RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-1999-01107
		INDEX CODE:  
		COUNSEL:  

		HEARING DESIRED:  YES

APPLICANT REQUESTS THAT:

The Article 15 imposed on 22 May 1997, be removed from his records.

APPLICANT CONTENDS THAT:

The Article 15 was imposed against him in retaliation for his blowing the whistle on illegal overtime payments within the Inter-American Air Force Academy (XXXXX).

The applicant’s counsel states that shortly after becoming the XXXth Training Support Squadron Commander, the applicant began noticing some irregular overtime payments.  He immediately reported these discrepancies to the XXXXX commandant and was ordered to keep the information internal and “sweep it under the rug.”  After several weeks it was apparent that the XXXXX commandant was not going to do anything about the illegal over-time payments so he told the commandant he was going to report the matter to the wing commander.  He notified the wing commander and was temporarily removed from command.  The XXXXX commandant and the wing commander did not want the matter investigated by outside sources because they knew it would cause severe problems and embarrassment.  The XXXXX commandant was subsequently asked to retire and the wing commander was reassigned.  As a result of the Article 15, his career was ended because he could not be promoted and was forced to retire early.  

In support of the appeal, applicant’s counsel submits letters of recommendation from previous commanders, co-workers and friends which attest to applicant’s good character truthfulness and dedication to the Air Force.

The applicant’s complete submission is attached at Exhibit A.

STATEMENT OF FACTS:

The applicant was assigned as XXXth Training Support Squadron Commander on 22 November 1996.

On 10 February 1997, the applicant reported to the XXXX commandant that improper civilian employee procedures were being used in the XXXX.

Based on reports from some of the applicant’s subordinates that he had displayed disrespect towards the XXXXX commandant.  The XXXX commandant, on 14 February 1997, appointed an Inquiry Officer (IO) to investigate the allegations against the applicant.

On 21 February 1997, the applicant advised the XXXXX commandant that he had made an appointment to see the wing commander on 10 March 1997.  Later that same date the XXXXX commandant temporarily removed the applicant from his position on pending the completion of the investigation he had requested earlier.

Based on an anonymous complaint received on 27 February 1997 in reference to overtime procedures in the XXXth TRSS, the XXth TRW/IG conducted an investigation which found no wrongdoing.

On 12 March 1997, the IO completed the command directed investigation which revealed the applicant did make comments in open forums (i.e., staff meetings, business related meetings, one-on-one meetings, and commander’s calls) that were disrespectful towards the XXXXX commandant.

The applicant filed a complaint to the Department of Defense Inspector General (DoD/IG) on 13 March 1997, alleging the XXXXX commandant reprised against him by removing him from command for preparing to advise the wing commander of improprieties in the civilian overtime procedures at XXXXX.  In addition, the applicant also alleged improprieties in the civilian overtime procedures at XXXXX that had not been investigated.

On 3 April 1997, the XXXXX commandant notified the applicant of his intent to impose nonjudicial punishment under Article 15 of the Uniformed Code of Military Justice (UCMJ) for violations of Article 89 (Disrespect toward a Superior Commissioned Officer) and Article 133 (Conduct Unbecoming an Officer and a Gentleman).  Specifically, for referring to his commander as a “bastard”, “coward” and a “fucker” and saying that he “could chew on this” while pointing at his groin area to subordinate members of his squadron.  In addition, he repeatedly used profanity directed at, or in the presence of subordinate members of his squadron.  After consulting with military counsel, the applicant waived his right to trial by court-martial.  After considering the applicant’s oral presentation on 22 May 1997, the commandant imposed punishment consisting of forfeiture of $1,000.00 pay for two months and a reprimand.  The applicant appealed the punishment; however, on 26 June 1997, his appeal was denied.

The DoD/IG referred the applicant’s complaint to the Secretary of the Air Force Inspector General on 8 May 1997 for action. 

On 21 May 1997, the XXth TRW Vice Commander ordered a team from the XXth TRW Staff Judge Advocate and XXth CPTS/CC to investigate procedures within the XXX TRSS.  The investigation found no wrongdoing.

On 30 July 1997, Xnd Air Force Commander determined the Article 15 would be filed in the applicant’s Officer Selection Record (OSR) and Officer Command Selection Record (OCSR).

The Air Education and Training Command Inspector General (AETC/IG) conducted an investigation from 23 June 1997 to 31 July 1997.  The investigation concluded the evidence did not substantiate his allegation of reprisal.  In addition, the alleged improper overtime procedures were investigated twice and no wrongdoing was found.

A copy of the Article 15 was filed in the applicant’s OSR on 20 October 1997.

The applicant was considered and not selected for promotion to the grade of lieutenant colonel by the Calendar Year 1998B Central Lieutenant Colonel Selection Board.

On 1 March 1999, the applicant voluntarily retired in the grade of major under the Temporary Early Retirement Authority (TERA).  He completed 17 years, 3 months, and 6 days of active service.

Applicant’s OPR profile since 1990, is as follows:

      PERIOD ENDING               EVALUATION OF POTENTIAL

        23 Jul 90                   Meets Standards (MS)
        23 Jul 91                            MS
        28 Jun 92                            MS
         3 Dec 92                            MS
         3 Dec 93                            MS
         3 Dec 94                            MS
         3 Dec 95                            MS
        31 Oct 96                            MS
      * 31 Oct 97 (Referral)      MS on all factors except
                                  Leadership Skills and 
                                  Professional Qualities
        31 Oct 98                            MS

* Top report reviewed by CY98B Lt Col board.

AIR FORCE EVALUATION:

The XXXXX XXXXX, Military Justice Division, AFLSA/JAJM, reviewed the application and states the Article 15 action is legally sufficient.  The applicant has not alleged any error in the Article 15 process other than alleging the punishment resulted from "trumped up charges to keep [the applicant] quiet and from being a whistle blower concerning the illegal overtime payments." The applicant was afforded the right to present matters in his defense during the Article 15 proceedings and personally appeared before his commander.  After considering all of the evidence and the circumstances under which the offenses occurred, the commander determined the applicant committed the offenses alleged and imposed punishment.  The applicant was afforded the right to appeal to the appellate authority, which he did and after considering all matters presented, his appeal was denied.

AFLSA/JAJM states that two minor administrative errors occurred in processing the Article 15, both of which were noted by Xnd AF/SJA during the legal review on 11 August 97.  Both constitute harmless error and did not prejudice his substantive rights.  Based on the information available in the record, the applicant's nonjudicial punishment was properly accomplished and he was afforded all rights granted by statute and regulation.  Therefore, they recommend denial of his request.

A complete copy of the Air Force evaluation is attached at Exhibit C.

The XXXXX, General Law Division, AF/JAG, reviewed the application and cautions the Board that they are not bound by the IG's conclusions that reprisal action was not substantiated.  In this respect, they note that under 10 USC 1034(f), the applicant is entitled to raise the same claim of reprisal before the Board.  In reviewing such an application, the Board shall review the IG's report. To meet this requirement, they obtained an unredacted copy of the report from SAF/IG.  In reaching its own conclusions, the Board may request the IG to gather further evidence and may (but is not required to) receive oral argument, examine and cross-examine witnesses, take depositions, and, if appropriate, conduct an evidentiary hearing.

AF/JAG states that while the Board is not bound by the IG's conclusions, neither is there any reason to depart from the normal principle that the applicant bears the burden of proving error or injustice.  Here the applicant fails.  While his attorney makes the allegation that he is the victim of reprisal, he cites no supporting evidence, save the coincidence that the applicant was relieved of command on the same day he informed the XXXXX commandant he had made an appointment to see the wing commander.  But even this is unpersuasive.  The applicant says he told the commandant "he was going to report the matter" of suspected overtime improprieties to the wing commander, but according to the commandant (as reported to the IG investigator), the applicant informed him only that he was going to "seek career guidance" from the commander. (The IG report found that although the applicant never told the commandant he specifically intended to report the overtime matter to the wing commander, the commandant could reasonably have concluded the subject would arise during the meeting.)  More important, the applicant offers no rational explanation why the XXXXX commandant or wing commander would want to "cover up" any improprieties in the squadron's overtime practices-none of which, incidentally, were found by either of the two investigations into those allegations.  There is no evidence either of them would have benefited personally from such improprieties, or that either of them had a relationship with any other person who might have benefited such that they would not have wanted the improprieties revealed.

In regard to the applicant’s own misconduct, AF/JAG notes that he provides no evidence to directly refute the allegations in the Article 15.  He did not, for example, provide affidavits or statements from witnesses who were present at the relevant meetings but who swear the applicant did not make the disrespectful comments and gesture as alleged.  He provides only a stack of 70 character references attesting generally to his excellent duty performance and other positive traits.  While such "good soldier" evidence can be relevant, it does not, in this case, persuade them the allegations of misconduct against him were “trumped up".  Moreover, although this collection of incidents for which the applicant received nonjudicial punishment appears to be the only blemish on his military record, in their opinion the command response to the misconduct was not so extreme and shocking as to constitute an injustice.  Therefore, they recommend denial of his request.

A complete copy of the Air Force evaluation is attached at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Complete copies of the Air Force evaluations were forwarded to the applicant and counsel on 21 June 1999, for review and response within 30 days.  However, as of this date, no response has been received by this office.

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 probable error or injustice.  Applicant’s contentions are duly noted; however, we do not find his uncorroborated assertions, in and by themselves, sufficiently compelling to override the rationale set forth by the Air Force.  Therefore, we agree with the opinions and recommendations of the Air Force and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  Therefore, in the absence of substantive evidence to the contrary, we find no compelling basis to recommend granting the relief.

4.	The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue(s) involved.  Therefore, the request for a hearing is not favorably considered.

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of probable 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 5 October 1999, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 27 Nov 98, w/atchs.
	Exhibit B.	Applicant's Master Personnel Records.
	Exhibit C.	Letter, AFLSA/JAJM, dated 27 May 99.
	Exhibit D.	Letter, USAF/JAG, dated 18 Jun 99.
	Exhibit E.	Letter, AFBCMR to Applicant, dated 21 Jun 99.
	Exhibit F.	Letter, AFBCMR to Counsel, dated 21 Jun 99.
	Exhibit G.	Letter, AFBCMR to Counsel, dated 28 Jun 99.