RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-02044
		INDEX CODE:  126.00,111.01, 131.03

		COUNSEL:  NONE

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

The following documents be removed from his record:  Letters of Counseling (LOCs), dated 10 July 2000 and 20 July 2001, Letter of Admonishment (LOA), dated 29 July 2002, Referral Officer Performance Report (OPR) closing 10 February 2002, and an Unfavorable Information File (UIF).
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APPLICANT CONTENDS THAT:

The 10 July 2000 LOC, written by someone who was not in his supervisory chain, falsely accuses him of violating the chain of command.  The 20 July 2001 LOC falsely accuses him of working outside established channels.  The 29 July 2001 LOA accuses him of some vague charge, which no one in his supervisory chain has been able to identify.  All of the above falsely accuse him of misrepresenting senior officers.  The 2002 OPR falsely states he had been formally counseled twice for working outside established channels.  The UIF is based solely on the LOA, which is unsubstantiated.

In support of his request, applicant submits a personal statement, copies of the LOCs, LOA, Referral OPR, UIF and additional documents associated with the issues cited in his contentions.  The applicant’s complete submission, with attachments, is at Exhibit A.
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STATEMENT OF FACTS:

Information maintained in the Military Personnel Data System (MilPDS) reveals the applicant’s Total Federal Commissioned Service Date (TFCSD) as 18 May 1982.  He was progressively promoted to the grade of major, Reserve of the Air Force, with an effective date and date of rank of 18 May 1996.  Applicant’s contested Unfavorable Information File (UIF) has a disposition date of 6 March 2007.  His service history reveals he completed a total of 21 years of satisfactory Federal service.

During the periods under review, the applicant, a participating member in the Air Force Reserve, was serving as an Individual Mobilization Augmentee (IMA), assigned to the Joint Intelligence Center Pacific (JICPAC), AFELM Reserve Production Center (RPC).

The following information was extracted from applicant’s submission.

On 10 July 2000, the applicant was issued a Letter of Counseling (LOC) by his superior [Major E. R--, USAFR] for “bypassing the chain of command and misrepresenting management decisions.”  Applicant acknowledged receipt of the LOC on 1 August 2000.

On 20 August 2001, the applicant was issued a Letter of Counseling (LOC) by his superior [Lt Col T. G---, USAFR] for bypassing the chain of command, in deliberate violation of the standards set forth in the 10 Jul 00 LOC.  Applicant acknowledged receipt of the LOC on 26 January 2002.  He submitted his rebuttal to the LOC on 27 January 2002, requesting the LOC be deleted.

On 29 July 2002, the applicant was issued a Letter of Admonishment (LOA) by his superior [Cdr G. W---, USNR] for violation of a lawful order to conduct his actions via the chain of command.  Specifically, during Nov 01-Feb 02, he circumvented the chain of command by alleging command support directly to national agencies without proper coordination.  Applicant acknowledged receipt of the LOA on 1 August 2002.  He submitted his rebuttal to the LOA on 5 August 2002, requesting the LOA be rescinded, the two LOCs be destroyed and the UIF be deleted.  His request for destruction of the two LOCs was denied on 12 July 2002.

On 27 December 2002, the applicant was notified of the AFELM group commander’s [Colonel J. J---] intent to establish a UIF, with the LOA.  He submitted a response to the UIF action on 31 January 2003.  On 7 March 2003, after considering all matters presented to him, the commander decided to established the UIF and file the LOA.

The following is a resume of the applicant’s OPR ratings subsequent to his promotion to the grade of major.

		Period Ending	Evaluation

		   10 Aug 96	Meets Standards (MS)
		   10 Aug 98	     MS
		   10 Feb 00	     MS
		   10 Feb 01	     MS
		 * 10 Feb 02	Does Not Meet Standards

*  Contested Referral OPR
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AIR FORCE EVALUATION:

HQ USAF/XOI-RE recommends the application be denied.  XOI-RE states that the two Letters of Counseling (LOC) are not included in the applicant’s Unfavorable Information File (UIF) established by JICPAC on 27 December 2002.  The remaining documents, including the Letter of Admonishment (LOA), contested OPR and the UIF appear to be valid and appropriate records.  JICPAC/DA reviewed the applicant’s appeal, his pertinent records of performance and unit records and finds the application without merit.  JICPAC/DA states that the applicant’s history of disregarding his chain of command and military standards of conduct are well documented.  JICPAC/DA finds the remedial steps taken by applicant’s supervisors and JICPAC leadership were consistent with standard military practice.  On the basis of the comments from JICPAC and a review of the file, XOI-RE did not find material errors that justify deleting the requested records.  The HQ USAF/XOI-RE evaluation, with attachment, is at Exhibit C.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the advisory opinion and has submitted a detailed response.  He indicated that the LOCs, although not a part of the UIF, still remain in the Personnel Information File (PIF) kept by JICPAC/OOR.  Regardless of their location, they contain false accusations and should be destroyed.  Despite XOI-RE’s assurance the LOA appears valid, he has provided evidence of tampering, as his rebuttal has been deleted from the official file.  In addition, JICPAC/DA repeats false accusations, providing no proof that he violated a lawful order or acted outside the chain of command at any time.  Introducing correspondence from the former AMC/IN [Colonel M---] is similar to rumor.  The letter is not part of an official record and the accusation in the former AMC/IN letter was disproved by XOI-RE years ago.  His original statement to the Board illustrates that the accusation in the LOA, on which the UIF is based, is so vague no one he knows that has read it can identify the act or how it violated a lawful order.  The JICPAC AFELM group commander’s [Colonel S---], response provides no detail, not even to identify which “national agencies,” although he did insert the word “intelligence.”  His assertions throughout his letter stretch the truth and juxtapose events out of context.  Attempting to imply that, in July 2001, he requested a transfer only after receiving an LOC, for requesting that transfer, is misleading.  When compared to the actual evidence, it is obvious that no specific incident is identified where he acted outside the chain of command or violated any lawful order.  The applicant’s complete submission, with attachments, is at Exhibit E.

Applicant submitted additional information for the Board’s review, with a copy of a letter he sent to the JICPAC AFELM Group Commander [Colonel S---], dated 8 March 2004.  The letter references the annual review of his UIF.  He did provide a written response to the LOA, with the assistance of an Air Force Area Defense Counsel.  A false statement, dated 1 October 2003, was added to the LOA claiming he did not respond.  However, on 5 March 2004, when the contents of his UIF were inventoried, his response to the UIF was found stapled to the original LOA.  He submits this evidence as further proof that the accusations leveled at him have been stretched beyond the truth and that there has been manipulation of official documents.  He requests the Board consider this information when considering his appeal to have the false statements in the 2002 OPR expunged from his official file.  Applicant’s complete submission, with attachment, is at Exhibit E.

The applicant submitted an additional statement concerning the attachments to the advisory opinions, which he believes supports his assertions (refer to his detailed response at Exhibit E).  He again asks the Board to remove the 2002 OPR from his official file.  Applicant’s complete submission is at Exhibit E.

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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.  After a thorough review of the applicant’s submission and the actions taken against the applicant, the Board majority is persuaded that relief is warranted.  Although the commander may have been within his discretionary authority in taking the administrative actions he did in rendering the Letter of Admonishment (LOA), the Unfavorable Information File (UIF) and referral Officer Performance Report (OPR), the Board majority believes the applicant has created sufficient doubt as to whether the administrative actions were adequately justified.  In this respect, the Board majority finds the accusations against the applicant to be nebulous; therefore, the basis for the LOA is, in the Board majority’s view, questionable.  During the period under review, the Board majority noted the efforts made by the applicant to go through his immediate superiors but, because of diverse management styles, may have upset senior members with his aggressiveness in accomplishing assigned tasks.  Although some guidance was provided, the available evidence does not establish, to the Board majority’s satisfaction, that the applicant intentionally failed to comply with existing requirements considering the circumstances at the time.  The applicant appears to have acted as responsibly and appropriately as possible given the guidance available to him at that time.  In addition, the Board majority noted that, prior to the service under review, the applicant’s 18 plus years of service were outstanding.  In the Board majority’s opinion, the applicant’s overall duty performance outweighs the misunderstandings that transpired.   The Board majority believes the benefit of the doubt should be resolved in favor of the applicant and voiding the LOA seems warranted.  Since the UIF and the referral OPR were driven by the LOA, which was found to be unwarranted, the Board majority also recommends the UIF and referral OPR be voided for consistency’s sake.  Inasmuch as the Board majority is recommending removal of the referral OPR, equity dictates that the applicant should be afforded Special Selection Board (SSB) promotion consideration.  With regard to the applicant’s request for removal of the Letters of Counseling (LOCs), dated 10 July 2000 and 20 July 2001, although it has been determined that the LOCs were not included in the UIF, they may still be on file in his Personnel Information File (PIF).  Due to the circumstances surrounding the events during that time frame, the Board majority believes the LOCs should also be removed from the applicant’s records since doubt has been raised concerning the accusations.  In view of the foregoing, the Board majority recommends the applicant’s records be corrected as indicated below.
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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.  The Letters of Counseling, dated 10 July 2000 and 20 July 2001; the Letter of Admonishment, dated 29 July 2002, and Unfavorable Information File Action established as a result of the LOA, and any and all references thereto, be declared void and removed from his records.

	b.  The Field Grade Officer Performance Report, AF Form 707A, rendered for the period 11 February 2001 through 10 February 2002, and all referral documents attached thereto, be declared void and removed from his records.

It is further recommended that he be considered for promotion to the grade of lieutenant colonel by a Special Selection Board for the Fiscal Year 2003 (V0503B) Air Force Reserve Line and Health Professions Lieutenant Colonel Selection Board and any subsequent boards for which the OPR closing 10 February 2002 was a matter of record.
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The following members of the Board considered this application in Executive Session on 1 April 2004, under the provisions of AFI 36-2603:

By a majority vote, recommended granting the relief sought in this application.  Ms. voted to deny the applicant's request but did not desire to submit a minority report.  The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2003-02044.

   Exhibit A.  DD Form 149, dated 13 Jun 03, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ USAF/XOI-RE, dated 26 Sep 03, w/atch.
   Exhibit D.  Letter, SAF/MRBR, dated 21 Nov 03.
   Exhibit E.  Letters from applicant, dated 18 Dec 03, w/atchs,
	             9 Mar 04, w/atch, and 24 Mar 04.

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AFBCMR BC-2003-02044

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.  The Letters of Counseling, dated 10 July 2000 and 20 July 2001; the Letter of Admonishment, dated 29 July 2002, and Unfavorable Information File Action established as a result of the LOA, and any and all references thereto, be, and hereby are, declared void and removed from his records.

		b.  The Field Grade Officer Performance Report, AF Form 707A, rendered for the period 11 February 2001 through 10 February 2002, and all referral documents attached thereto, be, and hereby are, declared void and removed from his records.

	It is further directed that he be considered for promotion to the grade of lieutenant colonel by a Special Selection Board for the Fiscal Year 2003 (V0503B) Air Force Reserve Line and Health Professions Lieutenant Colonel Selection Board and any subsequent boards for which the OPR closing 10 February 2002 was a matter of record.