RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-00685
	XXXXXXX	COUNSEL:  NONE
		HEARING DESIRED:  NO

________________________________________________________________

THE APPLICANT REQUESTS THAT:

1.  His 10 Oct 10 discharge date be voided. 

2.  He be allowed to remain in the Air National Guard (ANG) 
until his Mandatory Separation Date (MSD) of 1 Jun 12, with all 
back pay, allowances, and benefits.

________________________________________________________________

THE APPLICANT CONTENDS THAT:

He was involuntarily discharged without the proper authority, 
which was substantiated by the Secretary of the Air Force, 
Inspector General (SAF/IGS).  

His discharge resulted in an error in his records and an 
injustice by terminating his career along with the loss of wages 
and benefits earned between 10 Oct 10 through 1 Jun 12.

In support of his appeal, the applicant provides a personal 
statement, copies of his retirement orders, discharge 
certificate, the SAF/IGS Report of Investigation (ROI), and 
various other documents.

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

________________________________________________________________

STATEMENT OF FACTS:

The following information was noted in the ROI provided by the 
applicant.  In the fall of 2009, the applicant, while serving as 
an Air Guard Technician (AGT) and the Military Personnel 
Management Officer (MPMO), for the Joint Forces Headquarters 
(JFHQ), informed the Assistant to the Adjutant General (ATAG), 
Wyoming ANG (WYANG), of his intentions to retire in Sep 10.

On 22 Jan 10, the applicant submitted a request to hire his 
replacement as the full-time MPMO.

On 14 Mar 10, the applicant submitted an electronic application 
to retire from the ANG, effective 13 Sep 10, his 60th birthday.

On 25 Apr 10, the applicant’s replacement was hired to fill his 
position.

On 5 Jun 10, the applicant’s replacement signed his orders to 
separate him from the ANG, effective 10 Sep 10.  On 22 Jun 10, 
the applicant sent an email to the National Guard Bureau 
(NGB/A1PO) indicating that he was considering staying until his 
MSD, 1 Jun 12.

On 24 Jun 10, the applicant emailed the then-Vice Chief of the 
Joint Staff, WYANG, notifying her that he intended to work until 
his MSD of 1 Jun 12, and withdrew his AGT retirement 
application.

On 10 Jul 10, the applicant acknowledged that he was being 
assigned as an “excess” in his position with an expiration of 
10 Oct 10.  The notice was signed by the Vice Chief of the Joint 
Staff, on the ATAG’s behalf.  At that time, he was presented 
with a NGB 31-11, Statement of Understanding (SOU) – 
Excess/Overgrade Condition; however, he refused to sign the SOU.

On 11 Jul 10, the applicant and the ATAG met to discuss his 
desire not to retire in Sep 10.  

On 23 Jul 10, the applicant met with the WYANG Inspector General 
(WYANG/IG) and filed a complaint against the Vice Chief of Joint 
Staff and the ATAG.

On 3 Aug 10, the Vice Chief of Joint Staff signed an order 
amending the applicant’s separation from the ANG and transfer to 
the Air Force Reserve to reflect his discharge from the WYANG 
and as a Reserve of the Air Force effective 10 Oct 10, under the 
provisions of AFI 36-3209, para 2.25.2, ANG Unique Separations.

On 6 Oct 10, the applicant traveled to the Air Reserve Personnel 
Center (ARPC) and submitted an ARPC Form 83, Application for 
Retired Pay, with an effective date of 11 Oct 10.

On 10 Oct 10, the applicant was discharged from the WYANG and 
transferred to the Air Force Reserve.  On 11 Oct 10, his name 
was placed on the USAF Retired List, with authorization for 
retired pay.  He was credited with 39 years, 4 months, and 
21 days of satisfactory Federal service (Reserve Order EL-0082, 
dated 6 Oct 10).

On 21 Mar 12, SAF/IGS found that the ATAG did not violate AFI 
36-2606, Selective Retention of Air National Guard Officer and 
Enlisted Personnel, by not having a Selective Retention Review 
Board (SRRB) because the applicant was exempt from consideration 
by the 2010 SRRB because he served as a recorder and member of 
the Board (Allegation 1).  However, SAF/IGS found that the ATAG 
did violate AFI 36-3209 by directing the separation of the 
applicant without initiating proper discharge actions 
(Allegation 3).

Regarding Allegations 2 and 4, SAF/IGS did not find that the 
Vice Chief of Joint Staff reprised against the applicant because 
she would have ordered his discharge even if he had not made any 
protected communications.  However, they did determine that she 
abused her authority when she signed the orders that discharged 
the applicant from the WYANG and the Air Force Reserve.  In 
addition, they found that the discharge adversely affected the 
applicant and was outside the Vice Chief of Joint Staff’s 
authority.

In addition, no one had the authority to discharge the applicant 
from the Reserve of the Air Force (See SAF/IG Report at 
Exhibit B).

________________________________________________________________

THE AIR FORCE EVALUATION:

NGB/A1P concurs with the Subject Matter Expert (SME) and 
recommends denial based on the governing AFI and documentation 
provided by the applicant.

A1PP agrees with the findings of SAF/IGS in that the Vice Chief 
of Joint Staff, WYANG, did not act in retaliation for the 
applicant formalizing a complaint with the WYANG/IG.  They note 
that SAF/IG did not substantiate the allegation(s) of reprisal, 
but did find that both the ATAG and the Vice Chief of Joint 
Staff were in error in the way in which they handled the 
applicant’s involuntary separation from the WYANG.  

According to AFI 36-3209, “the authority to separate ANG 
assigned member from state status rest with the State Adjutant 
General.”  The Vice Chief of Joint Staff did not have authority 
to discharge the applicant as a discharge package is required by 
the commander, then forwarded to the ATAG, then to the TAG for 
final approval.

The IG states the applicant’s discharge was an unfavorable 
personnel action because it ended his military career before his 
MSD and discharged him from the Reserve of the Air Force, but 
attested the action was not an act of retaliation.  According to 
AFI 36-3209, members placed as excess or overgrade can be 
separated if not placed into another position upon reaching the 
expiration date; therefore, the applicant being forced to retire 
was not in violation of ANG policy.

The complete A1P evaluation, with attachments, is at Exhibit C.

________________________________________________________________

APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:

The applicant notes that there are four methods to separate a 
member involuntarily from the military: 1) by expiration of 
their MSD; 2) by findings of the Medical Evaluation Board (MEB) 
determining the member is not fit for duty; 3) administrative 
discharge for cause; or 4) the concurrence by the TAG of an 
SRRB’s recommendation.

He believes two areas need further clarification; the response 
from A1PP and the manipulation of the policy and procedure by 
the ATAG and the Vice Chief of Joint Staff.  It is clear that 
A1PP only addresses the process regarding members in an excess 
status, but, ignores as in his case, the only authorized method 
to discharge him involuntarily was to use his MSD as his 
separation date.  Obviously, missing in A1PP’s consideration are 
the actions taken by the ATAG and the Vice Chief of Joint Staff 
showing their plan to have him removed from military service 
without cause.  The procedure they use to place him in an excess 
status was not implemented correctly.  So he did not sign the 
SOU as required.  The ATAG’s actions were based on improper 
administration of the personnel policies as stated in 
ANG Instruction (ANGI) 36-2101, Assignments Within the Air 
National Guard (ANG), dated 11 Jun 04, paragraph 2.3, Assignment 
of Full-Time Personnel, states, "Under no circumstances will 
military technicians or AGR personnel be assigned in an excess 
status without written approval from ANG/DP, to include 
projected losses within 24 months."  The ATAG did not have 
approval from ANG/DP to place him into an excess status, on 
10 Jul 10.  Paragraph 4.1, Retention in an Excess Status, 
states, "The member placed in the excess condition will not be a 
military technician or Active Guard Reserve (AGR).  Only in rare 
circumstances will a military technician or AGR member, be 
placed in an excess condition. Prior to making an assignment 
action that would result in a military technician or AGR 
becoming excess, ANG/DPFOM review and approval is required."

In addition, A1PP states, ANGI 36-2101, “... members placed as 
excess or overgrade can be separated if not placed into another 
position upon expiration date ...” the ATAG intentionally did 
not fulfill his mandatory obligation to place him into a valid 
position that he was qualified for, the existing commander 
vacancy, as stated in the enclosed Memo-For-Record (MFR) of 
their 11 Jul 10 discussion about this position (enclosure #5).  
This is a violation of Technician Program Administration 
303 dated 24 Aug 05, paragraph 2-1b, (enclosure #6), "The full-
time support member is the primary occupant of the military 
position and is not coded as excess."  It is also a violation of 
ANGI 36-2101, paragraph 2.20.4, "It is incumbent on the unit 
commander to keep members informed of their status and to 
continually try to rectify the excess or overgrade situation."  
The ATAG’s direction/guidance to the Vice Chief of Joint Staff, 
per A1PP’s message, "by not placing you into another billet 
prior to the expiration date of your excess" is an unlawful 
direction from the ATAG, the commander of the WYANG, to the Vice 
Chief of Joint Staff.

The Vice Chief of Joint Staff misused her authority by 
discharging him involuntarily as stated in the SAF/IG report.  
This lack of authority is a violation of policy and procedure 
and not authorized by the Air Reserve Personnel Center (ARPC).   

He goes on to discuss the following areas of the IG report to 
substantiate his request:

		1.  Page 4, seventh bullet: “I informed Col C. I 
intended to be employed through the date of my MSD.  I withdrew 
my technician retirement form.”  

		2.  Page 16, paragraph #2, the discharge ended his 
career before his MSD.

		3. Page 18, third paragraph, the discharge was 
unreasonable.

		4. Page 19 - 20, paragraph 5, the discharge was 
unreasonable and not correct procedurally.

In addition to the SAF/IG report, the MFR from the meetings and 
discussions with Vice Chief of Joint Staff substantiates that 
she was determined to remove him from his position at her 
earliest opportunity, when she stated, “I cannot wait 2 years."  
She made him choose between retiring voluntarily and remaining 
to his MSD.  He informed her he would remain until his MSD.  His 
decision was followed by a concerted effort between the ATAG and 
her to manipulate policy and procedure to their advantage and 
was an abuse of their authority and misconduct by senior 
officials.  This resulted in his termination without cause and a 
significant monetary loss and personal stress to him and his 
family.

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 error or injustice.  The applicant 
alleges he has been the victim of reprisal and has not been 
afforded full protection under the Whistleblower Protection Act 
(10 USC 1034).  The Inspector General investigated the 
allegations of reprisal against the applicant’s state military 
officials; however, while they determined that the ATAG and the 
Vice Chief of Joint Staff did abuse their authority by 
separating the applicant without initiating the proper discharge 
actions, they did not find the allegations were an act of 
reprisal or retaliation because of protected communication.  We 
considered the allegations by the applicant and based on our own 
independent review, we note that although it appears the 
applicant’s separation was not properly executed, the evidence 
reflects that the TAG was aware and agreed with this action.  
Therefore, we did not find that the actions to separate the 
applicant were motivated by retaliation for making a protected 
communication.  As such, we find no basis to grant the 
applicant’s request under 10 USC 1034.  Additionally, while we 
note the apparent error made by state military officials, we do 
not believe the error in this case rises to the level of an 
injustice to warrant the relief the applicant is seeking.  In 
this respect, we note that while the ATAG and the Vice Chief of 
Joint Staff did not properly execute the applicant’s separation, 
in our view, it appears that had the separation been carried out 
properly by the TAG that the outcome would have been the same.  
Therefore, we conclude that although an error was made in 
executing the applicant’s discharge, we consider the error to be 
harmless in regards to its impact on the applicant and that it 
does not constitute an injustice that should be remedied by this 
board.  In view of the above and absent evidence to the 
contrary, we find no basis exists upon which to recommend 
granting the relief sought in this application.

________________________________________________________________

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-2013-00685 in Executive Session on 22 Nov 13, under 
the provisions of AFI 36-2603:


The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 4 Feb 13, w/atchs. 
    Exhibit B.  SAF/IG Report, WITHHELD.
    Exhibit C.  Letter, NGB/A1P, dated 26 Apr 13, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 3 May 13.
    Exhibit E.  Letter, Applicant, dated 25 May 13, w/atchs.




                                   Panel Chair




7