RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-01936
		INDEX CODE:  115.02

		COUNSEL:  

		HEARING DESIRED: NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be returned to aviation service as a pilot and/or navigator and that his nonjudicial punishment action be removed from his record, or, at the very least, he receive a rehearing.

_________________________________________________________________

APPLICANT CONTENDS THAT:

With regard to nonjudicial punishment (NJP) he received and the Flying Evaluation Board (FEB) he underwent:

	1. The justification for the FEB was flawed.  He was erroneously and unjustly disqualified from aviation service by an FEB that was both procedurally and substantively defective.  The memorandum used to notify an applicant of an impending FEB is supposed to present the exact reasons why the applicant is meeting the FEB.  He contends the reasons for the FEB were unclear to the point they hindered him from building a sufficient defense, made it difficult for him to ensure his right of due process, allowed irrelevant evidence to be presented to the Board and negatively influenced the factual findings of the Board.  Additionally, the legally insufficient memorandum of notification allowed the Board to consider removing him from navigator service as well as pilot service.  As a result, the FEB improperly recommended his disqualification from aviation service as a navigator.  The fact the Board was to consider his continued navigator service was not part of the memorandum.  Another effect of the memorandum of notification was that while trying to build a defense against unspecific allegations, the memorandum was unclear on the specific violations of aviation instructions he allegedly committed.  Again, due to the ambiguousness of the memorandum, evidence from previous incidents were allowed but were unspecified in the memorandum thereby disallowing him the opportunity to address the exact allegations.  He contends the memorandum of notification was legally insufficient as it put him at a prejudicial disadvantage when building a defense.  A further result of the memorandum was to confuse Board members as it allowed uncontrolled development of improper and extraneous evidence leading to the Board’s inconsistent and contrary findings.  

	2. He was deprived of his fundamental right to counsel.  He contends he asked for an Area Defense Counsel (ADC) due to the seriousness of the FEB and his assigned military counsel’s lack of familiarity with the proceedings.  In deed, his assigned counsel ultimately had to be ordered to represent him.  His request for an ADC was turned down by a group of senior management consisting of the FEB Senior Board Member (SBM), the FEB Legal Advisor (LA) and the NY State Staff Judge Advocate – some of which were in his counsel’s rating chain.  

While the memorandum of notification was clear that he was entitled to military counsel, Air Force Instruction (AFI) 11-402 states he may request military counsel of his own choosing realizing the military counselor’s commander determines availability.  Instead, he was assigned military counsel who was not an ADC, nor was he a military defense counsel.  He was actually the Deputy Staff Judge Advocate (DSJA) for the 109th Airlift Wing and as such, presented an inherent conflict of interest in representing his best interests before the FEB. At a minimum, he should have been assigned counsel from another unit within the NYANG, experienced, but perhaps one who did not have to temper his overzealous representation in order to not damage his standing in the unit.

	3. Improper evidence was considered by the FEB.  The minutes from his previous Review and Certification Board (R&CB) were provided to the FEB and he feels there was no reason the minutes should have been included as evidence.  In fact, by including the R&CB minutes, the FEB Recorder was in effect sending the FEB a signal indicating their responsibility was only to rubber stamp the R&CB findings.  He was not present at the R&CB hearing and therefore feels the FEB consulted evidence of a completely irrelevant nature and built opinions tainted by the R&CB findings and not evidence surrounding his case.  The R&CB minutes are irrelevant opinions of those members and should not have been considered by the FEB.

	4. His rights were violated by the introduction to the FEB of the NJP administered to him.  He contends, as with the introduction of the R&CB findings, that the FEB received an implicit message from the strong language of the reprimand that prejudiced his case.  The inclusion of the NJB to the FEB should not have been entered into evidence as it undoubtedly implied to the FEB that he was someone deserving of harsh treatment and perhaps as a bad person.  He contends the NJP itself violated his rights as the administration of the punishment was contrary to the requirements of New York State Military Law which maintains no person subject to said code may compel any person to answer any question which may tend to be incriminating.  Accordingly, no questioning of an accused may take place unless he is appropriately advised of his rights.  On 3 March 2003, he underwent an interview described to him as “fact finding in nature” and that any information gathered would be used by the squadron commander to piece together the events of the evening in question, determine a course of action, and that the information gathered could not be used for judicial punishment.  He was not read his rights prior to being questioned about the events that formed the basis for his NJP.  He contends the NJP should be removed from his record and the FEB should be overturned because it relied so heavily on the record of the illegal NJP.  He deems it highly improper that all the statements gathered in anticipation of the NJP proceedings were lumped into one exhibit for use by the FEB.

	5. The FEB members were exposed to unlawful command influence.  He contends the R&CB minutes and the highly charged statement of the Chief of Staff (COS) were tantamount to impermissible unlawful command influence on the FEB.  To further exacerbate unlawful command influence, the FEB convening authority paid a visit to the FEB and imparted his point of view to the members on how they should conduct themselves while carrying out their Board duties.  While there is no verbatim transcript of what the convening authority said, or how he said it, he is left to speculate whether or not the FEB was improperly influenced by the comments of the convening authority.  He asks the AFBCMR to not condone the appearance of impropriety in this regard as the stakes are so high regarding his career.

	6. The FEB was unfair in that a critical witness on the notification memorandum was not called to testify.  Applicant contends had he known the Board would not call the witness he would have taken action to secure his testimony himself.  He contends the Board’s failure to call this witness is in clear violation of AFI 11-402 that maintains the Board should consider all available evidence.  He notes the witness did provide a cryptic statement of the critical facts from his point of view but the Board paid little attention to it.  He urges the AFBCMR to consider the statement of the witness who acknowledges he returned to the base several hours before the planned show time and also stated that aside from the argument with an enlisted crewmember, he acted and appeared normal.  He notes this witness was the aircraft commander on the scene at the time and an instructor/evaluator pilot trained to specifically assess the training and performance of other pilots.  He is also a medical professional adept at evaluating the physiological aspects of another pilot’s ability to fly.  The witness described him as doing all the usual functions at base operations without difficulty or prompting.  The witness also stated all his briefings were normal, timely, and that he “showed no difficulties”.  Perhaps more importantly, the witness stated if he felt anyone was impaired the aircraft would not have left Florida.  He states this witness’s testimony as the most important evidence in his case.  The fact he was listed on the notification memorandum as a witness but was not called by the Board Recorder undermined the legitimacy of the FEB’s findings in that the Board did not have the opportunity to consider the most meaningful evidence available.  It is notable that the Board recorder didn’t even point out the availability of the witness’s statement.  The Recorder also tried to keep out of the record his favorable Officer Performance Reports (OPR’s).

	7. The FEB had great difficulty in arriving at their final decision due to the deficient notification memorandum.  The memorandum left the FEB to fend for themselves in terms of what they were to determine just as he was forced to defend against vague and unclear allegations.  The Board’s conclusion he demonstrated a lack of judgment in performing rated duties regarding the Greenland mission in 1999 must be wholly disregarded because the notification memorandum only alleged violations that occurred on 25 January 2003 and no other dates.  He notes the Board procedurally failed to add further alleged violations and as such, the Board should not have considered them.  He contends he was only a passenger on the Greenland mission and the evidence presented did not establish he had any crew duty.  Another allegation the FEB considered in error was the finding he intentionally operated a C-130 aircraft on 26 January 2003 by consuming several alcoholic beverages within 12 hours of scheduled takeoff.  The FEB considered this allegation under the purview of certain paragraphs of AFI 11-202 and AFI 11-2C-130.  The Board used a paragraph of AFI 11-202 that was not included on the notification memorandum in order to help justify their findings.  He notes the FEB again procedurally failed to add the paragraph used in their findings to the notification memorandum and as such, the FEB should not have considered the allegation.  The FEB’s findings that he violated a duty to remove himself from flight crew duties is flawed in that there was no development or discussion of any such duty during the course of the FEB.  There was however, evidence in the aircraft commander’s statement he was not impaired.  Even so, the FEB’s finding he intentionally violated that duty by intentionally flying a C-130 falls under AFI 11-402, paragraph 4.3.6 covering intentional violations of aviation instructions or procedures and not under the FEB’s reference of paragraph 4.3.4, addressing lack of judgment.  Notwithstanding the FEB’s use of the same fact pattern to find violations of separate basis’ for the FEB, there is no proof whatsoever he desired or intended to actually violate aviation instructions or procedures.  He submits he may have intentionally drunk alcohol but his intent was not focused on a violation of aviation instructions or procedures.

	8. The FEB was legally insufficient and generally unfair.  The FEB was forced to operate without the roadmap a properly conceived notification memorandum would have given them.  The Recorder left it to the FEB to figure out “the exact reasons” for the FEB and the FEB was just as confused as he was about the proceedings.  

In support of his appeal, the applicant has provided a personal statement, a copy of the FEB transcript and 27 additional attachments.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant began his military career in the West Virginia Air National Guard (WVANG) as an enlisted airman from 9 March 1990 to 28 September 1994 where he attained the grade of staff sergeant.  He applied for navigator school, was accepted and, was appointed in the WVANG as a second lieutenant effective 29 September 1994.  He attended navigator training from 1 October 1994 to 30 May 1996.  He successfully completed the training and returned to WVANG where he was eventually promoted to the grade of first lieutenant effective 4 February 1997.  On 26 August 1997, he joined the New York ANG (NYANG).  During 1998, while on a mission to Pago Pago, he was involved in an incident with an enlisted crewmate wherein a physical altercation took place.  Alcohol was determined to be a factor and he was verbally counseled on his behavior.  In 1999, while on a mission to Greenland, he was tasked to perform Supervisor of Flying (SOF) duties.  He received a letter of counseling (LOC) from his commander while on that mission as the commander felt he did not seem fit for duty.  He attended a party the night before his SOF duty and violated crew rest requirements.  His commander also noted smelling alcohol on his breath.  The LOC was primarily issued as a wakeup call to the applicant as he was leaving for pilot training shortly and his commander wanted him to realize the importance of pilot training and the ramifications of any bad behavior while in training.

On 5 October 2000, he was promoted to the Reserve grade of captain.  He completed pilot training and was awarded a pilot rating on 13 July 2001.  He then began service with the NYANG as a C-130 co-pilot.  

On 26 January 2003, while on a mission to Eglin AFB, Florida, he willfully violated flying regulations in that he consumed alcohol inside the 12-hour allowable window and violated crew rest requirements.  On 13 March 2003, a Review and Certification (R&C) Board met to review his failure to maintain the professional standards of a rated Air Force officer.  The Board voted unanimously that he meet an FEB.  On 6 June 2003, he received NJP that consisted of a fine of $200 and a reprimand.  He did not appeal the NJP.  On 26 through 28 August 2003, he underwent an FEB wherein the following findings and recommendations were made: 

With respect to the specifications brought under Air Force Instruction (AFI) 11-402:

	1. The Board found the applicant did not lack rated proficiency but did lack judgment in performing rated duties in that:
		
		a. In 1999, he reported for a Greenland deployment unfit for duty with insufficient crew rest and smelling of alcohol.
		
		b. In January 2003, he intentionally operated a C-130 aircraft in violation of several flying regulations by consuming several alcoholic beverages within 12 hours of scheduled takeoff.

		c. He did not inform the aircraft commander of his physiological condition that impaired his ability to safely conduct aircrew related duties and he made no attempt to remove himself from the flight.

	2. He committed an intentional violation of aviation instructions or procedures in that:

		a. He consumed several alcoholic beverages near Eglin AFB, FL, within 12 hours of scheduled takeoff on the night of 25 January and early morning of 26 January 2003.

	3. He does not exhibit traits of character and personality characteristics that make it undesirable to continue using him in flying duties.

The Board recommended that he be disqualified in the rated specialty of pilot; that he be disqualified in the rated specialty of navigator; and that he not be prohibited from wearing the aviation badge.  The Board felt he could still be a valuable ANG and Air Force asset as long as he was not in a rated specialty.

_________________________________________________________________

AIR FORCE EVALUATION:

ANG/DPFOC recommends denial.  DPFOC addresses his contentions in the following order:

	1. Regarding the Notice of Reasons, the FEB follows a semiformal non-adversarial procedure wherein it discusses all the information relevant to an officer’s rated and professional qualifications to include his flight history.  He is entitled to a written notification of the time, place, and reason(s) for the FEB.  DPFOC contends while the applicant alleges the specific process as being unfair and confusing to both him and the FEB, the FEB Recorder, during the proceedings, explained the reasons for the FEB and specifically asked for any questions.  Neither the applicant nor his counsel raised any questions then or at other subsequent opportunities.

		 a. In addressing his widespread allegations about the reasons in the FEB notification, DPFOC states the notification memorandum was specific and exact in stating the reasons for the FEB.  Besides he or his counsel not asking pertinent questions about the reasons for the Board before or during the FEB, DPFOC logically concludes both of them knew and understood the reasons for the FEB and they were both prepared to participate in the proceedings.  DPFOC contends the Board member’s are required to consider relevant evidence and that the transcript contained no record they improperly considered any extraneous material.  What the applicant cites as Board members’ confusion appears to be normal efforts of a Board to write proper findings and present recommendations.

		 b. Regarding his contention the memorandum of reasons for the FEB focused on his pilot qualifications and not his navigator qualifications, DPFOC cites an NGB/JA advisory opinion wherein NGB/JA states the applicant is correct that the reasons for the FEB in the notification and at the Board, focus on his pilot qualifications and do not mention his navigator status.  However, NGB/JA contends this appears to be a minor administrative oversight, probably caused because FEBs normally only deal with members holding one rated qualification or caused by people focused on the January 2003 incidents.  But the rules he violated apply to “crewmembers” and “crew duties” and “aircrew members”.  What the FEB found improper for him as a pilot would also be considered improper for a navigator.  Additionally, NGB/JA notes FEB’s recommendations focus on an officer’s potential for rated or aviation service and in situations with dual-rated officers, the FEB is required to consider both ratings and make recommendations on both ratings.  Therefore, he fails to show evidence of error or injustice regarding the FEB’s consideration of his navigator rating and in fact highlights the FEB’s proper accomplishment of its duties.

	2. Regarding his right to counsel, DPFOC contends there is no right to specific type of counsel such as ADC and typically a by name request for counsel is considered and decided by the Staff Judge Advocate (SJA) as to the availability of the counsel.  He has not shown any instances where his counsel was deficient nor has he cited any examples of why he should not have been represented by the Deputy Staff Judge Advocate. 

		 a. DPFOC explains several years ago, the Air Force began the ADC program at active duty bases in an attempt to provide counsel some independence from local JAGs and base commanders.  However, the ADC program has not been adopted by the NYANG nor several other services and components.  The lack of an ADC does not mean military counsel is automatically biased or has a conflict of interest.  He did not ask for a specific military counsel, but for a specific type of counsel (ADC) not available in the NYANG.  He could have requested specific military counsel by name or civilian counsel at his expense. He did neither and DPFOC notes he never asked for his military counsel to be replaced nor did he object to his representation.  His counsel made an effective defense by cross examining witnesses, providing documentary and testimonial evidence and made a good closing argument.  An unfavorable outcome for the applicant is not evidence his counsel was deficient.

	3. Regarding his allegation that the FEB considered improper evidence, DPFOC states the NJP and R&CB evidence were proper and relevant to show the procedural standing of the case.  According to AFI 11-402, the FEB should review in a fair and impartial manner all information relevant to an officer’s case including previous statements, records, documents and reports of Faculty Boards.  DPFOC notes neither the applicant nor counsel objected to this evidence at its presentation.  Further, there is no evidence the FEB failed to fully and fairly consider all of the facts to reach their decision.

	4. Regarding his contention his NJP violated his rights because he was not properly advised of his rights prior to giving a statement, DPFOC notes while he wrote two letters of concern regarding the NJP he never appealed the NJP.  However, because the NJP was an administrative action taken under NY Military Law and not the Uniform Code of Military Justice (UCMJ), he had no right to refuse the punishment or demand trial by court martial.  The fact he was not advised of his rights under Article 31 of the NY Military Law, only means the statement could not be used in an effort against him in a court martial.  However, his statement could and was used for administrative purposes such as an FEB.  Regardless, DPFOC contends even without the statement, there were numerous other witness statements about his drinking and lack of crew rest to justify NJP and an FEB.  He has not shown any injustice or material error relating to the administration of the NJP and the failure to receive his rights under New York Military Law.

	5. Regarding his allegation the R&CB, NJP, and a visit by the convening authority to the FEB were impermissible unlawful command influence on his FEB, DPFOC contends there is no evidence of unlawful command influence and presents the following two key reasons for its statement:

		 a. The applicant was involved in alcohol-related misconduct three times over a five-year period.  Other than a visit to a doctor prior to the FEB, he presented no evidence of any attempt to rehabilitate himself.  His misconduct violated some of the most important and basic rules of aviation and in so doing risked his and the lives of many others.  DPFOC is of the opinion that command influence would not be a factor in any FEB deciding this case as the amount of evidence and the repeated misconduct would probably cause any aviation board to remove him from flying.

		 b. An FEB makes findings and recommendations but is not considered the final authority on the recommendations.  An entire command chain reviews the findings and recommendations and has the opportunity to concur or nonconcur.  Additionally, the case receives comments and recommendations from the convening authority and receives a legal review.  Finally, the Director of the Air National Guard has the final decision authority.  In this case, on 7 April 2004, the Director of the Air National Guard concurred with the FEB’s findings and on 30 April 2004, the Air Force published an order permanently disqualifying the applicant from aviation service but allowed him to continue wearing the pilot badge.  DPFOC logically concludes there is no reason for anyone in the chain of command to do anything to pressure an FEB for a decision either way as the entire chain of command has the opportunity to concur or not concur.  The applicant has not established material error or injustice related to unlawful command influence.

	6. Regarding his contention of a missing witness and the importance of his testimony, DPFOC states he had the opportunity to present favorable evidence about his flying capabilities and potential for future rated service.  He did so with testimonial and documentary evidence.  His decision not to call the witness in question appears to be a strategic decision in a legal hearing.  Perhaps the witness was unavailable, or the email testimony from the witness contained all the favorable evidence he needed without allowing the FEB the opportunity for potentially damaging cross-examination.  Regardless, he presented the emailed testimony of the witness to the FEB and DPFOC notes he was at least partly responsible for calling or not calling his witness.  The applicant’s assumption that this witness could cause the FEB to make different findings given his own admission of repeated alcohol-related and crew rest misconduct would be wildly optimistic.  DPFOC indicates he has not met his burden of showing there was any material error or injustice in the lack of this witness’ live testimony.

	7. Regarding his contention the FEBs findings were contrary to the notification of reasons, and the FEB should not have considered his previous incidents, DPFOC states the applicant appears to be constructing a complex legal argument that he is innocent because of a perceived technicality.

		 a. While he is correct the notification of reasons and FEB findings cite different paragraphs, DPFOC states this error is nothing more that a typographical error in the notification letter.  The letter referenced AFI 11-202V3, paragraph 9.9.3.4 which does not exist.  It appears the letter of notification meant to reference paragraph 9.8.3.4 which prohibits aircrew members from flying within 12 hours of consuming alcohol or while impaired by its effects.  However, the same letter of notification does cite paragraph 3.3.2 which prohibits crew members from performing crew duties after consuming alcohol within 12 hours of take-off or when under the influence of alcohol.  Thus he was not adversely affected by the typographical error as he was put on notice the FEB would be considering the 12-hour rule under paragraph 3.3.2.

		 b. His argument the FEB should not have considered the 1999 incident on the Greenland mission is without merit as both the January 2003 and the 1999 incident were certainly similar and relevant to one another.  The FEB was charged with looking at all relevant evidence.  While he states he was not on duty that day, he was scheduled for duty the next day.  Regardless, this appears to be a factual matter that should have been addressed at the FEB hearing.

		 c. He argues that the FEB findings and recommendations are strained and difficult to understand.  Contrary to the applicant’s argument, DPFOC states based on the evidence provided to the FEB, the findings and recommendations are both logical and supported by the facts.  DPFOC states he has not met his burden of showing there is any material error or injustice that requires correction.

	8. Regarding his contention of overall unfairness and order for rehearing, DPFOC states he has not shown the FEB was unfair.  Rather, he does not understand the most important question in this entire process: whether or not he is safe or fit to fly.  Based on the evidence provided, the R&CB, and the FEB, the Director of the Air National Guard found that he is not.  The FEB hearing process is a way to build the record with the facts of the case.  It is the applicant’s chance to present any evidence he feels relevant.  After careful consideration of the more than 400 pages of documentation and a legal review provided by NGB/JA, no material errors or injustices were found in his case.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant’s counsel states DPFOC’s advisory is highly irregular and improper in that it begins the advisory opinion with misstatements of fact, gratuitous and self-serving conclusions, and matters not of record in this case.  Counsel argues the DPFOC advisory’s mentioning of three separate incidences of misconduct, one in 1998, one in 1999, and the incident that caused the FEB in 2003.  Counsel questions why DPFOC would write their advisory and base so much of their opinion on three instances of misconduct when the FEB obviously recognized only two incidences: 1999 and 2003.  He asks the Board to disregard DPFOC’s mention of the 1998 incident as not relevant, material, meaningful, or helpful in determining the issues the applicant has raised in his application.  Counsel asks the Board to recognize that DPFOC acknowledges the alleged 1999 incident as being impossible and impracticable to fix now, yet offers the incident to the Board as though there were no discrepancies, seeking to influence the Boards decision with unreliable and admittedly disputed information.  The discrepancy of the 1999 incident being that no evidence was developed or offered to the FEB that the applicant was able to perform his duty on that deployment due to alcohol consumption.  In fact, he was only a passenger on the plane at the time and his deployment duties did not begin until the next day.  DPFOC seeks to place the burden on the applicant to correct the Recorder’s misleading evidence and now asks the Board to ignore the full truth of the alleged incident.

The DPFOC characterization of the applicant’s landing on completion of the mission as problematic is in direct contradiction to the aircraft commander’s description of the landing wherein he stated weather conditions as the factor that would make the landing difficult for any pilot.  Additionally, the aircraft commander saw no influence of alcohol on the applicant’s flight performance that day.  Counsel asks the Board to discount DPFOC’s background information as unreliable and an affront to the Board’s purpose.

Counsel reiterates the notification memorandum’s overbroad statements that compromised the applicant’s attempt to either have to guess which of the many alleged bases he needed to defend against or unnecessarily spend time and energy preparing to respond to all the various bases.  It is incomprehensible to counsel that DPFOC considers that there was no extraneous material considered by the FEB when applicant’s strongest complaint is that the record is replete with extraneous, immaterial, irrelevant, and highly prejudicial material.

While DPFOC admits to the applicant not being aware the FEB would consider removing his qualification as a navigator, they seek to minimize this glaring error by calling it a minor administrative oversight and then providing speculation as to why the error occurred in the first place.  The conclusion presented is that if he was not qualified to be a pilot then he would not be qualified to be a navigator.  Counsel contends this self-serving and speculative conclusion is not support by facts or any other basis.

Counsel reiterates applicant’s complaint that he did not receive the type of counsel he requested.  The fact that the NYANG and other components have not evolved to the point they can provide independent defense services is not the fault of the applicant.  No apparent effort was made to secure him a genuinely conflict-free and experienced defense counsel.  He was assigned military counsel, but one that obviously carried at least the appearance of a conflict of interest.  Counsel states the assigned counsel initially asked to be removed from the case but was denied based on having mostly Navy JAG experience and never having heard of the Air Force’s FEB process.  Additionally, the assigned military counsel had been privy to a lot of the build-up of this case through the NJP process.  At the very least, an attempt should have been made to provide military counsel from another NYANG base.  

DPFOC repeatedly argues that because the applicant or counsel raised no objections to many of the proceedings that the proceedings were legally sound.  Applicant was not in a position to make objections as he was a layperson and sat next to a counsel.  Counsel notes the assigned military counsel made many comments to the applicant that he didn’t want to upset the Board by “lawyering it up” too much thereby leaving the applicant with the feeling he was not being independently and zealously represented.

Counsel states the admission of R&CB minutes and the tainted NJP documents to the FEB belie DPFOC’s contention the material was relevant material, showing how the case came to an FEB and showing the procedural standing of the case.  That DPFOC suggests the FEB made an independent decision thereafter defies reality.

Counsel notes that DPFOC admits the applicant’s rights were violated, as he did not receive a rights warning prior to the NJP but suggests that the evidence against the applicant was such it would not have mattered if he had received a warning.  The applicant had a statutory right to receive a rights warning before making any statement.  He did not receive one.

Counsel states it was improper for the Wing Commander to make unrecorded comments to the FEB and claims there is no support for the DPFOC statement that the chain of command would have no reason to influence the Board as they had concur or nonconcur opportunities of the FEB findings and recommendations.  

Counsel states the DPFOC’s blame of the applicant for not calling a special witness on the reason memorandum as he had partial responsibility to do as being disingenuous and mean-spirited.  The Recorder listed the special witness as a government witness thus leaving a clear impression he was to be called.  

Finally, counsel contends the applicant was abused by the process and procedure of this FEB.  Counsel notes AFI 11-402 wherein it is stated a rehearing is appropriate if any (emphasis counsel) review for legal sufficiency of this FEB determines there was prejudicial error to the substantial rights of the applicant that the Board, at the very least order a rehearing.

Counsel’s complete response is at exhibit E.

_________________________________________________________________

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.  We took notice of the applicant's complete submission in judging the merits of the case; however, we are not persuaded that the applicant has been the victim of either an error or an injustice.  His numerous allegations are noted, however, we believe that the detailed comments provided by the Air National Guard adequately addressed his allegations.  After a detailed review of the evidence of record, we agree with the opinions and recommendation of the Air National Guard office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.
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-2004-01936 in Executive Session on 27 September 2005, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 1 Jun 04, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ANG/DPFOC, dated 16 May 05, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 29 Jul 05.
    Exhibit E.  Letter, Counsel, dated 24 Aug 05.