RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2007-02023
                                             INDEX CODE:  110.03, 128.10,
                                                 128.14, 135.03
      XXXXXXXXXXXXX                     COUNSEL:  XXXXXXXXXXXXXXXXXX

                                             HEARING DESIRED:NOT INDICATED

________________________________________________________________

APPLICANT REQUESTS THAT:

He be placed back on his Active Guard Reserve (AGR) tour,  given  back  pay,
and absolved from any alleged debt owed to the U.S. Government.

________________________________________________________________

APPLICANT CONTENDS THAT:

AF/REAMO violated its own instruction, AFI 36-2132, paragraph 2.7,  and  AFI
36-3209, paragraph 3.12.5.1.2, by discharging him from an AGR tour.

He did not receive, in a timely manner, proper orders, a properly  completed
DD Form 214, or a final pay and accounting.

He was paid from October  2006  –  January  2007  while  he  was  undergoing
medical testing.  In January 2007, his pay was stopped, he  received  notice
that he was discharged in September 2006, and DoD FAS [sic] alleges he  owes
the government more than $11,700.

In support of his appeal, he has provided copies of two statements from  his
counsel to SAF/MRBR, dated 23 February 2007 and 25 June 2007, his  AGR  Tour
Curtailment Worksheet, his DD Form 368, Request for Conditional Release,  an
e-mail from AF/REAMO to the 434th MSF/DPM, addressing his reentry  into  the
AFR and AGR Program, an  e-mail  trail  between  ARPC/DPAAB  and  the  434th
MSF/DPMSA addressing his AFR status, an AF/REAMO  document,  Procedures  for
Tour Curtailment Requests, an AGR Tour Curtailment Fact Sheet,  an  AF/REAMO
Talking Paper on AGR Retirement and Separation  Process,  an  AF  Form  422,
Physical Profile Serial Report, an e-mail  trail  between  his  counsel  and
AF/REAMO addressing his request for the applicant’s  re-instatement  to  his
AGR position and his indebtedness to the U.S. Government, a letter from  his
counsel to AFRC/JA addressing his discharge from the AFR,  an  e-mail  trail
between his counsel and AFRC/JA addressing his discharge from  the  AFR  and
reinstatement to his  AGR  position,  a  letter  from  the  Care  Group  LLC
addressing his diagnostic cardiac catheterization, an e-mail  trail  between
his counsel and DFAS-JED addressing his rebuttal of his indebtedness to  the
U.S. Government, a letter from his counsel to  DFAS-JEDC/DE  addressing  his
indebtedness to the U.S. Government, a statement to  DFAS-JEDC/DE  that  his
counsel represents him and his interests in all matters  pertaining  to  his
account, and a letter from DFAS-JEDC/DE notifying him  of  his  indebtedness
to the U.S. Government.

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

________________________________________________________________

STATEMENT OF FACTS:

The AGR Program was established by Title 10,  United  States  Code,  and  is
administered by Air  Force  Instruction  36-2132,  Full-Time  Support  (FTS)
Active Guard Reserve (AGR) Program, a copy of which is at  Exhibit  H.   The
Program consists of FTS personnel who are responsible for assisting  in  the
organization, administration, recruitment,  instruction,  training,  supply,
and maintenance support to the Air Force Reserve (AFR).  All  AGR  personnel
are counted against authorized Selected  Reserve  (SELRES)  end-strength  as
authorized by Congress each year, and all AGR personnel  must  be  accounted
for in end-strength and personnel reporting systems.  The Chief of  the  Air
Force Reserve (AF/RE)  provides  oversight,  policy,  and  guidance  on  AGR
career management, and the AGR Management Office (AF/REAMO) is  the  central
point of contact for all AGR matters and is  responsible  for  managing  the
day-to-day administration of the overall AGR Program.

Initial entry  into  the  AGR  Program  is  by  individual  application  for
selection for assignment to a  funded,  validated,  Unit  Manpower  Document
(UMD)  position  (overages  and  overgrades  are  not  authorized),  and  an
applicant must  meet  all  AFR  accession  standards  and  be  selected  and
approved by AFRC/CC as the best-qualified among other qualified  individuals
to support AFR mission  requirements.   Members  selected  for  initial  AGR
tours must meet the physical qualifications outlined in AFI 48-123,  Medical
Examination and Standards, and  each  AGR  applicant  will  have  a  medical
examination prior to entry on an AGR tour.  Initial tours are  normally  for
four years, and, unless the individual is serving on an occasional AGR  tour
or a one-time AGR tour, all enlisted and officer AGR personnel are  normally
reviewed by the AGR Review Board (ARB) 10-15 months prior to their  date  of
separation (DOS) for possible entry into the AGR Career Program which  could
lead to a military retirement after attainment  of  the  required  years  of
active Federal Military Service.

AGRs may request an early release from their  AGR  tour  based  on  position
realignment, personal hardship, or  other  valid  reasons.   AGRs  submit  a
curtailment request through their chain of command to arrive at AF/REAMO  no
later than 180 days prior to the requested DOS, and exceptions to  the  180-
day rule are considered on a  case-by-case  basis.   An  AGR  must  normally
serve  at  least  two  years  of  their  current  assignment  and   complete
applicable  service  commitments  before   being   approved   for   release.
Curtailment  packages  must  contain  a  detailed   written   request   with
justification, a requested DOS, and  appropriate  supervisor  and  commander
endorsements through the appropriate chain of command.

A review of the applicant’s records indicates that  he  was  serving  on  an
initial AGR tour at Grissom ARB, IN, which commenced on 1 Jan 2006,  with  a
DOS of 31 Jan 2010.  On 14 August 2006, he signed a  DD  Form  368,  Request
for Conditional Release, for enlistment/appointment  into  the  Active  Duty
U.S. Army, which was approved on 20 September 2006, valid until  14 November
2006.  On 26 August 2006, he  signed  an  AGR  Tour  Curtailment  Worksheet,
requesting that his AGR tour be curtailed so he could enlist in  the  Active
Duty Army, with a desired DOS of 30 September 2006.

The applicant was released from his AGR tour  on  30  September  2006,  and,
instead of being conditionally released  (pending  acceptance  by  the  U.S.
Army) from the AFR, he was erroneously unconditionally discharged  from  the
AFR on 30 September  2006.   He  was  subsequently  found  to  be  medically
disqualified for entrance into the U.S. Army, and  was  re-accessed  by  the
AFR as a Traditional Reservist in the  434th  Air  Refueling  Wing,  Grissom
ARB, IN.   He  continued  to  erroneously  receive  active  duty  (AGR)  pay
totaling $11,714.72 after his AGR tour  curtailment  date  of  30  September
2006

________________________________________________________________

AIR FORCE EVALUATION:

AFRC/A1B  recommends  denial  of  any  relief,  and  references  an  AFRC/JA
memorandum to the applicant’s counsel, dated 8 March 2007, which  they  have
attached.

AFRC/JA  advised  that  the  applicant’s  request  for  voluntary  AGR  tour
curtailment, subsequent discharge, and request for AGR pay debt  forgiveness
are three distinct and separate actions.   His  request  for  voluntary  AGR
tour curtailment was for the purpose of seeking  enlistment  in  the  Active
Duty Army, and, in order for that to happen, two actions had  to  occur;  he
had to request voluntary curtailment of his  AGR  tour  and  he  had  to  be
conditionally released from the AFR.   On  26  August  2006,  the  applicant
completed and submitted the AGR Tour  Curtailment  Worksheet  which,  unlike
his  conditional  release  request,  is  unconditional  and  its  acceptance
independent  of  any  underlying  basis.   AF/REAMO  normally  requires  the
referenced worksheet to be submitted at least 120 days {sic}  prior  to  the
requested date of  curtailment;  however,  the  applicant  was  anxious  and
insistent that action on his  voluntary  curtailment  request  occur  on  or
before 30 September 2006.  They accommodated his request  and  approved  his
desired AGR curtailment date of 30 September 2006.  Once his  AGR  tour  was
curtailed, he became just like any other AFR member and became  eligible  to
apply for  any  qualified  position  assuming  he  is  medically  qualified.
Application and medical qualification  do  not  guarantee  acceptance,  they
simply mean he may be considered among any and all qualified candidates.

In order to enlist in the Army, the applicant was required to  submit  a  DD
Form 368, Request for Conditional Release, from the AFR,  which  he  did  on
14 August 2006 and which was approved on 20 September 2006.   A  conditional
release is  only  effective  for  entrance  into  another  military  service
component, and is ineffective if the applicant is not accepted by the  other
military service component.  In the applicant’s  case,  he  was  erroneously
unconditionally discharged from  the  AFR  on  30 September  2006,  and  was
subsequently found to be medically disqualified for entrance into the  Army.
 Thereafter, the AFR, upon learning that he had been mistakenly  discharged,
re-assessed him into the AFR as a Traditional Reservist with the  434th  Air
Refueling Wing at Grissom ARB, IN.  However, his re-assessment into the  AFR
did not entitle him to being restored to his previous AGR  tour  from  which
he  voluntarily  requested  curtailment.   They  advise  that  it  is  their
understanding that the applicant currently suffers from a medical  condition
necessitating Physical Evaluation Board (PEB) review and, as a  consequence,
is not medically qualified at this time for an AGR tour.

The applicant continued to receive active  duty  (AGR)  pay  after  his  AGR
curtailment date of 30 September 2006; in essence, he received pay  but  did
not perform duty,  and  the  United  States  now  seeks  recoupment  of  the
unearned  pay.   Although  this  was  an  administrative   error,   it   is,
nonetheless, a legitimate debt owed, and the applicant may submit  a  waiver
of claims for erroneous payments of pay and allowances by working  with  the
434th Air Refueling Wing Financial Management Section.

The AFRC/A1B evaluation, with attached AFRC/JA advisory, is at Exhibit C.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

AFRC offers no  regulatory,  statutory,  or  other  authority  for  the  Air
Force’s  wrongful  termination  of  his  AGR  tour,  for  its   refusal   to
acknowledge the wrong-doing of its staff personnel, or for  its  refusal  to
cite authority for the summary denial  of  his  request  for  reinstatement.
Instead, they  contend  that  AF/REAMO  merely  complied  with  his  alleged
“insistence” that he be released from the Air Force so that he  could  enter
the Army.

AFRC asserts that “he had to request voluntary AGR curtailment  which  would
release him from his contract of current  active  duty  service  (AGR  Tour)
with the Air Force Reserve, and he had to  be  conditionally  released  from
the AFR for each of the acronyms stated  there.   Otherwise,  with  his  AGR
Tour curtailed, he would simply become  a  traditional  reservist…On  August
26, 2006, he completed his voluntary request  for  curtailment  of  his  AGR
Tour.”  AFRC conveniently glosses over the  fact  that  he  was  told  these
documents were required in order for him to  merely  be  considered  for  an
Army tour.  They fail to disprove his contention that  a  sergeant  assigned
to the 434th MSF, in fact,  completed  the  form  and  inserted  the  “short
notice” request, and they also  fail  to  address  the  fact  that  AF/REAMO
policy and regulation require a curtailment  request  to  be  submitted  120
days  before  the  requested  date  of  curtailment.   Contrary  to   AFRC’s
assertion, AF/REAMO did not accommodate his  short-notice  request;  rather,
the sergeant at the 434th MSF and AF/REAMO expedited his exit from  his  AGR
tour for their own purposes.  AF/REAMO sought to discharge  him  before  the
end of the fiscal year for monetary reasons, and has ignored this fact  each
time it was brought up.

AF/REAMO failed to follow their own regulations  and  improperly  discharged
him  from  his  full-time  occupation  as  an  AGR  at  Grissom   ARF,   IN.
Specifically,  AF/REAMO  negligently  and  improperly  discharged  him   and
refused to accept responsibility for their negligence, and as  a  result  of
that negligent discharge, he has  incurred  a  debt  of  over  $11,000,  and
AF/REAMO  initiated  procedures  to  permanently  discharge  him  under  the
pretext  of  a  non-service  connected  medical  disability.   He   recently
received a medical waiver from the Air Force Surgeon General and  there  is,
therefore, no legal or medical impediment to  reinstating  him  to  his  AGR
position.

The Air Force discharged him as of 30 September 2006  without  providing  to
him proper notice or completing  of  the  three  significant  out-processing
events which make a discharge effective:  a properly executed DD  Form  214,
orders releasing him from active duty from the AGR Program, and a final  pay
and accounting.  They also failed to administer  to  him  any  exit  dental,
medical, or mental health examinations.  Accordingly, they contend  that  he
was never properly discharged from the Air Force, and he continues  to  lose
benefits and pay, and incur additional expenses as  he  asserts  his  rights
and attempts to rectify the Air Force’s unlawful discharge of him.

The applicant’s complete response is at Exhibit E, F, and G.

________________________________________________________________

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 opinions and recommendations of the Air Force  offices  of  primary
responsibility and adopt their rationale as the  basis  for  our  conclusion
that the applicant has not been the victim of an error  or  injustice.   The
applicant’s contentions are noted; however, he has not provided evidence  to
substantiate these contentions.  Of significance to the Board  is  the  fact
that  although  he  claims  his  AGR  Tour  was  wrongfully  terminated,  he
completed and submitted the AGR  Tour  Curtailment  Worksheet  on  26 August
2006, with a stated reason for his request being to  enlist  in  the  Active
Duty Army and a desired DOS of 30 September 2006.   Curtailment  of  an  AGR
Tour is unconditional and  its  acceptance  independent  of  any  underlying
basis.  Once a member curtails their AGR tour, they  become  just  like  any
other AFR member and must apply, be considered,  and  be  selected  for  any
qualified AGR position among any and all qualified candidates, and  his  re-
assessment into the AFR  as  a  Traditional  Reservist  and  recent  medical
waiver from the Air Force Surgeon  General  do  not  entitle  him  to  being
restored to his previous  AGR  tour  from  which  he  voluntarily  requested
curtailment.  His contention that he was never properly discharged from  the
Air Force since he did not receive, in a timely manner, a properly  executed
DD Form 214, orders releasing him from active duty  from  the  AGR  Program,
and a final pay and accounting, and that they failed to  administer  to  him
any exit dental, medical, or mental health examinations,  is  without  merit
and does not alter the fact that he voluntarily curtailed his  AGR  tour  on
30 September 2006, and continued to receive AGR pay thereafter but  did  not
perform AGR duty.  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  Docket  Number  BC-2007-02023
in Executive Session on 4 December 2007, under the  provisions  of  AFI  36-
2603:

                       Ms Kathleen F. Graham, Panel Chair
                       Mr Richard K. Hartley, Member
                       Mr Reginald P. Howard, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 27 Jul 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFRC/A1B, dated 4 Sep 07, w/atch.
    Exhibit D.  Letter, SAF/MRBR, dated 14 Sep 07.
    Exhibit E.  Letter, Applicant’s Counsel, dated 18 Sep 07.
    Exhibit F.  Letter, Applicant’s Counsel, dated 25 Sep 07.
    Exhibit G.  Letter, Applicant’s Counsel, dated 1 Oct 07.
    Exhibit H.  AFI 36-2132, dated 19 Apr 05.




                                   KATHLEEN F. GRAHAM
                                   Panel Chair