RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2008-02883
		INDEX CODE:  137.04

		COUNSEL:  

		HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

1. The Revocation of Flying Order be expunged from his records along with any and or all negative matters pertaining to the order.

2. The referral Officer Performance Report (OPR) be removed from his record and replaced with a positive one.

3. He be awarded any promotions and or awards which he would have earned had he not received the Revocation of Flying Order.

4. He be awarded any and all military active duty pay and entitlement, to include flight and incentive pay, from Sep 2000.

5. He be awarded service credit not credited toward retirement beginning Sep 2000 until his active duty retirement date which would have been Sep 2006.

6. He be reinstated into the Birmingham ANG unit and assigned to an Active Guard/Reserve (AGR) position.

7. He be sent directly to the appropriate Flight Training Unit and properly trained as an Aircraft Commander and Instructor Pilot.

8. Any and or all ANG and Army records damaged by the Revocation of Flying Order action be corrected.

9. An inquiry be made with the AFR unit he transferred to as to why he was forced into the Individual ready Reserve (IRR) and not offered assistance or a position while he cleared his record.

10. In accordance with Air Force Instruction 11-402, his previous Aviation Service Code (ASC) with the original effective date be restored and flight pay started.

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APPLICANT CONTENDS THAT:

Several promises were made to him over the course of a three-year period – 1998 through 2000 - by officers from the National Guard Bureau (NGB) heavily recruiting minority pilots during that timeframe.  Not only were the many promises not kept, the resulting confusion led to the administrative instrument that allowed him to fly for the military – his aeronautical order – being revoked.

In 1998, he was flying for the United States Army (USA).  He was a member of the Organization of Black Airline Pilots (OBAP) and was attending their 1998 conference when he met two officers from the Air National Guard (ANG) who were actively recruiting minority pilots for rated service in the ANG.  They relayed to him that the National Guard Bureau (NGB) had sent them to brief the conference attendees on the benefits of rated service with the ANG and that since the ANG had so few minority pilots, that now was a good time for minority pilots to fly for the ANG.

He was a warrant officer in the Army with over 16 years of service and, as a result, they promised him a direct appointment in the ANG in the grade of captain.

He wanted to serve in the Birmingham, AL area but had applied several times to the ANG unit there and had never been invited for an interview.  The ANG officers told him to interview with the ANG unit in Wisconsin (WIANG); serve for a year or so there, and they would help him get an interview with the Birmingham unit.  

While a member of the WIANG, he would be given an Active Guard Reserve slot (Title 32, active duty).  That appealed to him because of him 16 years of service.  The WIANG did hire him as a pilot, but soon after reporting for duty he was told that because the USAF did not recognize warrant officers, he could not be appointed in the grade of captain.  He would have to attend officer training school prior to any flight training and he would be appointed in the grade of second lieutenant (2Lt).  Consequently, he asked to be returned to the IRR so he could return to flying with the Army.  His request was granted.

Upon returning to the Army, he applied for a direct appointment to the grade of 2Lt for the purpose of flying jet aircraft for an Army unit in Georgia.  His request was approved.  At about that same time, the same ANG minority recruiter contacted him and offered him a pilot interview with officials from the Birmingham, AL unit.  He accepted the offer, interviewed, and was selected for a rated position with the Birmingham unit.  Because of his USA background flying fixed-wing aircraft and his commercial airline experience, he would only have to attend a short fixed-wing qualification course.  In fact, he told them he would only consider returning to the ANG if he could attend the fixed-wing qualification course.  He was told the abbreviated course was the T-1 course and he would be approved to attend.

He joined the Alabama ANG (ALANG) and was eventually offered both the T-1 and the T-37 courses.  He reminded the NGB contact that he agreed to take the T-37 course which was considered shorter and easier to fly.  He was signed up to the T-1 course and the orders only reflected the full course because it was a shortfall created by another UPT applicant who was unable to attend and there was no time to amend the orders.  After beginning the training, there was some confusion of which course to actually waive.  While he was promised the T-1 portion would be waived, the NGB actually waived the T-37 portion.  He began to get stressed and asked that he be removed from training for a couple of days.  His intention was not to quit training, but simply take a couple of days off and await the NGB’s decision. Eventually, after many phone calls between he and the NGB contact, the NGB received word from the applicant’s course instructor that, based on his training at that point that waiving either course would be alright.  The remainder of the T-37 course was then waived and he was told by the NGB that a training slot for T-1 was available in December 2000.  The applicant agreed but told NGB he preferred the T-1 course be waived as he had already begun the T-37 course and that remained desirable as it was the shorter of the two courses.  Not to mention the fact that waiving the T-1 was what they had agreed upon prior to the applicant leaving for T-37 training.  

He was told by his orderly room that the T-37 course had been waived and he needed to out-process and return to Birmingham.  He did so, and returned also to his job with the civilian airline.  

On 4 Oct 2000, he received a call from the NGB and his commander at Birmingham stating they had made an error in issuing the T-37 waiver orders and asked if he could return to T-37 training on 9 Oct.  He agreed to return, but at a later date, as he had just returned to flying with the airline and did not believe it to be fair to them to ask for another leave of absence so soon after returning.  He reminded them that he would be returning to training in December and asked if there were some way he could resume his training in T-37 training then.  They told him that was not possible as his current training slot (that had been waived) would be lost.  He told them he needed time to speak with his employer.  Later that same evening his commander called and asked what he planned to do about returning to the course.  His commander informed him the NGB had made a terrible mistake by removing him from the T-37 course.  He told his commander it would be difficult to return to training in Oklahoma as he was on a four-day trip with his airline and that to leave the next day for Oklahoma would put his job in jeopardy.  He asked his commander, if it were an absolute necessity for him to return to training, for two weeks in order to give his employer proper notification.  His commander told him he was under considerable pressure to get the applicant to return to training and that the fault lay with the NGB and not the applicant.  

The commander told him that should he not be able to return to the course the next day, he should write a letter explaining why he could not return and fax it to him that evening so he would have something to present to the NGB in his defense.  The commander assured him he would suffer no adverse action and that he would be allowed to attend the training he was scheduled for in December.  The applicant notes his commander instructed him on exactly what he was to write in the letter.  As he was so new to the ANG he had no idea at the time his commander was helping him write a letter that would be eventually used against him showing he was unavailable or unsuited for further rated duties and leading directly to the removal of his aeronautical rating and flying wings.  Finally that evening, the commander indicated there would be a temporary grounding while the paperwork was being processed but that he would be able to attend the December training as scheduled, or he could use this opportunity to return to the Army Reserve.  Notwithstanding the above instructions, the applicant included in his letter a statement indicating that should a Flying Evaluation board (FEB) be convened to punish him, that he would contest it.

He continued participating with his unit in Birmingham, though temporarily grounded, and became concerned after several months of waiting for the NGB to make adjustments to his training.  He approached his commander and was told the NGB was dragging their feet and making it difficult for the commander to obtain a new training date for him.  The commander asked him whether he wanted to continue waiting for a slot or if he would like to return to the Army Reserve and continue his career with them.  He was led to believe his commander was protecting him from the NGB.  After some thought, and noting his frustration with the NGB, he agreed to return to the Army Reserve and put this (ANG) experience behind him for good.   He was told all he needed to do was transfer back to the IRR and an Air Force Reserve unit in Montgomery, AL that had offered him a position, could pick him up from there.  He received an honorable discharge certificate from the ANG, was assured his record was clear, and was told he could fly with the Air Force Reserve (AFR).

He was interviewed and accepted for a fixed-wing pilot position with the AFR and performed unit training assemblies (UTAs) with them for several months while waiting for a UPT training slot to become available.  After the unit received a training slot for him, it was discovered he had been permanently grounded and was not eligible to attend UPT.  His commander asked him whether or not he knew about the grounding and he responded he did not.  Had he known, he would never have left the Birmingham ANG unit until after he had cleared his record.  His commander apparently did not believe his explanation that he knew nothing of his grounding and forced him to return to the IRR.  His commander denied the applicant’s request to remain a member of the unit informing him he could reapply for flight training if he was ever returned to flight status.  

He tried to get information regarding his grounding from the ANG and NGB but was unable to do so.  During this time, he received a negative OPR from his AFR unit.  He has never received a copy of the OPR but understands it is now a part of his permanent record.  On finally reaching his NGB contact, he was told to work through the Birmingham unit to find out what had happened.  Several calls and emails later, he received word from his former ANG commander that he had done nothing to prevent him from attending flight training with the AFR and to his knowledge, the NGB had not taken any such action either.  He was totally confused and was eventually forced to obtain information from his ANG record using the Freedom of Information Act (FOIA).  

The results from his FOIA request shocked him as he finally learned that his flying order had been revoked by actions taken by his former ANG commander and his NGB contact.  The revocation was based on the applicant’s statement indicating he was unavailable for training.  From that point on, no one from his former ANG unit would talk to him nor would anyone from the NGB.  

He felt, as there was no one who could or would help him, that he would continue his flying career with the airlines and try to forget about the horrible experiences he had endured with the Air Force.  A few months later, however, as he thought about all the time he had invested in the military and the retirement opportunity he had lost, that it was foolish of him not to try and find a military position somewhere that did not require flying.  Through friends still serving with the Army, he learned of a vacancy for an Executive Officer with the Missouri Army National Guard.  He applied and was scheduled for an interview.  A few days prior to the interview, the commander called and told him he would not be able to accept him into the unit as he had called the applicant’s command at the AFR and had been told not to accept the applicant as the Air Force had revoked his flying order.  

Certain individuals from the Air Force took his military flying career away from him and he wants it back.  He cites Air Force Instruction (AFI) 11-402 wherein is stated, “Once a rating is awarded by the Aeronautical Ratings Board (ARB), it cannot be revoked unless as a result of an FEB action.”  While his rating was awarded by an ARB, he is not aware of any FEB action that ever took place with regard to the revocation action against him.  He notes the NGB’s response to an earlier inquiry of his that an FEB was not required in his case as being directly contradicted by the statement above from AFI 11-402.  

In the statement to his former ANG commander, dated 4 Oct 00, he stated he would be able to return to T-37 training if he were given enough time to properly notify his employer and make sure his mother would be taken care of.  He never stated he was unavailable for continued rated service and wanted to quit the Air Force.  He never attempted to Drop on Request (DOR) nor did he request voluntary disqualification.  Had he attempted either of those methods to leave training, he should have been counseled in accordance with AFI 11-402, Attachment 4.  He was never informed his Flying Order would be permanently revoked, in fact, he was told by his former ANG commander that his record would not be damaged in any way should he be unable to return to Oklahoma for continuation of T-37 training with only one day’s notice.

He cites AFI 11-402 under the paragraph titled Failure to Maintain Professional Standards and notes his unit nor did the NGB properly follow the procedures laid out in section 3.7.1.6 in order to revoke his Aeronautical Order (AO).  He would never have done anything to damage his flying career.  He was led to believe he would be improving his quality of life and military career opportunities by leaving the Army and joining the ANG.  In actuality, he lost everything.

In support of his appeal, the applicant provides a personal statement, with 25 attachments, including excerpts from cited regulations, portions of his Army and ANG records, and aeronautical documents, among other information.

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

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STATEMENT OF FACTS:

Applicant served over 14 years with the US Army (USA) before being commissioned by the Wisconsin Air National Guard (WIANG).  He served with the WIANG for one year before leaving that unit and joining the ALANG.  He served with the ALANG for nine months and seven days.

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AIR FORCE EVALUATIONS:

HQ AFRC/A1E addresses the applicant’s question regarding why the AFR forced him hack to the IRR.  A1E stated he was reassigned from his AFR assignment to the IRR based on his being disqualified from aviation service.  His reassignment was processed in accordance with AFI 36-2115.

A1E’s complete evaluation, with attachments, is at Exhibit B.

HQ ARPC/DPB addresses the applicant’s request to have the referral OPR he received from the AFR be removed and replaced with a positive OPR.  DPB notes that while they cannot direct the AFR unit to write a positive OPR to replace the referral OPR rendered for the period 28 Dec 01 through 27 Dec 02, they do recommend the referral OPR be removed from his Master Personnel Records (MPR).  DPB states the OPR was never referred to the applicant.  He did not have the opportunity to provide comment to or rebut the referral at the time it was rendered.  Based on the fact the AFR admits the applicant never acknowledged receipt of the OPR it should never have been placed in his Officer Selection Record (OSR) or in his MPR.

DPB’s complete evaluation, with attachment, is at Exhibit C.

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NGB/A1PS recommends denial with regard to the applicant’s remaining requests for relief.  While A1PF concedes there may have been some miscommunication between the applicant and his units of assignment, the NGB has found, after review, there is nothing in the record that supports his claim he was unfairly treated.

A1PS does note several pieces of information missing from the documentation provided by the applicant that would allow them to provide a more clear assessment.

A1PS’s complete evaluation, with attachment, is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Applicant provides a personal statement, with 10 attachments, wherein he notes the NGB advisory’s comments that he did not provide certain documents necessary for the NGB to make an accurate assessment of his contentions.  He also addresses the AFRC evaluation’s comment that the reason he was forced back to the IRR from the AFR unit in Montgomery was because his AO had been revoked.  He reiterates his argument that his AO was revoked in error.  The applicant also notes the ARPC recommendation his referral OPR be removed from his record.

Applicant’s complete response is at Exhibit F.

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ADDITIONAL AIR FORCE EVALUATION:

NGB/A1PF, after reviewing the documentation provided by the applicant in response to the earlier NGB evaluation, continues to recommend denial.  A1PF states, based on the facts provided by the applicant, his former unit, personnel records, and the Air Education and Training Command (AETC), the applicant received an order to return to his unit while enrolled in a fixed wing qualification (FWQ) program at Vance AFB, OK.  Subsequently, it was determined the order had been issued in error.  When the applicant was ordered to return to training, he stated he was unable to comply due to time constraints and the fact he had already returned to his airline job.  The applicant then failed to follow-up with his unit to reschedule his training at a later date and failed to attend duty at the unit until such time as he requested a transfer to the IRR on 11 Feb 01.  

A1PF’s complete evaluation is at Exhibit G.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant reiterates his statement he was not unwilling to return to training just that, under the circumstances, he was unable to.  He never said he refused to return to training and restates his contention his commander at the Birmingham unit never ordered him to return.  Had he known he would have lost his Aeronautical Order as a result of not returning to training immediately, he would have instantly voiced his opposition.  He was told he did not have to make all of the units’ regular drill periods but that he could make them up during the week.  His commander told him he understood his reason for wanting to transfer out of the unit and wished him well.  His commander never told him he had been permanently grounded when he left to fly with the Air Force Reserve.  He contends those airmen declining a course must be counseled and that he was never counseled he would lose his AO if he didn’t return to the T-37 training.

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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 an error or injustice with regard to the applicant’s outstanding requests for relief.  We took notice of the applicant’s complete submission in judging the merits of the case; however, with regard to his request to expunge the Revocation of Flying order and restore his Aeronautical Order, we agree with the 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.  His remaining requests for relief – with the exception of his request to be reinstated into the Birmingham AL, ANG unit – are all predicated upon the restoration of his Aeronautical Order.  Reinstatement to an ANG unit does not lie within the purview of the AFBCMR and we therefore do not have the authority to grant the relief requested.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

4.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice warranting at least partial relief.  With regard to the applicant’s request his referral OPR closing 27 Dec 02 be removed from his record, we agree with the opinion and recommendation of the Air Force office of primary responsibility and believe the OPR should be removed.  We further agree with the office of primary responsibility however, that no action be taken to order or direct the rendering organization to write a positive OPR.  Therefore, we recommend that the records be corrected as indicated below.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that the AF Form 707b, Officer Performance Report, rendered for the period 28 December 2001 through 27 December 2002, be, and hereby is, declared void and removed from his records.

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The following members of the Board considered AFBCMR Docket Number BC-2008-02883 in Executive Session on 28 October 2009, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence with regard to AFBCMR Docket Number BC-2008-02883 was considered:

    Exhibit A.  DD Form 149, dated 16 Jul 08, w/atchs.
    Exhibit B.  Letter, AFRC/A1E, dated 26 Aug 08, w/atchs.
    Exhibit C.  Letter, ARPC/DPB, dated 29 Aug 08, w/atch.
    Exhibit D.  Letter, NGB/A1PS, dated 26 Jan 09, w/atch.
    Exhibit E.  Letter, SAF/MRBR, dated 24 Apr 09.
    Exhibit F.  Letter, Applicant, dated 18 May 09, w/atchs.
    Exhibit G.  Letter, NGB/A1PF, dated 9 Jun 09.
    Exhibit H.  Letter, AFBCMR, dated 21 Jul 09.
    Exhibit I.  Letter, Applicant, dated 18 Oct 09.

                                   
                                   Panel Chair