RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-01073
		INDEX CODE:  134.02

		COUNSEL:  NONE

		HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

The Air Force Inspector General (AF/IG) Report of Investigation (ROI), S55942B, be removed from his record.

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APPLICANT CONTENDS THAT:

a.  The AF/IG Investigating Officer (IO) reached the conclusion that he had knowingly made a false statement to a government official while carrying out his official duties, by incorrectly assuming he had been in competition with another officer for the Chief of Staff (COS) position in the South Carolina Air National Guard (SC ANG).

	b.  The original IO began his investigation under the false impression that he was in direct competition with two other officers for general officer positions in the SC ANG which, therefore, led him to an erroneous conclusion. 

c.  The memorandum in question, dated 9 February 1998, was an informal reiteration of an informal discussion held between him and the SC Adjutant General (AG) - at the AG’s request, and that broad comments were made on the memorandum as he intended it to be nothing more than an informal source of information for the AG.

	d.  The AF/JAA’s contention that he was at least negligent for not checking his facts before presenting information to the AG is only true if the memorandum were considered an official document.

	e.  While the AF/JAA review cites the statute he allegedly violated in a footnote, it does not set out the matters that need to be proven in order to find a violation of the statute.

Applicant states, in part, that he advised the South Carolina Adjutant General (SC AG) of an attempt by another officer in the SC ANG to subvert the AG’s express wishes by having himself (the other officer) assigned to the COS position in the SC ANG; he was asked by the AG to document, by memorandum, the conversation between the two, which he did; the memorandum “found its way to others” and he subsequently became the focus of an AF/IG investigation that eventually found that he had knowingly made a false statement with the intent to deceive the AG about the career of another officer; the ROI is an erroneous report based on a number of false assumptions.

In support of his appeal, the applicant has provided a:

	     1.  Personal statement to the Board.
	     2.  Summary of the case to the Board.
	     3.  Summary labeled “Interest of Justice.”
	     4.  Discussion of the case.
	     5.  Reply to the AF/IG ROI by applicant’s appointed counsel to the SC AG at the AG’s request, an official statement by the applicant, an affidavit from the previous wing commander, and a letter appointing counsel to the applicant.
	     6.  Legal review of the AF/IG ROI performed by the Virginia AG’s Office of the Judge Advocate finding the AF/IG ROI not legally sufficient.
	     7.  Memo from the SC AG to Colonel XXXXX, assigning him to the Assistant Adjutant General for Air (AAG-Air) and subsequent promotion request to Brigadier General (BG).
	     8.  Memo from the SC AG’s Office of the SC Inspector General (SC IG) closing the case locally with a finding that the applicant did not violate Articles 89, 107, 133, and 134 of the Uniform Code of Military Justice (UCMJ).
	     9.  Letter from the SC AG to SECAF in support of applicant’s promotion.
	    10.  Letter from the SC AG to SECAF explaining the reasons behind his actions of giving the applicant a Letter of Admonition (LOA).
	    11.  Memorandum from SC AG to SECAF further explaining his reasoning behind giving the applicant an LOA.
	    12.  Memorandum from SC AG to SECAF reaffirming the AG’s support for Applicant’s promotion.
	    13.  Letter from Congressman Spence to SECAF asking for his personal review of the applicant’s case.
	    14.  Letter from Senator Strom Thurmond to the Secretary of Defense (SECDEF) asking for his personal review of the applicant’s case.
	    15.  A copy of an Adverse Information Summary on the applicant.
	    16.  The applicant’s resume, a letter from Senator Thurmond to the Deputy SECDEF asking for his personal and timely review of the applicant’s case, a memorandum of support from the SC AG to the AFBCMR regarding the applicant’s case, and a copy of a memo from SECAF to the applicant notifying him of his removal from the CY00A GOFRB promotion list.

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

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STATEMENT OF FACTS:

The applicant is currently a member of the SC ANG assigned as the AAG-Air and serving in the grade of colonel.  

In March 1998, the applicant was the focus of a SC Inspector General (IG) investigation alleging that the applicant had knowingly made a false statement with the intent to deceive the AG about the career of another officer, had improperly solicited campaign contributions from certain SC ANG members, and had told an inappropriate, sexually offensive, joke in front of SC ANG members.  On 2 June 1998, the SC IG found that none of the allegations were substantiated and he closed the case.  

On 1 September 1998, applicant was assigned to the AAG-Air position.  In November 1998, the applicant met the CY98B ANG General Officer Federal Recognition Board (GOFRB) and was selected for promotion to Brigadier General (BG).  The AF/IG undertook its own investigation of the allegations against the applicant.  As a result of the ongoing AF/IG investigation, the applicant’s name was withheld from the CY98B promotion list pending AF/IG findings.  The AF/IG’s subsequent report of investigation (ROI), completed 30 April 1999, found only one of the three allegations to be substantiated.  The allegation that the applicant, in a memorandum dated 9 February 1998 to the SC AG, knowingly made a false statement with the intent to deceive the SC AG about the career of another officer.  

On advice from NGB/GO to provide some remedial action against the applicant (which would close the case against the applicant and allow his promotion package to move forward without delay), the AG wrote the applicant a letter of admonition (LOA).  

Meanwhile, the SECAF advised the Chief, NGB (CNGB) to remove the applicant’s name from the CY98B promotion list with the intent to reboard the applicant with the adverse information and applicant’s comments included so the Senate Armed Services Committee would know, should the applicant be selected, a Board that had all the facts was recommending the applicant.  The applicant’s name was removed from the CY98B promotion list and he then prepared to meet the CY00A ANG GOFRB in May 2000.  

On 2 June 1999, AF/JAG found the AF/IG ROI legally sufficient and recommended the case be closed.  On 8 September 1999, the SC AG asked the Virginia AG to perform an independent legal review of the AF/IG ROI.  This review was completed on 21 September 1999 and found the AF/IG ROI to be legally insufficient.  

In April 2000, the applicant received a package from SAF/IG advising him of the adverse information process.  It contained a copy of an Adverse Information Summary (AIS) that was included in a Senior Officer Unfavorable Information File (SOUIF) that was to be submitted to the CY00A ANG GOFRB.  Applicant prepared statements addressing the AIS that included a memorandum from the AG confirming he wrote the LOA with the understanding it would enable the promotion process to move forward unencumbered.  (The AG made specific mention in referenced memorandum that he would not have written the LOA if he had known it would be used against the applicant.)  Applicant met the CY00A ANG GOFRB and was selected for promotion to BG.  Based on the SOUIF, the SECAF, with the promotion recommendation from the CY00A board, began action to remove the applicant’s name from the list of recommended officers.  The AG, on 23 October 2000, wrote to SECAF explaining that he did not believe the applicant misrepresented anything to him, he was not in competition with another officer for any position, and the removal action taken by the SECAF was based on faulty information.  After further review, SECAF endorsed the applicant’s proposed promotion in October 2001 and recommended he be promoted to BG.  On 22 November 2002, the Deputy SECDEF, in a memorandum to SECAF, advised that notwithstanding the fact that the NGB and other Air Force leadership endorsed the promotion, the Deputy SECDEF did not because of the adverse information enclosed in the IG report.  The Deputy SECDEF directed the applicant’s name be removed from the CY00A promotion list.

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AIR FORCE EVALUATION:

ANG/DP reviewed this application, determined that they did not have jurisdiction over senior officer matters, in particular general officers, and forwarded it to NGB/GO.  NGB/GO provides a summary of the events from November 1998 through 12 December 2002 and concurs with the Deputy SECDEF’s direction that the applicant’s name be removed from the CY00A GOFRB promotion recommendation list.

The ANG/DP and NGB/GO evaluations, with attachments, are at Exhibit C.

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ADDITIONAL AIR FORCE EVALUATION:

AF/JAA recommends denial.  JAA notes that upon the retirement of the then Chief of Staff (COS) of the SC ANG, BG XXXXXX, the applicant, then the SC Executive Support Staff Officer (ESSO), was asked by the SC AG to provide his suggestions for SC general officer management.  The applicant provided a memorandum, dated 9 Feb 98, wherein he assessed the qualifications of two officers.  This assessment of Colonel XXXXX and Colonel XXXXX included comments on the two officers’ command experience and on their fitness to assume SC ANG leadership positions.  It was this memorandum that was the basis of the complaint eventually filed by BG XXXXX, then the AAG-Air.  JAA states that had the AG implemented the applicant’s suggestions, the applicant would have been “double-slotted” with BG L---- as the AAG-Air essentially forcing the incumbent to either retire or accept a demotion to colonel in order to remain in the ANG.  (BG XXXXX had signed a letter agreeing that upon senate confirmation of his promotion to BG he would be limited to a two-year tour as AAG-Air).  SC state law at the time required that the Chief of Staff (COS) position be occupied by a rated officer only.  (There apparently was SC National Guard (NG) sponsored legislation being considered that would remove this requirement and free the applicant to compete for the COS position.)  Had the legislation been passed, the AAG-Air incumbent, BG XXXXX, would either have had to retire or accept a position at the lower grade of Colonel.  

JAA contends the applicant, in order to forestall any possibility of Colonel XXXXX, then 169th FW commander, being promoted into the AAG-Air position, wrote in his memorandum to the AG that “Col XXXXX has commanded a flight for a year.”  In fact, Col XXXXX had held command positions for five and a half years.  JAA cites, as a result of the applicant’s misconduct, the AG issued the applicant an LOA on 24 November 1999, wherein he (the AG) stated that he did not believe the applicant intended to deceive him, but that he (applicant) was ”negligent in promoting…[his] qualifications over those of a fellow officer.”  

It is clear to JAA the applicant does not and did not agree with the consistent interpretation of the objective evidence provided by his own hand - the memorandum in question as well as the testimony of others, which eventually substantiated his misconduct.  JAA further argues the applicant, as the ESSO, was bound to know that his suggestions and advice could potentially affect the careers of other officers and his own.  JAA’s review of the memorandum in question believes it clearly shows the applicant’s intent was to ensure that, then Colonel XXXXX, assigned as the AAG-Air, was not assigned as the COS--a position the applicant aspired to himself.

JAA’s evaluation, with attachment, is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states the AF/JAA evaluation dated 21 August 2003, indicates the original investigating officer (IO) began his investigation under the false impression that the applicant was in direct competition with two other officers for general officer positions in the South Carolina Air National Guard and therefore led him to an erroneous conclusion.  The memorandum in question, dated 9 Feb 1998, was an informal reiteration of an informal discussion held between the applicant and the SC Adjutant General (AG) - at the AG’s request.  Broad comments were made on the memorandum as the applicant intended it to be nothing more than an informal source of information for the AG.  He notes the memorandum was written on unofficial paper, in an informal personal manner, and was signed with his first and last name only.  He notes the AG has written several letters to the Secretary of the Air Force (SECAF) stating the above facts in support of the applicant.  

The applicant addresses the letter of admonishment (LOA) he received from the AG on 24 November 1999 by expressing surprise that JAA quoted from an admonition contained in the LOA when the AG had already made clear the LOA was written on the suggestion of NGB/GO and only for the purpose of closing the matter and allowing the applicant’s promotion to move forward.  

The applicant contends JAA relies on the assumption that the AG requested the informal memo in order to affect GO management in the SC ANG.  He states this is a false assumption as the AG had already made his decision on GO management and the memo was written as a result of his accuser, Colonel XXXXX,trying to change the GO management program that the AG had set in place.  He explains the term “…not in the leadership track,” regarding the two affected officers (Colonels L-XXXXX & XXXXX), by stating they were originally not included in the AG’s GO management plan.  Two other SC ANG officers were being considered for GO positions when they unexpectedly retired for personal reasons.  Obviously, this action required all eligible officers to be reconsidered and the GO management plan reworked.  Colonels XXXXX and XXXXX were then included in the GO management plan.  Consequently, Colonel XXXXX was assigned as the Assistant Adjutant General for Air (AAG-Air) and was promoted to Brigadier General (BG).  Colonel XXXXX was considered a junior colonel and not eligible for GO consideration.  At the applicant’s recommendation, Colonel XXXXX was assigned to the wing commander position, effectively placing him in line for future GO consideration.  

Applicant argues against the JAA deduction that the statement in the memo in question regarding applicant’s comment on Colonel XXXXX’s command experience as damaging to his career as Colonel XXXXX was considered to be in direct competition with the applicant for the AAG-Air position.  As Colonel XXXXX was placed in the AAG-Air position, in concert with the GO management plan, and the applicant was slated to move to the COS position (should the law be changed to allow an unrated officer to hold the position), he states there was never any direct competition between himself and Colonel XXXXX  He points to the AG’s memorandum to SECAF dated 23 October 2000, that clearly states the applicant was never in competition with Col XXXXX and that Colonel XXXXX was not being considered for any other position at the time.  

A report of investigation (ROI) provided by an Army Inspector General (IG) found the memo in question to be without merit.  Eventually, BG XXXXX retired, the applicant was moved to the AAG-Air position (the AG changed his mind about trying to change the legislation that would have enabled the applicant to be assigned to the COS position), and Colonel XXXXX was moved into the COS position.  

The result of the AF/IG ROI was the applicant did not make any false statements about Col XXXXX’ command time.  Additionally, he points out the then-wing commander, Colonel M, signed an affidavit that Colonel XXXXX’s command time was discussed by others as being less than a year.  Additionally, to address the JAA contention the applicant did know Col XXXXX for enough time to be aware of his command experience, the applicant states even though they worked at the same unit, Col XXXXX was a Traditional Guardsman and therefore not at the unit full time.  He also states that while he was aware of Colonel XXXXX’s assignment to the Operations Support Flight commander position, a short time later he was assigned to the SC HQ and no longer working at the unit.

The applicant explains the meeting with the AG and the subsequent memo that followed occurred as a result of Colonel XXXXX’ attempt to circumvent the AG’s plan to have Colonel XXXXX serve as the AAG-Air.  Col XXXXX was not the subject of the meeting, or the memo, except to demonstrate the sequence of events for him as well as others should Colonel XXXXX be placed in the COS position.

Notwithstanding the continued JAA assumption that the memo was an official recommendation to the AG concerning GO accessions and the applicant was in direct competition with the officers mentioned in the memo, the applicant reiterates that the memo was an informal, quick reiteration of an informal discussion and was not meant to include facts about anyone.  The JAA contention that the applicant was at least negligent for not checking his facts before presenting information to the AG is only true if the memo were considered an official document.

JAA states just because the applicant does not agree with the AF/IG ROI, it does not make the ROI invalid.  Applicant counters that while the ROI found that he did violate a state statute, two subsequent legal reviews found it did not meet the legal standard for proof.  He contends JAA ignores military case law that holds one cannot assume there is familiar knowledge between individuals outside a common squadron.  Applicant contends he was not in the same gaining command as Colonel XXXXX.

The applicant finds it curious that JAA seems more interested in the speculative aspects of his case rather than the legal rules involved.  He argues two prior legal reviews focus solely on the legal aspects of the case and can find no wrongdoing.  Additionally, he feels that to develop unfavorable information on an individual in the absence of real proof is unjust.  

He was recommended for promotion by the SC AG, selected by two Brigadier General Federal Recognition Boards, recommended by the NGB, and the SECAF on two occasions and still cannot receive final confirmation because of an IG finding that is based on error.  He contends that AF/IG made a basic error at the outset of the investigation that led the IO to an erroneous conclusion preventing his promotion.  He respectfully requests the Board correct the erroneous finding and remedy the injustice.

In further support of his appeal, he provides the following attachments:

Attachment one is a legal review dated 30 September 2003, of the AF/JAA (hereafter JAA), advisory dated 21 August 2003, conducted by 169FW/JA (hereafter JA).  The initial finding by JA, with all due respect, is the JAA memorandum does not recite sufficient evidence to establish key elements of the alleged misconduct.  JA argues that while JAA displays the statute the applicant allegedly violated, in a footnote, it does not set out matters that need to be proven in order to find a violation of the statute.  The JAA memorandum relies, in part, upon testimony that the applicant “had known of” Colonel XXXXXX for 23 years to establish knowledge.  This type of speculation does not suffice as evidence of knowledge and being in the same unit is not sufficient to impart knowledge.  The JAA review does not point to any evidence but to negligence and self-interest only.  The JAA report concludes that, instead of knowing, applicant was negligent for not checking Colonel XXXXX’s file.  However, failure to check a record does not and cannot equate to knowing a fact is false.  The JAA opinion does not note that Col XXXXX had just been appointed wing commander of the 169th and was not in a position to threaten the applicant.  The memo in question was written surrounding Colonel XXXXX and the sentence concerning Colonel XXXXX’s command was not the point of the memo.  It stretches reason to conclude that the applicant intended to deceive the AG and adequately protect himself from a threat by another officer.  Particularly when the IO with respect to the subject of the memorandum, Colonel XXXXX, found no false statements.

Attachment two is from the SC AG, Major General XXXXX.  He provides a review of the JAA memorandum and expresses concerns about the erroneous assumptions and mischaracterizations contained therein.  He argues that JAA has not given the appearance of considering the AG’s efforts to set the record straight.  He states he had formulated a plan to provide for GO succession in the SC ANG prior to any memo received by him from the applicant.  Two senior officers had retired suddenly which forced him to reconsider his position regarding GO succession.  Consequently, he considered the applicant the best candidate for the COS position and concurrently fulfilled a request by then Colonel XXXXX to be the AAG-Air.  He advised Colonel XXXXX his tenure as AAG-Air would be limited to two years in order to promote other deserving officers.  Colonel XXXXX concurred.  In January 1998, Colonel XXXXX requested he be placed in the COS position.  MG XXXXX met with the applicant to discuss this change of plan sought by Colonel XXXXX.  MG XXXXX subsequently asked the applicant for an informal bullet memo of their conversation that he never considered a personal account of applicant’s feelings.  Additionally, he states the memo was never considered as suggestions for GO management nor an official recommendation.  MG XXXXX states he knew both officers in the memo as he had appointed both officers.  He states that he did not need an assessment and the information provided by the applicant was used to attempt to change a plan and not create one.

He states, with respect to the JAA assumption that Colonel XXXXX posed a threat to dislodge the applicant from the AAG-Air position, Colonel XXXXX was never considered for the AAG-Air position.  He states by simple time in grade, the applicant and Colonel XXXXX would not have been in competition for a promotion slot.

He does not feel the applicant knowingly misrepresented anything.  The applicant never attempted to deceive, and he does not feel he was deceived in any way.  Additionally, Colonel XXXXX was not adversely affected as he had been appointed wing commander prior to the memo and has been the COS since late 1998, both with concurrence and support of the applicant.

With respect to the letter of admonishment, he was advised by NGB/GO that if he gave the LOA to the applicant it would enable his promotion package to proceed unencumbered.  He regrets the errors and assumptions generated by the personal memo and the mischaracterizations that have resulted in the denial of the applicant’s promotion to brigadier general.  He feels the applicant has continued to be a great asset to the SC ANG and deserves to be promoted.  He hopes the Board will correct this great injustice.

His complete response, with attachments, is at Exhibit F.

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ADDITIONAL AIR FORCE EVALUATION:

At the Board's request JAA reviewed the applicant’s responses (Exhibit F).  JAA notes the majority of the applicant’s response, including memorandums from the SC AG and the 169th Staff JA, concerns matters extensively investigated by SAF/IGS as addressed in JAA’s previous advisories.  However, JAA provides comments on two appropriate areas.  First, to the application of criminal law, and its burden of proof, to an administrative investigation, and second, the applicant’s substantiated misconduct as evidenced by the administrative punishment imposed by the SC AG.

While the applicant and counsel argue the elements of the offense were not proven beyond a reasonable doubt by the SAF/IGS investigation, JAA argues that administrative investigations, not criminal in nature, do not require findings to meet criminal burden of proof beyond a reasonable doubt.  Allegations in administrative investigations are investigated to the extent they give focus to the inquiry and are not intended to constitute a criminal indictment.  Further, the purposes of IG investigations are to provide commanders with sufficient information to decide the severity of the offense and the appropriate action to take.  In this case, the SC AG decided to administer a letter of admonishment (LOA) to the applicant for providing false information to the AG.  JAA addresses the AG’s issuance of the LOA as the best evidence the AG felt the applicant’s actions to have been deficient.  Additionally, the AG has submitted nothing to indicate he felt the LOA was not deserved but only that he never intended his action to have the consequences that it later had.

JAA states the governing SC code provision is nearly identical to Article 107, False Official Statement, of the Uniform Code of Military Justice (UCMJ).  The explanatory notes to Article 107 highlight that official documents and statements include all documents and statements made in the line of duty.  JAA believes it is clear the applicant’s response concerning suggestions of general officer (GO) management to the SC AG meets that standard.  That it was not on letterhead or in some official memorandum is simply irrelevant.  Two elements, requiring the document or statement to be false in certain particulars and the applicant’s knowledge of its falsity when he signed the document, were demonstrated by circumstantial evidence.  While the applicant and counsel focus the discussion of evidence to direct evidence only, JAA states neither criminal nor administrative forums are so constrained.  These two elements were fulfilled by a preponderance of the evidence.

The final element requires the document or statement to be made with the intent to deceive.  Again, the circumstantial evidence, including the applicant’s self-interest in the outcome, establishes the applicant knew better what the command experience and records of the officers under discussion disclose.  JAA points out the action the SC AG took, before the ultimate consequence of this incident was known, was an action taken requiring only a preponderance of the evidence to support.

JAA reaffirms their previous advisory opinions concluding the applicant has failed to demonstrate the existence of error or to present facts and circumstances supporting an injustice.

JAA’s complete evaluation, with attachments, is at Exhibit G.

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APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Counsel comments on two areas: the burden of proof in an administrative investigation and the letter of admonition (LOA) given to the applicant by the SC AG.  Counsel charges JAA of introducing a new and false issue: Namely, that applicant’s counsel, in the previous review (Exhibit F), presents the argument that the elements of the offense were not proven beyond a reasonable doubt.  Counsel submits that the mention of reasonable doubt in the referenced response never occurred.  

JAA argues that knowledge is "demonstrated by circumstantial evidence" and that applicant and counsel attempted to limit the discussion to direct evidence.  Counsel states that there is a lack of sufficient evidence to find knowledge and intent to deceive.  There is no direct evidence, and that circumstantial evidence is insufficient as a matter of law.  

Regarding the comment the applicant had known of Colonel XXXXX for 23 years to support a finding of knowledge, Counsel indicates the problem with this conclusion is not that it fails to meet a reasonable doubt standard, but that it rests on speculation.  Factual findings cannot rest on speculation under any recognized burden of proof, including the applicable preponderance of evidence standard.

In addressing the idea the applicant was negligent by failing to review the record(s) of the officers he was making comments on to the AG, Counsel points out that negligence would disprove both knowledge of the falsity of the statement and intent to deceive.  Negligence is an inadvertent or careless act or failure to act.  The IO’s conclusion rested on a finding of actual knowledge and intent.  Pointing to supposed negligence cannot support these elements.

Counsel and applicant agree that in an administrative forum the “allegations and administrative investigations are framed to give focus to the inquiry.”  However, a violation of standard must still be found.

With respect to JAA's statement that the AG issued the LOA to the applicant “for providing false information to him,” Counsel indicates that the comment ignores the AG’s repeated statements to the contrary.  The AG stated in his 30 September 2003 memorandum to the Board that he has always known the IG conclusion to be wrong.  The AG does not feel the applicant knowingly misrepresented anything to him in the 9 February memorandum.  The LOA he issued the applicant was not due to misconduct but on the advice of NGB/GO only.  The AG has strongly recommended the Board correct the injustice resulting from the flawed IG report.

Applicant’s complete response is at Exhibit H.

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted al 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 a probable error or an injustice.  Applicant’s contends that:

a.  The AF/IG IO reached the conclusion that he had knowingly made a false statement to a government official while carrying out his official duties, by incorrectly assuming he had been in competition with another officer for the COS position in the SC ANG.

b.  The memorandum in question, dated 9 February 1998, was an informal reiteration of an informal discussion held between him and the SC AG - at the AG’s request; that broad comments were made on the memorandum as he intended it to be nothing more than an informal source of information for the AG.

c.  The AF/JAA contention that he was at least negligent for not checking his facts before presenting information to the AG is only true if the memorandum were considered an official document.

d.  While the AF/JAA review cites the statute he allegedly violated in a footnote [S.C Ann. Section 25-1-3000], it does not set out the matters that need to be proven in order to find a violation of the statute.

4.  The above contentions by the applicant are duly noted.  However, because of the reasons set forth hereinafter, we do not find the applicant’s contentions sufficiently persuasive to conclude that the findings of the AF/IG IO were inconsistent with the total weight of the evidence in this case.  In this respect, we note that, after a thorough investigation, the AF/IG found a preponderance of the evidence, based upon the findings of fact and sworn testimony, indicated the allegation that the applicant made false statements to government officials while carrying out his professional duties was substantiated.  AF/JAA found the IG ROI’s findings and conclusions were supported by a preponderance of the evidence and, therefore, legally sufficient to close out the inquiry in accordance with the applicable AFI.  In finding the IG ROI legally sufficient, AF/JAA stated, among other things, that:

	a.  Because applicant was not on federal active duty subject to the Uniform Code of Military Justice (UCMJ) the IO turned to the SC Code of Military Justice for guidance on false official statements.  Section 25-1-3000 of that code is a verbatim mirror of Article 107 of the UCMJ for false official statements.  As such, the IO applied to each of the three alleged false statements an Article 107 four-element analysis:  (1) Did applicant make an official statement? (2) Was the statement false in certain particulars? (3) Did he know the statement was false at the time he made it? And (4) Did he make the statement with the intent to deceive?  Since one of the allegations was not substantiated and one did not meet the Article 107 four-element analysis, the inquiry tended to focus primarily on the statements applicant made concerning Colonel “P."

	b.  The IO correctly found that the memo from the applicant to The Adjutant General (TAG) of 9 February 1998 was an official statement.  Although it has the appearance of a private communication between applicant and the TAG, applicant made the memo in the line of duty and provided it to his supervisor, the TAG.  Thus, it is an official statement.

c.  Regarding the second element of the analysis, the IO concluded the memo was false in certain particulars.  Specifically, applicant’s statement that “L---- has never commanded anything.  Not even a flight …” was false in that BG XXXXX had been the 157th Fighter Squadron D-Flight commander in 1983/1984.  The IO also concluded that applicant’s statement that “XXXXX has commanded a flight for a year” was false.  At the time the statement was made, Colonel XXXXX was the incumbent 169 FW/CC.  In addition, he had in past assignments commanded two different flights (a flying squadron flight for more than three years and the Operational Support Flight for more than two years) for a total of five and a half years.  The IO acknowledged applicant’s statement could be viewed as technically correct because it did not explicitly exclude other command experience; but when taken in context, the statement directly implied, and hence conveyed, the message that Colonel XXXXX has commanded a flight for only a year.

	d.  The United States Court of Military Appeals has held that, with regard to Article 107 offenses, “the determination of falsity must be made with reference to the specific language alleged to be false and the context in which it was made.”  Considered in context with the remainder of the paragraph, in fact the entire letter, it is clear that applicant intended to minimize Colonel XXXXX's command experience by conveying the message that Colonel XXXXX had commanded a flight for only a year.  In fact, the TAG, who was unaware of Colonel XXXXX’s actual command experience, testified that he interpreted the statement to mean Colonel XXXXX had only been in that position for a year and did not have that much experience.

e.  On the third element of a false official statement analysis, the IO concluded applicant did not know his representation of BG XXXXX’s command experience was false.  Although as the ESSO he had access to BG XXXXX’s career records, applicant denied reviewing those records before writing the memo.  He further testified that he was not aware of BG XXXXX’s stint as a fighter squadron flight commander.  In light of the fact that BG XXXXX’s assignment as a flight commander lasted only five months and occurred 15 years earlier, a preponderance of the evidence supports the IO’s determination that applicant did not know that his characterization of BG XXXXX’s command experience was false.  Accordingly, the IO did not further analyze the statement about BG XXXXX.

	f.  Conversely, the IO concluded that applicant did know that he had misrepresented Colonel XXXXX’s command experience.  Factors considered by the IO in this regard include:  (1) Applicant and Colonel XXXXX had known each other for well over 20 years, (2) Applicant and Colonel XXXXX had been assigned together periodically in the same wing for several of those years, (3) Colonel XXXXX had been a flight commander for over five and one-half of those years, and (4) Applicant had been the ESSO, a position causing him to be intimately familiar with the jobs/positions of most state Guard personnel, especially the senior officers.  Based on these factors, the preponderance of the evidence supports the IO’s determination that applicant knew he was misrepresenting Colonel P----’s career.

g.  Finally, on the fourth element, the IO concluded that applicant intended to deceive the TAG when he indicated that Colonel XXXXX had been a flight commander for a year.  The falsity here pertained to a material matter that affected the TAG’s decision on what officer ascended to senior leadership positions within the SCANG, i.e., the extent of the officer’s command experience.  Similarly, applicant had a distinct motive to portray Colonel XXXXX’s command experience in an unfavorable light.  Applicant wanted to command the SCANG as the COS.  He could only do so if BG XXXXX and Colonel XXXXX were not assigned to those positions.

5.  Responding to applicant’s and counsel’s argument that the elements of the offense were not proven beyond a reasonable doubt, AF/JAA states that SAF/IG's investigations, like other administrative investigations, are not criminal in nature nor are the findings required to meet a criminal burden of proof -- beyond a reasonable doubt standard.  The allegations in administrative investigations are framed to give focus to the inquiry, not constitute a criminal indictment.  The purpose of an IG investigation is to provide commanders with sufficient information upon which to take an appropriate action.  It is for commanders to decide the severity of the offense and the appropriate command action.

6.  Having carefully reviewed all the evidence in this case, including the letter the applicant wrote to the TAG of February 9, 1998, we believe the applicant has failed to sustain his burden of establishing he has been the victim of either an error or an injustice warranting favorable action on his request.  We do not dispute that the applicant was not in competition with Colonel XXXXX at the time the letter was written.  Nor do we dispute the statements from the TAG to the effect that he never agreed with the findings of the AF/IG, and that, had he been aware of the consequences of his decision to issue the applicant an LOA, he would not have done so.  A reasonable interpretation of the applicant’s letter to the TAG, however, clearly shows he perceived Colonel XXXXX as a threat to his ambitions for reasons that are not entirely clear from the evidence before us.  More importantly, however, the letter of 9 February 1998 in, and by itself, is convincing evidence that the applicant deliberately or negligently minimized Colonel XXXXX’s command experience by conveying the message that he (Colonel P-XXXXX) had commanded a flight for only a year.  In fact, the TAG, (who now says he was fully aware of Colonel XXXXX’s qualifications) testified to the AF/IG IO that he interpreted the statement to mean Colonel XXXXX “had only been in that position for a year and did not have that much experience.”  This officer also testified that he did not know that much about the careers of Colonels XXXXX and XXXXX except for what he had been told by his previous Deputy Adjutant General, which was, for the most part, negative.  When advised to take action to close the complaint against the applicant and allow his promotion package to proceed forward through the confirmation process without any adverse information, the TAG chose to admonish the applicant for negligence.  The letter of admonishment and the substantiated finding by the AF/IG did, indeed, cause an unintended consequence.  Nonetheless, absent substantial evidence that the adverse actions were contrary to the total weight of the evidence or constituted an abuse of discretionary authority, the removal of the AF/IG ROI, which ultimately led to the establishment of a SOUIF, would be grossly unfair to other officers who have had to compete for confirmation under similar circumstances.  Accordingly, 

_________________________________________________________________

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.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-2003-01073 in Executive Session on 5 November 2003, under the provisions of AFI 36-2603:

	Panel Chair
	III, Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 23 Mar 03, w/atchs. 
    Exhibit B.  Memo, Applicant, dated 9 Feb 1998.
    Exhibit C.  Letter, ANG/DP, dated 29 Jul 03, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 8 Aug 03.
    Exhibit E.  Letter, USAF/JAA, dated 21 Aug 03, w/atch.
    Exhibit F.  Letter, Applicant, dated 30 Sep 03, w/atchs.
    Exhibit G.  Letter, USAF/JAA, dated 20 Oct 03.
    Exhibit H.  Letter, 169FW/JA, dated 21 Oct 03.

                                   
                                   Panel Chair