RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2013-04505

 						COUNSEL:   

						HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

The following documents be removed from his records:

	Letter of Reprimand (LOR) dated 22 Dec 10.
	
	Unfavorable Information File (UIF) dated 19 Jan 11.

	Referral Officer Performance Report (OPR) for the reporting period ending 7 Mar 11.  

APPLICANT CONTENDS THAT:

Counsel, on behalf of the applicant, states he received the LOR, UIF and referral OPR for writing a letter to the editor of the Stars and Stripes magazine concerning the debate on the repeal of “Don’t Ask, Don’t Tell” (DADT).  The charges were false, constituted religious discrimination via intimidation and contrary to DODD 1344.10, Political Activities by Members of the Armed Forces and Active Duty, AFI 36-2706, Military Equal Opportunity and the Civil Rights Act of 1964.    

A member of the Armed Forces on active duty can write a letter to the editor of a newspaper expressing personal views on public issues and political candidates if it is not a part of an organized letter writing campaign or solicitation of votes.  His opinion editorial was in full compliance with DODD 1344.10 and represented his views and not those of the DOD.  The negative actions blemished his 20 year career in the Air Force.  

The President signed into law on 26 Dec 13 the defense appropriations bill which included the accommodation of individual expressions of belief unless the beliefs hurt military readiness, unit cohesion and good order and discipline.  The DOD also issued DODI 1300.17, Accommodations of Religious Practices.  While the statute and DODI were not in effect at the time he wrote his editorial, it demonstrates Congress believed the DOD was going too far in restricting the freedom of religious expressions by Christians.  He asks the Board to take this into consideration.    

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

STATEMENT OF FACTS:

The applicant retired 1 Sep 14 in the grade of lieutenant colonel (O-5).  He was credited with 23 years and 8 months of active duty service.  

On 22 Dec 10, while assigned to the AFCENT AOR, he received a LOR for publicly making disparaging comments regarding the DOD policy on the revocation of DADT and stating the DOD was running afoul by not allowing Christians to openly proselytize their faith yet would allow homosexuals to openly profess their sexuality.  The LOR noted individual religious freedoms were limited by General Order 1B while assigned to the AFCENT AOR.    

The applicant received a referral OPR for the period ending 7 Mar 11 for the reasons listed in the LOR.  

On 13 Sep 11, the 18 AF/CC determined not to rescind the LOR and that it would be filed in his UIF and officer selection record.  

On 1 Feb 12, the AMC/CC denied the applicant’s request for redress under Article 138, UCMJ.

On 19 Apr 12, USAF/JAA determined the action taken by the AMC/CC was appropriate.  The applicant was advised he could pursue his claim through the AFBCMR.  

On 12 Sep 14, the applicant requested his case be administratively closed to allow sufficient time to process a Freedom of Information Act (FOIA) request.  

On 14 Apr 17, he requested his case be re-opened.  The LOR, UIF and referral OPR should be removed for the reasons stated in his initial application.  He cites several court cases as precedent to grant his requests.  The charges are manufactured at the behest of an anti-Christian hate group.  A person cannot be charged with disparaging a policy that does not exist and such charges are a direct violation of the UCMJ and Air Force core values.  Even the CSAF at the time stated that no policies regarding the revocation of the DADT law had been created.  It is a double standard to be able to express oneself as a homosexual but not as a Christian.  

His counsel states that at the time the applicant wrote his letter to the Stars and Stripes and received a LOR, people believed the DOD was being overly restrictive of the freedom of expression.  On 4 May 17, the President signed an Executive Order (EO) Promoting Free Speech and Religious Liberty.  While the EO was not in place at the time the applicant wrote his letter to the editor, it is a reaction to what was widely perceived as repression of religious expression at the time.  Had the EO been in effect at the time, he would not have had the actions taken against him.    

The remaining relevant facts pertaining to this application are contained in the memorandums prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C, D and K.    

AIR FORCE EVALUATION:

AFPC/DPSIM recommends denial for the request to remove the LOR. Although they cannot speak to the commander’s action being just or not, they have concluded he followed proper procedures in the issuance of the LOR.      

A complete copy of the AFPC/DPSIM evaluation is at Exhibit C.

AFPC/DPSID recommends denial of the removal of the referral OPR.  Based on the lack of corroborating evidence and the presumed legitimacy of the original drafting of the OPR, the report should not be voided from his permanent record.  To grant relief would be contrary to the presumption the report was accurate at the time it was accomplished and placed in his record.  

A complete copy of the AFPC/DPSID evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

DPSID and DPSIM recommend denial based on process and procedural arguments which are irrelevant.  The Evaluation Report Appeals Board (ERAB) was also not convinced there was an error but that he may have improperly used his military title to voice his personal opinion to the media.  If the wrong thing is done the right way, does this make it okay?  There was no DADT revocation policy at the time of his letter to the editor and the AFCENT/CC failed to produce such a policy.  
 
The applicant’s complete submission, with attachments, is at Exhibit F.  

ADDITIONAL AIR FORCE EVALUATION:

AFPC/JA recommends denial of the applicant’s requests.  He has not established a material error or injustice.  

While it is DOD policy that a service member’s right of expression should be preserved to the maximum extent possible, such expression must be consistent with good order and discipline and national security.  The AFCENT/CC was troubled by the applicant’s public declaration that he would not follow the limitations laid out in General Order 1B which includes stricter standards for religious freedom for members deployed to the AFCENT AOR.  The applicant explains the context of his letter was to say military members have a degree of freedom of speech and that this freedom is reflected in DOD and Air Force instructions.  While this may be what he meant by his words, that is not what he said and what he said could reasonably be interpreted to mean he would do whatever his commitment to his God prompted him to do, DOD requirements and officials notwithstanding. He was also reprimanded for promoting disobedience which undermined good order and discipline in the deployed unit.  The essence of the commander’s reprimand for inappropriate public statements in a deployed setting was entirely proper and it did not violate any law, directive or regulation.  This was also the determination of USAF/JAA in the denial of his claim for redress under Article 138, UCMJ. 

A complete copy of the AFPC/JA evaluation is at Exhibit K. 

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The AFPC/JA evaluation ignores his primary complaint and misrepresents the position he took in his letter to the editor and his rationale for seeking relief from the AFBCMR.

There was no policy in effect or even in existence at the time his LOR which stated he had made disparaging comments on DOD policy regarding the revocation of DADT.  The DADT law was not even repealed until 7 days after his letter to the editor; therefore it was not possible for the Air Force to have a policy regarding the revocation of DADT.  He requested a copy of the policy but almost 7 years later, he has yet to be presented with any official DADT Revocation Policy dated prior to his letter to the editor.

Nowhere in his letter to the editor did he threaten to violate AFCENT General Order 1B or claim he would not follow its limitations.  It was a general statement concerning his right to freedom of expression within the DOD policy.  His letter to the editor was not addressed to the AFCENT AOR and made no mention of AFCENT General Order 1B, nor was there any threat made to seek active conversions of the local population or proselytize them in violation of this order.  He has a right to defend his beliefs if challenged, which include sharing the reasons for his faith.  Nothing in AFCENT General Order 1B restricts that.

The AMC/CC stated there were ways he could have appropriately expressed dissent within the limits of decorum demanded of an officer in his grade and position.  In other words, they did not like what he had to say and since there is no regulation outlining the standards of decorum commensurate with grade, this is ultimately about his upsetting their sensibilities.  Inappropriate does not equal illegal, nor is it a crime or violation of any existing policies. The manufactured allegations constitute religious discrimination, violate his Civil Rights and violate DODD 1344.10.  If the AFPC/JA evaluation is the best argument, then he is confident justice will ultimately prevail and the false charges will finally be vacated from his records.  

The applicant’s complete submission is at Exhibit M.  

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 injustice.  Having reviewed the complete case, to include the rebuttal responses, we agree with opinion and recommendation of AF/JA and adopt the rationale expressed as the basis for our conclusion 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 requested relief.

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 RECOMMENDS THAT:

The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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-2013-04505 in Executive Session on 13 Mar 18 under the provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2013-04505 was considered:

	Exhibit A.  DD Form 149, dated 17 Sep 13, w/atchs.
	Exhibit B.  Excerpts of Personnel Records
	Exhibit C.  Memorandum, AFPC/DPSIM, dated 19 Dec 13.
	Exhibit D.  Memorandum, AFPC/DPSIDE, dated 8 Aug 14, 
	Exhibit E.  Letter, SAF/MRBC, dated 3 Sep 14.
	Exhibit F.  Letter, Applicant, dated 8 Sep 14, w/atchs.
	Exhibit G.  Letter, Counsel, 12 Sep 14.
	Exhibit H.  Letter, AFBCMR, undated.
	Exhibit I.  Letter, Applicant, dated 14 Apr 17, w/atchs.
	Exhibit J.  Letter, Counsel, dated 12 Jun 17, w/atchs.
	Exhibit K.  Memorandum, AFPC/JA, 27 Dec 17.
	Exhibit L.  Letter, SAF/MRBC, dated 29 Jan 17.  
	Exhibit M.  Letter, Applicant, dated 6 Feb 18.  

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.