RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-03128
		INDEX CODE:  110.03
		COUNSEL:  

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

a.  He be promoted to the grade of colonel.

b.  He be reinstated into the Air National Guard (ANG) or in the alternative, he be placed into a comparable Federal position in the Air Force Reserve.

c. He receive pay and allowances and retirement credit retroactive to 31 Dec 00.

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APPLICANT CONTENDS THAT:

He was unlawfully and unjustly separated from the ---- ANG in December 2000 as the result of improper acts of a Selective Retention Review Board (SRRB).  The SRRB is essentially a force management tool to effect needed personnel adjustments to maintain a stable and viable force-structure.  In the preliminary process of the 3 May 00 SRRB, Colonel 1----, his wing commander, recommended retention.  Three ---- ANG members served as voting members, Colonel 1----, Colonel 2----, and Colonel 3----.  Despite his retention recommendation, he was selected for non-retention and that decision was approved by Major General 1----, the ---- Adjutant General.  On 16 May 00, with his commander’s support, he asked General 1---- to reconsider his decision.  His commander indicated that he was shocked to learn of the decision to non-retain the applicant because pilot manning was below 100% and was projected to dip below 80%.  He further indicated that the loss of one of his most seasoned pilots would negatively impact pilot manning and his continued ability to maintain an acceptable level of combat readiness.  Following the recommendation of Brigadier General 2----, the Assistant Adjutant General for Air, General 1---- denied his request for reconsideration stating that he was assured that the SRRB carried out their duties based on mission needs and without bias or prejudice.   

The applicant filed a complaint with the Air Force Inspector General (SAF/IGS) alleging that the Colonel 1---- and Colonel 2---- reprised against him and that they abused their authority as board members, and that General 2---- engaged in reprisal against him and wrongfully influenced the SRRB.  The IG investigation uncovered illegal conduct by the two members of the SRRB and concluded that their actions deprived him of his right to fair and impartial consideration when they voted to non-retain him due to their personal bias against him.  After learning of the impropriety, the Adjutant General informed him of his regret that the incident occurred and directed him to the AFBCMR to seek redress.  The investigating officer (IO) noted that the applicant was the only officer ever recommended for non-retention who had been recommended for retention by his commander.  He concluded that the documents available to the board did not show a valid force management reason to non-retain the applicant.  All but two witnesses interviewed testified that no valid force management reason existed to non-retain him, to include the third SRRB member, Colonel 3----.  Colonel 1---- testified that he recommended him for non-retention for "force management" reasons because he was not an exemplary officer due to some alleged involvement in incidents involving alcohol.  The IO noted that no information on these alleged incidents were included in the applicant's personnel records and that this rationale for non-retention is not the standard set forth in the applicable regulation.  Colonel 1---- testified that Colonel 1---- was a new commander and that he did not have the unit experience or know his people very well.  However, the IO noted that Colonel 1---- had been in command for over 2 years and as wing commander, he was in the best position to assess the applicant's performance and potential.  Colonel 2---- told the investigating officer that he recommended non-retention because the wing lacked a succession plan.  However, Colonel 1---- testified that the wing had a very elaborate plan of what the wing was going to do regarding succession.  The IO further noted that any alleged lack of a succession plan may be evidence of a management problem, but in itself is not a sufficient force management reason to non-retain personnel.  Colonel 2---- implied that the major reason that the applicant was identified for non-retention was that he was a senior lieutenant colonel who was holding up younger officers.  However, his testimony was not supported by the documentary evidence contained in the Force Management briefing.  He was unable to explain why the applicant was singled out for non-retention apart from other officers who were also recommended for retention by their commanders when at least nine others were more senior.  

In 1994 and 1995, the applicant was involved in two very contentious events involving IG and Commander Directed Investigations (CDIs) both of which involved his direct testimony and making serious allegations against the senior leadership and former leadership of the --- Fighter Wing.  Both investigations involved General (then Colonel) 2----, the latter of which resulted in his removal from consideration by the Brigadier General Promotion Board.  

The IO concluded that reprisal was not conducted against the applicant because "the greater weight of credible evidence" showed that the officers did not know about the protected communications he made.  There are several problems with this conclusion.  The applicant's involvement in the two investigations was common knowledge amongst members of the wing and contrary to the IO's opinion; actual knowledge of the communication is not required.  Given the small size of the ---- ANG and the contentiousness of the investigations, it is clear that at a minimum, they suspected or believed that he was involved in making protected communications.  

If the Board reinstates the applicant in the grade of lieutenant colonel, he will have a mandatory separation date of 14 Sep 02.  In contrast, a colonel is allowed to remain on active duty until he reaches 30 years of service.  Accordingly the only way for him to remain in military service is for him to do so as a colonel.  If the SRRB had not violated his right to a fair and impartial hearing, he would have been selectively retained.  As the only fully qualified applicant for vice wing commander, it is evident that Colonel 1---- would have appointed him to the position and recommended him for promotion to colonel as affirmed by Colonel Peter's high professional opinion of him as an outstanding officer.  The testimonies of General 2---- and Colonel 2---- verifies his intent to promote the applicant to vice wing commander.  

In support of his request, applicant provided his counsel's brief, documents associated with his separation from the ANG, documents associated with the SRRB decision and his request for reconsideration, documents associated with his SAF/IG investigation, letters he received from the Adjutant General's office, a letter from ---FW/CC, documentation associated with his recommendation for the Legion of Merit medal, and his ANG/USAFR Point Credit Summary.  His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant was appointed a second lieutenant, Reserve of the Air Force on 15 Jan 74.  He was progressively promoted to the grade of lieutenant colonel, having assumed that grade effective and with a date of rank of 15 Aug 95.  On 1 Jan 01, he was separated from the ANG and his name was placed on the USAF Reserve Retired list effective 2 Jan 01.  At the time of his separation, he had 26 years, 1 month, and 18 days of satisfactory Federal military service

The remaining relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letters prepared by the appropriate offices of the Air Force at Exhibits C and D. 

Pursuant to the Board's request, the Inspector General of the Air Force provided a copy of a Report of Investigation Pertaining to the applicant.  The report is appended at Exhibit G.

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AIR FORCE EVALUATION:

NGB/JA reviewed applicant's request and recommends approval of his request for reinstatement in the ANG and that he receives all back pay and allowances.  JA states that the Board may recommend to the --- TAG reinstatement of the applicant to the --- ANG but may grant his request for reinstatement into a comparable Federal position.  JA recommends denial of his request for promotion to colonel.  JA states that the IO's findings on the SRRB are compelling proof of a material error or injustice.  The applicant has shown convincingly, through the investigative report of an uninterested third party, that the SRRB abused its authority and failed to provide the applicant a fair and impartial hearing.  The report of investigation reveals that the board had no force management justification for its recommendation to not retain the applicant.  Even clearer is the board's improper reliance on Colonel 1----'s negative opinions concerning the applicant's officer ship.  Equally troubling is the discussion by the SRRB of his role in the IG investigations and unsubstantiated alcohol abuse.  

With regards to the applicant's promotion request, JA states that it is inappropriate for the AFBCMR to grant the applicant such a speculative remedy.  While he argues that he was the only 0-5 in a position to fill the vice commander slot, it is their opinion still far too uncertain to establish that but for the non-retention he would have been promoted.  

The JA evaluation is at Exhibit C.

ANG/DPFP reviewed applicant's request and states that they concur with the JA opinion concerning the limitations of the Board concerning its authority to order reinstatement into the ANG.  DPFP suggests that relief is beyond the authority of the AFBCMR and recommends the case be returned without a determination.  

The AFBCMR can change his Federal record.  If the State does reinstate him, the records can be changed to show that the applicant remained a part of the ANG until reinstatement.  If the State does not reinstate him, the records can be changed to show he remained a part of the ANG until he was placed into a position with the Air Force Reserves.  Reinstatement into a comparable Federal Reserve status, which restores his pay, back pay, and retirement entitlements.  

Based on the limited information, it is uncertain whether or not the applicant would have been promoted, had it not been for non-retention.  Denial of that portion of his request is recommended.
The DPFP evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel responded and states that the JA advisory is incorrect in stating that the letters encouraging the applicant to seek redress through the AFBCMR and endorsing his efforts were signed by Brigadier General 2----, the Assistant Adjutant General.  In fact, they were signed by Major General 1----, the Adjutant General.  The Board has recommended promotion in a variety of circumstances where an officer's record could not be corrected in such a fashion as to afford him or her a fair chance to compete for a future selection board.  Additionally, it has, on at least one occasion, recommended promotion because of the magnitude of the injustice.  Both advisory opinions focus upon the uncertainty of whether he would have been promoted.  Because of the improper actions of the SRRB, Colonel 1---- was never given a chance to promote him and he was never afforded an opportunity to meet a promotion board.  The results of the promotion are uncertain since no promotion process was allowed to go forward.  That is why he is seeking relief from the AFBCMR.  General 2---- and Colonel 2---- were both aware of Colonel 1----' intent to promote the applicant.  The fact that he informed senior officials at the State headquarters of his plan to promote him indicates that he was intent upon doing so.  Colonel 1----' letter to the Adjutant General in support of his appeal addresses the possibility that he would be promoted to vice wing commander.  

As vice wing commander, the applicant would have met a federal recognition promotion board comprised of --- ANG officers.  A letter from Headquarters, --- ANG reveals that from 1996 through 2001, colonel promotion boards promoted all nine candidates recommended by the unit commanders--a 100% promotion rate.

If promotion is not granted, then consideration by Special Selection Board is requested.  In order for this to be fair and equitable, he should be given the same advantages he would have had if he had not been forced to retire.  A promotion recommendation to colonel would have followed his appointment as vice wing commander.  His military records should be changed to indicate a duty title of vice wing commander prior to the SSB.  

Counsel's complete submission, is at Exhibit F.

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  In this respect, we note the following:

	a.  After reviewing the evidence submitted by the applicant and noting the findings of the Inspector General’s investigation, it is apparent that the Selective Retention Review Board (SRRB) abused its authority and failed to provide the applicant a fair and impartial hearing.  In addition, in our opinion, the actions of the SRRB constituted reprisal.  Based on the evidence of record, had the applicant received proper consideration by the SRRB, he would have been recommended for retention.  As noted by the Air Force advisories, the AFBCMR does not have the authority to reinstate a member to the ANG.  Since the applicant desires to continue his career in the Air Force, we therefore recommend that he be placed into a position in the Air Force Reserve in which he is qualified.  Since he was not allowed to serve, we believe that his record should also reflect that he received credit for a satisfactory year of service for his retirement/retention years ending in 2001 and 2002.

	b.  Under most circumstances, this Board believes the decision regarding an applicant’s prospects for promotion should be addressed by the promotion selection process.  However, there are instances where the magnitude of the injustice is such that it can only be rectified by a Secretarially directed promotion.  We believe this is such a case.  In this respect, we believe that had the applicant been retained, he would have been selected for the vice wing commander’s position and considered by the Spring 2001 Federal Recognition Review Board.  As redress, the AFBCMR normally would have placed the applicant’s record before a Special Selection Board (SSB) and have the SSB compare his record with his contemporaries.  However, we have been informed that an SSB has never been conducted for a colonel federal recognition board and that records meeting a federal recognition board are not retained.  Therefore, in this instance recommending his consideration by an SSB would not be practical.  Based on the above, we are faced with the dilemma of determining whether or not the applicant would have been selected for promotion to the grade of colonel.  Based on the above findings, his commander’s support for promotion and noting the high rate of selection, we conclude that he would have been selected and therefore we recommend that he be promoted to the Reserve grade of colonel and receive the appropriate promotion effective date and promotion service date as if selected by the 2001 Federal Recognition Review Board.  In arriving at our decision, we are keenly aware that the courts have held that correction boards have an abiding moral sanction to determine, insofar as possible, the true nature of an alleged injustice and take steps to grant thorough and fitting relief.

c.  In regard to applicant's request for reinstatement in the Air National Guard, this Board lacks the authority to grant that relief.  However, we recommend instead that he be transferred to the Air Force Reserves and be provided the opportunity to serve there if he desires.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that:

	a.  He was not honorably discharged from the Air National Guard and transferred to the Air Force Reserve Retired List on 1 January 2001, but was continued in his assignment as an active member of the ---- Air National Guard.

	b.  He was considered and selected for federal recognition by the March 2001 Colonel Federal Recognition Board.

	c.  Upon Senate confirmation, he was promoted to the Reserve grade of colonel and given the appropriate promotion effective date (PED) and promotion service date (PSD.

	d.  He was credited with an additional 55 paid active duty points and 28 paid inactive duty points during the retirement/retention year 15 August 2001 to 14 August 2002; and, that the period 15 August 2001 to 14 August 2002 is a year of satisfactory Federal service for retirement.

	e.  Competent authority approved his application for a Ready Reserve Assignment in the grade of colonel, and he was discharged from the Air National Guard, transferred to the Air Force Reserve and on 15 August 2002, he was assigned to such a position for which he is qualified on the earliest practicable date.

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The following members of the Board considered Docket Number 01-03128 in Executive Session on 1 Aug 02, under the provisions of AFI 36‑2603:

Mr. , Panel Chair
Mr. , Jr., Member
Mr. , Member

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 31 Oct 01, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, NGB-JA, dated 20 Mar 02.
     Exhibit D.  Letter, ANG/DPFP, dated 19 Apr 02.
     Exhibit E.  Letter, SAF/MRBR, dated 10 May 02.
     Exhibit F.  Letter, Applicant's Counsel, dated 28 May 02
     Exhibit G.  Report of Investigation - WITHDRAWN

                                  

AFBCMR 01-03128

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that:

		a.  He was not honorably discharged from the Air National Guard and transferred to the Air Force Reserve Retired List on 1 January 2001, but was continued in his assignment as an active member of the ---- Air National Guard.

		b.  He was considered and selected for federal recognition by the March 2001 Colonel Federal Recognition Board.

		c.  Upon Senate confirmation, he be promoted to the Reserve grade of colonel and given the appropriate promotion effective date (PED) and promotion service date (PSD.

		d.  He was credited with an additional 55 paid active duty points and 28 paid inactive duty points during the retirement/retention year 15 August 2001 to 14 August 2002; and, that the period 15 August 2001 to 14 August 2002 is a year of satisfactory Federal service for retirement.

		e.  Competent authority approved his application for a Ready Reserve Assignment in the grade of colonel, and he be discharged from the Air National Guard, transferred to the Air Force Reserve and on 15 August 2002, he was assigned to such a position for which he is qualified on the earliest practicable date.