9 May 2003, he was officially  debarred  from  the  base
until further notice and would not be allowed access  without  written
permission.  He applied for transfer to the Retired Reserve in lieu of
further processing of administrative discharge for cause  asking  that
his transfer be effective 31 December  2003.   On  16  May  2003,  his
commander notified him his application  to  transfer  to  the  Retired
Reserve was not signed and he was given until 27 May 2003 to submit  a
signed application.  On 11 June 2003, he was removed from his military
technician position as a jet engine mechanic.  He  began  serving  his
sentence on 14  July  2003.   On  4  August  2003,  he  was  honorably
discharged from the ALANG after having served for 22 years.





AIR FORCE EVALUATION:

ANG/A1POF states contact with the ALANG revealed that had a signed  AF
Form 131, Application for Transfer to the Retired  Reserve,  it  would
have been processed.   The  Headquarters  AL  National  Guard  has  no
objection to the applicant’s transfer to the Retired Reserve and A1POF
therefore recommends relief be granted.   However,  the  loss  of  his
membership in the ALANG and  his  military  technician  position  were
accomplished through proper discharge proceedings and A1POF recommends
relief for his reinstatement be denied.

A1POF’s complete evaluation is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel for the applicant disagrees with the ANG’s  finding  that  his
client’s loss of his military and military technician  positions  with
the ALANG  was  accomplished  through  proper  discharge  proceedings.
Counsel argues the applicant was not afforded proper due  process  and
that should the Board not recommend reinstatement that he be given the
right to respond to  his  commander’s  notification  and  the  command
revisit the subject of his original removal once  the  command  is  in
compliance with its own regulations.

Applicant’s complete response is at Exhibit D.

_________________________________________________________________

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 regarding his transfer to the  Retired
Reserve.  It appears the applicant applied for transfer to the Retired
Reserve prior to his discharge, but his application  was  not  signed.
However, the  Headquarters  of  the  Alabama  National  Guard  has  no
objection to the applicant’s transfer to the Retired Reserve  and  the
Air National Guard Headquarters  concurs  with  the  States  position.
Therefore, the Board recommends the applicant’s records  be  corrected
as indicated below.

4.  Regarding his request he be reinstated to his former position with
the ALANG, it should  be  noted  the  Board  lacks  the  authority  to
reinstate the applicant back to his position within the  Air  National
Guard.
_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT be corrected to show that he was discharged from
the Alabama Air National Guard effective 29 December 2003, transferred
to the Individual  Ready  Reserve  effective  30  December  2003,  and
transferred to the Reserve Retired List  effective  31 December  2003,
eligible for retired pay at age 60 under the provisions of  Title  10,
USC, Section 12731.
______________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 26 April 2006, under the provisions  of  AFI  36-
2603:

      Mr. Jay H. Jordan, Panel Chair
      Mr. James A. Wolffe, Member
      Mr. Michael V. Barbino, Member

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

     Exhibit A.  DD Form 149, dated 20 May 05, w/atchs.
     Exhibit B.  Letter, NGB/A1POF, dated 22 Mar 06.
     Exhibit C.  Letter, SAF/MIBR, dated 31 Mar 06.




                                   JAY H. JORDAN
                                   Panel Chair

                         DEPARTMENT OF THE AIR FORCE
                                WASHINGTON DC


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Office Of The Assistant Secretary



AFBCMR BC-2005-01849




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 he was
discharged from the Alabama Air National Guard effective 29 December
2003, transferred to the Individual Ready Reserve effective 30
December 2003, and transferred to the Retired Reserve List effective
31 December 2003 eligible for retired pay at age 60 under the
provisions of Title 10, USC, Section 12731.





     JOE G. LINEBERGER

     Director

     Air Force Review Boards Agency