RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-03353 COUNSEL: NONE HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: 1. Reserve Order A-231, dated 12 May 2009, be amended to delete the phrase: “Authority: AFI 36-3209, Misconduct or Moral or Professional Dereliction, Other Serious or Recurring Misconduct.” 2. Void and remove from his record the associated Letter of Reprimand (LOR), dated 11 September 2006; the Referral Officer Performance Report (OPR), closing 23 March 2007; other associated correspondence; and any other negative matters related to the cause of his discharge. _________________________________________________________________ APPLICANT CONTENDS THAT: His discharge was improper because the Discharge Board panel members were not properly advised on the appropriate law and they were excluded from review of exculpatory evidence. Statements made in associated documentation (i.e., LOR and referral OPR) are incorrect and not supported by evidence. In support of his appeal, the applicant provides a personal statement; and, copies of his DD Form 293, Application for the Review of Discharge from the Armed Forces of the United States; a transcript of the AFDRB hearing; witness statements; OPR history; character statements; performance history; award history; and discharge order. A copy of the applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is a former member of the United States Air Force Reserve who was commissioned on 26 November 1990. He had enlisted on 3 May 1988 and entered the Judge Advocate Corps as a direct appointee. He was progressively promoted to the grade of lieutenant colonel (O-5). The applicant also served as a Title 5 civilian attorney-advisor at Kirtland Air Force Base (AFB), New Mexico. On 26 March 2007, the applicant was notified that discharge action was being initiated against him under Air Force Instruction (AFI) 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members, Chapter 2, paragraph 2.29.4: Misconduct or Moral or Professional Dereliction (Serious or Recurring Misconduct). Specifically, it was alleged the applicant violated: 1) 5 Code of Federal Regulations (CFR) 2635.702 by using his public office for private gain; 2) Title 18, United States Code (USC), Section 208 by rendering advice to the United States Air Force regarding a contract in which he had a financial interest; and 3) Rule 8.4(b) of the USAF Rules of Professional Conduct when he rendered advice on a contract in which he had a personal financial interest. The notification memorandum from the Air Force Reserve Command (AFRC) indicated the type of separation recommended was a general (under honorable conditions) discharge. On 2-4 October 2007, a Board of Inquiry (BOI) was held. After a closed session deliberation, the board found the government’s allegations were substantiated and recommended the applicant be discharged with an honorable characterization of service. The AFRC commander concurred with the BOI and recommended the Secretary of the Air Force (SECAF) discharge the applicant with an honorable service characterization. On 4 March 2009, the Office of the Judge Advocate General (AF/JAA), found the case to be legally sufficient, addressing the legal arguments asserted by the applicant’s attorney regarding the misconduct and finding no merit. The Secretary of the Air Force Personnel Council (SAFPC) considered the applicant’s case and found that his multiple violations relating to post-government employment cast too much doubt on his suitability to serve as a Reserve officer in the United States Air Force. On 1 May 2009, the SECAF’s delegated authority (SAF/MRB), approved the applicant’s honorable discharge pursuant to AFI 36-3209. The remaining relevant facts, extracted from the applicant’s military service records, are contained in the evaluation by the Air Force office of primary responsibility at Exhibit B. _________________________________________________________________ AIR FORCE EVALUATION: AFRC/JA recommends denial. JA states that during the BOI the Government argued that the applicant’s actions were wrongful because he used his public office for private gain and provided advice to the Air Force with regards to a contract in which he had financial interest. The applicant, through both civilian and military attorneys, argued that his conversations did not violate any statues or regulations, that the conversations were meant for the benefit of the Air Force, and the proposed contract in this case was consistent with other contracts the Air Force had in the past. the applicant argues “the panel members were not properly advised on the appropriate law” with regards to 5 CFR 2635.702 and 18 USC, Section 208. This is not true. During the board hearing, the legal advisor opined that the members would require a special instruction regarding interpretation of law. However, when he asked prior to instructing the members if either side had any objection to the instruction, he ultimately presented, both sides answered in the negative. Neither of the applicant’s defense attorneys requested a special instruction for 5 CFR 2635.702 or 18 USC Section 208. Therefore, the board was not precluded from reviewing anything; and, any issues regarding instructions should be considered waived and; therefore, not form the basis for granting relief. The applicant also argues the board “precluded from review of exculpatory evidence.” At the board, the applicant’s attorney sought to introduce an affidavit from Ms. XXXXX. The affidavit was not allowed into evidence because the legal advisor sustained an objection on the grounds that Ms. XXXXX had not been shown to be unavailable as a witness. In his submission, the applicant argued that his exclusion by the legal advisor was “arbitrary and capricious given his admission of similar statements from witnesses who, like Ms. XXXXX, did not appear at the hearing.” However, when given the opportunity to do so by the legal advisor, the applicant affirmatively declined to call Ms. XXXXX as a witness. Now, although hearsay is admissible in board hearings, the legal advisor has a duty to ensure safeguards for the truth. In this case, the legal advisor’s requirements that the witness either be produced or be declared unavailable amounted to such safeguards. In addition, the applicant himself admitted that “the affidavit is consistent with other specific and general testimony provided by both the Government and applicant’s witnesses. Thus it was cumulative. For these reasons, it was not an error for the legal advisor to exclude the affidavit, and its exclusion should not be used to grant relief to the applicant now. JA indicates they agree with the AF/JAA BOI proceedings review in that there appears to be no errors or irregularities in this case that might prejudice any of the applicant’s substantive rights and that the case file is legally sufficient to support his honorable discharge for serious or recurring misconduct pursuant to AFI 36-3209, paragraph 2.29.4. Their office also agrees with the Deputy Director of SAFPC, who states in his memorandum to SAF/MRB that “the case file portrays an officer who used his official position and “insider status” in a plan to enable him to collect even more pay as a contractor for the same job he did as a civil servant at Kirtland AFB. SAFPC found the respondent used every angle to use his government position and title to induce the government to reward him by awarding him a lucrative contract to perform duties that he was performing as a civilian attorney. Although SAFPC considered the applicant’s outstanding duty performance as a Reserve Judge Advocate, with over 17 years of satisfactory service, they found that his multiple violations relating to post-government employment cast too much doubt on his suitability to serve as a Reserve officer in the United States Air Force. The complete JA evaluation is at Exhibit B. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: AFRC’s suggestion that any argument the discharge board was precluded from reviewing interpretive legal material should be waived because there was no “objection” raised at the hearing is both factually in error and procedurally baseless. The legal advisor’s simplistic interpretation of the law and subsequent instruction to the panel failed to recognize case law, relevant statutory interpretation, and other matters potentially informative to the panel and the outcome of the board. The legal advisor fashioned an expedient method to dispose of otherwise complex legal subject matter. In addition, AFRC fails to acknowledge that “objections” and arguments were raised during pre-hearing proceedings between his attorneys and the legal advisor in an effort to advocate for the most relevant and instructional legal authorities. AFRC’s suggestion that the lack of a formal “objection” somehow waives an argument in an administrative forum questions AFRC/JA’s understanding of administrative procedure. Absent specific legal authority cited by AFRC concerning the waiver of administrative rights, arguments made by him or his attorneys at the discharge board or in the AFBCMR appeal process cannot be waived without a violation of due process. AFRC contends that Ms. XXXXX’s affidavit was not allowed into evidence because the legal advisor found that Ms. XXXXX could have been made available for testimony. AFRC appears to manipulate portions of the record discussing Ms. XXXXX’s availability in their argument by stating that he or his attorneys “affirmatively declined to call Ms. XXXXX as a witness.” Calling Ms. XXXXX as a witness was an impossibility because she was suffering from a medical condition at the time of the hearing and could not be contacted. This information was also made available to the legal advisor. Conversely, the legal advisor, in his duty to safeguard the truth of the proceedings and the veracity of the discharge board, provided no supporting opinion as to why the affidavit did not objectively contribute to the truth of the matter. The decision to exclude the affidavit appears subjective, baseless, and arbitrary without some indication from the legal advisor why it was excluded. A review of the affidavit from Ms. XXXXX indicates there is highly relevant and exculpatory testimony from Ms. XXXXX that cannot be duplicated by other testimony or evidence, but remains consistent with the overall theory of his case. Therefore, the affidavit is not cumulative. Although the relevant ethics law applicable to the discharge board is complex and difficult legal subject matter and the potential for error was high, the purpose of a request for relief from the AFBCMR is not wholly premised on that error. It is premised also on a genuine concern that the personnel records surrounding his discharge impair his professional reputation and career choices. By extension, the records also impair the support and welfare of his family. He is hopeful that the AFBCMR will determine his discharge, loss of retirement, and damage to his professional reputation thus far is sufficient punishment for any misconduct; and, as a result allow his personnel record to be expunged pursuant to the relief requested. The applicant’s complete rebuttal 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 notice of the applicant's complete submission 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 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 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-2011-03353 in Executive Session on 7 June 2012, under the provisions of AFI 36-2603: The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2011-03353: Exhibit A. DD Forms 149, dated 2 Sep 11, w/atchs. Exhibit B. Letter, AFRC/JA, dated 22 Nov 11. Exhibit C. Letter, SAF/MRBR, dated 16 Dec 11. Exhibit D. Letter, Applicant, dated 6 Jan 12.