RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-02610
		INDEX CODE:  111.01
		COUNSEL:  NONE
		HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  The Letter of Reprimand (LOR), dated 31 October 2005 and the Unfavorable Information File (UIF) be declared void and removed from his records.

2.  The Officer Performance Report (OPR) ending 29 December 2005 be declared void and removed from his records.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The alleged conduct upon which the LOR was based was erroneous and addressed matters within his private rights and personal affairs that were unrelated to any valid military concern.  The LOR was thus arbitrary and capricious, an abuse of discretion, and clearly unfair.  The sole basis for the referral report was the conduct alleged in the erroneous LOR.  In addition, the referral comments are vague, do not address specific conduct, and do not comply with AFI-2406, Officer and Enlisted Evaluation Systems, paragraph 3.9.

In support of his request, the applicant provided copies of the Article 138 complaint and supporting documents, a summary of his career achievements, promotion recommendations, the contested report and awards and decorations information.

His complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant was commissioned a second lieutenant in the Regular Air Force on 1 June 1983 and was progressively promoted to the grade of colonel on 1 May 2005. 

On 31 October 2005, the Commander, 70th Intelligence Wing (70th IAW/CC) issued the applicant an LOR due to a close relationship he had with a female Korean national which included trips to Hawaii, North Carolina (NC) and South Korea while married to another woman.  He also failed to report in a timely matter, his close and continuing personal association with two other Korean nationals as required by DoD 5105.21-M-1, Department of Defense Sensitive Compartmented Information Administrative Security Manual.

On 15 November 2005, the applicant submitted a letter to the 70th IAW/CC responding to the LOR and the notification of intent to file the LOR in his selection records. 

On 30 January 2006, the 70th IAW/CC provided the applicant with a referral OPR for the period of 3 June 2005 through 29 December 2005.

On 20 Oct 2006, the applicant submitted a letter to the 70th IAW/CC requesting the commander redress his decision to issue an LOR, establish a UIF and his subsequent decision to file the LOR in his Officer Selection Record (OSR) and to refer his OPR.

On 20 November 2006 the 701th IAW/CC responded and stated there was nothing in the applicant's package that would cause him to alter his previous decision.  Therefore, the applicants request for redress was denied.

On 19 January 2007, the applicant submitted a letter to the 8th AF/CC requesting he address his concerns. 

On 4 April 2007 the 8th AF/CC indicated that after careful consideration he found that the applicant's allegations did not warrant relief. 

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPO recommends denial.  DPO concurs with the 701AW/CC's decision to deny the applicant's complaint under Article 138, UCMJ, dated 20 October 2006, and the NAF's decision that the applicant's allegations do not warrant relief.

The complete DPO evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded stating he is disappointed but not surprised with the AF/DPO opinion.  It merely recounts the steps in the process without addressing the facts.  Wide latitude is given to a commander issuing an LOR.  This does not obviate the fact that this documentation, by regulation, must be 100 percent accurate.  The referral OPR, which does not comply with AFI 36-2406, is based on erroneous assumptions in the LOR.  The LOR is based upon a biased Report of Investigation (ROI).  The ROI presents unsubstantiated conclusions based solely from a noncommissioned officer's notes, compiled from memory.  These notes contain glaring inaccuracies.  For example, one of the locations listed in the LOR is NC.  The fact is his wife has never been to NC.  This alone should render the LOR void.  He passed three different polygraph tests on his recollection of the facts in this case.  At every turn there has been an official effort to protect the questionable actions of the commander in this case without regard to consideration of the facts.  The portion of the LOR related to reporting foreign contacts is absolutely preposterous.  The Board should be aware that his many attempts to obtain documentation in this matter, through Privacy Act and Freedom of Information Act procedures, were drawn out over a year until the commander retired, and then referred to higher authority, without resolution.  His career has been ruined based upon assumptions which would not hold up in most basic nonjudicial proceedings.  

The applicant's complete response is at Exhibit D.

_________________________________________________________________

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 careful notice of the applicant's complete submission, to include his response to the advisory opinion in judging the merits of the case.  However, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice.  Persuasive evidence has not been provided which would lead us to believe that the administrative actions taken by his commander were beyond his scope of authority, that he abused his discretionary authority in taking those actions, or that the actions taken were precipitated by anything other than the applicant's own conduct.  We do not find his assertions, in and by themselves, sufficiently persuasive in this matter.  Additionally, we are not persuaded by the evidence provided in support of his appeal, that the contested report is not a true and accurate assessment of his demonstrated potential during the specified time period or that the comments contained in the report were contrary to the provisions of the governing instruction.  Therefore, in the absence of persuasive 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.

_________________________________________________________________

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-2007-02610 in Executive Session on 18 December 2007, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 18 July 2007, w/atchs.
    Exhibit B.  Letter, AFPC/DPO, dated 7 November 2007.
    Exhibit C.  Letter, SAF/MRBR, dated 9 November 2007.
    Exhibit D.  Letter, Applicant, dated 1 December 2007.