RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-02974
            INDEX CODE:  133.03, 110.03

            COUNSEL:  NONE

            HEARING DESIRED: YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His record be corrected to reflect his:

            a. Reserve grade as major rather than captain.

            b. Status as active Reserve rather than Retired Reserve.

            c. Referral  Officer  Performance  Report  (OPR)  for  the
period    1 Sep 02 through 31 Aug 03 be removed from his record.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He contends he retired on 21  March  2005  in  the  Reserve  grade  of
captain which was not his grade.  He had been promoted to the  Reserve
grade of major in 1997 and had retained that rank up to  his  transfer
to the Retired Reserve.  He was convicted of filing a false tax return
in 1997 and of making a false statement to a  Government  official  in
2003.  While he was given the option to either face an  Administrative
Discharge Board (ADB) or transfer  to  the  Retired  Reserve,  he  had
wished to remain in the active Reserve/Air National  Guard  (ANG)  and
felt he was forced to retire.  He was demoted to the Reserve grade  of
captain in conjunction with being transferred to the Retired  Reserve.
He believes he should have retained his grade of major  and  be  given
the opportunity to prove himself as a member of  the  Reserve  or  ANG
again.  He states there was insufficient  cause  to  substantiate  the
demotion and forced retirement as they were both based on  conclusions
rather than factual statements.  The administrative discharge  process
was initiated approximately November 2002; however,  his  transfer  to
the Retired Reserve did not take place until March 2004.   During  the
interim, he was not allowed to participate in Unit Training Assemblies
(UTA’s)  and  was  in  fact,  officially   barred   from   the   base.
Consequently, the OPR measuring  his  performance  during  the  forced
absence was eventually written as a referral OPR stating  he  had  not
met standards.  Further, he  was  poorly  represented  by  a  civilian
attorney who never attempted to corroborate  his  version  of  events,
never called any witnesses or military officials  on  his  behalf  and
only recommended he accept  the  prosecutors’  allegations  and  plead
guilty.

In support of his  appeal,  the  applicant  has  provided  a  personal
statement and  several  other  attachments  including  copies  of  the
referral OPR, his debarment from the base, pertinent court  documents,
paperwork regarding his involuntary transfer to the Retired Reserve, a
previous application to the AFBCMR  (BC-2004-02454),  a  point  credit
summary, several articles he authored, and his college transcript.

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

_________________________________________________________________

STATEMENT OF FACTS:

On or about 9 September 2002, the applicant, a former  member  of  the
Minnesota Air National Guard (MNANG), admitted in a written  statement
to the Air Force Office of  Special  Investigations  (AFOSI)  that  he
forged an official government document.  On 13 September 2002, he  was
officially barred from entering his installation.  He eventually  pled
guilty to and was convicted of one count of Making a  False  Statement
by United States District Court in Minnesota.  On 6 November 2002,  he
was notified by  his  commander  of  his  intent  to  administratively
discharge him from the MNANG for Misconduct; specifically  intentional
misrepresentation of facts in official statement or records; and other
serious or recurring misconduct that raises  doubt  regarding  fitness
for retention in the Air Force, regardless of whether such  misconduct
has resulted in judicial or nonjudicial punishment.   He  acknowledged
receipt of the Letter of Notification (LON) on 14 November  2002.   He
waived his right  to  make  an  appearance  before  an  administrative
discharge board but retained  the  right  to  counsel  and  to  submit
statements.  On 29 May 2003, he was sentenced to probation  for  three
years and ordered to serve two consecutive 48-hour jail terms as  well
as pay a $100 assessment and a $5000 fine.  On  3  November  2003,  he
applied for transfer to the Retired Reserve.  On 20 November 2003,  he
waived his right to an administrative discharge board and declined  to
submit statements on his behalf.  The Minnesota Adjutant  General  and
the commander of  the  MNANG  both  recommended  his  application  for
transfer to the Air Force Reserve  be  disapproved.   However,  should
SAF/PC  approve   the   transfer,   they   recommended   his   service
characterization  be  characterized  as   General,   Under   Honorable
Conditions.  HQ NGB forwarded the case  to  HQ  USAF/JA  for  a  legal
review.  On 10 January 2004, he was issued  a  Referral  OPR  for  the
period 1 September 2002 through 31 August 2003 wherein his  conviction
was noted as the statement that  he  made  no  impact  on  the  unit’s
mission during the reporting period.  On 19 May 2004, he  applied  for
transfer to the 934th Airlift Wing of the US Air Force  Reserve.   His
commander denied the request pending resolution by  the  Secretary  of
the  Air  Force  Personnel  Council’s  (SAF/PC’s)  resolution  of  his
application for transfer to the Retired Reserve.  On 29 June 2004,  HQ
USAF/JAG found his package legally sufficient and  recommended  he  be
transferred to  the  Retired  Reserve  with  the  caveat  that  SAF/PC
determine his retirement grade.  On 22 March 2005,  the  Secretary  of
the Air Force Personnel Council  (SAF/PC)  found  he  had  not  served
satisfactorily in the grade of major within  the  meaning  of  Section
1370(d) (1), Title 10, United States Code (U.S.C.).  The Secretary did
find however, that he served satisfactorily in the grade  of  captain.
SAF/PC therefore, directed he be transferred to the Retired Reserve in
the grade of captain.  He  was  transferred  to  the  Retired  Reserve
awaiting pay at age 60 effective 22 March 2005 after having served  20
years, 10 months, and 21 days.

_________________________________________________________________

AIR FORCE EVALUATION:

NGB/A1POF recommends denial.  A1POF  contends  in  its  attached  case
history that no error or  injustice  could  be  found.   There  is  no
evidence to support his request.

A1POF’s complete evaluation, with attachments, is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant contends his commander has indicated that had  he  not  been
pressured by the Wing Commander he would not have  issued  a  referral
OPR, nor would he have  recommended  an  Officer  Grade  Determination
(OGD).  He further contends another case of serious “moral  turpitude”
that recently occurred was the finding that the MN TAG  had  committed
sexual harassment  against  subordinates,  coworkers  and  subordinate
officers’ wives.  Since the  TAG  was  allowed  to  retire  without  a
referral OPR or an OGD, he believes he  has  been  held  to  a  double
standard while the major general received better treatment due to  his
position, rank and political connections.  He notes  he  has  received
several  awards  and  decorations  for  service  during  the   alleged
substandard performance during the period covered by the referral  OPR
he received.  Further, he still retains a Top Secret clearance.

Applicant’s complete evaluation, with attachments, 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.  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.  His discharge appears to be
in compliance with the governing  AFI  and  we  find  no  evidence  to
indicate  that  his  separation  from  the  Air  National  Guard   was
inappropriate.   The  applicant  was  given  the  option  to  face  an
Administration Discharge Board or retire. He chose retirement.  SAF/PC
determined he had not served satisfactorily in the  Reserve  grade  of
major and recommended he be transferred to the Retired Reserve in  the
grade of captain. With respect to the  referral  OPR,  it  appears  to
accurately reflect his service, or lack thereof, during the  reporting
period.  His argument he was not allowed to participate because he was
forbidden to enter the base somehow makes the referral OPR inaccurate,
actually only supports the referral action.  His  contention  the  OPR
failed to mention his outstanding service while on  active  duty  with
the National Guard Bureau (NGB) is without merit  as  the  outstanding
service happened prior to the referral OPR’s reporting period.   After
thoroughly  reviewing  the  evidence  of  record   and   documentation
submitted in support of applicant's appeal, we do not believe  he  has
been the victim of an error or an injustice.  Therefore, based on  the
available evidence of record, we find no basis upon which to favorably
consider 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-
2004-02974 in Executive Session on 16 May 2006, under  the  provisions
of AFI 36-2603:

      Mr. Thomas S. Markiewicz, Panel Chair
      Ms. Janet I. Hassan, Member
      Ms. Kathleen F. Graham, Member
The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 21 Sep 05, w/atchs.
    Exhibit B.  Letter, NGB/A1POF, dated 22 Mar 06, w/atchs.
    Exhibit C.  Letter, SAF/MRBR, dated 31 Mar 06.
    Exhibit D.  Letter, Applicant, dated 11 Apr 06, w/atchs.




                                   THOMAS S. MARKIEWICZ
                                   Panel Chair