RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-03571

		COUNSEL:  NONE

		HEARING DESIRED:  YES


________________________________________________________________

APPLICANT REQUESTS THAT:

He be reinstated as an Active Guard Reserve (AGR) member to 
obtain 20 years of service for a reserve retirement and receive 
back pay commencing 14 Jul 13.

________________________________________________________________

APPLICANT CONTENDS THAT:

His AGR curtailment was unjust.  There were previous attempts to 
curtail his AGR tour, but they were set aside by his JAG 
attorney.  However, his commander initiated an involuntary 
curtailment “for cause” from the AGR program due to a pending 
criminal investigation for felony charges of grand theft of 
military property.  During his career he has not received any 
administrative reprimands, such as, Letter of Counseling (LOC), 
Letter of Reprimand (LOR), Unfavorable Information File (UIF), 
or nonjudicial punishment under Article 15.

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

________________________________________________________________

STATEMENT OF FACTS:

On 6 Oct 97, the applicant commenced his enlistment in the AGR 
program.

On 14 Dec 12, the applicant’s commander notified him that he was 
recommending him for involuntary curtailment for cause from the 
AGR program.  The reason for the action was the applicant’s 
arrest by the Jacksonville Sheriff’s Office and his pending 
felony case in Duval County for grand theft of military 
property.  Additionally, the applicant violated a no contact 
order and created a hostile work environment for his co-workers.

On 14 Dec 12, the applicant acknowledged receipt of the action 
and both he and his counsel provided lengthy rebuttals to the 
action, dated 14 Dec 12 and 23 Dec 12, respectively.

On 19 Feb 13, the applicant’s commander notified him that he was 
recommending him for involuntary curtailment for cause from the 
AGR program.  The specific reasons for the action were as 
follows:

	a.  Between 27 Mar 12 and 24 Apr 12, the applicant stole 
more than $10,000.00 in proceeds from government owned metal 
that was sold to a recycling company, for which he was arrested 
by the Jacksonville Sheriff’s Office and charged with grand 
theft of military property.

	b.  The applicant violated AFI 64-117, between on or about 
15 Jan 11 and 19 Nov 11 by using a Government Purchase Card to 
purchase food; and on or about 9 Mar 12, by making repeat buys 
of boots, to avoid the $3,000 limitation for purchasing.

	c.  On or about 22 Nov 11, the applicant submitted a 
receipt to Air Combat Command (ACC) financial management 
auditors for DJ services that you altered to deceive them.

	d.  On or about 10 Dec 10 and on or about 15 Jan 11, the 
applicant violated AFI, paragraph 4.3.5.3.1.1, by failing to 
properly document Government Purchase Card purchases.

	e.  On numerous occasions between Apr 11 and May 12, the 
applicant wrongfully sold spent ammunition shell casings to a 
recycling center instead of returning them to the Army 
Ammunition Supply Point, as required by AFI 21-201 and local 
procedures.

	f.  The applicant was derelict in the performance of his 
duties by willfully failing to submit the recycled material 
sales proceeds to the Defense Finance and Accounting Service for 
deposit in a recycle program account, as it was his duty to do.

	g.  The applicant was derelict in the performance of his 
duties by failing to maintain equipment accounts that he was 
responsible for in accordance with his responsibilities 
established by AFI 23-111, as it was his duty to do so, and 
fraudulently submitting documents to cover up his dereliction.

	h.  The applicant was derelict in the performance of his 
duties by failing to properly dispose of government property in 
accordance with AFI 34-204, by directing the disposal of 
government owned Individual First Aid Kits by throwing them into 
the trash instead of turning them into the Defense Reutilization 
and Marketing Office (DRMO), as it was his duty to do so.

	i.  Between on or about 3 Mar 12 and on or about 9 Mar 12 
he wrongfully used two tarps that belonged to the government to 
cover his own personal property.

On 16 Apr 13, the Adjutant General (TAG) approved the 
applicant’s termination from the AGR program.

On 14 Jun 13, the applicant was released from his AGR tour and 
reverted to his traditional (part-time) status as a member of 
the Florida Air National Guard (ANG).  He was credited with 
17 years, 2 months, and 11 days of active service.

On 21 Aug 13, according to documentation provided by the 
applicant, the State of Florida entered a Nolle Prosequi (will 
not prosecute) decision on the applicant’s case.

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AIR FORCE EVALUATION:

NGB/A1PP recommends denial indicating there is no evidence of an 
error or an injustice.  The Report of Investigation (ROI) 
revealed the applicant stole over $10,000.00 in proceeds from 
government owned metal, and on numerous occasion misused his 
Government Purchase Card to include unauthorized and improper, 
split purchases.

Although the governing instruction states commanders considering 
involuntary curtailment must use all quality force tools 
available prior to initiating a involuntary curtailment, this 
was not intended to force a commander to exhaust all lesser 
disciplinary tools prior to taking administrative actions, such 
as in the applicant’s case where a felony occurred.

While the applicant’s previous evaluations did not note any 
concerns or inability to meet standards, his command was not 
aware of these discrepancies until the completion of the ROI.  
The curtailment was not a violation of any administrative 
requirements as the “for cause” was substantiated and therefore 
the tour curtailment was legally warranted.

A complete copy of the NGB/A1PP evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant argues the subject matter experts have mishandled 
his case from the beginning.  The statement that the 
investigation concluded criminal activity had occurred is false.  
There was no evidence to support grand theft.  The original 
arrest report indicates that the arrest for grand theft was for 
INTENT to steal $10,000.00.  The investigators admitted that 
there was never any money missing, but believed his INTENT was 
to steal the money in five or six months.  The statement 
indicating he stole more than $10,000.00 in proceeds is false as 
there was never any missing money, only accusations of INTENT, 
and the State Attorney’s office dismissed the case on 21 Aug 13.

In regards to the accusation of split purchases, construction 
boots had been order for 100 members of the unit who were 
scheduled to deploy overseas.  It was determined the boots did 
not meet safety standards and needed to be reordered.  The boots 
were reordered via a split purchase because they needed to be 
received before the unit members deployed in a week.  His 
commander supported his decision and the contacting office 
excused the split purchase due to the extenuating circumstances.  

He disputes the statement "this is not intended to force a 
commander to exhaust all lesser disciplinary tools prior to 
taking administrative action, such as in the current case when a 
felony has occurred; because a felony did not occur.

One of his responsibilities as the Supply/Logistics 
Noncommissioned Officer in Charge (NCOIC), was opening and 
operating a Morale, Welfare and Recreation (MWR) account, as 
well as turning in scrap metal found on base material.

The applicant’s complete response, with attachments, is at 
Exhibit E.
________________________________________________________________

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.  The 
applicant makes a variety of arguments intended to undermine the 
basis of his involuntary removal from the Active Guard/Reserve 
(AGR) program; however, after a thorough review of the evidence 
of record and the applicant’s complete submission, to include 
his rebuttal response, we do not find the evidence he has 
presented is sufficient to convince us that he is the victim of 
an error or injustice.  The applicant argues that his case has 
been mishandled from the beginning as evidenced by the fact that 
previous attempts to remove him from the AGR program have been 
set aside.  While it appears the action was served on the 
applicant twice, apparently because the first iteration of the 
notification did not specifically describe the misconduct which 
formed the basis of the action, in our view, the commander’s 
second notification letter to the applicant describes his 
misconduct in more than sufficient detail to ensure the 
applicant had a reasonable ability to mount a vigorous and 
fulsome defense of the action.  Therefore, while the applicant 
would like us to believe the fact the action was served twice is 
somehow indicative ineptitude on the part of his command, we are 
not convinced that his case has been mishandled or that he has 
been denied any rights to which he was entitled.  The applicant 
also argues the action was disproportionate to the circumstances 
in that governing instructions require a progressive approach to 
discipline before separation action is initiated; however, we 
find this argument disingenuous as the crimes and misconduct 
committed by the applicant, in our view, formed a legitimate 
basis for his immediate removal from the AGR program, regardless 
of the quality of his previous service or whether or not his 
command saw fit to employ lesser administrative measures in 
advance of their decision to pursue his removal from the AGR 
program.  Finally, with respect to the applicant’s arguments 
that the findings of the investigation are erroneous, other than 
argument and conjecture, the only evidence he has provided to 
undermine the basis for the action is a determination by the 
State Attorney’s office to not prosecute the applicant for the 
crimes he allegedly committed.  However, in our view, the fact 
the State of Florida decided not to prosecute the applicant, in 
and of itself, does not constitute a conclusive finding that he 
did not commit the misconduct which formed the basis of his 
removal from the AGR program.  Therefore, in the absence of 
evidence the applicant was deprived of rights to which he was 
entitled, the action was disproportionate to the circumstances, 
or that there was an abuse of discretionary authority, we find 
no basis to recommend granting the relief sought in 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 the evidence presented did not 
demonstrate the existence of material error or injustice; the 
application was denied without a personal appearance; and 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-2013-03571 in Executive Session on 10 Jul 14, under 
the provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2013-03571 was considered:

	Exhibit A.  DD Form 149, dated 22 Jul 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records
	Exhibit C.  Letter, NGB/A1PP, dated 26 Aug 13.
	Exhibit D.  Letter, SAF/MRBR, dated 14 Nov 13.
	Exhibit E.  Letter, Applicant, dated 18 Nov 13, w/atchs.




 
                                   Panel Chair