RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2012-02765 

 COUNSEL: NONE 

 HEARING DESIRED: YES 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

1. He receive back pay and allowances as a result of him being 
removed from active duty. 

 

2. He be reconsidered {sic} for promotion to the grade of 
colonel (0-6) and the opportunity to complete the required 
professional military education for proper qualification. 

 

3. He be retired effective on or about 29 May 11. 

 

4. He be immediately returned to flying duty, if promoted to 
colonel (0-6) by the board. 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

1. He was illegally removed from active duty and retired after 
properly filing for sanctuary protection under AFI 36-2131, Administration of Sanctuary in the Air Reserve Components and 
Title 10 United States Code (USC) 12686. 

 

2. While on long term (greater than 180 days) Title 10 active 
duty orders at Hurlburt Field Air Force Base, Florida in support 
of Operation IRAQI FREEDOM, he came into sanctuary. 

 

3. The Utah ANG improperly cut his orders without proper 
coordination and retired him immediately. 

 

4. The sanctuary waiver he signed was invalid according to AFI 
36-2131, paragraph 2.3 sanctuary policy and Title 10 USC 
12686(b). 

 

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

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant was promoted to the grade of lieutenant colonel, 
effective and with a date of rank of 1 Oct 02. 

 


On 1 Jul 09, the applicant was released from the Air National 
Guard (ANG) and transferred to the Retired Reserve Section. 

 

According to Title 10, USC, section 12686 “a member of a reserve 
component who is on active duty (other than for training) and is 
within two years of becoming eligible for retired pay or 
retainer pay under a purely military retirement system, may not 
be involuntarily released from that duty before he becomes 
eligible for that pay, unless the release is approved by the 
Secretary.” 

 

The remaining relevant facts pertaining to this application are 
contained in the letter prepared by the appropriate office of 
the Air Force, which is attached at Exhibit B. 

 

_________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

NGB/A1PP recommends denial and states, in part, that although 
there is evidence to support that an administrative error 
occurred, there is no evidence to support an injustice occurred. 
A1PP states the procedures used by the Utah ANG to process 
special order number R-0000004 for the duration of 270 work days 
was not accomplished IAW AFI 36-2131. Specifically, the orders 
should have been accomplished for a period of less than 180 
days; in addition the Statement of Understanding to waive 
member’s sanctuary protection must also cover a period of 180 
days or less. However, these actions never occurred. The 
applicant was on orders beginning 1 Oct 08, and eligible to 
apply for sanctuary on 28 May 09, which was approximately 7 
months and 27 days. 

 

A1PP states an administrative error occurred with the processing 
of the applicant’s orders for 270 days; which was in direct 
violation of the AFI 36-2131. However, the orders were valid. 
Once a member reaches 179 days on an order the Air Force Reserve 
Order Writing (AROW) system automatically generates a hard hold, 
which notifies the Force Support Squadron (FSS) that an action 
must take place to both approve the request and allow the member 
to continue on the order or curtail the order and return the 
member to their home station. It appears the hard hold was 
disapproved by the FSS and the applicant was returned to his 
home station. At this point, the applicant was eligible and 
should have been afforded the opportunity to claim sanctuary 
protection. 

 

The applicant had a pending Mandatory Separation Date (MSD) of 
30 Jun 09. On pages 2 and 9 of his supplemental statement, the 
applicant states “On 28 May 09, he came into sanctuary and was 
coming up against his MSD and saw two options. One option was 
to transfer to the Louisiana Air Guard, 122nd ASOS, as an Air 
Liaison Officer (ALO). They were willing to allow me to 
continue on active duty with the special operations mission at 


the 745th SOS as long as I would go to ALO School and be a 
qualified name on the books for them. In order to do that, I 
needed a waiver to my MSD, a process that might take some time.” 

 

The applicant knew he had a MSD of 30 Jun 09. If he would have 
accepted the ALO position, a MSD waiver package would have been 
submitted to the ANG requesting an extension to the date to 
allow him to remain on active duty due to his sanctuary 
protection IAW AFI 36-2131. However, the applicant chose not to 
take any action to request a MSD extension, which ended his 
opportunity for continued service past 30 Jun 09. 

 

The applicant reached his date of eligibility for sanctuary 
protection under AFI 36-2131 and Title 10 USC 12686; however, a 
MSD waiver package was not submitted or approved by the ANG; 
therefore, he was processed for transfer to the Retired Reserve 
IAW the governing directives and was not improperly and 
illegally removed from active duty and retired. 

 

The complete A1PP evaluation is at Exhibit C. 

 

_________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

The advisory opinion correctly recognizes two key components of 
his claim. First, his orders were in fact long-term (greater 
than 179 days) and that he was in fact eligible to apply for 
sanctuary protection under 10 USC 12686 and AFI 36-2131. 
Second, the waiver of sanctuary rights (Statement of 
Understanding) he signed was not valid as it covered a period 
greater than 179 days. However, the advisory opinion fails to 
recognize that he had submitted a sanctuary claim and that in 
doing so, he had fulfilled the requirements of AFI 36-2131 
(dated 17 Jan 03 then in effect). The ANG Bureau did not do so, 
and by its lack of action, failed to comply with AFI 36-2131. 
The memo from Utah ANG Director of Staff confirms that his 
Request for Sanctuary was delivered to ANG/DPFO IAW AFI 36-2131. 

 

The facts on the second page of the advisory opinion incorrectly 
refers to the AFI 36-2131, (dated 27 Jul 11) paragraph 2.3. 
Sanctuary Policy. However, the AFI in effect when he was 
improperly retired in 2009 while in sanctuary was dated 17 Jan 
03. Paragraph 2.3 of the AFI then in effect does not deal with 
“Sanctuary Policy” in fact it has nothing to do with what the 
advisory opinion refers to. Therefore, he cannot legally or 
reasonably be expected to have complied after the fact with 
rules not in existence at the time he requested sanctuary 
protection. 

 

The following paragraph of the same page, under facts (while 
still improperly referring to the current AFI and thus not 
applicable, is nonetheless interesting because it does further 
clarify Congressional intent regarding short versus long term 


orders) starting fourth line from the bottom of the page states 
“while waivers are not required from members or for published 
orders under Title 10 USC 12301(d) specifying periods in excess 
of 179 days”, so again, no waiver of his sanctuary rights would 
be required, nor would one have been legal, since his orders 
were greater than 179 days. 

 

The advisory refers to an MSD and to an option he did not 
choose. The Louisiana ANG option had he chosen it, would have 
required him to submit a request for a waiver to his 28-year 
MSD. He was advised by the Utah JAG on 6 Jun 09, that sanctuary 
was the better option. So, he chose to apply for sanctuary. 
Any MSD waiver, if required would have been the responsibility 
of the National Guard Bureau, not the individual. 

 

In further support of his appeal the applicant provides an 
eight-page supplemental statement. 

 

The applicant’s complete submission 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 not timely filed; however, it is in the 
interest of justice to excuse the failure to timely file. 

 

3. Insufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice to warrant 
promotion consideration to the grade of colonel with the 
opportunity to compete for PME. After thoroughly reviewing the 
evidence of record and noting the applicant’s contentions, we 
are not persuaded that he has been the victim of an error or 
injustice warranting promotion consideration to colonel. In 
this respect, 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 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. Furthermore, Lt 
Colonels are not eligible for promotion consideration unless 
they have completed AWC, which he has not. In view of forgoing, 
we find no evidence, nor has the applicant provided substantial 
evidence, to show that had he been afforded the opportunity to 
claim sanctuary protection he would have completed AWC and been 
placed in a colonel position. Moreover, 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 recover the years 
that have elapsed since the applicant left active duty or to 
restore completely the career opportunities the applicant may 


have lost. Therefore, in the absence of evidence to the 
contrary, we find no basis to grant this portion of the 
applicant’s request. 

 

4. Notwithstanding the above, sufficient relevant evidence has 
been presented to demonstrate the existence of an error or 
injustice with regard to his requests for an active duty 
retirement with back pay and allowances. After a thorough 
review of the evidence of record, along with the recommendation 
of the office of primary responsibility, we believe that partial 
relief is warranted. In this respect, we note the applicant’s 
orders and statement of understanding were not processed IAW 
with published guidelines. Consequently, he was not afforded 
the opportunity to claim sanctuary protection but instead was 
released from the ANG and transferred to the Retired Reserve 
Section. Therefore, in order to remove this error and 
injustice, we recommend his records be corrected to show that on 
28 May 09, he was granted sanctuary protection and on 28 May 
2011, he qualified for an active duty retirement with the 
appropriate back pay and allowances. Given the evidence of 
record and after weighing the circumstances of this case, we 
believe that the relief we are recommending provides the 
applicant full and fitting relief. Accordingly, we recommend 
his record be corrected to the extent indicated below. 

 

_________________________________________________________________ 

 

THE BOARD RECOMMEMDS THAT: 

 

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

 

a. He was granted sanctuary protection on 28 May 2009. 


 

b. He was not released from active duty on 26 June 2009, but 


on that date, he was continued on active duty until 31 May 2011, 
at which time he was released from active duty and retired under 
the provisions of Title 10, United States Code, Section 8911, 
effective 1 June 2011. 

 

_________________________________________________________________ 

 

The following members of the Board considered Docket Number 
BC-2012-02765 in Executive Session on 19 Mar 13, 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-2012-02765 was considered: 

 

 Exhibit A. DD Form 149, dated 19 Jun 12, w/atchs. 

 Exhibit B. Applicant’s Master personnel Record. 

 Exhibit C. Letter, NGB/A1PP, dated 7 Aug 12. 

 Exhibit D. Letter, SAF/MRBR, dated 26 Nov 12. 

 Exhibit E. Letter, Applicant, dated 12 Dec 12. 

 

 

 

 

 

 Panel Chair