RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBERS:  BC-2002-02127
	INDEX CODE 131.02  126.04  111.01  111.05
	 	COUNSEL:  None

	 	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

The 8 Jul 00 Article 15 and the referral Officer Performance Report (OPR) for the period 10 Mar 00 through 9 Mar 01 be voided and the promotion propriety action which removed him from the major promotion list be reversed. 

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APPLICANT CONTENDS THAT:

The accusations, investigation and judging were conducted by the same person, Col G, who had a previous bias towards him involving a job reference. Col G coerced the rater to downgrade the OPR. He has since learned Col G has been investigated for conduct unbecoming, threats of bodily harm and abuse of power. He never intentionally violated any directive.  He did not submit false information; the data was correct based on the information he had at the time. There was no intent to deceive; the mission underwent many last minute changes and contingencies occurred throughout. He acted in good faith and believed he followed the proper procedures.

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

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STATEMENT OF FACTS:

The following information was extracted from official documents provided by the applicant at Exhibit A, his available military records and the promotion propriety package (PPP) at Exhibit B, and the AFLSA/JAJM advisory at Exhibit C:

During the period in question, the applicant, a Reserve captain (date of rank 4 Aug XX), was a C-130 aircraft commander assigned to the XXX Airlift Squadron (XXX AS) at XXXXXX ARB, GA.

The rater of the referral OPR was the XXX AS flight commander, the additional rater was the squadron commander, and the reviewer was the XXth Airlift Wing (XX AW) commander.  Col G, who issued the Article 15, was appointed the commander of the XXth Operations Group (XX OG) on 10 Apr 00.

The applicant was selected for promotion by the Fiscal Year 2001B (FY01B) Reserve of the Air Force Major Board.

According to the PPP, the applicant was the aircraft commander on a XX AW C-130 mission to Europe in Apr 00. The applicant apparently submitted a form claiming to have diplomatic/embassy or Denton Operations (a humanitarian organization backed by the US State Department and based out of XXXXXX AFB) cargo destined for XXXXXX, Scotland. He also used a special diplomatic (Dip) clearance reserved for use by the US Navy to fly to NAS XXXX (XXXXXX), Norway. 

According to emails and other documents contained in the PPP, the applicant contacted XXXXXX AFB about moving humanitarian cargo listed on their log for XXXXXX, Hungary. The US Embassy in XXXXXX was not the consignee, but was the point of contact involved in insuring that the consignee, a private organization located in XXXXXX, received the cargo. The cargo, approved for shipment on DOD opportune airlift, was located at XXXXXX AFB, CO, and was scheduled to be moved to XXXXXX AFB where members of the XX AW (the applicant) were scheduled to pick up and deliver the cargo to XXXXXX and then on to Hungary. However, the cargo was not delivered to XXXXXX AFB over the weekend as planned in time for the aircrew to pick it up for delivery to XXXXXX. When the XX AW aircrew departed from XXXXXX ARB, GA on 10 Apr 00, they were unaware that the cargo had not been delivered to XXXXXX AFB in time for pickup. The aircrew did contact XXXXXX after they left XXXXXX and learned the cargo had not arrived at XXXXXX AFB as scheduled.

The sequence of events appear to be that during the week of 3 Apr 00, the applicant requested a Dip clearance to XXXXXX to carry embassy cargo on a State Department mission (see above).  He left XXXXXX ARB on 7 Apr 00 for the weekend with the understanding that a Dip clearance was in place for XXXXXX, Scotland but that no approval existed for NAS XXXX, Norway.  Upon returning to XXXXXX ARB on 10 Apr 00, neither the applicant nor the crew contacted AFRC/CP or AFRC/DOOM (AF Reserve mission schedulers). AFRC/DOOM attempted several times to advise the crew via the XXX AS that their Dip clearance to XXXXXX was disapproved and they were to stop at RAF XXXXXX, England. Before the crew departed XXXXXX, they were aware that the XXXXXX and XXXX clearances were disapproved and that they were to stop at RAF XXXXXX, England instead. The crew overflew XXXXXX AFB because by this time they knew that the cargo previously scheduled to be there for pickup had not been delivered. The applicant continued on to the first stop, arriving at XXXXXX, New Foundland, Canada, on 10 Apr 00 with an empty aircraft.  He and the crew were advised at XXXXXX to go to XXXXXX rather than XXXXXX because a Dip clearance could not be obtained for that location. The applicant faxed a Dip clearance request to TACC/XONR (XXXX AFB) for clearance to stop at XXXXXX. The applicant contacted TACC on 11 Apr 00 and got the Dip clearance to XXXXXX based on the Dip clearance request faxed on 10 Apr 00. No contact was made with AFRC/CP and the empty aircraft landed at XXXXXX on 11 Apr 00.  

On 12 Apr 00, the applicant called the Traffic Management Office (TMO) at NAS XXXX, Norway and coordinated with the NCO in charge for a Dip clearance used for US Navy aircraft from RAF XXXXXX to NAS XXXX for cargo he had already been told the previous week was not verified or approved by AFRC/DOOM. He called USAFE/AMOCC (Air Mobility Operations Control Center, XXXXXX) to coordinate stopping at NAS XXXX. The applicant arrived at NAS XXXX, Norway on 12 Apr 00 with an empty aircraft. On 13 Apr 00, the crew flew from Norway with a light pallet of household goods (opportune cargo) to RAF XXXXXX, England, where they picked up pallets, a full load of baggage and some passengers, and then flew to XXXXXX AB, Germany.  AFRC/DOOM emailed Col G on 14 Apr 00, asking why the crew went to XXXXXX and XXXX when not approved to do so.

Following an investigation, Col G offered the applicant nonjudicial punishment on 6 May 00 for submitting an official document, AMC Diplomatic Clearance Request, on 10 Apr 00 with intent to deceive in that he did not support the US State Department and he was not carrying Embassy cargo and for dereliction of duty by willfully failing to follow the Foreign Clearance Guide (FCG) on 12 Apr 00. 

On 2 Jun 00, the XX AW commander notified the applicant that he recommended his promotion to major be delayed until 4 Feb 02 based on the Article 15, which was being processed.  On that same date, the wing commander advised the applicant’s area defense counsel (ADC) that his 1 Jun 00 request to withdraw the authority of Col G, the XX OG commander, from offering the nonjudicial punishment was denied.

In response to the Article 15, the applicant made a personal appearance and submitted a written presentation, including a statement from his ADC. However, on 8 Jul 00 Col G found him guilty and issued a Letter of Reprimand (LOR). The LOR indicated the applicant had submitted false documentation to the AMC Diplomatic Clearance section, stating his aircraft was carrying Embassy cargo and on an official State Department mission to the United Kingdom, and disregarded the command directive of the Air Force Reserve Command Current Operations Section (AFRCCOS). The LOR added that he further ignored the Foreign Clearance Guide by requesting a diplomatic clearance from a source unable to give a lawful clearance in direct conflict with the directives previously issued by the AFRCCOS. 

The applicant appealed the Article 15 but his request was denied on 28 Sep 00.  

On 28 Nov 00, the XX AW commander advised the applicant that he was recommending his name be removed from the FY01B promotion list. The commander cited the recent incident as well as an earlier incident in [17-19 May] 1996 in which the applicant compromised flight discipline and safety by endangering aero-medical evacuation crewmembers and failing to accomplish required actions during a mission. 

The applicant presented materials for consideration and made a personal appearance; however, on 5 Jan 01 the XX AW commander strongly recommended to the 22nd Air Force (22 AF) commander that the applicant be removed from the promotion list.  In his letter to the 22 AF, the XX AW commander also referred to the 1996 incident, indicating that incident was handled in a low-key manner with a temporary downgrade to copilot and a public apology. The XX AW commander believed the applicant had been given his second chance but had not reformed his willful disregard of regulations or accepted responsibility for his actions.

After reviewing the applicant’s submission and the PPP, on 6 Mar 01 the 22 AF commander declined to overturn the XX AW commander’s recommendation for removal. The PPP was found legally sufficient on 17 and 30 Mar 01. On 23 Apr 01, the vice commander of AFRC forwarded the PPP to the President through HQ USAF/RE.

On 20 Jul 01, the new XX OG commander decided not to file the Article 15 in the applicant’s HQ USAF Officer Selection Record (OSR).

On 29 Aug 01, the OPR closing 9 Mar 01 was referred to the applicant. The applicant was marked as not meeting “Professional Qualities” and “Judgment and Decisions” performance factors in Section V. The applicant provided rebuttal comments. However, the additional rater concurred with the rater, indicating that as an aircraft commander, the applicant’s questionable interpretation of HQ AFRC mission authorization led to an investigation, UCMJ action and embarrassment to the squadron.

On 24 Oct 02, the President approved the applicant’s removal from the FY01B promotion list. On 26 Nov 01, the AFRC vice commander directed the XX AW commander to advise the applicant that the President had approved the removal action.

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AIR FORCE EVALUATION:

AFLSA/JAJM notes that unless it is shown that a commander’s findings were either arbitrary or capricious, they should not be disturbed. When evidence of an error or injustice is missing, it is clear the BCMR process is not intended to simply second-guess the appropriateness of the judgments of field commanders. Both Col G and the OPR reviewer carefully considered the evidence before making their decisions.  The applicant’s ADC brought up the issue of bias to the reviewer before Col G made his decision and imposed punishment.  In response, the reviewer chose three experienced officers to review the Article 15 and supporting documentation. All agreed the Article 15 was appropriate. AFLSA/JAJM provides copies of memos for the record from both the reviewer and Col G. The basis of the applicant’s request for relief is insufficient to warrant setting aside the Article 15 action. Therefore, denial is recommended.

A complete copy of the evaluation, with attachments, is at Exhibit C.

HQ AFRC/DPM advises that the Article 15 was never placed in the applicant’s record. The promotion propriety package recommending removal of the applicant’s name from the FY01 promotion list was approved by the President on 24 Oct 02. The package was forwarded through channels to the President with attachments that clearly established that the action was substantiated. HQ AFRC/DPM asserts that based on these facts they cannot recommend reversing the promotion removal action or the referral OPR.

A complete copy of the evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Col G was biased against him because he did not recommend him for a civilian job at his place of employment. After discarding the evidence, his testimony and that of his crew and witnesses, his “acting” group commander reprimanded him by Article 15 proceedings, officially reprimanded him, downgraded him to the position of copilot, and a career-stopping OPR for one XXXXted mission. He phoned the number in the FCG to verify that his aircraft could file a flight plan using the diplomatic clearance number listed in the guide. He submitted as evidence an email from the point of contact in Norway substantiating his assertion. He faxed a request for a diplomatic clearance for XXXXXX, Scotland, after HQ Air Force Reserve approved his mission.  At the time the request was faxed to Scott AFB, he believed they were going to carry State Department sanctioned and approved Denton Amendment cargo. Several days afterwards, the mission changed to remove the Denton cargo from his manifest. Clearly there were breakdowns in communication and misunderstandings of command and control during the conception and execution of this mission. As for the charges against him, he provided the irrefutable documentation confirming his innocence.  Thus far, this case has not been reviewed on the evidence and the facts but rather on the proceedings being legal and the paperwork being properly signed.  

A complete copy of applicant’s response, with attachments, 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.	Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice to warrant voiding the promotion removal action, the Article 15 or the referral OPR. After a thorough review of the evidence of record and the applicant’s submission, we are not persuaded he was the victim of bias or command influence. Contrary to his assertions, the applicant’s documentation does not confirm his innocence. Rather, the available evidence appears to indicate he was determined to manipulate the mission to suit his own particular agenda. The wing commander pointed out that pilots with far less experience than the applicant would have known better and that these incidents were not a violation of some obscure regulation but of guidance central to international aviation. Further, this was not some accidental event but instead required the applicant to perform several specific, premeditated acts over a period of several days. Finally, three experienced officers who reviewed the Article 15 and supporting documents to ensure fairness agreed the nonjudicial punishment was appropriate. We therefore agree with the recommendations of the Air Force and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden of having suffered either an error or an injustice. In view of the above and absent persuasive evidence to the contrary, we find no compelling basis to recommend granting the relief sought.

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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.

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The following members of the Board considered this application in Executive Session on 20 March 2003 under the provisions of AFI 36-2603:

The following documentary evidence relating to AFBCMR Docket Number BC-2002-02127 was considered:

   Exhibit A.  DD Form 149, dated 10 Jun 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 22 Oct 02, w/atchs.
   Exhibit D.  Letter, HQ AFRC/DPM, dated 5 Dec 02.
   Exhibit E.  Letter, SAF/MRBR, dated 3 Jan 03.
   Exhibit F.  Letter, Applicant, dated 15 Jan 03, w/atchs.