RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2008-02518
		INDEX CODE:  110.00/131.00/107.00
		COUNSEL:  
		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His record be corrected as indicated below:

	a.  The Letter of Reprimand (LOR) issued to him on 23 Apr 84 be expunged from his record.

	b.  His Meritorious Service Medal (MSM) be reinstated.

	c.  He be promoted to Colonel (0-6).

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APPLICANT CONTENDS THAT:

Applicant’s counsel submitted a 17-page brief, with attachments.  He states when the applicant first joined the Air Force he was labeled a “Negroid” and had to battle a host of negative racial stereotypes throughout his career.  He became the first African-American to command the prestigious Security Police Squadron at the U.S. Air Force Academy.  He felt there was not enough minority participation or representation in the decision process at the Academy.  

Applicant filed both a Social Actions complaint and an IG complaint following his LOR and spent years corresponding on the matter.  His previous request to restore his MSM did not include a copy of the Equal Opportunity and Treatment (EOT) report which has now been provided.

He has a Bachelor’s of Science degree in Biology.  He was commissioned as an officer in Jul 64 and initially trained as a Security Policy officer.  He later trained and served as both a Missile Launch Officer and a Missile Operations Officer.  After 10 years, he returned to the Security Policy career field.  He spent the next nine years as a Commander and Security Police Staff Officer.

His receipt of an LOR ruined his chances for promotion to the rank of Colonel (0-6) and ended his career.  The reprimand was unjust and should be removed from his record as it negatively impacted his chance at promotion to Colonel.  

Regarding the IG investigation, contrary to regulation procedures, the witnesses were not sworn in, neither was the applicant informed of his rights.  Therefore, the report could not legally, procedurally, or logically provide the necessary evidentiary support for the subsequent reprimand.  The EOT inquiry officer noted “The IG investigation of fraud, waste and abuse was conducted in an unprofessional manner.”  The IG investigating officer was due to meet the same promotion board as the applicant and was, therefore, not able to be sufficiently disinterested in the outcome of the investigation.  The investigation officer was later promoted and made the Academy’s IG.  The majority of the IG report findings were based on the sworn testimony of an extremely junior servicemember known to lie.  

Applicant disagreed with the negative comments contained in the LOR and the stated version of events contained in the IG investigation.  Although his actions may have seemed serious; he did not engage in any sort of gross misconduct.  The LOR made it seem that the applicant was running a “mini Las Vegas” when nothing could have been further from the truth.  Card games were a way for troops to pass the time when they had to be present but not on active patrol or duty.  Applicant played a few hands on occasion, but never participated, condoned, or knew of any card gambling of any significant dollar amount.  He authorized a football pool after realizing that many Academy organizations – including the Chief of Staff’s former organization - participated in similar efforts to increase morale and camaraderie.  Both instances are mislabeled as gambling and worthy more of a verbal counseling that would have allowed the applicant to quickly correct the situation.  Both the Chief of Staff and investigating officer overacted to the applicant’s request for a piece of Plexiglas and a borrowed stapler for use at home.  Applicant uttered a single curse word as an adjective, not a verb, to one of his subordinates.  No one ever stated the applicant used profanity when speaking to his troops.

The EOT investigation found that at least two other Lt Colonels with blemished records were rewarded decorations upon retirement.  Curiously, the applicant’s award was revoked after he requested a social actions and IG investigation.  

Applicant is a proud retired officer with a long career of faithful, quality service.  He has a book forthcoming about his experiences and hopes to add a positive decision to its contents.

In support of the application, applicant’s counsel submits a 17-page brief with 22 Exhibits.

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

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STATEMENT OF FACTS:

Applicant honorably retired on 30 Sep 84.  He served 22 years and 4 months on active duty.  

In 27 Oct 84, the Board voted to deny the applicant’s request for the award of the MSM because his submission did not contain substantive evidence to convince the Board that the approval authority’s action to revoke the award of the MSM (1OLC) was a violation of regulation, was an abuse of discretionary authority, or was improper or based on erroneous information.  A copy of the Board’s decision is at Exhibit B.

The remaining relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letters prepared by the appropriate office of the Air Force at Exhibits C, D and E.

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AIR FORCE EVALUATION:

HQ AFPC/DPSI recommends denial.  DPSI states the use of the LOR by commanders and supervisors is an exercise of supervisory authority and responsibility.  The authority for using administrative reprimands is inherent in nature and is derived from responsibility of commanders, supervisors, and other superiors to correct and train subordinates.

The complete DPSI evaluation is at Exhibit C.

HQ AFPC/DPSOO recommends denial.  DPSOO states there is no evidence that the LOR was seen by the selection board.  Additionally, the applicant applied for retirement on 17 Jan 84, prior to receiving the LOR, and that the voluntary retirement was reflected on his selection brief.  No additional relevant evidence has been presented to demonstrate the existence of a probably error or injustice at the time of the board.  The results of the original CY84 board were based on a complete review of the applicant’s entire selection record, assessing whole person factors such as job performance, professional qualities, depth and breadth of experience, leadership, and education.  Although the officer may be qualified for promotion, he may not be the best qualified of all eligible officers competing for the limited number of promotion vacancies in the judgment of a selection board vested with discretionary authority to make such selections.  Furthermore, to grant a direct promotion would be unfair to all other officers who have extremely competitive records but did not get promoted.

DPSOO states the case should be dismissed as untimely and without merit.  In addition, the applicant has not provided evidence of an error or injustice; therefore, grounds for direct promotion do not exist.  

The complete DPSOO evaluation is at Exhibit D.

HQ AFPC/JA recommends denial.  JA notes the application is untimely and can be dismissed on that basis.  JA states applicant’s counsel has offered no proof whatsoever to support his allegations.  He has failed to explain how the supposed racial climate at the Academy or the Chief of Staff’s power in any way provides justification for applicant’s delay in filing the present application; nor has he established relevancy to the behavior by the applicant that led to the LOR or to prove that the legality of the LOR was in any way diminished by these unproven allegations.  In fact, the report issued in response to an EOT inquiry requested by the applicant following imposition of the 1984 LOR specifically determined that the actions taken by the Chief of Staff regarding the applicant were not based on race.  

JA notes counsel is relying on a current Air Force Instruction to establish the proper standards for an inquiry conducted in 1984.  The governing regulation in effect at that time provided authority for a commander directed inquiry which is much less formal than an investigation.  Because the inquiry is not part of the file and is now unavailable due to the passage of time, we are unable to discern its exact nature.  The Staff Judge Advocate noted that the only negative from the failure to swear witnesses or advise them of their rights was the inability to use evidence obtained in a prosecution or Article 15 under the UCMJ.  He recognized that sufficient evidence was nevertheless obtained to prove that the applicant committed the offenses cited in the LOR.  Moreover, he determined that the applicant was not truthful with the inquiry officer.  JA states applicant’s counsel has not submitted any evidence that would discredit the underlying factual evidence that supported the misconduct alluded to in the LOR.  In fact, he acknowledges wrongdoings on the part of his client, prompting an argument that an LOR was too harsh an action to take in response.  The seriousness of the misconduct within the squadron committed by its commander was appropriate for administration by an LOR.  The revocation of the applicant’s MSM by the Academy Superintendent reveals that the command’s censure of the applicant for his misconduct was not limited to the Chief of Staff, as the senior Academy official obviously concurred in the determination of wrongdoing found by the inquiry and concurred in by the Staff Judge advocate, along with the actions taken by the Chief of Staff.

Regarding the applicant’s request for direct promotion, JA states a congressionally mandated promotion system where selection is made on a best qualified basis, having an excellent record is simply not enough.  Counsel’s belief that the applicant would have been promoted absent the LOR is total speculation as only a duly appointed selection board can determine who is among the best qualified for promotion.

The complete JA evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant was due to PCS from the Academy in June 84.  In Dec 83, his career advisor requested he extend his tour because he looked good for promotion to Colonel.  He was later told that his extension request would not be approved because he had been at the Academy too long.  He then requested his extension be approved until after the Colonel promotion board met.  His career advisor suggested that if he requested retirement his outstanding performance report would be on top when the promotion board reviewed his records; however, he received a Letter of Reprimand which was included in records.

The evaluations do not address the merits of the case and instead refer to standard arguments that “the LOR and the action it was based upon.”  The advisory opinions fail to address the substantial evidence presented in the application.

Counsel’s complete response 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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

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 agree with the opinions and recommendations of the Air Force offices of primary responsibility 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.

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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 14 January 2009, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered under AFBCMR Docket Number BC-2008-02518:

	Exhibit A.  DD Form 149, dated 30 Jun 08, w/atchs.
	Exhibit B.  Applicant’s Master Personnel Records.
	Exhibit C   Letter, HQ AFPC/DPSI, undated.
	Exhibit D.  Letter, HQ AFPC/DPSOO, dated 22 Sep 08.
	Exhibit E.  Letter, HQ AFPC/JA, dated 14 Oct 08
	Exhibit F.  Letter, SAF/MRBR, dated 24 Oct 08.
	Exhibit G.  Letter, Counsel, dated 2 Dec 08.

                                  
                                  Panel Chair