RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-00468

						COUNSEL:  

						HEARING DESIRED:  YES


APPLICANT REQUESTS THAT:

      a.  His Letter of Reprimand (LOR) and Unfavorable Information 
File (UIF) be removed from his personnel file.

      b.  His Referral Officer Performance Report (OPR) rendered 
for the period 8 Jun 12 through 30 Jun 13 be removed from his 
record or amended.

      c.  His previously approved Meritorious Service Medal (MSM) 
for his command tour be approved and updated into his records.

      d.  He be authorized to wear the Command Insignia Pin. 

	e.  His “Do Not Promote” Promotion Recommendation Form (PRF) 
be removed from his personnel files or amended.

      f.  His “NOT Recommend” on his AF Form 3849, 
PME/AFIT/RTFB/Officer Worksheet for Senior Development Education 
be removed from his personnel files.

      g.  Any and all adverse information/files be removed or 
amended at all levels; including, but not limited to DoD, 
SAF/JA/IG/HI, HAF JA/IG/HO, AFPC, PACAF JA/IG/HO, 8th FW JA/IG/HO.


APPLICANT CONTENDS THAT:

Through counsel, he humbly requests the Board examine the facts of 
the case to correct the injustice he faced while completing his 
“Command” tour of the 8th Force Support Squadron (8th FSS) at 
Kunsan AB, Republic of Korea.  

On 11 Jun 13, his last day in command, he was rehearsing for his 
change of command ceremony.  At 1250hrs, pursuant to a Commander 
Directed Investigation (CDI), an Investigation Officer (IO), 
alleges that he misused a government vehicle, and read him his 
rights pursuant to Article 31 of the Uniform Code of Military 
Justice (UCMJ).  He was shocked upon hearing the allegations and 
began to ask the IO a few questions about the investigation and 
his rights.  The IO told him that he was not a lawyer and referred 
him to the Wing Staff Judge Advocate (SJA).  With just a few hours 
remaining on his last duty day, he dropped everything and sought 
out the SJA for answers and guidance.  

The SJA was not in his office, so he ventured to the Area Defense 
Counsel’s (ADC) office.  The ADC was TDY at the time, so the 
defense paralegal got him in touch with the ADC in Japan.  That 
ADC was able to reach the SJA, who was uncooperative in releasing 
any information that might have enabled him to make an informed 
decision on how to handle this accusation.  Shortly thereafter, he 
was ordered to report to the Mission Support Group Commander’s 
(MSG/CC) office.  The MSG/CC informed him that the Wing Commander 
(WG/CC) had lost faith in him; there would be no change of 
command, and he had to leave Kunsan immediately.  The MSG/CC 
informed him that he had abused NAF vehicles, but had no further 
information on the allegation.

The CDI alleged that he improperly used a government vehicle.  His 
primary accuser was the base SJA, who did not recuse himself from 
later giving legal advice on the matter.  The investigation was 
hastily completed in 12 days, finding him in violation of 
applicable AFIs and the LOR/UIF/Referral OPR actions followed.  He 
was not given an opportunity to provide a statement to the IO; the 
SJA was involved in the process and should have recused himself, 
and he was not given due process in regard to the flawed CDI or 
the LOR In Accordance With (IAW) the governing Air Force 
instructions.

He has never misused a government vehicle, the CDI findings were 
erroneous and he requests his records be updated to reflect his 
exemplary service during this timeframe.

In addition, he was a victim of injustices by the hastily prepared 
CDI which resulted in inaccurate findings.  His rater, the MSG/CC 
made comments as to his guilt before the CDI was concluded.  His 
LOR was referred by the administrative control officer in his 
chain of command; however, it was clear that she did not review or 
ignored his rebuttal to the LOR.  His referral report was not 
processed IAW AFI 36-2406, Officer and Enlisted Evaluations 
Systems.

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


STATEMENT OF FACTS:

The applicant is currently serving in the Regular Air Force in the 
grade of Lieutenant Colonel. 

On 7 Jun 13, the 8th FW/CC appointed the IO to conduct a CDI in 
the misuse of a Nonappropriated Fund Instrumentality (NAFI) 
vehicle.  The IO was investigating two allegations involving the 
Force Support Squadron Commander (FSS/CC).  

      ALLEGATION 1: the 8 FSS/CC, who knew or should have known of 
his duties at or near Kunsan Air Base, Republic of Korea, from on 
or about 1 Jun 12 to on or about 7 Jun 13, was derelict in the 
performance of these duties in that he negligently or willfully 
failed to refrain from using a NAFI vehicle for private business, 
unofficial purposes, or personal convenience, including, but not 
limited to, driving from his residence to his duty location.  This 
allegation was SUBSTANTIATED.  

      ALLEGATION 2:  Unnamed Department of Defense personnel, who 
knew or should have known of their duties at or near Kunsan Air 
Base, Republic of Korea, from on or about l Jun 12 to on or about 
7 Jun 13, were derelict in the performance of these duties in that 
they negligently or willfully failed to refrain from using a NAFI 
vehicle for private business, unofficial purposes, or personal 
convenience.  This allegation was UNSUBSTANTIATED.

On 19 Jun 13, the IO concluded his investigation into the alleged 
violations.

On 25 Jun 13, the 7AF/JA notified the 8th FW/CC that the ROI was 
legally sufficient and recommended approval of the CDI findings 
and conclusions.

On 2 Jul 13, the 8th FW/CC approved the findings.

On 19 Sep 13, the applicant provided a rebuttal to a referral 
report he received on 26 Aug 13.  In his rebuttal, he noted in the 
report it was alleged that he was “removed from command for cause 
on 11 June 13 due to substantiated abuse of NAF vehicles.”  He 
later learned the basis for this bullet, causing a referral OPR, 
stems from the findings of a CDI.  Specifically, the crux of the 
investigation alleges that he used a NAFI vehicle for private 
business, unofficial purposes, or personal convenience, including, 
but not limited to, driving from his residence to his duty 
location.  He submitted his rebuttal in hopes that his rater would 
consider the facts he raised and the appropriateness of not just 
the referral OPR, but whether the CDI was conducted in a legally 
sufficient manner.  

On 8 Oct 13, based on information provided by the applicant, he 
received a LOR for violating federal law and the Uniform Code of 
Military Justice (UCMJ), Article 92, Failure to obey order or 
regulations, specifically AFI 34-201, Use of Non-appropriated 
Funds, which states, “Use NAFI vehicles for official services and 
NAFI purposes only.  Don’t use them for private business, 
unofficial purposes, or personal convenience.”  

On 17 Oct 13, the applicant provided his response to the LOR for 
the commander’s consideration. 

On 9 Dec 13, the referral report became a matter of record.

The remaining relevant facts pertaining to this application are 
contained in the memoranda prepared by the Air Force offices of 
primary responsibility (OPRs), which is attached at Exhibit C 
thru F.  


AIR FORCE EVALUATION:

AFPC/DPSIM recommends denial of the applicant’s request to remove 
the LOR and UIF, indicating there is insufficient evidence to 
determine if the applicant unjustly received an LOR.  DPSIM notes 
the applicant contends the adverse actions taken against him were 
unjust.  The WG/CC directed a CDI on 7 Jun 13, which found the 
applicant in violation of misuse of non-appropriated fund 
instrumentality vehicle.  On 08 Oct 13, the applicant received a 
LOR/UIF for the alleged improper use of a government vehicle while 
assigned as the FSS/CC.  On 17 Oct 13, the applicant provided his 
rebuttal to the LOR.  On 5 Dec 13, the temporary commander 
determined the LOR would remain in effect and be filed in the 
applicant's UIF.  

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

AFPC/DPSID recommends denial of the applicant's request to void 
the contested report, indicating the applicant has not provided 
compelling evidence to show the report was unjust or inaccurate at 
the time it was written.  

In addition, DPSID notes the applicant did not file an appeal 
through the Evaluation Reports Appeals Board (ERAB) under the 
provisions of AFI 36-2406, Officer and Enlisted Evaluation 
Systems.

Further, DPSID notes that AFI 36-2406, paragraph 1.3.1 states: 
“Evaluators are strongly encouraged to comment in performance 
reports on misconduct that reflects a disregard of the law, 
whether civil law or the UCMJ, or when adverse actions such as an 
Article 15, Letters of Reprimand, Admonishment, or Counseling, or 
placement on the Control Roster have been taken.”  In this case, 
the applicant failed to refrain from using NAF vehicle for private 
business, unofficial purposes, and personal convenience.  An 
incident the evaluator felt significant enough to remove him from 
command and issue him a referral OPR.  The rating chain 
appropriately chose to comment and document on the underlying 
wrongdoing, which caused the report to be referred to the 
applicant for comments and consideration to the next evaluator.    
Based upon the presumed sufficiency of the LOR as served on the 
applicant, they conclude that its mention on the contested report 
was proper and in accordance with all applicable Air Force 
policies and procedures.

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

AFPC/DPSID also recommends denial for award of the Meritorious 
Service Medal with One Bronze Oak Leaf Cluster (MSM, w/1BOLC).  It 
appears that due to the LOR, the award of the MSM, w/1BOLC was 
disavowed given the applicant's entire service during the 
contested period was less than honorable.  DPSID notes the 
applicant has not submitted substantiating evidence to support 
award of the decoration and to grant relief would be contrary to 
the criteria established by DoDM 1348.33, Secretary of the Air 
Force, Chief of Staff, and/or the War Department.

Further, the applicant contends the decoration was previously 
approved; however, DPSID has been unable to locate any official 
documentation verifying the MSM, w/1BOLC was approved or was 
subsequently revoked.  

A complete copy of the DPSID evaluation is at Exhibit E.

AFPC/JA recommends denial indicating there is no evidence of an 
error or an injustice in regard to the LOR.  

JA notes, the applicant challenges the legality of the LOR and UIF 
he received, along with the resultant referral report, alleging 
procedural violations and disagreement with the alleged underlying 
misconduct.  With regard to an additional allegation the applicant 
should have received an MSM at the end of his tour at Kunsan Air 
Base, we agree with, and defer, to the DPSID advisory dated 7 Dec 
15.  As to the other allegations, for the reasons set out in the 
DPSIDE advisory dated 6 Oct 15, and the additional reasons below, 
JA finds the applicant has failed to prove any error or injustice 
occurred.  

The applicant alleges the CDI into his alleged misconduct was 
hastily performed, resulting in inaccurate findings.  However, JA 
notes that it is the applicant’s opinion, and only his opinion, as 
he has failed to back it up with any supporting substantiation—
that a CDI was prepared too hastily and thereby failed to ensure 
accuracy.  JA opines, the IO gathered sufficient evidence–both 
witness testimony and supporting statute and regulation—to 
establish the applicant knew or should have known of his duties 
from approximately 1 Jun 12 to 7 Jun 13, and was derelict in those 
duties in that he negligently or willfully failed to refrain from 
using a non-appropriated fund instrumentality (NAFI) vehicle for 
private business, unofficial purposes, or personal convenience, to 
include driving to and from his residence.  While the IO 
undoubtedly could have interviewed more people with knowledge of 
the applicant’s activities, the governing directive for conducting 
a CDI, The Commander-Directed Investigation Guide (CDI Guide) 
published by SAF/IGQ, does not prescribe a minimum number, or any 
number, of witnesses who must be interviewed, and applicant has 
made no showing the interview of more witnesses (such as those who 
provided statements in support of his BCMR application) would have 
changed the findings.  Nor does the Guide prescribe a time limit 
for conducting a CDI, and it notes that a CDI that is not complex 
could be completed in as little as 10 days [CDI Guide, paragraph 
2.4].  

The applicant also challenges the report for being incomplete and 
inaccurate because he was not interviewed by the IO.  At the 
outset, the applicant indicates the IO attempted to interview him, 
but he later refused to answer any questions until his own 
questions were answered.  The IO indicated he could not answer the 
applicant’s questions, and he therefore sent him to the SJA; the 
applicant was not thereafter interviewed.  While we agree that it 
is common/normal practice to interview the person being 
investigated during the course of the CDI (See CDI Guide, 
paragraph 5.2.1.2), neither the guide nor any other authority 
directs or requires that the subject of the investigation be 
interviewed.  In this case, the information that would have been 
provided by the applicant in an interview most certainly would 
have paralleled that provided by him in his comprehensive 
responses to the LOR and referral OPR.  Under all the 
circumstances, JA found no violation of applicant’s rights to due 
process with regard to the actions taken. 

The applicant next claims that the statements of two of the 
witnesses “are patently false.”  However, these witnesses had no 
apparent motive to lie, and their testimony has not been overcome 
by the evidence presented by the applicant in his responses to the 
adverse actions.  Likewise, there is no evidence the applicant’s 
commander ignored the results of the CDI, or that his mind was 
already made up.  The applicant next alleges that his “accuser,” 
the SJA, was improperly involved in the case and should have 
recused himself.  However, as no punitive actions were taken 
against the applicant, there was no “accuser” in the case.  As it 
turns out, the SJA was a key witness in the CDI, having observed 
the applicant on multiple occasions using the NAFI vehicle in 
question.  That did not, however, disqualify him from providing 
advice to the commander regarding the taking of administrative 
actions.  In addition, the SJA was not the legal advisor to the 
IO, nor did he author the legal review at the conclusion of the 
CDI.  

The applicant also alleges the officer who imposed the LOR/UIF, 
his new stateside commander, ignored his written response to the 
LOR.  He cites as an example the commander stating to him that the 
applicant ignored multiple warnings; which he contests that there 
were no warnings.  In fact, the IO report and the witness 
statements verify the applicant was told to go to the SJA office 
to ascertain the rules governing the vehicle’s use, but he failed 
to ever do so.  Notwithstanding any minor mistakes the commander 
may have made in discussing the report with the applicant, it is 
clear she read the report and relied on its unequivocal findings.  
In this regard, we note that there is generally a strong 
presumption that government officials, including those in the 
military, discharge their duties lawfully and in good faith.  The 
presumption can only be rebutted by cogent and convincing evidence 
(emphasis added) that the officials’ actions were undertaken in 
bad faith, Duncan v. United States, 22 Cl.Ct.1 (1990) affd 949 
F.2d 1134.  See also Sanders v. United States, 594 F.2d 804 
(1979).  Here, the applicant’s commander is presumed by law to 
have acted properly by considering the applicant’s response before 
finally issuing the LOR.  The applicant has offered no evidence 
other than his own opinion to overcome that presumption.

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


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant refutes virtually every point made by the OPRs and 
continues his request for removal of the LOR/UIF and the Control 
Roster action from all of his personnel files; that his OPR from 
the affected period be voided, and that he be approved to wear the 
commander badge on his uniform.  

In addition, the applicant reiterated his original contentions 
that the “spirit of the law has been broken….”  He goes on to 
explain his belief the administrative actions were not properly 
executed and maintains his belief the LOR was not appropriate 
because he did nothing wrong.  

Further, he again reiterates the positions that he has already 
apprised the Board of in his initial application and humbly 
request the Board examine and consider all the matters in detail 
and make the appropriate corrections to his records.  He continue 
to this day to pride himself in operating and leading with 
integrity, service before self, and “excellence in all I do,” and 
have done so throughout his Air Force career.  He states, it is a 
point of embarrassment, but more so helplessness and great 
frustration to be accused of something that he simply did not do.  
This board is his last resort in correcting his record and 
continuing to serve his country and the Air Force in a meaningful 
way and requests the Board’s deepest thought and consideration.  

The applicant’s complete response is at Exhibit H.


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.  We took 
notice of the applicant’s complete submission, to include his 
rebuttal, in judging the merits of the case; however, a majority 
of the Board agrees with the opinions and recommendations of the 
Air Force Offices of Primary Responsibility (OPRs) and adopt their 
rationale as the basis for their conclusion the applicant has not 
been the victim of an error of injustice.  The Board notes the 
applicant’s contentions regarding the appropriateness and 
execution of the CDI, the LOR/UIF and the referral report and 
while the applicant is adamant about his innocence, the Boards’ 
majority were not so convinced and found the CDI was adequate, not 
technically flawed, and consistent with the allegations listed in 
the LOR.  Additionally, the majority believes the LOR and relief 
of command, was appropriate and well within the commanders’ 
discretionary authority and while the applicant argues that his 
due process rights were violated, the majority noted the Air Force 
gives commanders great deference in carrying out their 
responsibilities and presumes they discharge their duties lawfully 
and in good faith.  Consequently, the Boards’ majority found no 
inappropriateness with the LOR and did not find the applicant’s 
rights were violated, and, thereby, recommends his request for 
removal or amendment of the referral report; award of the MSM, 
w/1BOLC; authorization to wear the Command Insignia Pin; removal 
or amendment of his PRF; removal of his AF Form 3849 and any and 
all adverse information in his record, be denied.  In view of the 
above and in the absence of evidence to the contrary, the Boards’ 
majority 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.


RECOMMENDATION OF THE BOARD:

The majority of the panel finds insufficient evidence of error 
or injustice and recommends the application be denied.


The following members of the Board considered AFBCMR Docket Number 
BC-2015-00468 in Executive Session on 12 April 2016 under the 
provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

By a majority vote, the Board recommended denial of the 
application.  --------- voted to grant, but she does 
not wish to submit a Minority Report.  The following documentary 
evidence was considered:

	Exhibit A.  DD Form 149, dated 29 Jan 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFPC/DPSIM, dated 14 May 15.
	Exhibit D.  Letter, AFPC/DPSID, dated 6 Oct 15.
	Exhibit E.  Letter, AFPC/DPSID, dated 7 Dec 15.
	Exhibit F.  Letter, AFPC/JA, dated 22 Dec 15.
      	Exhibit G.  Letter, SAF/MRBR, dated 29 Dec 15.
      	Exhibit H.  Letter, Applicant, dated 29 Jan 16, w/atchs.