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
members 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 applicants 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 applicants 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 applicants 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
applicants 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 applicants
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. Applicants 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
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