RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-04710 COUNSEL: HEARING DESIRED: NO APPLICANT REQUESTS THAT: 1.  The substantiated findings of the Office of the Inspector General (SAF/IG) against him be declared void and the Report of Investigation (ROI) be removed from this record. 2.  He be reinstated into the Air National Guard (ANG) in traditional Guard status. 3.  He be considered de novo for federal recognition for promotion to the grade of major general. By amendment: 4.  In the alternative to removing the ROI from his record, reverse all of the “substantiated” findings of the SAF/IG and declare them “unsubstantiated.” 5.  All follow-on actions related to the SAF/IG ROI be removed from the applicant’s unfavorable information file. APPLICANT CONTENDS THAT: Through counsel, there was a clear and unmistakable error to allow the SAF/IG to investigate this complaint rather than the State of Maryland’s National Guard (Human Resources Office) as required by AFI 90-301, Inspector General Complaints Resolution. Between his monthly drill periods when he served in Title 32 status he occupied a full-time civilian technician position as a GS-15. It was the management actions he took while in his civilian technician role which became the subject of the SAF/IG investigation. Based upon the civil status of both he and the complainant, the allegations involved purely a state civil service matter, while the SAF/IG conducted a Title 10 investigation which inappropriately bypassed Maryland State Code and National Guard Bureau (NGB) authority and responsibility. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to the documentation provided by the applicant, on 25 Sep 02, he was selected for transfer to the Maryland Air National Guard based upon his selection as an Air Commander (Pilot), GS-15. During the period Dec 02 through Jun 09, the applicant served as the Commander of the 175th Wing, Maryland Air National Guard, Baltimore, MD. On 28 October 2005, the applicant was federally recognized as a brigadier general (O-7). On 5 Dec 07, the individual serving in the applicant’s wing as the Wing Mission Support Flight Commander and, in her civilian capacity, the Director of Personnel, filed a complaint with the SAF/IG alleging, in part, that the applicant had inappropriately detailed the colonel who was serving as the Mission Support Group Commander (MSG/CC) beyond the time limit allowed by regulation in order to let him continue to fly, even though he was in a non-rated position. In Mar 09, the SAF/IG completed its investigation of said allegations and published a ROI which substantiated the following two allegations: 1  The applicant wrongfully detailed an Active Guard/Reserve (AGR) member, for a period greater than 120 days in violation of ANGI 36-101, The Active Guard Reserve Program, dated 3 May 02, Section 3.12. 2.  The applicant committed abuse, as defined by AFI 90-301, Inspector General Complaints Resolution, dated 15 May 08, by manipulating personnel processes to permit an individual to fly while serving in a non-flying billet. The Calendar Year 2009B ANG Promotion Review Board did not support the applicant’s Federal recognition to the grade of major general, stating “The Board believes (the applicant’s) response to the matter outlined in the SOUIF (Senior Officer Unfavorable Information File) reflects a lack of contrition/understanding and concludes this matter has not served as a learning experience for him. In consideration of the above, the board does not feel (the applicant’s) federal recognition to the next higher grade is consistent with the provisions exemplary conduct, as described in 10 U.S.C. Sec. 8583.” On 24 Jun 10, the Secretary of the Air Force notified the applicant he was considering withholding his approval of Federal recognition to the grade of major general. On 30 Oct 10, the applicant retired in the grade of brigadier general upon obtaining his mandatory separation date. The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPRs), which are attached at Exhibits C and F. AIR FORCE EVALUATION: The NGB-GO recommends denial indicating there is no evidence of an error or an injustice. The applicant met the Fall 2009 General Officer Federal Recognition Board (GOFRB) and was recommended for federal recognition in the grade of major general. Subsequent to the board, however, the applicant was the subject of an IG investigation, and his nomination was separated from the board package pending the outcome of the investigation, as required by DoDI 1320.04, Military Officer Actions Requiring Presidential, Secretary Of Defense, Or Under Secretary Of Defense For Personnel And Readiness Approval Or Senate Confirmation, AFI 90-301, Inspector General Complaints Resolution, and ANGI 36-2501, General Officer Federal Recognition Board for General Officer Appointment or Promotion in the Air National Guard. The SAF/IG ultimately substantiated the allegations against the applicant, and, as a result, the Secretary of the Air Force withheld Federal recognition as a major general consistent with the discretionary authority of ANGI 36-2501, paragraph 3.5.4. In October 2010, the applicant was removed from an active status upon reaching his statutory mandatory separation date as a brigadier general, as required by Title 10, United States Code (USC), § 14508(a). All actions taken in response to the post-board adverse information substantiated by the SAF/IG were appropriate. Absent the reversal of the SAF/IG findings, we recommend the Board deny the officer’s request for reinstatement in an active status and his request to be considered de novo for Federal recognition as a major general. There is no evidence of an error or injustice. A complete copy of the NGB-GO evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In further support of his request, the applicant, through counsel, submitted a personal statement in which he contends the NGB-GO advisory is “perfunctory at best.” He states the NGB/A1 and NGB-GO were involved with the events leading up to what he alleges was the “unjust and inaccurate SAF/IG investigation,” and that the advisories should address the matters raised concerning The Maryland National Guard Adjutant General at the time. The NGB/A1 and NGB-GO failed to give the AFBCMR and the applicant due diligence. (Exhibit E) ADDITIONAL AIR FORCE EVALUATION: SAF/MRBL recommends denial indicating there is no evidence of an error or an injustice. Paragraph 1.13.3 of AFI 90-301 directs SAF/IGS to investigate “senior officials.” That term is defined in Attachment 1 to include, among others, “Air National Guard military officer[s] in the grade of O-7 (brigadier general) select and above…” Per a plain reading of the AFI, a SAF/IG investigation of ANG senior officers is therefore legally permissible. In addition, OpJAGAF, dated 5 Aug 14, states “DoD directives and Air Force instructions recognized the statutory authority of SECAF to regulate ANG activities in general, to inspect ANG units and personnel, and investigate allegations of misconduct by ANG personnel. Therefore, service in the ANG is subject to the general regulatory and investigative authority of SECAF and SAF/IG.” The applicant contends the investigation should have been conducted by the Maryland HRO. A Maryland HRO investigation would in no way preclude a SAF/IG investigation, i.e. SAF/IG has its own independent authority for conducting an investigation based on the applicant’s “senior official” status and/or the underlying federal subject-matter, regardless of any decision by the Maryland HRO to conduct or not conduct its own investigation. Secondly, even if SAF/IG could point to no authority whatsoever for its investigation, SECAF would still be free—and expected—to consider any and all relevant and credible information about the applicant in deciding whether to confer Federal recognition status. In other words, there is no “administrative exclusionary rule.” SAF/IGS was within its authority to conduct an investigation of allegations against the applicant. The fact a state entity, such as the Maryland HRO, may also have had authority to investigate the applicant does not invalidate the SAF/IGS investigation or its results. A complete copy of the SAF/MRBL evaluation, with attachment, is at Exhibit F. APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION: In further support of his request, the applicant, through counsel, takes exception to the SAF/MRBL recommendation. The rebuttal contends the advisory opinion sidesteps who has the authority to investigate a civilian National Guard technician, and that the plain meaning of AFI 90-301, Table 3.6, Rule 9 is that the HRO of The Adjutant General (TAG) has sole authority when the matter under investigation involves a National Guard technician, regardless of rank or seniority of position. Further, he contends that a long line of precedential legal opinions from the US Federal Circuit and US Court of Federal Claims obligate the SECAF to follow her own lawfully promulgated instructions, and so the SAF/IG did not have the authority to investigate the applicant, as a National Guard technician. Finally, he cites prior legal decisions which he argues support his position, and provides a list of questions he believes the SAF/MRBL advisory opinion fails to answer (Exhibit G). FINDINGS AND CONCLUSIONS OF THE BOARD: Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. After a careful review of the applicant's contentions, documentation submitted in support of the request, and the available evidence of record, we are not convinced the applicant has provided sufficient evidence for us to conclude that he/she is the victim of an error or injustice. We also note the applicant did not file the application within three years after the alleged error or injustice was discovered, or should have been discovered, as required by Title 10, United States Code, Section 1552 and Air Force Instruction 36-2603. Therefore, because we do not find it would be in the interest of justice to recommend granting relief, and the applicant has offered no plausible reason for the delay in filing the application, we cannot conclude it would be in the interest of justice to excuse the failure to timely file the application. Accordingly, we find the application untimely. THE BOARD DETERMINES THAT: The application was not timely filed and it would not be in the interest of justice to waive the untimeliness. It is the decision of the Board, therefore, to reject the application as untimely. The following members of the Board considered AFBCMR Docket Number BC-2014-04710 in Executive Session on 24 Mar 16 under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-04710 was considered: Exhibit A.  DD Form 149, dated 22 Jun 14, w/atchs. Exhibit B.  Applicant's Master Personnel Records. Exhibit C.  Memorandum, NGB-GO, dated 26 Jun 15. Exhibit D.  Letter, SAF/MRBR, dated 12 Aug 15. Exhibit E.  Letter, Applicant, dated 9 Sep 15, w/atchs. Exhibit F.  Memorandum, SAF/MRBL, dated 19 Jan 16, w/atch. Exhibit G.  Letter, SAF/MRBR, dated 2 Feb 16. Exhibit H.  Letter, Applicant, dated 2 Mar 16, w/atchs. 1 2