RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2010-01200 

 

 COUNSEL: NONE 

 

 HEARING DESIRED: YES 

 

 

________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

1. His military service be recomputed so that he may qualify 
for a reserve retirement. 

 

2. By amendment, he requests that he be credited with 
satisfactory reserve service for retirement for the period 
15 Mar 01 through 11 Aug 05 and consideration for any promotion 
to E-9 he would have received during such service. 

 

3. He be given back pay, allowances, and any promotions he 
would have earned had he been commissioned a warrant officer one 
(W-1) in the Maryland Army National Guard (MDARNG). 

 

________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

His conditional release from the New Jersey Air National Guard 
(NJANG) to join the MDARNG was mis-handled and caused him to be 
unable to finish his military career. He was recruited for a 
warrant officer position with the MDARNG. He obtained a 
conditional release from the NJANG and took the Oath of Office 
with the MDARNG. Unfortunately, due to a variety of 
circumstances beyond his control over the course of several 
months, he was unable to be accessed into the MDARNG. In the 
interim, he was erroneously discharged from the NJANG in a way 
that rendered him ineligible to return to complete his service. 
He originally petitioned the Army Board for Correction of 
Military Records (ABCMR) for relief, only to be told he needed 
to submit his application before the AFBCMR. He contends that 
he has over 18 years of reserve service and therefore should not 
have been discharged by the NJANG, but been allowed to complete 
his service under the provisions of 10 USC 1176(b) which 
provides sanctuary to reserve enlisted members who have between 
18 and 20 years of service. 

 

In support of his request, the applicant provides a voluminous 
submission, which includes an expanded statement, copies of his 
previous applications to the ABCMR, as well as correspondence 
related thereto. 

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

 

_________________ ______________________________________________ 

 

STATEMENT OF FACTS: 

 

Available military personnel records indicate the applicant 
submitted a request for a conditional release from the NJANG on 
9 Mar 01 and competent authority approved his request the same 
day. 

 

On 15 Mar 01, the applicant completed the oath of office with 
the MDARNG as a warrant officer one (W-1). 

 

On 11 Aug 05, the applicant was honorably discharged from the 
ANG, effective 14 Mar 01, in the grade of senior master sergeant 
(E-8) and was credited with 17 years, 11 months, and 9 days of 
total satisfactory reserve service; and 18 years, 10 months, and 
23 days of service for pay. His NGB Form 22, National Guard 
Bureau Report of Separation and Record of Service, Block 26, Reenlistment Eligibility, indicated he was ineligible for 
reenlistment. 

 

On 27 Mar 06, and again on 29 Mar 06, via applications to the 
ABCMR, the applicant requested his records be corrected to 
reflect he was commissioned a warrant officer in the MDARNG, 
effective the date of his oath of office, with all back pay, 
allowances, promotions, and appropriate service credit for 
retirement purposes. 

 

On 7 Apr 06, the NJANG issued a NGB Form 22A, Correction to NGB 
Form 22, changing the applicant’s reenlistment eligibility to 
“Eligible.” 

 

On 5 Sep 06, the Chief, ABCMR Case Management Division notified 
the applicant that he had not exhausted all his administrative 
remedies as required by Army Regulations and therefore returned 
his applications without action. 

 

On 18 Mar 09, the applicant submitted a request to the ABCMR 
requesting his military service be recomputed to show that he 
had attained the requisite service for a reserve retirement. 

 

On 8 Sep 09, the Chief, ABCMR Case Management Division notified 
the applicant the ABCMR lacked authority to act on his 
application, noting the action sought would require correction 
of an Air Force record. Accordingly, the applicant was advised 
to submit an application to the AFBCMR. 

 

The remaining relevant facts pertaining to this application are 
contained in the letter prepared by the Air Force office of 
primary responsibility (OPR), which is attached at Exhibit E. 

 

________________________________________________________________ 


AIR FORCE EVALUATION: 

 

NGB/A1POE makes no recommendation, indicating the applicant has 
not provided sufficient documentation upon which to weigh the 
merits of his case. While it appears that he believes he should 
not have been discharged and wants to be credited with 
sufficient time in service to qualify for a reserve retirement, 
he has not provided sufficient documentation to make a 
determination at this time. As such, he should obtain the 
appropriate supporting documentation to clarify the 
circumstances surrounding his request. 

 

A complete copy of the NGB/A1POE evaluation is at Exhibit C. 

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

The applicant refutes certain facts described in the NGB/A1POE 
evaluation, indicating that his only desire is to complete his 
twenty years of military service and retire. If the MDARNG had 
stuck with its commitment, he would have retired by now. His 
desire is to receive all back pay and benefits and be afforded 
the opportunity to retire with dignity and pay, something he has 
earned throughout his service in the military. Through no fault 
of his own, he was prevented from being accessed into the 
MDARNG, an injustice compounded by the NJANG’s action to 
erroneously discharge him with a reenlistment code that 
precluded his return. Furthermore, he reiterates that according 
to his NGB Form 22, he attained over 18 years of service, thus 
entitling him to the protections of enlisted sanctuary under the 
provisions of 10 USC 1176(b). 

 

In support of his response, the applicant provides an expanded 
statement and copies of two affidavits related to the matter 
under review, a fact sheet regarding 10 USC 1167(b), his 
NGB Form 22, DD Forms 214, point credit accounting summary, and 
various records and correspondence related to his conditional 
release from the NJANG and attempted appointment into the MDARNG 
(Exhibit E). 

 

________________________________________________________________ 

 

ADDITIONAL AIR FORCE EVALUATION: 

 

NGB/A1PO recommends some form of relief be granted, indicating 
the information provided substantiates that an error took place. 
The evidence indicates the applicant applied for and was 
initially accepted for a warrant officer position with the 
MDARNG; he was granted a conditional release from the NJANG; and 
he subsequently took an Oath of Office with the MDARNG, 
effectively releasing him from his commitment to NJANG in 
accordance with DoDI 1205.19, Procedures for Transfer of Members 
Between Reserve and Regular Components of the Military Services. 
While it is unclear what guidance he received, it would be 


difficult to hold the applicant totally responsible for the 
outcome of his present situation. He could have continued to 
participate in normal drills while he was waiting for the ARNG 
to settle its internal issues related to his pending 
appointment, thereby continuing to build up satisfactory service 
toward eligibility for a reserve retirement. However, there 
does not appear to be any evidence that he was contacted 
regarding the impact of his lack of participation in normal 
drill activities. Furthermore, because he took the oath of 
office with the MDARNG, it would appear he had a legal 
obligation to them and he may have believed he could not return 
to his unit to participate. As such, he could have been 
processed for separation from the ARNG in a more timely fashion, 
thereby allowing him an opportunity to return to his unit since 
the provision of his conditional release had not been met. In 
view of the above, the applicant should be allowed to return to 
his unit to complete his service, or be credited for the time he 
would have served while waiting for the ARNG to resolve the 
disconnect with the position for which he applied. As regards 
to his contention there is a disparity between the satisfactory 
service credited on his point summary versus the service 
reflected his NGB Form 22, the latter reflects total service for 
pay purposes, regardless of how much of that service is 
satisfactory service. His point credit summary accurately 
reflects that he did not attain the requisite 18 years of 
satisfactory service to qualify for the enlisted sanctuary 
provision. 

 

A complete copy of the NGB/A1PO evaluation is at Exhibit F. 

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 

 

The applicant agrees that he should be credited with 
satisfactory service for the time he waited for the MDARNG to 
resolve their issues and believes he should receive service 
credit from 15 Mar 01 through 11 Aug 05 and be considered for 
any promotion to E-9 he would have received during such service. 
He also contends that under NGB Equal Employment Opportunity 
(EEO) and Inspector General (IG) policy, a person affected by an 
impropriety should be made whole. Therefore, he believes that 
he should be afforded all pay, allowances, and promotions as if 
he were commissioned a warrant officer with the MDARNG. 

 

In support of his response, the applicant provides an expanded 
statement and a copy of a letter related to his attempted 
appointment with the ARNG (Exhibit H). 

 

________________________________________________________________ 

 

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 a probable error or injustice 
warranting corrective action. The applicant contends that his 
conditional release from the New Jersey Air National Guard 
(NJANG) to join the Maryland Army National Guard (MDARNG) was 
mis-handled in such a way as to preclude him from attaining the 
requisite service for a reserve retirement. After a thorough 
review of the evidence of record and the applicant’s complete 
submission, including his responses to the Air Force 
evaluations, we agree. In this respect, we note the comments by 
NGB/A1PO indicating that while the applicant could have returned 
to the NJANG to continue to participate, the fact he was allowed 
to take an Oath of Office with the MDARNG could have led him to 
believe he had an obligation to the MDARNG and, thus, could not 
return to the NJANG to participate while the issues regarding 
his accession to the MDARNG were resolved. It is also apparent 
that NJANG officials did not have a clear understanding of how 
these circumstances affected his status as a member of the 
NJANG. In this respect we note the Air Executive Officer of the 
NJANG executed an affidavit indicating the applicant was still a 
member of the NJANG on 6 May 03, only for other NJANG officials 
to publish orders in 2005, effecting his 14 Mar 01 discharge. 
Given these circumstances, we believe there was significant 
confusion on the part of the parties involved as to the 
applicant’s status and find it unreasonable to hold him 
completely responsible for his failure to return to the NJANG to 
complete his service requirements while he was attempting to 
resolve his issues with the MDARNG. Therefore, to preclude the 
possibility of an injustice to the applicant, we believe it is 
appropriate to resolve any doubt in his favor and credit him 
with sufficient satisfactory service to attain eligibility for a 
reserve retirement. In arriving at the appropriate amount of 
credit to be awarded, we calculated the average of his 
participation during the five years preceding his 14 Mar 01 
discharge. While the applicant has consistently indicated his 
desire for sufficient service credit to attain retirement 
eligibility, his latest rebuttal indicates he is requesting 
service credit for the period from his discharge through the 
date of his initial discharge order (14 Mar 01 through 
11 Aug 05); however, after a thorough review of the facts and 
circumstances of this case, we believe the former remedy 
represents full and fitting relief in this case. We also note 
that promotion to chief master sergeant (E-9) is among the 
applicant’s requests; however, other than his own speculative 
assertions, he has provided no evidence to indicate that he 
would have been promoted to chief master sergeant had he been 
allowed to return to the NJANG. We also note that back pay, 
allowances, and any promotions he would have earned had he been 
commissioned a warrant officer in the MDARNG are among the 
applicant’s requests; however, such relief is outside our 
authority as it would involve the correction of official records 
of the Department of the Army. Accordingly, we believe these 
requests would fall under the purview of the Army Board for 


Correction of Military Records (ABCMR). Therefore, we recommend 
the applicant’s records be corrected to the extent indicated 
below. 

 

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 issues involved. 
Therefore, the request for a hearing is not favorably 
considered. 

 

________________________________________________________________ 

 

THE BOARD RECOMMENDS THAT: 

 

The pertinent military records of the Department of the Air 
Force relating to the APPLICANT, be corrected to show that: 

 

 a. On 14 March 2001, he was not discharged from the Air 
National Guard and as a Reserve of the Air Force, but continued 
to serve in an active status until 4 November 2002, at which 
point he submitted an application for transfer to the Retired 
Reserve, which was accepted by competent authority, and he was 
transferred to the Retired Reserve, effective 5 November 2002, 
with service characterized as “Honorable,” authority and reason 
for separation as “Retirement,” with the appropriate 
reenlistment eligibility and separation program designator (SPD) 
code. 

 

 b. He be awarded an additional 31 unpaid active duty 
points and 34 unpaid inactive duty training (IDT) points for the 
retention/retirement (R/R) year 4 September 2000 through 
3 September 2001, resulting in 92 total retirement points and 
one year of satisfactory Federal reserve service for retirement. 

 

 c. He be awarded an additional 31 unpaid active duty 
points and 46 unpaid IDT points for the R/R year 
4 September 2001 through 3 September 2002, resulting in 92 total 
retirement points and one year of satisfactory Federal reserve 
service for retirement. 

 

 d. He be awarded an additional 16 unpaid active duty 
points and three unpaid membership points for the R/R year 
4 September 2002 through 4 November 2002, resulting in 19 total 
retirement points and two months of satisfactory Federal Reserve 
service for retirement. 

 

 

 e. As regards to the election of Reserve Component 
Survivor Benefit Plan (RCSBP) options, the record will be 
corrected in accordance with his subsequently expressed 
preferences and/or as otherwise provided for by law or the Code 
of Federal Regulations. 

 

________________________________________________________________ 

 


The following members of the Board considered AFBCMR Docket 
Number BC-2010-01200 in Executive Session on 25 Aug 11, under 
the provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

All members voted to correct the records as recommended. The 
following documentary evidence pertaining to AFBCMR Docket 
Number BC-2010-02395 was considered: 

 

 Exhibit A. DD Form 149, dated 22 Feb 10, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, NGB/A1POE, dated 17 Nov 10. 

 Exhibit D. Letter, SAF/MRBR, dated 4 Feb 11. 

 Exhibit E. Letter, Applicant, dated 14 Feb 11, w/atchs. 

 Exhibit F. Letter, NGB/A1PO, dated 26 Jul 11. 

 Exhibit G. Letter, AFBCMR, dated 27 Jul 11. 

 Exhibit H. Letter, Applicant, dated 27 Jul 11, w/atch. 

 

 

 

 

 

 Panel Chair