RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-01746
		INDEX CODE:  131.00
		COUNSEL:  NONE

		HEARING DESIRED:  YES
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APPLICANT REQUESTS THAT:

He be promoted to the grade of lieutenant colonel effective 1 Jul 00.

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APPLICANT CONTENDS THAT:

The reasons stated for the delay of his promotion do not match the actual Office of Special Investigation (OSI) report.  He was denied access to the supporting evidence/documentation contrary to the provisions of AFI 36-2501.  His promotion delay notification was not made by the MAJCOM authority as required by AFI 36-2501.  His promotion delay was effective for a six month period or until completion of the OSI investigation, the investigation was completed 15 Aug 03 and no other actions were taken to extend or further delay his promotion; therefore, his promotion should of occurred upon completion of the OSI investigation.  

In support of his request, applicant provided documentation associated with his promotion delay action and a copy of the OSI investigation cover sheet.  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 24 Feb 84 and was voluntarily ordered to extended active duty 22 Mar 84.  He was progressively promoted to the grade of major, having assumed that grade effective and with a date of rank of 1 Feb 96.  He was considered and selected for promotion to the grade of lieutenant colonel by the Calendar Year 1999B (CY99B) Central Lieutenant Colonel Selection Board, which convened on 30 Nov 99.  His projected effective date of promotion was 1 Jul 00.

On 11 May 00, applicant was notified by his commander that he was recommending delay of his promotion to the grade of lieutenant colonel.  The specific reasons for this action were allegations of fraternization and sexual misconduct between the applicant and female subordinates.  On 18 May 00, applicant provided a written response to the recommendation.  In a legal review of the case file, AFMC/JAG noted in the Errors or Irregularities paragraph that the plain meaning of the language of his notification letter is that he is entitled to assume the next grade upon completion of the AFOSI, but opined that this ambiguity is adequately resolved by the addendum to the notification letter and recommended approval of the promotion delay action.  On 27 Jul 00, AFMC/CV approved the recommendation.

On 29 Sep 00, the applicant was notified by his commander of his intent to impose nonjudicial punishment under Article 15 of the UCMJ.  The specific reasons for this action were on or about 1 Aug 99 and on or about 31 Aug 99, he wrongfully and dishonorably acted in an unprofessional manner at a party; on or about 22 Oct 99, he wrongfully and dishonorably acted in an unprofessional manner at an intramural football game; on divers occasions between 1 Aug 99 and on or about 30 Sep 99, knowingly fraternize with an enlisted female on terms of military equity by engaging in sexual intercourse and sodomy with her; and on divers occasions between 1 Jun 99 and on or about 10 Nov 99, knowingly fraternize with enlisted members of his unit by supplying and consuming alcohol with them and socializing with them at dormitories and other non-official social gatherings.  He was advised of his rights in this matter and acknowledged receipt of the notification on 4 Oct 00.  After consulting counsel, the applicant waived his right to demand trial by court-martial, accepted Article 15 proceedings, and provided a written and oral presentation to his commander.  On 24 Oct 00, after consideration of all the facts, his commander determined that he committed one or more of the offenses alleged and imposed punishment on the applicant.  He was ordered to forfeit $2,379 pay per month for 2 months and was reprimanded.  The applicant appealed his punishment but later elected to withdraw his decision to appeal.

On 31 Oct 00, applicant was notified by his commander of his recommendation to remove his name form the promotion list.  The specific reasons were the behavior, which led to his Article 15 punishment.  On 9 Nov 00 and on 4 Jan 01, applicant provided written replies to the recommendation.  On 9 Jan 01, in a legal review of the case file, SM-ALC/JA found the removal recommendation legally sufficient.  On 25 Jan 01, in a legal review of the case file, OO-ALC/JA found the removal recommendation legally sufficient with some corrections and clarifications.  On 1 Mar 01, AFMC/JAG found the removal recommendation legally sufficient.  On 11 Jun 01, the Secretary of the Air Force directed that his name be removed from the promotion list.

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AIR FORCE EVALUATION:

AFPC/DPPPO recommends denial.  DPPPO states that in accordance with AFI 36-2501 propriety action must contain a clear statement of the reasons for the action.  The notification letter of 11 May 00 and the addendum to the notification letter dated 12 May 00 clearly provided the reasons for the delay action.  There is no legal requirement that the letter of notification match the exact reason of the investigation.  The AFI requires the propriety action to contain the evidence documenting the reasons for the delay.  His Area Defense Counsel (ADC) requested a delay in his response to the delay action, as they had not been provided the documentation to support the recommendation.  On 12 May 00, the commander provided the applicant and his counsel the most detailed information available regarding the allegations being explored in the on-going investigation.  In a legal review completed by AFMC/JAG it was determined that the addendum to the notification letter dated 12 May 00 which informed the applicant that his promotion was delayed "pending the outcome" of the OSI investigation gave the applicant sufficient notice that the mere completion of the investigation alone does not terminate the delay action.  Although the letter signed by AFMC/CV approving the delay action did not advise the applicant he could make a written statement to the Secretary of the Air Force, on 31 Oct 00 he was notified that action was being taken by the Secretary of the Air Force (SAF) to remove his name from the promotion list.  He was provided the opportunity to submit documents to the SAF on his behalf for all actions being taken.  The DPPPO evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states that the specific reason given in the promotion delay was "allegations of fraternization and sexual misconduct between you and female subordinates."  No evidence was provided for his comment.  He was denied evidence from the on-going investigation and instead reference was made to an internal investigation conducted five months earlier.  The referenced investigation was not the rationale for the delay action and as such did not satisfy the requirements of AFI 36-2501.  The AFI states that evidence will be provided and does not provide any exceptions.  In his case the effective date of his promotion was unknown so the expiration date was identified as "when the pending investigation is complete or six months after the effective date of promotion."  The OSI investigation was completed 11 Aug 00.  His personnel records reflect no actions that would cause an automatic extension of the delay period.  Moreover, no action was taken for over ten weeks after completion of the investigation.  He has no record of the legal review.  His official records do not indicate this review nor was the addendum submitted to the command during consideration of the delay recommendation.  The legal review seems to indicate that both the promotion delay and addendum violates the guidance.  Although the advisory states that notification from AFMC/CV provided sufficient notification to allow appeal, the fact remains that he was not directly notified by the MAJCOM.  Fundamental deviations from the prescribed notifications should invalidate the delay action.  

The refusal to provide evidence, refusal to provide specific expiration dates for the promotion delay period, inability to provide specific reasons for promotion delay, lack of early identification and documentation, and the ability to follow the processing and notification guidelines are reasons the promotion delay should be declared invalid and his promotion should be effective 1 Jul 00.

In support of his request, applicant provided a personal statement, documentation associated with Lt Gen Leo Marquez Award, his CY99B Promotion Recommendation Form, his Officer Performance Report closing 22 Nov 99, an Achievement Award certificate, a Certificate of Appreciation, and a Letter of Appreciation.  His complete response, with attachments, is at Exhibit E.

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ADDITIONAL AIR FORCE EVALUATION:

USAF/JAA recommends denial.  JAA states the standard for initiating a promotion propriety action is when "the preponderance of evidence shows the officer is not mentally, physically, morally, or professionally qualified to perform the duties of the higher grade."  There is no requirement that a promotion propriety action be solely based on a single act or the result of a single investigation.  At the time the commander initiated his promotion delay, a CDI had been completed and administrative action levied against the applicant for his misconduct that occurred.  As a result of additional information, an AFOSI investigation was also underway.  The investigations centered on the unprofessional conduct of the applicant that clearly called into question his fitness to perform the duties of the higher grade.  He was served with the promotion delay action on 11 May 00 and this was followed by an addendum listing additional alleged offenses.  In the addendum, his commander specifically stated that the on-going AFOSI investigation involved similar issues that were investigated by the CDI.  Thus, he had ample notice of the basis for the promotion delay action and an opportunity to respond.  

His commander provided him with two memoranda, one of which stated the promotion delay was due to "an on-going Office of Special Investigations (OSI) investigation..."  His commander wrote to his ADC stating he provided the applicant with the most detailed information available regarding allegations being explored and attached a courtesy copy of the information for the ADC's use.  At no time did the applicant or his counsel respond that they did not understand the facts or basis of the allegations, nor did they deny having access to the CDI ROI.  At the time, the commander fully complied with AFI-36-2501's mandates.  

Regarding the applicant's position that the AFOSI ROI is dated 15 Aug 01 and consequently, this date was the promotion delay end date and no actions were taken to extend or cause automatic extension to the delay, JAA states pursuant to AFI 36-2501 paragraph 5.2., his commander only makes a recommendation to the initial promotion delay approving authority.  Presumptively, the approving authority considered the commander's recommendation and elected to approve his promotion delay until 1 Jan 01.  This election was well within his regulatory discretion and no error was committed.  Pursuant to AFI 36-2501, paragraph 5.6.1. "extension to the delay period is automatic upon initiation of a recommendation...to remove the officer from the list."  His commander notified him of the removal action on 31 Oct 00.  Due to administrative errors, he was again served the removal action on 20 Dec 00.  The initiation, or re-initiation, of the removal action triggered the automatic extension of the delay period, which could extend 18 months from the effective date of his original promotion or until 1 Jan 02.  Such a lengthy delay was unnecessary because on 11 Jun 01, the Secretary removed his name from the promotion list.  

After the promotion delay was approved by AFMC/CV, his recourse was to "make a written statement to the SAF in response to the action."  Admittedly, the applicant was not officially notified of this response entitlement, but his case file was replete with evidence that he was represented by able counsel, who was under a duty to advise him of his right to make a written response to the delay action.  Nevertheless, within 10 weeks of being notified of the approval of the delay action, he was served, and responded to the promotion list removal action.  All matters, including his written responses, were submitted to the Secretary who ultimately decided that not only was promotion delay action meritorious, but the misconduct warranted removal from the promotion list.  

JAA notes that he does not dispute that he engaged in misconduct.  Even more noteworthy, his misconduct was a pattern of fraternization, by a commander, that included engaging in sexual relationship with a female staff sergeant assigned to his own squadron.  Clearly, based on his admissions he compromised nearly every tenet of officership and consequently, has suffered no injustice.  The JAA evaluation is at Exhibit F.

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APPLICANT'S REVIEW OF AIR ADDITIONAL FORCE EVALUATION:

Applicant states he admitted poor judgment by attending the off-base function and staying as long as he did, he never acknowledged or admitted to any wrongdoings.  The information provided to him and the ADC consisted of the CDI ROI from December 1999 only, which states the reason for the promotion delay were the on-going AFOSI investigation and that the investigation was matters not previously investigated and not the CDI initiated in December 1999.  AFI 36-2501 mandates that one or more specific reasons be identified for action and supporting documentation provided.  By not providing the supporting documentation or the AFOSI information on the additional matters not previously investigated, the commander violated regulatory mandates.  In accordance with AFI 36-2501, it was the AFMC/CV's responsibility to inform him of his response entitlement, not the responsibility of his counsel.  He was not a commander at the time the suspect activities took place as indicated by JAA.  He was not eligible to be a squadron commander until release of the commander nomination board results on 7 Oct 99.  He did not become a G-Series commander until 23 Nov 99.  The period of time from the start of the promotion delay actions to promotion removal actions was 24 weeks, not 10 weeks as indicated in the advisory.  During this period, many opportunities for review or relief, allowed by AFI 36-2501, were missed and undermined his ability to present the strongest possible case.  

Even though the CDI resulted in a letter of reprimand, he remained in his position as squadron commander.  The 77SPTG/DD was either his rater or additional rater during the entire period.  He never counseled, mentored, or advised him during this entire period that his efforts were less than spectacular.  The Article 32 investigation showed that the AFOSI put witnesses in the same room "to get their stories straight."  

Any one of the reasons specified is sufficient to invalidate the promotion delay.  The refusal to provide all the evidence, the inability to provide specific reasons for the delay, the lack of early identification and documentation, documented witness coercion, and the inability to follow guidelines are reasons the promotion delay should be declared invalid. 

In support of his appeal, applicant provided a personal statement, excerpts from the CDI, excerpts from the AFOSI investigation, email communiqués, his G-Series order, and an affidavit.  His complete response, with attachments, is at Exhibit H.

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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 warranting corrective action.  The applicant's contentions regarding due process are duly noted.  However, after thoroughly reviewing the evidence of record, to include the detailed legal opinions, we are not persuaded that he has been the victim of an error or injustice.  Evidence has not been presented which would lead us to believe that there were procedural errors resulting in an injustice or improprieties in the processing of his promotion delay action or that he was denied rights to which he was entitled.  Therefore, we adopt the opinions and recommendations of the Air Force offices of primary responsibility as the basis for our determination that he has not been the victim of an error or injustice.  In the absence of persuasive evidence to the contrary, we find no compelling basis upon which to recommend granting the relief sought in this application.  

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 involved.  Therefore, the request for a hearing is not favorably considered.

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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 AFBCMR Docket Number BC-2003-01746 in Executive Session on 6 May 04, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 12 May 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPPO, dated 30 Jul 03.
    Exhibit D.  Letter, SAF/MRBR, dated 8 Aug 03.
    Exhibit E.  Letter, Applicant, dated 12 Nov 03, w/atchs.
    Exhibit F.  Letter, USAF/JAA, dated 22 Mar 04.
    Exhibit G.  Letter, SAF/MRBC, dated 24 Mar 04.
    Exhibit H.  Letter, Applicant, dated 22 Apr 04, w/atchs.
    Exhibit I.  Promotion Removal Package - WITHDRAWN
    Exhibit J.  Commander Directed Investigation - WITHDRAWN

                                   Panel Chair