RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2012-05055

			COUNSEL:  NONE

			HEARING DESIRED: NO

________________________________________________________________

APPLICANT REQUESTS THAT:

His discharge date from the Air National Guard (ANG) be changed 
to 24 February 2012, to reflect the date of his minimum 
retirement age and he be provided back pay and retirement points 
for that period.  

________________________________________________________________

APPLICANT CONTENDS THAT:

1.  On 23 Nov 2009, he received a Notice of Appointment letter, 
signed by Brigadier General (Brig Gen), Retired, C, which 
removed him, militarily, from the Arizona Air National Guard 
(AZANG) at the end of the year.  This action resulted in his 
involuntary retirement from his civil service job prior to his 
minimum retirement age.  He was one of four senior AZANG 
officers removed from their military positions without cause by 
use of the Notice of Appointment letter.  His situation 
parallels that of the former 162nd Fighter Wing (FW) commander 
who was also relieved of his command.  The analysis in a Report 
of Investigation, reflected that Brig Gen C's action adversely 
affected him.  The report concluded that Brig Gen C abused his 
authority when he issued the Notices of Appointment and that 
this action was both arbitrary and capricious in comparison to 
how other members of the AZANG were treated.  

2.  The actions of Brig Gen C adversely impacted his civil 
service employment and retirement, and his military retirement 
and benefits.  His rights under the Uniformed Services 
Employment and Reemployment Rights Act (USERRA) were violated 
since he was not allowed to return to his civil service job 
after an involuntary mobilization as required by law, unless 
there was cause to relieve him, which was never indicated.  As 
he testified to the investigating officer during the analysis in 
the Report of Investigation, Brig Gen C stated; “our choice was 
to find him another home or not and we picked not.”  He lost his 
GS-14 position and retired prior to his minimum retirement age, 
which negatively affected his income and future retirement 
annuity.  Since he had less than three years of time in grade as 
an O-6, his future military annuity will be reduced to that of 
an O-5.  This result directly affects his family's financial 
health and his future military retirement earnings.  The 
requested change of his official military separation date will 
allow him to receive the O-6 retirement he would have been 
entitled to if not for Brig Gen C’s wrongful actions.

3.  He was appointed commander of the 214th Reconnaissance Group 
(RG) at Davis-Monthan AFB in early 2007.  Accordingly, he was 
promoted to the rank of Colonel on 28 Sep 2007.  The unit was 
created from scratch.  Members were brought in from across the 
nation to operate the MQ-1 Predator Group.  Due to the nature of 
the combat support mission, traditional guardsmen who were 
ordered to Title 10 U.S.C. active duty status and resided 
outside the official commuting distance were offered per diem 
and lodging allowances.  In one instance, he disagreed with his 
boss, Brig Gen C, regarding the entitlement for one of his 
officers.  He was subsequently told he would be removed from his 
position as the 214th RG commander and also removed from AZANG.

In support of his request, the applicant submitted a personal 
statement, copies of his Notice of Appointment Letter, Advance 
Notice of Termination as a Technician, a redacted copy of the 
Inspector General (IG) of the Air Force, Report of Investigation 
on BG C, dated March 2012, and documents extracted from his 
Military Personnel Record (MPR).  

The applicant’s complete submission, with attachments, is at 
Exhibit A. The SAF/IG Report of Investigation is at Exhibit C.  

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STATEMENT OF FACTS:

1.  According to documents extracted from his Military Personnel 
Record, the applicant is a former Air National Guard 
commissioned officer who was progressively promoted to the grade 
of Colonel, (O-6), with an effective date of rank and pay grade 
of 28 September 2007.  Effective 31 December 2009, the applicant 
was assigned to the Retired Reserve section awaiting pay at age 
60, (24 February 2016).  

2.  The SAF/IG Report of Investigation, submitted by the 
applicant, was directed in response to a complaint from Brig Gen 
S of the AZANG.  The initial complaint alleged improper conduct 
on the part of Brig Gen C, and was filed on 14 October 2010.  

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AIR FORCE EVALUATION:

1.  NGB-J1/TN recommends denial of the applicant's request.  J1-
TN states as a consequence of his involuntary loss of military 
membership, the applicant no longer met the statutory 
requirement to continue fulltime technician employment with the 
Arizona National Guard and was subsequently terminated from 
Federal civilian employment.  After a thorough and careful 
review of the documentation provided, they determined that the 
Arizona Human Resources Office (HRO) took the appropriate 
actions relative to the applicant’s fulltime technician 
employment.  

2.  As a direct result of an involuntary loss of military 
membership, the Arizona HRO properly issued the applicant a 30-
day notice of separation from technician employment in accordance 
with Title 32 U.S.C Section 709.  Based on his years of 
technician service, and the disposition of separation (other than 
for removal for cause), the applicant was eligible to apply for a 
Discontinued Service Retirement (DSR) through the Office of 
Personnel Management.  Given that his loss of military membership 
was involuntary and not for cause, the applicant was eligible to 
receive an immediate unreduced retirement annuity supplement as a 
Federal Employees Retirement System (FERS) employee.

3.  Based on the information provided, the applicant’s Mandatory 
Separation Date (MSD) from military service was in September 
2010.  An extension beyond his MSD, with Adjutant General 
approval, would have allowed him to reach the minimum retirement 
age for a Federal civilian retirement.  However, as a result of 
his receiving a Notice of Appointment memorandum, which expired 
on 31 December 2009, he was separated approximately nine months 
prior to his MSD.

4.  If the applicant is requesting to change his military 
separation date from the Arizona National Guard, from 
31 December 2009 to 24 February 2012, he would not have been 
eligible for a DSR with an effective date of 1 January 2010.  
More importantly, any retirement monies received since that time 
may have to be collected.  

The complete NGB-J1/TN evaluation is at Exhibit D.

1.  NGB/A1PO recommends denial.  A1PO states the applicant 
alludes to the issuance of a Notice of Appointment being an 
arbitrary and capricious act.  However, the evidence provided 
does not pertain to the applicant.  As this request lacks 
evidentiary support such as signed statements of witnesses or 
copies of records to support the case they recommend denial of 
relief.  

2.  The applicant's request includes an Air Force Inspector 
General Report dated March 2012 to substantiate his allegation.  
The Air Force Inspector General's report substantiates abuse of 
authority against the 162nd FW commander.  No evidence provided 
supports the allegation of similar action being taken against 
the applicant.  The state followed prescribed policy regarding 
the applicant’s issuance of Notice of Appointment, as it exists 
within the AZANG Regulation 20-3.  In accordance with this 
instruction, the applicant was properly notified on 
23 November 2009 of non-continuation per paragraph 2.2. 
“Consistent with the regulations of their respective service, 
members of the National Guard of Arizona who have twenty 
creditable years of service for retirement shall be separated 
from state service upon expiration of any issued Notice of 
Appointment unless a new Notice of Appointment is timely 
issued.”  

The complete NGB/A1PO evaluation is at Exhibit E.

1.  ANGRC/JA does not provide a recommendation but states the 
applicant attributes his separation from the AZANG and the 
resulting termination from his technician position to a 
disagreement with Brig Gen C.  The applicant references a SAF/IG 
Report of Investigation (ROI) S6875P, as proof of the 
impropriety of Brig Gen C’s actions.  While the applicant does 
not assert that the personnel actions relevant to his 
application are detailed in ROI S6875P, he does claim the IO 
findings are relevant to his situation.  He asserts that his 
situation parallels that of the former 162nd FW commander who 
was also relieved of his command.  The applicant describes the 
actions of the AZANG as arbitrary and capricious and states that 
the manner in which Brig Gen C issued Notices of Appointment 
constituted an abuse of authority.  

2.  ANGRC/JA further states, if accurate, the SAF/IG ROI S6875P 
findings support the conclusion that some of the AZANG personnel 
actions were, while procedurally accurate, a mere pretext for 
improper action.  As he states himself, the applicant is not 
specifically identified in ROI S6875P and bases his request for 
consideration on the similar circumstances surrounding the 162nd 
FW commander's separation from the AZANG as described in ROI 
S6875P.  The question of whether the findings of ROI S6875P 
should apply to the applicant's case is a factual determination 
reserved for judgment beyond that of NGB/A1P.  It is proper for 
NGB/A1P to examine and comment on the procedural actions at 
issue.  It would, however, be improper for NGB/A1P to examine 
the motives behind the actions of the AZANG based on the SAF/IG 
findings in ROI S6875P.  Furthermore, a determination on the 
intent and possible remedy of AZANG actions in this matter are 
beyond NGB/A1P’s purview.  

The complete ANGRC/JA evaluation is at Exhibit F.

1.  NGB/A1P states they have looked into the matter of the 
applicant’s request and find the complaint does not substantiate 
an error or injustice.  

2.  Based on the facts that were presented for consideration, 
they find that the AZANG followed prescribed policy regarding 
the applicant’s selective early removal from the Reserves of the 
Air Force and the Arizona National Guard, therefore they concur 
with the NGB subject matter experts and do not recommend relief 
for the applicant's request for corrective actions.  

The complete NGB/A1P evaluation is at Exhibit G.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

1.  In his response, the applicant offers an outline of how the 
substantiated findings of the SAF/IG report regarding the former 
162nd FW commander directly apply to his case.  The applicant 
states his 23 Nov 09, Notice of Appointment is listed in Section 
IV of the page 13 chronology in the IG report.  Additionally, 
the arbitrary and capricious method used to remove Brig Gen S 
which was previously used to remove him from his affiliation 
with the AZANG is listed on page 14.  As annotated by the IO, 
the acid test involved answering the following Analysis.

	a.  Question 1: Did the Responsible Management Official's 
(RMO) actions (a) adversely either affect any person or (b) 
result in personal gain or advantage to the RMO?  

	(1).  Yes.  In order to affect the removal of Brig Gen S 
as the commander of the 162nd FW, Brig Gen C issued a Notice of 
Appointment.  In accordance with paragraph 2.7 of AZNG 
Regulation 20-3, “a member shall be separated from the National 
Guard of Arizona upon the expiration date of the member's Notice 
of Appointment unless a new Notice of Appointment is tendered to 
the member prior to that expiration date.”  Brig Gen C issued 
Brig Gen S the Notice of Appointment on 30 Sep 10 with an 
expiration of 31 Oct 10.  Brig Gen S was not issued a subsequent 
notice and was separated from the AZANG on 31 Oct 10.

	(2).  Due to the fact that Brig Gen S was made to 
separate from the AZANG prior to desiring to do so, the issuance 
of a Notice of Appointment by Brig Gen C did adversely affect 
Brig Gen S.  In his case, Brig Gen C issued the 23 Nov 09, 
Notice of Appointment with an expiration of 31 Dec 09.  He was 
not issued a subsequent notice and was separated from the 
Arizona National Guard on 31 Dec 09.  As with Brig Gen S, this 
adversely affected him as he lost not only his military 
affiliation but also his civilian federal technician position.  

	b.  With the answer to question 1.(a) of the “acid test” 
being yes, the IO must then answer questions 2 and 3.  

	c.  Question 2:  Did the RMO act within the authority granted 
under applicable regulations, law or policy?

	(1).  No.  Paragraph 2.8 of AZNG Regulation 20-3 states 
that “the Adjutant General may delegate to a designated 
representative all or part of his authority under this Article 
to tender Notices of Appointment.  Such delegation should be in 
writing and may be withdrawn by the Adjutant General at any 
time.”  From this paragraph, the IO finds that as the ATAG-Air, 
in order to issue any Notice of Appointment, Brig Gen C must be 
granted the authority to do so in writing by the TAG.  In fact, 
Brig Gen C was granted limited authority in writing on 
16 Nov 09, by the TAG.  The Notice of Appointment Delegation 
Letter states, “In accordance with Arizona National Guard 
Regulation 20-3, paragraph 2.8 the Adjutant General may delegate 
his authority to tender Notices of Appointment.  The Adjutant 
General has delegated this authority to the Commander, Arizona 
Air National Guard [Brig Gen C] to be conducted in his absence.”

	(2)  The IO found that the issuance of the notice by Brig 
Gen C was outside of his authority as he only had the authority 
in the “absence” of the TAG.  The TAG was not absent at the time 
the notice was issued to Brig Gen S, and the TAG did not sign 
the Notice.  This was the same in his situation.  He personally 
witnessed that the TAG was in his office on 23 Nov 09, the date 
of his Notice of Appointment.

	d.  Question 3:  Was the action arbitrary and capricious?  

	(1).  Considering the factors of reasons, reasonableness, 
consistency, and motive, the IO found that Brig Gen C’s removal 
from command of Brig Gen S by issuing him a Notice of 
Appointment was arbitrary and capricious.  The IO finding 
indicated that the fact that Brig Gen S was separated for having 
twenty creditable years for retirement and an expired Notice of 
Appointment while 653 members of the AZANG with the same number 
of years of service were allowed to serve because they were 
never issued a Notice of Appointment is both arbitrary and 
capricious.  For these same reasons, his own separation should 
be considered arbitrary and capricious.

2.  The applicant reiterates that he was included as one of the 
four officers who were issued Notices of Appointment by Brig Gen 
C for which the IO stated was an arbitrary and capricious act.  
For the same reasons as stated above, Brig Gen C's harmful 
actions toward him represented an abuse of his authority.  In 
using this approach, he was denied an opportunity to rebut his 
dismissal, which would have been available to him if he had 
pursued a dismissal for cause, and therefore, resulted in his 
loss of military status and removal from his federal technician 
civil service position.  Thus, Brig Gen C's actions represent an 
injustice that he requests the Board rectify.  

The applicant’s complete response is at Exhibit I.

________________________________________________________________

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 error or injustice.  We took 
careful notice of the applicant’s complete submission pursuant 
to Title 10, United States Code, Section 1552 (10 USC § 1552) in 
support of his requests and the evidence of record.  The 
applicant’s contention that the actions of the Adjutant General 
(TAG) adversely impacted his civil service employment and 
retirement, his military retirement and benefits, and violated 
his rights under the Uniformed Services Employment and 
Reemployment Rights Act (USERRA), are duly noted; however, we do 
not find the evidence provided sufficiently persuasive to 
override the rationale provided by the Air Force offices of 
primary responsibility.  We further note the applicant alleges 
that he was one of four senior Arizona Air National Guard 
(AZANG) officers removed from their military positions without 
cause by use of the Notice of Appointment letter.  The applicant 
also submitted an Air Force Inspector General's (IG) report that 
substantiated abuse of authority against two of the four 
officers.  The Board noted that although the findings in the IG 
report were not specific to the applicant, the investigation 
indicated issues of instances of alleged fiscal impropriety on 
the part of the applicant.  Consequently, it appears there was a 
basis for the TAG to question his judgment and, correspondingly, 
make an administrative decision.  However, no evidence provided 
supports the allegation of any adverse personnel action taken 
against the applicant.  To the contrary, the evidence 
established indicates that as a direct result of an involuntary 
loss of military membership, the applicant was properly issued a 
30-day notice of separation from technician employment in 
accordance with Title 32 U.S.C § 709, and separation and 
retirement actions were duly fulfilled.  The applicant has not 
provided evidence to persuade us to the contrary and we agree 
with the opinions and the recommendations of the Air Force 
offices of primary responsibility and adopt their rationale as 
the basis for our conclusion that the applicant has not been the 
victim of an error or injustice.  Therefore, in consideration of 
the sum of evidence provided, there is no valid basis in which 
we can support granting the requested relief sought in this 
application.  

________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not 
demonstrate the existence of material error or injustice; that 
the application was denied without a personal appearance; and 
that 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 this application 
in Executive Session on 12 September 2013, under the provisions 
of AFI 36-2603:

			, Panel Chair
			, Member
			, Member

The following documentary evidence was considered in AFBCMR 
Docket Number BC-2012-05055:

    Exhibit A.  DD Form 149, dated 22 October 2012, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  IG Complaint dated March 2012 (Withdrawn).
    Exhibit D.  Letter, NGB/J1-TN, dated 10 December 2012.
    Exhibit E.  Letter, NGB/A1PO, dated 12 December 2012.
    Exhibit F.  Letter, ANGRC/JA, dated 14 December 2012.
    Exhibit G.  Letter, NGB/A1P, dated 19 December 2012.
    Exhibit H.  Letter, SAF/MRBR, dated 21 December 2012.
    Exhibit I.  Letter, Applicant, dated 10 January 2013.