RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-03023
		INDEX CODE:  131.05, 131.09

		COUNSEL:  NONE

		HEARING DESIRED: YES

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APPLICANT REQUESTS THAT:

His date of rank (DOR) to major be changed from 1 October 2002 to 1 October 1996 and, that he be promoted to Lieutenant Colonel (Lt Col), effective 1 October 2003.  If the Board will not favorably consider his request for promotion to Lt Col then he would ask that his DOR to major be changed to 1 October 1996 enabling him to meet time in grade requirements and qualify him to meet a Special Selection Board for promotion to Lt Col.

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APPLICANT CONTENDS THAT:

The leadership of the XXXth Air Refueling Wing (ARW), XXXXXX Air National Guard (XXANG), abused their rank and position for their own personal gain and to the detriment of many of their subordinate officers.  Applicant contends the officer promotion system was manipulated in order to effectively convince him that his career as an Air Force officer was over.  Their actions against the applicant directly resulted in him losing over three years pay with the loss of associated participation points, stalled his career advancement, and delayed his promotions which directly affect his retirement pay.  He was on track to assume future leadership roles in his squadron before he was illegally coerced to accept an early retirement.  He was not planning on retiring from the MSANG at that time nor was he willing to voluntarily resign.  As he felt his immediate commanders had no one in authority over them who was willing to help him, he felt he had no choice but to accept their offer of a voluntary early retirement.

An Inspector General (IG) investigation concluded in 2003 that applicant’s career had been negatively affected by the actions of Col “W” who had, in violation of Air Force Instruction (AFI) 36-2406, OFFICER AND ENLISTED EVALUATION SYSTEMS, ordered two officer performance reports (OPR’s) on the applicant for the same reporting period.  The IG report substantiated the allegation that the commander had abused his authority by manipulating the Officer Evaluation System (OES) to coerce the applicant to resign.  

Applicant contends that had this IG investigation been conducted six years earlier, he is convinced he would still be flying with the MSANG.  Further, he contends that he would have been promoted to major in 1996 and to Lt Col sometime in 2001 or 2002.  He notes the IG investigation forced those involved to resign, but not until after they had all ensured promotions to colonel.  He did nothing wrong, yet he was the one who paid the price by being denied fair opportunity for promotion, loss of pay, and future retirement benefits.

In support of his appeal, the applicant has provided a personal statement, copies of the IG investigation case S6226P, letters of support from his former squadron commander and his former flight commander, and copies of his OPR’s from December 1989 through August 2002.

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

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STATEMENT OF FACTS:

The applicant was a member of the XXANG from December 1989 through January 1997 and he has been a member of the Air Force Reserve (AFRES) since August 2000.  He served as a pilot with the XXANG until he was involuntarily separated and accepted early retirement through the Reserve Transition Assistance Program (RTAP) effective 24 January 1997.  He was retired as a captain with over 15 years of service.  On 2 August 2000 he joined the Air Force Reserve as a pilot.  He was promoted to the Reserve grade of major on 1 October 2003.  He is currently serving in the grade of major.

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AIR FORCE EVALUATION:

ANG/DPP recommends partial relief.  They recommend the applicant receive back pay, allowances, and retirement points for the period 22 January 1997 to 2 August 2000.  His request to backdate his promotion to major and promote him to Lt Col is simply too speculative to consider granting.  DPP notes conflicting accounts of his performance included in the IG ROI and states his promotion to major could not be assumed with any degree of certainty and that he would be promoted to Lt Col would be even more uncertain.  While his OPR’s and letter’s of support from his former commanders reflect favorably on the applicant, the IG report does not.  DPP relies on the National Guard Bureau (NGB) IG’s Technical review of the Command Directed Investigation (CDI) from the MS Adjutant General dated 20 March 1997.

DPP’s complete evaluation, with attachments, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant disagrees with the advisory opinion and concludes it is flawed because it relies on the AF IG’s investigation of Col   and the legality of two OPR’s (written for the same reporting period), one of which the applicant was supposed to choose.  The IG’s investigation was not obligated to determine the validity of Col  ’s claims of the applicant’s performance but whether or not Col   abused his authority by ordering that the two OPR’s be written.  Applicant disputes the advisories’ claim that to grant him a promotion was “too speculative” citing conflicting information on his performance during his tenure in the unit.  Applicant counters that he built his application package in accordance with Air Force instructions and included requisite statements from his rater and additional rater that should dispel any conclusion that it is “too speculative” to consider that he would have been promoted.

Applicant provides documentation from Dilley v. Alexander, the United States Court of Appeals, District of Columbia Circuit, wherein his claim is addressed.

Applicant states there is nothing in his record that would indicate he would not have been promoted to major on time and that he would have been promoted to Lt Col had Col   acted appropriately and evaluated his performance in accordance with prescribed instructions.  Even in the “bad” OPR (one of the two), there are no statements that would even qualify the OPR as a referral.  Applicant contends the real truth is that there never was a basis in fact for any of the allegations included in the “bad” OPR.  While Col   may have felt the applicant did not meet his standards of character, judgment, or integrity, applicant claims the only standard he was obligated to meet was that of the Air Force.

Through the illegal actions of Col  , applicant never met a promotion Board from 1996 through 2002.  He states he should have met a promotion Board in 1996.  Applicant contends he spent more time as a captain than anyone else in his unit and that all captains were promoted to major prior to their mandatory promotion date.  It is a stretch of the imagination to believe he would not have been promoted before October 2002.  He states he was targeted with involuntary termination as a result of his voicing concerns over safety issues to squadron and group leadership that were ignored.

After his dismissal from the XXANG, a Command Directed Inquiry (CDI) also investigated and found that charges for falsification of documents, making false official statements to congressional inquiries, cheating on skill-level upgrade and professional military education class tests, and condoning racial discrimination were indeed substantiated.  Col   was dismissed from the XXANG as a result.  The bottom line concerning applicant’s dismissal from the XXANG was that it was an act of reprisal for him informing an outside agency about what was going on within his unit.  

He asks the Board to consider that testimony from Col   as suspect as he was ultimately dismissed for making false statements to investigators.  He asks that the Board consider the documented record of his performance included in his application instead.  He questions the advisory opinion’s judgment that it was “too speculative” to consider he would have been promoted by unit vacancy in 1996 by considering that an airman who had performed admirably, been extolled in OPR’s, and been decorated had suddenly, without any documented negative information in his personnel file turned so bad, so fast.  He notes he was promoted to major at the earliest opportunity after he joined the AFRES and believed the promotion was due in large part to his accomplishments while at his former MSANG unit.  

As part of his effort to force the applicant to resign, Col   threatened him with a checkride, which he welcomed, and passed with a grade of Q1.  He was also threatened with a Flight Evaluation Board (FEB).  He believes any negative statement regarding his flying performance to be a serious charge and takes offense that the advisory opinion would even consider the charge without any further research into its validity.  He cannot stand by and have his professional reputation tarnished by baseless allegations and, as a result, has provided his entire flight record to the Board and notes the FEB was never convened as threatened.  He notes his flying record with the AFRES has remained spotless.

He states that in the event there is disagreement among the Board he proposes a compromise that includes adjusting his DOR to major to 1 October 1996 that will enable him to meet time in grade requirements for eligibility to meet Lt Col Special Selection Boards (SSB's).

Applicant’s response, with attachments, 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.  In this respect, we note the following:

	a.  After reviewing the evidence submitted by the applicant and noting the findings of the Air Force/IG, the Mississippi Adjutant General’s Command Directed Investigation and the National Guard Bureau/IG, it is apparent that the applicant’s commander abused his authority and the applicant’s resignation of his military commission was the result of coercion and not voluntary. Based on these investigations, had the applicant not been separated, he would have continued to serve in the Air National Guard (ANG).  Since he was not allowed to serve, we believe that his record should reflect that he received the minimum credit for satisfactory years of service for his retirement/retention years 1996 through 2000.  

	b.  Based on the circumstances of this case, we believe that his request for an earlier promotion date to the grade of major warrants favorable consideration.  While it can not be conclusively determine if he would been promoted to the Reserve grade of major, based on the commander’s abuse of authority and a review of his overall record, we believe that he would have been selected for a position vacancy promotion in 1996.  In addition, we note that he was selected and promoted to the grade of major once he returned to the Air Force.  In view of the above determination and in an effort to provide the applicant with appropriate relief, we recommend that his records be corrected to show that he was promoted to the Reserve grade of major effective and with date of rank on 1 October 1996.
 
c.  Under most circumstances, this Board believes the promotion selection process should address the decision regarding an applicant’s prospects for promotion.  However, there are instances where the magnitude of the injustice is such that it can only be rectified by a Secretarial directed promotion.  We believe this is such a case.  In this respect, we believe that had the applicant been promoted to major in 1996, he would have to have been considered for promotion to lieutenant colonel by the FY03 and FY04 Air Force Reserve Line and Non-line Mandatory Lieutenant Colonel Promotion Selection Board’s.  As redress, the AFBCMR normally would have placed the applicant’s record before a Special Selection Board (SSB) for the FY04 selection board and have the SSB compare his record with his contemporaries.  However, recommending his consideration by an SSB would not be a practical approach since the applicant’s record would not be competitive for promotion.  In this regard, we note that from 1996 to 2000, his record will have only one performance report in the grade of major.  Based on the above and in view of the damage caused by his commander’s abuse of authority, we believe he should be promoted to the Reserve grade of lieutenant colonel by the FY03 Line and Non-line Mandatory Lieutenant Colonel Promotion Selection 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.

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

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 promoted to the Reserve grade of major, effective and with a date of rank of 1 October 1996.

		b. On 24 January 1997, he was not assigned to the Retired Reserve, rather, on that date he was appointed in the Air Force Reserve in the grade of major.

		c. During the retention/retirement (R/R) years ending 9 November 1996 through 9 November 2000, he was awarded 15 paid active duty points, 48 paid inactive duty points, and 15 membership points and the R/R years ending 9 November 1996 through 9 November 2000 are years of satisfactory Federal service.

		d. He was considered and selected for promotion to the Reserve grade of lieutenant colonel by the FY04 Air Force Reserve Line and Non-Line Lieutenant Colonel Promotion Selection Board and upon appointment by the President, and, when promoted, he be given an appropriate effective and date of rank.

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The following members of the Board considered this application in Executive Session on 15 July 2004, under the provisions of AFI 36‑2603:

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

    Exhibit A.  DD Form 149, dated 3 Sep 03, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ANG/DPP, dated 5 Mar 04, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 28 May 04.
    Exhibit E.  Letter, Applicant, dated 26 Jun 04, w/atchs.

                                   

AFBCMR BC-2003-03023

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 promoted to the Reserve grade of major, effective and with a date of rank of 1 October 1996.

		b. On 24 January 1997, he was not assigned to the Retired Reserve, rather, on that date he was appointed in the Air Force Reserve in the grade of major.

		c. During the retention/retirement (R/R) years ending 9 November 1996 through 9 November 2000, he was awarded 15 paid active duty points, 48 paid inactive duty points, and 15 membership points and the R/R years ending 9 November 1996 through 9 November 2000 are years of satisfactory Federal service.

		d. He was considered and selected for promotion to the Reserve grade of lieutenant colonel by the FY04 Air Force Reserve Line and Non-Line Lieutenant Colonel Promotion Selection Board and upon appointment by the President, and, when promoted, he be given an appropriate effective and date of rank.