RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2007-02293
INDEX CODE:  128.05 
								COUNSEL: NONE

								HEARING DESIRED:  YES

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APPLICANT REQUESTS: 

All documents referencing his 12 October 2005 Letter of Reprimand (LOR) be removed from his Air Force military personnel records (MPR) and Officer Selection Record (OSR); reinstatement of his promotion to the grade of major with back pay; reinstatement of the Joint Service Achievement Medal (JSAM); and award of the Defense Meritorious Service Medal (DMSM).  

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APPLICANT CONTENDS THAT:

His commander failed to provide proper notification of his decision to file the LOR or provide enough time to submit a response. The information in his record upon which the Secretary of the Air Force (SecAF) based his decision to remove his name from the promotion list to major was inaccurate.  The decision to impose an LOR and; thereafter, file it in an Unfavorable Information File (UIF) and his OSR was an overreaction and disproportionate to the offenses involved.  If personnel records were accurate, no derogatory information would have been present and there would have been no justification to revoke his promotion.  

In support of his application, the applicant submits personal statements; a command letter of support; an Air Force Office of Special Investigations (AFOSI) letter denying his Freedom of Information Act request; AF IMT 77, Letter of Evaluation (removal of performance report for the period 31 May 2003 through 30 May 2004); excerpt of Air Force Instruction 36-2608, Chapter 9, Filing Other Items in Selection Folder; LOR, dated 12 October 2005; notification to file LOR in OSR; applicant’s acknowledgments of both LOR and intent to file;  applicant’s response to notification filing his LOR in his OSR; and approval authority’s determination to file the LOR in the OSR.  

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

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STATEMENT OF FACTS:

According to the military personnel data system, the applicant is currently serving on active duty in the grade of captain with a date of rank of 29 May 2000.  He was selected for promotion to the grade of major by the Calendar Year 2004A Major Central Selection Board (CSB) which convened on 1 November 2004; however, was removed from the promotion list by the SecAF on 25 May 2007.  He has a Total Active Federal Military Service Date of 10 August 1988 and a Total Active Federal Commissioned Service Date of 25 June 1996.  The applicant has a projected date of separation of 31 August 2008.  

An AFOSI Report of Investigation (ROI), dated 15 November 2004, indicates an inquiry was initiated on 16 February 2004 against the applicant when special agents were notified the applicant was exhibiting suspicious behavior and was involved with foreign contacts and performed foreign travel that he was not reporting to military officials.  The inquiry determined the subject did not divulge classified information to any foreign nationals or unauthorized personnel, nor did he knowingly not report contact with foreign nationals in accordance with the United States Military Training Mission (USMTM) policy and military instructions.  However, the report indicates the applicant did commit multiple offenses of unauthorized travel to Kuwait in which contact with foreign nationals was made and not reported to security officials in accordance with USMTM policy and military instructions.  In addition, the inquiry discovered the applicant possibly committed several criminal infractions not within the purview of the inquiry.  The possible criminal acts included failure to obey a lawful order or regulation, adultery, and tax evasion.  

On 1 March 2004, the applicant received a Letter of Admonishment for violation of a force protection policy and obstructing several common sense Operations Security (OPSEC) rules.  On 22 April 2004, the Chief, Joint Advisory Division, USMTM, revoked his driving privileges for a period of 30 days.  On 3 May 2004, the Chief, USMTM, suspended the applicant’s access to classified information due to the applicant’s misstatements to the Chief of Staff regarding the number of days leave he took, discrepancies on his travel vouchers, issues regarding his travel to Kuwait, and issues regarding his financial dealings in Kuwait and Saudi Arabia with foreign nationals.  On 8 May 2004, an order, dated 6 December 2003, awarding him the JSAM w/one Oak Leaf Cluster, was revoked.  On 28 July 2004, the applicant’s security clearance was suspended.  As a result of the applicant’s suspended security clearance, recoupment action of his Critical Skills Retention Bonus (CSRB) was initiated.  

On 26 March 2005, his rater notified the applicant that he was referring his OPR for the period 31 May 2003 through 30 May 2004. After acknowledging receipt, the applicant submitted a statement in his own behalf on 28 July 2005.  

On 12 October 2005, the applicant received a Letter of Reprimand (LOR) for:

a. Leaving his vehicle unattended at Riyadh Airport, Saudi Arabia, with a personal letter in plain view showing his name, rank, and mailing address, along with his Eskan Village entrance/exit badge on the floorboard of the vehicle.  

b. Violation of USCENTCOM General Order 1 by knowingly transferring alcoholic beverages to Kuwaiti nationals.  

c. Failing to report to the appropriate officials that he was contacted by a Kuwaiti national and offered a bribe to enter into contracts with the Kuwaiti national’s company, as it was his duty to do.  

d. Falsely reporting his military identification card as stolen when he knew it had not been stolen.  

On 19 October 2005, the applicant acknowledged receipt of the LOR and his intention to submit a statement in his own behalf.  On 9 December 2005, the LOR was revised by rescinding item “c” above.  Subsequently, an Unfavorable Information File (UIF) was established as a result of the applicant’s LOR.  On 22 February 2006, his commander notified the applicant of his intent to file the LOR in the applicant’s OSR.  Also, on 22 February 2006, the Commander, Aeronautical Systems Center (ASC), notified that applicant that he was recommending his name be removed from the promotion list to the grade of major.  After acknowledging receipt of the notifications, the applicant submitted statements in his own behalf.  As a result of the applicant’s submission in response to the LOR, the LOR was further revised by rescinding item “a” above on 4 May 2006.  On 5 May 2006, after considering the applicant’s submission, his commander directed a copy of the applicant’s LOR be filed in his OSR.  

On 19 June 2006, the Evaluation Reports appeal Board (ERAB) approved removal of the applicant’s referral OPR from his records.  On 11 July 2006, the applicant requested the Chief, USMTM, overturn the suspension of his Critical Skills Retention Bonus (CSRB).  On 25 July 2006, the Chief, USMTM, denied the applicant’s request.  As a result of his referral OPR being removed, on 22 August 2006, the applicant was notified that ASC/CC was resubmitting a recommendation for removal of his name from the CY04A Major CSB promotion list.  On 25 May 2007, the SecAF approved the recommendation and directed the applicant’s name be removed from the list of officers selected for promotion by the CY04A Major CSB.  

On 7 February 2008, the Board considered and denied the applicant’s request to reinstate his CSRB back to the date of recoupment and for it to be tax exempt.  

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AIR FORCE EVALUATION:

AFPC/DPSI recommends denial of the applicant’s request to remove his LOR from his records and OSR.  DPSI indicates that after reviewing the evidence of record, they have validated the LOR was processed and the UIF was established in accordance with Air Force Instruction 36-2907, Unfavorable Information File (UIF) Program.  

The DPSI evaluation is at Exhibit C.  

AFPC/DPSOO recommends denial of the applicant’s requests.  DPSOO states that promotion is not a reward for past service.  It is advancement to a position of greater responsibility based on the requirements of the Air Force and the officer’s future potential.  If an officer is not mentally, physically, morally, or professionally qualified to perform duties in the next higher grade, it is in the best interest of the Air Force for the proper authority to initiate action to delay promotion, to find an officer not qualified for promotion, or to remove the officer from a promotion list.  In this case, the applicant was provided all supporting documentation, provided legal counsel, and given sufficient opportunity to respond to the removal action taken by the commander.  The LOR in question was a part of the removal action and would have been provided to SecAF even if it had not been filed in his OSR.  Therefore, the applicant’s basis for having his promotion reinstated is without merit.  The removal package received numerous legal reviews prior to SecAF directing the removal and it was found to be legally sufficient.  

The DPSOO evaluation is at Exhibit D.  

AFPC/JA recommends denial of the applicant’s request for reinstatement of his promotion to the grade of major effective 1 June 2006 with back pay; and, his request to remove all evidence of the UIF/LOR from his MPR and OSR.  They agree with the Air Force advisory opinions provided by DPSOO and DPSI.  JA indicates the statements and evidence upon which the applicant’s LOR is based were all properly obtained and utilized.  More importantly, the allegations that constitute the LOR were admitted to by the applicant.  He merely disagrees with the severity of the actions that were taken based on these incidents of misconduct, and believes that imposing a LOR/UIF and removing him from the promotion list for such “relatively minor” allegations constitutes an “injustice.”  It is JA’s opinion that the misconduct documented in his LOR was serious – going to the very essence of an officer’s integrity.  Concomitantly, the actions taken in response to this behavior were fully appropriate.  

JA states that while the applicant contends he was never notified of the intent to file the LOR in his OSR and thus was never offered the opportunity to submit matters in response, the case file contains a copy of the 22 February 2006 “Notification of Intent to File Letter of Reprimand in Appropriate Selection Record (AFI 36-2608),” signed by ASC/CC, attached to which is an acknowledgment, dated 27 February 2006, signed by the applicant.  This would seem to directly refute his assertion he was never afforded a rebuttal opportunity.  Moreover, as noted by DPSOO in its advisory, regardless of whether the LOR was filed in the OSR, it was properly part and parcel of the evidence supporting the applicant’s removal from the promotion list, a completely separate action for which he was given an opportunity to respond.  The evidence of record fully supports the LOR, its filing in the UIF and OSR, and the removal of his name from the promotion list to major.  The applicant has failed to provide relevant evidence to prove any error or injustice in respect to these actions.  

The JA evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He was advised on 22 February 2006 that his promotion was being removed for three offenses.  Based on his responses, one of the allegations was stricken from his LOR and he was told that his promotion was not being removed.  He was surprised when he heard that his promotion was being denied.  He was not given the opportunity to respond to either of the promotion removal packages that were submitted on 21 July 2006 and 22 August 2006.  There are no notification letters signed by him acknowledging that these packages were being submitted.  The final removal package was submitted to SecAF on 22 August 2006, 30 months after the incidents transpired, 22 months after the promotion board convened, 10 months after the UIF was established, 6 months after the notification was issued, and almost 3 months after he was officially authorized to pin-on major.  Bottom line – the paperwork was submitted after his promotion date without his knowledge.  

His response to the LOR was delayed beyond the required 3 days upon receipt due to his attempts to obtain all the required information (in particular, trying to obtain a copy of the OSI report); however, requests for extensions were requested and approved.  The OSI report never became available so he and his Area Defense Counsel had to respond with limited information.  

During the OSI investigation, he was unlawfully denied an attorney, unlawfully subjected to a polygraph, and unlawfully detained.  An authorized preliminary report was written in order to appease a commanding officer so he could write a referral OPR.  The preliminary report is against any investigative protocol since it skews the outcome of the investigation – especially when written six months before the case is closed.  Furthermore, the OSI conducted the investigation without proper approval and coordination.  The author of the Air Force legal advisory opinion did not review all of the pertinent documents, specifically a complete copy of the classified OSI report or the affidavits from the witnesses.  Without reviewing all the pertinent documents, JA is speaking on issues they know nothing about.  He has attempted to obtain a complete copy of the OSI report under the Freedom of Information Act; however, his requests have not produced any results.  

He contends that an injustice has occurred after having experienced an interrogation by the OSI based on false statements for allegedly committing treason, espionage, adultery, bribery, transporting weapons, aiding the enemy, transporting and possessing war trophies, failure to pay spousal support, falsifying leave documents, lying to the unit’s Chief of Staff, violating Force Protection Policies, amongst many other alleged crimes.  Based on the polygraph and other tangible evidence, he was found totally and completely innocent of every allegation.  It is an injustice when military members who intentionally mislead the OSI were not held accountable for their false statements.  An injustice occurred when the OSI did not have proper authority to invade his life with phone taps and surveillance measures (these activities are hidden in the classified version of the OSI report).  Clearly, the Air Force legal advisor supports a maverick style system which allows false allegations to justify a search for any wrong doings.  If a wrong doing is not admitted and discovered later; then, the individual is guilty of withholding information, perjury, and failure to cooperate with a federal investigation.  

He apologizes to the Board members for the tone of his rebuttal; however, he hopes they can empathize with the magnitude of his situation.  He is still requesting a formal hearing before the Board.  

The applicant’s rebuttal is at Exhibit G.  

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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 an error or an injustice.  We took notice of the applicant's complete submission in judging the merits of the case; however, we do not find his uncorroborated assertions, in and by themselves, sufficiently persuasive to override the rationale provided by the Air Force offices of primary responsibility (OPRs).  Accordingly, we agree with the opinions and recommendations of the Air Force OPRs and adopt their 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.

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 issues 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 this application in Executive Session on 29 May 2008, under the provisions of AFI 36-2603:

The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2007-02293:

Exhibit A.  DD Form 149, dated 16 Jul 07, w/atchs.
Exhibit B.  Applicant's Master Personnel Records.
Exhibit C.  Letter, AFPC/DPSI, dated 11 Dec 07.
Exhibit D.  Letter, AFPC/DPSOO, dated 17 Jan 08.
Exhibit E.  Letter, AFPC/JA, dated 12 Feb 08.
Exhibit F.  Letter, SAF/MRBR, dated 22 Feb 08.
Exhibit G.  Applicant’s Rebuttal, dated 21 Mar 08.