RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2012-00944 

 

 COUNSEL: 

 

 HEARING DESIRED: NO 

 

________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

1. His 30 December 2010 involuntary early retirement from the 
Michigan Air National Guard (MIANG) be set aside. 

 

2. He be reinstated to his former status as a full-time Air 
National Guard (ANG) technician, with appropriate back-pay and 
allowances. 

 

3. In the alternative, he be reinstated to a comparable status 
in the Air Force Reserve 

 

________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

1. The decision of the Selective Retention Review Board (SRRB) 
to non-retain him was in reprisal for his efforts to correct his 
civilian personnel records to reflect he was in the Civil 
Service Retirement System (CSRS) instead of the Federal 
Employees’ Retirement System (FERS). 

 

2. His inability to participate in the Operational Readiness 
Inspection (ORI) was due to his father’s terminal illness, but 
was used as an excuse to initiate the non-retention action. 

 

3. The stated basis for the decision to not retain him was 
faulty. While the rationale for the decision was that his 
continued retention would adversely affect unit manning 
(hindering promotions), his continued service would not have 
precluded others from being promoted. The command’s claim that 
his forced retirement would allow the unit to promote other 
members is simply untrue. There are a variety of personnel 
force management alternatives the commander could have employed 
to ensure his continued service. While there were two technical 
sergeants occupying master sergeant positions who could not be 
promoted under the ordinary promotion criteria because the unit 
had exceeded the authorized percentage of assigned master 
sergeants, the commander could have promoted them under the 
Deserving Airman Promotion Program (DAPP), regardless of these 
manning concerns. Additionally, this decision flies in the face 


of the high regard his technician superiors held for him as 
exemplified by their efforts to obtain an extension for him. 

 

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

 

_________________ ______________________________________________ 

 

STATEMENT OF FACTS: 

 

Information extracted from the Military Personnel Data System 
(MilPDS) indicates the applicant served with the Air National 
Guard (ANG) in the grade of master sergeant (E-7) during the 
matter under review. 

 

According to documentation provided by the applicant, on 21 June 
1987, he was hired as a dual-status technician with the 
California Air National Guard (CANG). 

 

A military technician (dual status) is a Federal civilian 
employee who, (a) is employed under 5 USC § 3101 or 32 USC § 
709(b); (b) is required as a condition of that employment to 
maintain membership in the Selected Reserve; and (c) is assigned 
to a civilian position as a technician in the organizing, 
administering, instructing, or training of the Selected Reserve 
or in the maintenance and repair of supplies or equipment issued 
to the Selected Reserve or the armed forces. 

 

According to documentation provided by the applicant, on 
2 October 1988, he transferred to the Michigan Air National 
Guard (MANG). 

 

In July 2002, the applicant made an inquiry to the Office of 
Personnel Management (OPM) for corrective action under the 
Federal Erroneous Retirement Coverage Corrections Act (FERCCA) 
due to erroneous enrollment into FERS. 

 

On 17 May 2006, an Administrative Judge issued an initial 
decision affirming the Department of the Air Force’s denial of 
the applicant’s request to correct his retirement coverage and 
the applicant petitioned for review. 

 

On 20 December 2006, the Merit Systems Protection Board (MSPB), 
Central Regional Office, found the Department of the Air Force 
violated the applicant’s reemployment rights under the Vietnam 
Era Veteran’s Readjustment Assistance Act of 1974 in that they 
had him under FERS instead of CSRS. 

 

On 30 January 2007, the applicant petitioned for enforcement of 
the MSPB final decision. 

 

On 16 February 2007, the MIANG indicated they would not comply 
with the MSPB decision, indicating the Adjutant General was a 


state employee and did not fall under the jurisdiction of the 
federal MSPB. 

 

On 23 February 2007, the Department of the Air Force indicated 
it had decided to cooperate and the applicant withdrew his 
petition for enforcement. 

 

The applicant’s spouse filed a second petition of enforcement of 
the MSPB decision in December 2007. 

 

In 2008, the MIANG agreed to comply over a six-month period, and 
filed a settlement agreement. 

 

On 22 January 2009, the applicant reenlisted in the MIANG and as 
a Reserve of the Air Force for a period of three years. 

 

On 11 April 2010, the applicant’s commander initiated an NGB 
Form 27, Federal Retention Evaluation/Recommendation, 
recommending the applicant separate on 1 December 2010 because 
his retention would limit the promotion potential of two 
technical sergeants (E-6) who occupied master sergeant 
(E-7)/shop chief slots. 

 

On 16 June 2010, the applicant was notified of the results of 
the MIANG Enlisted Selective Retention Review Board, which did 
not approve his continued retention in accordance with ANGI 36-
2606. Accordingly, he would be separated from the MIANG, 
effective 31 December 2010. 

 

On 7 October 2010, the applicant requested to stay on military 
orders for no more than one year. On 7 November 2010, the 
applicant and his spouse inquired about the applicant’s request 
to stay on military orders for one year or elevating their 
concerns to the Adjutant General due to the sensitivity of the 
matter. 

 

On 14 November 2010 and 22 November 2010, the applicant and his 
spouse submitted appeals to the Adjutant General requesting he 
be granted an extension. 

 

On 29 November 2010, the Adjutant General notified the 
applicant’s spouse of his determination that the Selective 
Retention Board acted consistent with all regulations and 
arrived at a purely military decision in not retaining the 
applicant. As such, his requested extension was not granted. 

 

On 3 December 2010, the applicant was informed that his 
employment as an Aircraft Engine Mechanic was terminated, 
effective 1 January 2011, due to his loss of his military 
membership. He became eligible for an immediate civil service 
retirement annuity. 

 

On 30 December 2010, the applicant was honorably discharged from 
the MIANG and transferred to the USAF Reserve Retired List to 


await retired pay at age 60 under the provisions of AFI 36-3209. 
He was credited with 33 years, 8 months, and 16 days of total 
reserve service for retired pay. 

 

On 19 January 2011, the applicant filed an appeal with the MSPB, 
Central Regional Office, indicating he involuntarily retired 
from the Department of the Air Force. The applicant indicated 
he was coerced into retirement; however, the appeal was 
dismissed for lack of jurisdiction. 

 

On 17 February 2011, the National Guard Bureau office of 
Legislative Liaison informed the applicant’s representative that 
the Air National Guard Manpower and Personnel Directorate 
reviewed the applicant’s letter and determined the procedures 
employed by the Michigan National Guard to non-retain the 
applicant were completed in accordance with Air National Guard 
Instruction 36-2606. He was determined eligible to meet the 
board and given the opportunity to respond. The information 
received concerning the inquiry indicated that he did not 
respond to the decision within the allotted time of 30 days. 

 

On 21 March 2011, the applicant was ordered by an administrative 
judge to provide evidence that the MSPB had jurisdiction to 
adjudicate his claim. In response, the applicant indicated that 
he held a Title 32 dual-status position and was not a Title 5 
civilian employee. As such, the applicant does not have appeal 
rights under MSPB and the Board does not have jurisdiction over 
the applicant’s removal due to the failure to maintain a 
compatible military position involving a National Guard 
technician. 

 

In August 2011, the MSPB dismissed the applicant’s appeal for 
lack of jurisdiction to review loss of his ANG membership. The 
MSPB only had jurisdiction to hear loss of membership as a civil 
service employee-technician and retirement benefits. 

 

________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

NGB/A1PP recommends denial, indicating there is no evidence of 
an error or injustice. In this case, the state of Michigan 
followed the appropriate procedural and program requirements 
during the selective retention process of the applicant. The 
applicant was properly notified by The Adjutant General of his 
non-continuation/curtailment of his tour as a result of the 
Enlisted Selective Retention Review Board (SRRB). He elected 
not to provide an official request for reconsideration. In 
accordance with ANGI 36-2606, there is no appeal beyond the TAG. 
Therefore, the decision not to retain the applicant was within 
the authority of TAG and cannot be overruled by the NGB. 
Consequently, as a dual status technician, the applicant was 
required to be terminated from his full-time position upon the 
loss of his military affiliation. 

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

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

The applicant argues the Board can review Air National Guard 
(ANG) actions and reinstatement to ANG status or to a comparable 
Federal Reserve status is within its authority. He compared his 
circumstances with other cases presented before the AFBCMR and 
offered their results as a possible resolution in his defense. 
Also, the timeliness of his reconsideration submission to his 
non-retention action should be excused, because he was under the 
credence that the action was going to be rescinded or suspended, 
it was reconsidered by TAG, and the non-retention action was 
reprisal. Although it appears that the non-retention procedures 
were followed properly, the AFBCMR must look beyond the surface 
of the action and determine any personal bias or reprisal. It 
is implied that force management reasons (the unit could not 
promote one technical sergeant to master sergeant since it would 
exceed the 100 percent force manning goal of 14 authorized and 
assigned master sergeants) led to the non-retention action; 
however, there are exceptions, such as the 120 percent DAPP 
promotion or retention of valuable over grade members. In 
addition, at the time of the non-retention action, the manning 
level was less than 100 percent due to the departure of master 
sergeant. Once it was revealed that the commander had other 
options rather than the non-retention action, and there was the 
contention of reprisal, he contradicted his original reason for 
non-retention. Since the Selective Retention Review Board and 
TAG made their non-retention decisions on criteria other than 
what the commander originally stated, relief should be granted. 

 

A complete copy of applicant’s response 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 alleges he has been the victim of an error or 
injustice (10 USC 1552) and that he has been the victim of 
reprisal and has not been afforded full protection under the 
Whistleblower Protection Act (10 USC 1034). He contends that 
his non-selection for retention by the Selective Retention 
Review Board (SRRB), which resulted in his retirement from both 
his full-time civilian (technician) and military positions, was 


in reprisal for his administrative and legal efforts to ensure 
that he was placed in the correct civilian retirement program. 
After a thorough review of the evidence before us, and noting 
the applicant has not availed himself of the Inspector General 
(IG) process, we do not find his assertions or the documentation 
provided sufficient to establish that his non-selection by the 
SRRB rendered him either the victim of an error or an injustice 
as defined in 10 USC 1552, or that he was the victim of reprisal 
as defined in 10 USC 1034. While the applicant contends his 
inability to participate in the Operational Readiness Inspection 
(ORI) was used as an excuse to recommend he not be retained by 
the SRRB, we are not convinced that his commander’s decision to 
recommend he be non-retained was motivated by anything other 
than the goal of achieving the force management objectives of 
his unit. In this respect, we note the SRRB is essentially a 
force management tool whereby the Adjutant General of a State’s 
National Guard evaluates the impact on a unit’s force management 
objectives of the continued retention of members, such as the 
applicant, who have attained sufficient service to qualify for 
retirement. In this case, it appears the SRRB determined that 
the applicant’s retention beyond his more than 33 years of 
service would serve to diminish the promotion opportunities of 
lower ranking individuals within his organization. The stated 
basis of the Board’s decision to non-retain the applicant was 
well within their discretionary authority and we do not find the 
applicant’s argument that his commander could have employed a 
variety of other force management tools to create the specific 
set of circumstances required to allow his retention without any 
resultant adverse impact on promotion opportunities of junior 
members of the unit. In our view, while a commander has several 
force management tools at his or her disposal, he or she must 
formulate the best force management strategy based on overall 
needs of his or her unit manning. While the applicant contends 
the commander could have employed Deserving Airman Promotion 
Program (DAPP), promotion under this program is predicated on an 
agreement to retire if not reassigned to a vacancy commensurate 
with the new grade within two years of the effective date of the 
promotion and there are likely secondary and tertiary effects 
that the commander thoughtfully considered in exercising his 
discretionary authority in choosing which force management 
programs to utilize for the overall health of his unit. 
Ultimately, while it may be true the commander could have moved 
heaven and earth to create the specific circumstances required 
to ensure the applicant’s retention beyond his 33 years of 
service, we are not convinced that the commander abused his 
discretionary or that the SRRB decision to non-retain the 
applicant was arbitrary, capricious, or an act of reprisal for 
the applicant’s previous efforts to correct his civilian 
personnel records. Therefore, we find no basis 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-2013-00944 in Executive Session on 8 August 2013, 
under the provisions of AFI 36-2603: 

 

 Vice Chair 

 Member 

 Member 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 18 February 2012, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, NGB/A1PP, dated 12 March 2013. 

 Exhibit D. Letter, SAF/MRBR, dated 22 April 2013. 

 Exhibit E. Letter, Applicant’s Counsel, dated 19 May 2013 

 

 Vice Chair