RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2012-03031
	XXXXXXX	COUNSEL:
		HEARING DESIRED:  YES

_______________________________________________________________

APPLICANT REQUESTS THAT:

He receive the following relief based on being the victim of a 
substantiated case of reprisal pursuant to DODD 7050.06, 
Military Whistleblower Protection, and AFI 90-301, Inspector 
General (IG) Complaints Resolution.

1.  His records be corrected to expunge any and all verbiage 
related to his improper release from the Arizona Air National 
Guard (AZANG) such as his DD Form 214, NGB 22 and Special Order 
P-003739).

2.  He be reinstated into a similar Air Guard Reserve (AGR) 
position in the United States Air Force Reserve (USAFR) at 
Davis-Monthan AFB, AZ through June 2015, or later if promoted to 
the grade of colonel (O-6).

3.  He be considered for a Secretarially directed promotion to 
the grade of colonel.  In the alternative his records be 
corrected to reflect command credit and he receive supplemental 
promotion consideration to the grade of colonel.

4.  He receive full entitlement to the 44.5 days of terminal 
leave he was forced to sell due to his reprisal based discharge 
from the AZANG.   Alternatively, the leave balance be reinstated 
to his leave account.

5.  He receive pay and point credit for the period he was 
illegally discharged from the AZANG to the date he was assessed 
into the USAFR (from 16 July 2011 to 5 August 2011).

6.  His terminated Aviator Continuation Pay (ACP) contract dated 
27 September 2009, be reinstated and he be reimbursed for missed 
ACP bonus installments on 27 September 2011 and 27 September 
2012.

7.  He receive a separation date commensurate with a mandatory 
retirement date of 27 May 2015.

8.  He be continued with the 2d Special Operations Squadron in 
an additive AGR billet, or in the alternative he receive 
continuation as a Traditional Reservist with active duty 
retirement protections or alternatively, he receive a TERA 
retirement.

9.  He requests protection against any future breaks in service 
through 20 years of service.  

_______________________________________________________________

APPLICANT CONTENDS THAT:

In a 6-page statement the applicant’s counsel presents the 
following major contentions:

1.  He was selected as the highest scoring candidate for a 
supplementary AGR tour with the AZANG.  However, he was denied 
placement into the AGR Vacancy.

2.  He requested a review of the assignment irregularities by 
the AZ National Guard (NG) State IG.  On 20 April 2011, he 
elevated his case to SAF/IGS.  The AZNG State IG attempted to 
formally dismiss the case the day after he informed the State IG 
Inquiry Officer (IO) that the case was elevated to SAF/IGS.

3.  Based on the facts supported by the attached IG findings and 
the referenced AFBCMR precedents, the career injuries associated 
with the reprisal and hiring violations should be corrected.

4. Had the events not occurred he would have earned command 
experience, and would likely have been extremely competitive for 
promotion to the grade of colonel.

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

_______________________________________________________________

STATEMENT OF FACTS:

The AFBCMR’s recommendation regarding disciplinary action is 
considered For Official Use Only (FOUO), is separate and aside 
from its recommendations regarding relief, and will not be 
described in the Record of Proceedings (ROP), or conveyed to the 
applicant by any other means.

Information extracted from the Automated Record System (ARMS) 
indicates the applicant is currently serving in the Air Force 
Reserve in the grade of lieutenant colonel (Lt Col, O-5), having 
assumed that grade effective and with a date of rank of 
1 October 2005.  On 15 July 2011, he was released from the ANG 
and on 5 August 2011, he was transferred to the Air Force 
Reserve.  At the time of his separation from the ANG, he had 24 
years, 1 month, and 19 days of satisfactory Federal military 
service.  His Mandatory Separation Date (MSD) is 1 June 2015

On 25 March 2011, the applicant filed the first of eight AF IMTs 
102, Inspector General (IG) Report Personal and Fraud, Waste & 
Abuse Complaint Registration, to the AZNG State IG IAW AFI 90-
301, Inspector General Complaints Resolution, complaining about 
the process of hiring against a newly vacated commander 
position.

All eight complaints constituted protected communications (PC).  
The third of the eight complaints described previous PCs by the 
applicant, specifically, a 13 July 2009 IG complaint, a 3 August 
2009 communication with the Adjutant General (TAG), AZ National 
Guard, a 5 February 2010 communication with an auditor, and a 20 
August 2010 IG complaint supplemented on 9 December 2010.  
Furthermore, he met with the TAG in May 2011.  As the applicant 
communicated information about a violation of a regulation to 
the TAG during the meeting, it constituted a PC.

On 6 May 2011, he met with the TAG to discuss alleged violations 
of DEMA Directive 25-6 during the hiring process of the 
commander position.

On 3 June 2011, the Assistant TAG (ATAG) issued him a Notice of 
Appointment, forcing him to leave the AZANG on 15 July 2012. 

On 5 June 2011, he filed an AF IMT 102 that complained about the 
Notice of Appointment.  In June 2011, The Inspector General 
(TIG) directed an investigation of the additional allegation of 
reprisal against the ATAG.  The applicant claimed that two 
favorable actions were withheld when he was not selected for the 
group commander position in 2010 or for the squadron commander 
position in 2011.  

In regards to his non-selection for group commander, the State 
IG found the ATAG properly filled the position as a “key staff 
appointment.”  He did not use and did not have to use the formal 
vacancy announcement procedure.  As there was nothing improper 
about how the group commander position was filled, his non-
selection did not constitute a favorable personnel action 
withheld from him.

In March 2012, a SAF/IGS ROI into the applicant’s allegations 
against the ATAG determined the following: 

Allegation 1:  That he received a downgraded OPR in reprisal for 
his protected communications.

FINDING:  Not substantiated 

Allegation 2:  That he received a Notice of Appointment and 
subsequent separation from the ANG in reprisal for his protected 
communications.
FINDING:  Substantiated.  According to the ROI, the 
preponderance of evidence supported the conclusion that the ATAG 
did reprise against the applicant by issuing him a Notice of 
Appointment on 3 June 2011 which led to his separation from the 
AZANG on 15 July 2011.  The applicant made multiple protected 
communications prior to June 2011.  The ATAG knew of these 
communications and would not have issued the Notice of 
Appointment had the applicant not made them.

In a 21 July 2012 letter to the applicant, SAF/IGS advised him 
that an investigation of his allegation was conducted under the 
provisions of Title 10, United States Code, Section 1034, 
Protected Communications; Prohibition of Retaliatory Personnel 
Actions.  The investigation substantiated his allegation of 
reprisal.  The IG also found that several "procedural 
violations" of DEMA Directive 25-6 were committed in the hiring 
of AGR Vacancy Announcement 2011-091A (214 RS/CC).

The IG of the Air Force reviewed the ROI and approved its 
findings.  Additionally, the DoD IG conducted a thorough review 
of the report, found that it adequately addressed his 
allegations, and concurred with its findings.

The remaining relevant facts pertaining to this case are 
contained in the evaluations prepared by the appropriate office 
of the Air Force and National Guard Bureau (NGB) and can be 
found at Exhibits C-G, and K-L and the ROI at Exhibit R.

_______________________________________________________________

THE AIR FORCE EVALUATION:

NGB/A1PF recommends denial of the applicant’s request for ACP.  
A1PF states that he was previously approved and awarded a 
correction for ACP and the documents are included in the Case 
Management System (CMS) under case number 2455742.  The case was 
originally adjudicated by the AFBCMR on 22 December 2009 and he 
was granted relief to back date his agreement and be 
retroactively paid for three months.  According to the records 
he received the additional payment on 25 February 2010 in the 
amount of $3,750.

The complete A1PF evaluation is at Exhibit C.

NGB/A1PO states that they cannot comment on nor make 
recommendations regarding the applicant’s request that he be 
considered for a Secretarially directed promotion to the grade 
of colonel.  He was transferred to the USAFR on 15 July 2011 and 
met the promotion board as a USAFR officer not as an ANG 
officer.

The complete A1PO evaluation is at Exhibit D.

NGB/A1PP recommends denial of the applicant’s requests regarding 
his improper AGR separation, TERA and correction of his records 
related to the improper release.  A1PP states that the State met 
the criteria for removal.  IAW ANGI 36-101, AGR Program, the TAG 
is the final authority for determining whether an individual 
will be separated from the AGR program except for officers 
within the sanctuary zone.  In this case, the separation must be 
approved by the Secretary of the Air Force.  At the time of his 
separation from the ANG, he had 17 years and 3 months of Total 
Active Federal Military Service (TAFMS), which does not qualify 
for sanctuary.

Even though AZNGR 20-3, Retention and Separation Policy for 
Members of the Army and Air National Guard, does not reference 
ANGI 36-101, documentation provided by the state and the member 
showed the state followed the guidance established in ANGI 36-
101 regarding involuntary tour curtailment.

While eligible for Selective Retention consideration, his NGB 
Form 27, Federal Retention Evaluation/Recommendation, and 
consideration under the Selective Retention Review Board (SRRB) 
was removed and he was not considered under this program.  
Moreover, he was not protected by career status as he was on his 
initial AGR tour which is considered a probationary period.

His claim regarding improper removal from AGR status was not 
substantiated by A1PP.  He submitted an appeal upon his Notice 
of Appointment for involuntary tour curtailment to the TAG for 
consideration which was disapproved.

In regards to retirement under TERA, the authority to implement 
TERA by the ANG has not been granted by the Secretary of the Air 
Force.

The complete A1PP evaluation is at Exhibit E.

ANGRC/JA recommends denial.  JA states that based on the facts 
presented in the NGB opinions, JA finds their responses to be 
legally sufficient and concurs with the recommendations to deny 
the applicant's requests for corrective action related to ACP 
payments, Board# V0611A, AGR separation from ANG Selective 
Retention Review Board (SRRB) consideration, and TERA. 

The complete JA evaluation is at Exhibit F.

NGB/AIPS concurs with the NGB advisories and does not recommend 
relief for the applicant’s requests regarding AGR separation, 
reinstatement as an AGR or traditional reservist, retirement 
(Sanctuary IAW 10 USC 12686), TERA IAW 10 USC 12302, back pay 
Leave, ACP, promotion to colonel, and Special Selection Board 
(SSB) consideration.  A1PS has looked into each matter and 
finds his complaints do not substantiate an error or 
injustice.  Based on the facts that were presented for 
consideration, A1PS finds that the ANG met the criteria for 
involuntary separation as outlined in ANGI 36-101, therefore 
does not recommend relief to his requests. 

The complete A1PS evaluation is at Exhibit G.

_______________________________________________________________


COUNSEL’S REVIEW OF THE AIR FORCE EVALUATIONS:

The applicant’s area defense counsel (ADC) states the NGB 
advisory opinions completely ignored the legal analysis in their 
advisory opinions.

On 3 June 2011, the ATAG issued the applicant a Notice of 
Appointment.  The ATAG did not actually cite what authority in 
AZNGR 20-3 he was relying upon to fire him.  AZ Revised Statute, 
Title 26, Military Affairs and Emergency Management, Section 26-
102, Powers and Duties of the Adjutant General, Paragraph B2, 
states that “the Adjutant General, as the Military Chief of 
Staff, shall... Adopt methods of administration for the national 
guard that are not inconsistent with laws and regulations of the 
United States department of defense or any subdivision of the 
United States department of defense.”

AZ Statute states in part that the TAG of the AZANG may not 
publish instructions or policies that are inconsistent with any 
laws or regulations of the US DoD.

ANGI 36-101 applies to the ANG because it is an Air Guard 
specific Instruction, and it is an instruction/regulation that 
is superior to AZNGR 20-3, and thus, to the extent it speaks to 
the issue of tour curtailment and separation, it supersedes 
AZNGR 20-3, to the extent there is an inconsistency or non-
compliance.  To this point then, they are aware the default is 
that members must serve the entirety of their tour, but may be 
relieved of so doing, either voluntarily or involuntarily, as 
long as it is IAW the subparagraphs in AZNGR 20-3.  It also 
states a member can be separated from service by issuing a new 
Notice of Appointment, and said Notice of Appointment can even 
involuntarily curtail the tour.  However, ANGI 36-101, paragraph 
8.5 states that it is mandatory to use quality force management 
tools (Letters of Counseling, Letters of Reprimand, Article 
15’s, etc.) prior to taking steps to involuntary curtail a 
member’s tour.  In this case, no derogatory actions were ever 
taken against the applicant, and therefore, the ATAG was not 
permitted to involuntarily curtail his tour — doing so was in 
direct violation of ANGI 36-101, which is superior to AZNGR 20-
3, and for which compliance was mandatory.

He takes significant issue with the NGB advisory opinions and is 
at a loss to understand how the NGB is ignoring the findings of 
a very thorough and exhaustive investigation by the IG and 
essentially taking a position contrary to the findings of the 
IG.  Moreover, the NGB just seems to be completely ignoring the 
requirements of ANGI 36-101.  In the military, there are 
specific types of commanders that are referred to as “convening 
authorities.” Convening authorities are the only commanders 
authorized to “convene” courts-martial and also the only 
commanders with the authority to “discharge” or “separate” 
members from the service.  All other subordinate commanders 
simply make recommendations to the convening authority.  The TAG 
is the ultimate convening authority for the AZANG.  He does not 
have special authority to completely ignore the mandatory 
provisions of ANGI 36-101.  The unlawful tour curtailment issued 
by the ATAG is not magically cleansed just because the TAG 
denied the applicant’s appeal.

The tour curtailment by the ATAG was unlawful and the TAG’s 
denial of the appeal does not solve the unlawful problem.  The 
unlawful problem is that none of the mandatory steps in ANGI 36-
101, paragraph 8.5 were followed, not to mention that it was 
reprisal based.

The counsel of record fully concurs with the analysis of the 
applicant’s ADC.  The findings by the ANG are clearly 
contradictory to the facts of the case, Air Force and ANG 
regulations, common sense, fairness and due process.  He is well 
aware of the abundant relief this Board has and can grant.

The opinion of the NGB continues an illegal abuse of power which 
has incidentally tarnished the image of leadership of the AZANG 
and its ability to serve its citizens in a legal and effective 
way.

Counsel’s complete response, with attachments, is at Exhibit J.

_______________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

ARPC/CV recommends denial of the applicant’s request for direct 
promotion to the grade of colonel.  CV states that he has only 
competed for one USAFR promotion opportunity and apparently was 
deemed not yet ready for promotion.  The promotion board is the 
sole recommending authority for promotion and his record did not 
score high enough to fall above the cut line for promotion.

The objective of the Reserve promotion process is to promote 
fully qualified officers to serve in the next higher grade based 
on past performance and future potential.  Performance, 
participation, professional qualities, job responsibility, 
leadership, specific achievements, and education, are factors 
taken into consideration during the board's review.  Board 
members, using the whole person concept, base their 
determination of the member's potential to serve in the higher 
grade on the factors reflected in the officer selection folder 
and on the officer selection brief.  Promotion is a competitive 
process and the final recommendation is determined through a 
fair and equitable process by the board members.  It cannot be 
assumed that filling all the squares will guarantee promotion. 
The applicant applied for and received non-select counseling.  A 
review of the counseling secession notes show that his AF Form 
709, Promotion Recommendation, was marked "P" for Promote, and 
did not contain any stratification; his ANG OPR contained the 
statements "Ready for increased responsibilities" and·"Continue 
to challenge," but did not include stratification or strong 
recommendation for future leadership positions.  He had not 
received any USAFR performance reports; he did complete all 
developmental education commensurate with his grade; and had 
received a Meritorious Service Medal in 2011.

The results of the CY 2011 board for Line of the Air Force (LAF) 
officers showed only a 13 percent select rate: 196 selected out 
of 1502 considered.  No LAF officer was selected with a "P" 
recommendation on the PRF.

His date of rank indicates he was eligible for ANGUS position 
vacancy promotion opportunity as of 1 October 2008.  CV finds no 
indication the applicant was nominated or considered for 
promotion in the ANG to the grade of colonel.

The complete CV evaluation is at Exhibit I.

ANGRC/JA states that it is possible that the Board may adopt the 
SAF/IG findings in ROI S6875P and find that the applicant has 
suffered an injustice.  If accurate, the SAF/IG ROI S6875P 
findings support the conclusion that some of the personnel 
actions on which NGB/A1PF, NGB/A1PO and NGB/A1PP based their 
opinions, while procedurally accurate, were a mere pretext for 
improper action.  It is appropriate for A1P to examine and 
comment on the procedural actions at issue.  It would, however, 
be inappropriate for A1P to examine the motives behind the 
actions of the AZANG based on the SAF/IG findings.  A 
determination on the intent and possible remedy of the ANG’s 
actions in this matter are beyond the purview of A1P.

The collective opinions from AlPF, AIPO, and AIPP summarized in 
the 14 September 2012, JA Memorandum to AlPP address the 
applicant's request to the Board.  These opinions did not 
address the allegations raised by him regarding the "findings of 
SAF/IG," due to the fact that the documentation did not contain 
the complete SAF/IG ROI.  Upon receipt and review, the SAF/IG 
ROI S6875P reveals two findings relevant to his application to 
the Board:

	1) That the ATAG reprised against the applicant by taking 
action to remove him from the ANG for having made several 
protected communications, in violation of Title 10 U.S.C. 1034.

	2) That six separate procedural violations of DEMA Directive 
25-6 were made during the selection process of the Active Guard 
Reserve (AGR) 214 RS/CC, and that the 214 RG/CC, more likely 
than not, changed the scores of candidates in order to achieve 
an outcome more to his liking.

?
In sum, the findings contained in SAF/IG ROI S6875P challenge 
the assumption that all personnel actions relevant to this case 
were conducted IAW applicable regulations and guidance.

The complete JA evaluation is at Exhibit K.

NGB/A1P recommends that the applicant be returned to active 
status for what would have been the remainder of his preexisting 
order.  Expertise resides within policy, and the state followed 
prescribed policy regarding the applicant as it exists within 
ANGI 36-101 and AZNGR 20-3.  IAW both instructions, the 
applicant was properly notified of non­continuation/curtailment 
of his tour, he was not in sanctuary, he was retirement 
eligible, and in his initial/probationary tour.  He was notified 
of this action within the prescribed timeframe and his appeal 
was considered and disapproved by the appropriate authority.  
However, while A1PS states they are not trained in the IG or 
Equal Employment Opportunity (EEO) arena, it is difficult to 
discount the substantiated IG complaint alleging his non-
retention was reprisal based.  As such, and if possible, the A1P 
recommendation is to return the applicant to an active status 
for what would have been the remainder of his preexisting order 
- 30 September 2013.

The complete A1P evaluation is at Exhibit L.

_______________________________________________________________

APPLICANT’S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION

Counsel concurs with the JA conclusion that the ANG violated 
10 USC 1034 by reprising against the applicant and that the 
hiring process precipitating his firing included violations of 
DEMA Directive 25-6, with emphasis on the admission that the 
214 RG/CC appears to have changed the hiring board member's 
scores to achieve a result more to his liking.  It is essential 
to emphasize that the 214 RG/CC was not a board member and had 
no authority to alter the scores.  The actions by the 214 RG/CC 
resulted in the withholding of a favorable personnel action with 
the non-selection as the commander.  More importantly, these 
improper actions also denied him from starting a new four-year 
AGR tour, one that the hiring board appears to have selected him 
for as the highest scoring most qualified candidate.  
Withholding of this favorable personnel action in effect denied 
a command opportunity that would have reflected favorably for 
future promotion boards, not to mention a subsequent AGR tour 
through 2015.

Counsel believes the advisories did not fully address the 
issues, nor did they accurately portray SAF/IGS findings with 
respect to the procedural correctness of his discharge. 
Specifically, in "Allegation 2" of the SAF/IGS report on case 
S6875P, the DoD/IG findings specifically found that the 
discharge process was not procedurally correct based on the fact 
that AZNGR 20-3 required that any Notice of Appointment must 
have been processed consistent with the regulations of the 
respective services.  Counsel made this point in their previous 
response that AZ Revised Statute, Chapter 26, section 102, also 
required DoD regulations to be adhered to.  Since the IG found 
that the discharge did not follow the strict rules related to 
ANGI 36-101 regarding involuntary tour curtailments, contrary to 
the advisories, the discharge was not procedurally correct in 
addition to the personnel action violating reprisal laws under 
10 USC 1034.  The SAF/IG also determined that the ATAG did not 
have the authority to issue the Notice of Appointment in the 
first place.  Both advisories significantly omitted the analysis 
of the procedurally incorrect discharge process as found in 
SAF/IGS ROI for case S6875P.

While the AlP advisory does recommend that he be returned to 
active status, NGB only addresses the involuntarily curtailed 
tour that he was illegally discharged from, i.e., the existing 
tour ending in September 2013.  NGB does not address the 
subsequent four-year AGR tour that he was denied as a favorable 
personnel action that would have taken him from the spring of 
2011 to the spring of 2015.  This subsequent tour would have 
guaranteed career status based on NGB's contention that he was 
on probation, though counsel believes that he was in fact on his 
second AGR tour, and therefore was already granted career 
status, as explained in the previous rebuttal.  Nevertheless, he 
has requested to be reinstated to the entire denied tour length 
through 2015 as well.  He was the highest scoring candidate for 
this position, notwithstanding Col I--‘s apparent alteration of 
the scores.  Any reinstatement to active status should in all 
fairness include service through 2015, which would have been the 
expiration of his subsequent AGR tour, and is also commensurate 
with his mandatory retirement date.

The advisories also do not address his lost pay, lost points and 
terminated bonus (ACP contract) resulting from the illegal 
termination from his AGR tour, nor do they address his claim for 
reinstatement of leave.  Counsel requests that any decision 
related to his case make him whole by restoring his leave, less 
the basic pay allotment, plus reimburse him for his denied pay 
and points during the approximately one month period prior to 
his accession into the USAFR.  Moreover, his contractually 
satisfied, but terminated, final two ACP bonus installments 
should be paid. He dutifully continues to serve on an 
uninterrupted basis as an MQ-lB Predator pilot, and therefore he 
continues to make good on his contractual ACP commitment.

Regarding the CV advisory, it is entirely possible the author 
was not privy to the SAF/IGS ROI for case S6875P.  Therefore, 
counsel requests that CV review the SAF/IGS ROI and prepare a 
supplemental advisory.  Any evaluation by ARPC of his potential 
for promotion would benefit from understanding the reality that 
he was denied a favorable personnel action for a command 
position.

Counsel requests the Board thoroughly review this case and 
consideration of the past precedent cases included with his 
original submission.  In that case an ANG Lt Col was recommended 
for a Secretarially directed promotion to the next higher grade 
based on an evaluation of the magnitude of injustice suffered by 
the complainant.  This case represents an equal or greater 
magnitude of injustice where an officer's illegal termination 
and the apparent denial of an earned and previously recommended 
command opportunity effectively represent the only deficits in 
this officer's promotion potential.

Counsel’s complete response is at Exhibit N.

_______________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

NGB/A1PF recommends denial of the applicant’s request to have 
his terminated ACP contract dated 28 September 2009, reinstated 
and he be reimbursed for missed payments improperly denied.  
A1PF states that after a re-review of his application for 
correction of military records, A1PF concluded that he should 
not be paid the remaining balance of his ACP agreement effective 
27 September 2009 through 26 September 2013 because he separated 
from the ANG effective 15 July 2011.  IAW the AZANG/CC 
memorandum dated 3 June 2011, he was informed of the decision to 
separate him from the ANG based on force management/selective 
non-retention (not for cause).  He was in a probationary tour, 
eligible for a Drill Status Guardsman (DSG) retirement and was 
not in sanctuary.  Per the FY 2009 ANG ACP policy paragraph 
2.5.1.3 regarding involuntary separation due to selective non-
retention, "Prior payment is not recomputed or recouped.  No 
future payments are authorized."  Although he states that he 
remained in service with the AF Reserves, the ACP agreement he 
signed was with the ANG and the commitment can only be fulfilled 
through service in the ANG.  Once affiliated with the AFRC, he 
may or may not have been eligible to apply for ACP under the 
AFRC policy, but the ANG agreement was terminated on the day he 
separated from the ANG.  In keeping with his date of separation, 
he should have received two ACP payments effective 27 September 
2009 and 27 September 2010 as payments are made prior to the 
effective period of service.  Therefore, his 27 September 2010 
payment was effective through 26 September 2011, thereby 
covering his service through his 15 July 2011 separation date.

The complete A1PF evaluation is at Exhibit O.

_______________________________________________________________

?
APPLICANT’S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION

In an initial A1PF advisory, dated 20 August 2012, the ANG 
office responsible for aviation bonuses responded negatively on 
his ACP contract reinstatement request, while incorrectly 
denying the existence of the 2009 four year ACP (bonus) contract 
in question. 

A1PF now admits there was a 2009 four year ACP contract, and 
that two payments were made; however, they continue to recommend 
denying relief, basing this denial on his involuntary 
termination from the AZANG. 

A1PF does so without addressing the fact that the termination of 
the AGR position violated the law according to SAF/IGS, despite 
the fact that the higher directorate, A1P, is now aware of the 
existence of those findings and without regard to the fact that 
A1P altered its previous denial recommendation in his case.

More specifically, initially A1P, in their 19 September 
2012 advisory, recommended denying his requests for relief, but 
on 1 November 2013 [sic], after being compelled to review the 
SAF/IGS findings in his case, they reversed their previous 
opinion based on the fact that he was reprised against in 
violation of 10 USC 1034.  Therefore, they recommended he be 
returned to active status. 

Were the same logic to be applied to the ACP matter, the ACP 
bonus contract should similarly be recommended for reinstatement 
if indeed A1PF were compelled to reevaluate the requested lost 
bonus payments given the fact that he was illegally removed from 
his previous position, i.e., the ACP contract was improperly 
terminated as a result of an illegal personnel action. 

Such a positive and informed recommendation would be in line 
with the spirit of the corrections case process, and therefore 
if A1PF could not come to this conclusion, perhaps because they 
were unaware of the SAF/IGS findings, or because they do not 
have the authority to address ACP bonus following illegal 
personnel actions, he respectfully requests the Board utilize 
its authority to correct the withheld bonus. 

He renews his request that the ACP contract be reinstated, 
particularly since he continued to perform the contracted 
duties.  Specifically, he requests the two missing payments, 
from 27 September 2011 and 27 September 2012, be paid since the 
contract was wrongfully terminated due to illegal reprisal and 
improper AGR position termination. 

The applicant’s complete response is at Exhibit Q.

_______________________________________________________________


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 an error or injustice in regard to 
the applicant’s request that he be considered for a 
secretarially directed promotion to the grade of colonel or that 
his record be corrected to reflect that he be given command 
credit with SSB consideration.  While we note the applicant has 
been the victim of substantiated reprisal, we are not persuaded 
that he has been the victim of an error or injustice warranting 
a direct promotion to the grade of colonel.  In this regard, we 
note that a direct promotion should be granted only under 
extraordinary circumstances; i.e., a showing that the officer’s 
record cannot be reconstructed in such a manner so as to permit 
him/her to compete for promotion on a fair and equitable basis; 
and that had the applicant not been involuntary released from 
the ANG, the probability of his being selected for promotion 
would have been extremely high.  After carefully reviewing all 
the evidence we do not find these factors present in this case.  
The applicant asserts, in essence, that based on the irreparable 
harm to his career due to the events in question, his appeal is 
similar to AFBCMR 2001-03128 and that relief is warranted using 
the same rationale for a direct promotion to the grade of 
colonel.  However, we disagree.  In this regard, every case 
before this Board is considered on its own merit since the 
circumstances of each case are seldom identical.  In view of 
this, although we strive for consistency, we are not bound by 
precedent and evaluate the merits of each individual case to 
determine whether the applicant has been the victim of an error 
or injustice.  After a careful review of AFBCMR 2001-03128, it 
was noted that the applicant in this case was the only fully 
qualified applicant for the vice wing commander position and it 
was evident that he would have been appointed to the colonel 
position and recommended for promotion to the grade of colonel 
as affirmed by his wing commander’s high professional opinion of 
him as an outstanding officer.  Additionally, the testimonies of 
the assistant adjutant general and another senior officer also 
verified their intent to promote the applicant to vice wing 
commander.  In the end, the previous Board determined that there 
were extraordinary circumstances to warrant a direct promotion 
to the grade of colonel.  However, as noted above, we do not 
find these same circumstances in this case.  Therefore, we do 
not find the case he references supports his request for a 
direct promotion to the grade of colonel.  The applicant also 
contends that the command position he was erroneously denied 
would have made him extremely competitive for promotion to the 
grade of colonel and in the alternative is requesting that his 
records be corrected to reflect command credit and that he be 
considered for promotion to the grade of colonel by an SSB.  In 
this regard, we note that ANG officers are only considered for 
promotion to the grade of colonel if their State puts them in a 
colonel position and obtains Federal Recognition.  Additionally, 
the State also determines who gets nominated for promotion to 
the grade of colonel and a member has no right to that promotion 
consideration, promotion, or even nomination.  While the 
applicant’s contentions and the circumstances surrounding his 
improper release from the ANG are duly noted, unfortunately, 
there are situations wherein the ability of the Board to craft 
relief that will make an applicant completely whole is often 
times limited by the very circumstances of the case.  In this 
instance, there is no way to completely restore the career 
opportunities the applicant may have lost.  While this Board has 
authority to direct an SSB for the applicant is his status as an 
AFR officer, we note that he has already met a promotion board 
for colonel.  The applicant has not claimed an error or 
injustice in this recent AFR Board, therefore an SSB is not 
warranted. Regarding his alternative request for a TERA 
retirement, we note that TERA authorizes members with over 15, 
but less than 20 years of total active duty service to apply for 
early retirement.  However, as pointed-out by NGB/A1PP, the 
authority to implement TERA by the ANG has not been granted by 
the Secretary of the Air Force.  In view of this, we find no 
basis to grant the applicant’s request for a TERA retirement.  
With respect to his request that he be continued with the 2d 
Special Operations Squadron in a new AGR billet, the AFBCMR is 
empowered only to correct records and has no authority to create 
AGR billets.  In regard to his request for reinstatement in the 
ANG until his MSD on 1 June 2015, this Board lacks the authority 
to reinstate members into the ANG given the sovereignty of the 
State over the ANG.  However, in view of the circumstances of 
this case, we believe the relief recommended that includes 
extended active duty until 1 June 2015 in the Air Force Reserve, 
provides the applicant full and fitting relief.  In view of the 
foregoing and in the absence of evidence to the contrary, we 
find no basis to recommend granting the relief sought in this 
portion of his request. 

6.  Notwithstanding the above, sufficient relevant evidence has 
been presented to demonstrate the existence of an error or 
injustice in regards to the applicant’s other requests.  In this 
respect, we note that the ATAG reprised against the applicant by 
issuing him a Notice of Appointment which led to his involuntary 
separation from the AZ ANG.  In view of this, the applicant has 
requested that his records be corrected to expunge any and all 
verbiage related to his improper release from the AZ ANG, he 
receive full entitlement to the 44.5 days of terminal leave he 
was forced to sell, he receive pay and point credit for the 
period he was illegally discharged from the AZ ANG to the date 
he was assessed into the USAFR and his terminated ACP contract 
be reinstated and he receive missed ACP installments.  After a 
careful review of the evidence in this case and noting that the 
applicant was the victim of reprisal we believe that partial 
relief is warranted.  We note that NGB/A1P recommends the 
applicant be returned to active status for what would have been 
the remainder of his preexisting order (30 September 2013); 
however, we believe he should be returned to active status 
through his MSD (1 June 2015).  With this recommendation, the 
applicant will receive full entitlement to his leave, pay and 
point credit for the period he was illegally discharged from the 
AZ ANG, entitling him to sanctuary protection through 20 years 
of service.  In regard to his ACP contract, we recommend his 
records be corrected to reflect that per Fiscal Year 2009 ACP 
contract, he was issued a lump sum payment before separation, 
thereby ensuring he was paid for missed ACP bonus installments 
on 27 September 2010 and 27 September 2012.  Finally, we 
recommend that his Federal records be corrected to expunge any 
and all references to his improper release from the Arizona ANG. 
In view of the totality of the circumstances in this case, we 
believe our recommendation constitutes full and fitting relief.  
Accordingly, we recommend his records be corrected to the extent 
indicated below.  

7.  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 RECOMMENDS THAT: 

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

      a.  His Federal records be corrected to expunge any and 
all references to his improper release from the Arizona Air 
National Guard.

      b.  On 27 September 2009, competent authority approved a 
single lump sum payment of $100,000 in consideration of the 
execution of a 4-year Aviation Continuation Pay (ACP) 
agreement.

      c.  On 15 Jul 2011, competent authority waived recoupment 
of any unearned ACP in accordance with Section 303(a) of Title 
37, United States Code.

?
      d.  On 15 July 2011, he was released from the Air National 
Guard, and was accessed into the Air Force Reserve on 16 July 
2011, ordered to active duty for operational support in 
accordance with Section 12301 (d) of Title 10, United States 
Code and assigned to Davis-Monthan Air Force Base, Arizona 
until 1 June 2015.

_______________________________________________________________

The following members of the Board considered Docket Number BC-
2012-03031 in Executive Session on 18 April 2013, under the 
provisions of AFI 36-2603:

    , Panel Chair
    , Member
    , Member

All members voted to correct the record as recommended.  The 
following documentary evidence pertaining to Docket Number BC-
2012-03031 was considered:

    Exhibit A.  DD Form 149, dated 20 August 2012, w/atchs.
    Exhibit B.  Applicant’s Master Personnel Records.
    Exhibit C.  Letter, NGB/A1PF, dated 20 August 2012.
    Exhibit D.  Letter, NGB/A1PO, dated 22 August 2012.
    Exhibit E.  Letter, NGB/A1PP, dated 10 September 2012.
    Exhibit F.  Letter, ANGR/JA, dated 14 September 2012.
    Exhibit G.  Letter, NGB/A1PS, dated 19 September 2012.
    Exhibit H.  Letter, SAF/MRBR, dated 24 September 2012.
    Exhibit I.  Letter, ARPC/CV, undated.
    Exhibit J.  Letter, Applicant’s Counsel, dated 20 October
                2012.
    Exhibit K.  Letter, ANGR/JA, dated 19 September 2012.
    Exhibit L.  Letter, NGB/A1P, dated 1 November 2012.
    Exhibit M.  Letter, SAF/MRBR, dated 5 November 2012.
    Exhibit N.  Applicant’s Counsel, dated 3 December 2012.
    Exhibit O.  Letter, NGB/A1PS, dated 17 January 2013.
    Exhibit P.  Letter, AFBCMR, dated 22 January 2013.
    Exhibit Q.  Letter, Applicant, dated 23 January 2013.
    Exhibit R.  Report of Investigation - WITHDRAWN




								
								Panel Chair


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