RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-01191

 						COUNSEL:   

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

His DD Form 214, Certificate of Release or Discharge from Active Duty, be amended as follows:

	He was awarded the Legion of Merit (LOM). (ADMINISTRATIVELY CORRECTED)

	He was awarded the Air Force Overseas Ribbon-Short Tour, Second Oak Leaf Cluster (AFOR-ST w/2 OLC).  (ADMINISTRATIVELY CORRECTED)

	His narrative reason for separation reflect “Voluntary Retirement,” instead of “Reduction in Force.”

	His Separation Program Designator (SPD) code “SCC” which denotes “Reduction in Force” be changed to “RBC” or “RBD” to reflect “Voluntary Retirement.” 

APPLICANT CONTENDS THAT:

The narrative on his Retention Recommendation Form (RRF) was not completed in accordance with AFI 36-2406, Officer and Enlisted Evaluations, and the evidence indicates there were certain factors which improperly influenced the CY13 Selective Early Retirement Board (SERB) and the Air Force’s decision to retire him early.

AFI 36-2406, Chapter 9, paragraph 9.2.1.3.6 dated 5 April 2013, states, “For colonel (O-6) RRFs only: comments may be handwritten.  Comments should only relate to the officer’s record as a colonel.”  In his case, only one third of the space in Block III, First Evaluator Comments, related to his record as a colonel and two-thirds of the space was used to document his record for periods he served in the grades of captain (O-3) through lieutenant colonel (O-5).  It appears the commanders and administrative personnel who drafted his RRF were also unaware of the requirements of AFI 36-2406.  

His record was consistently viewed by his superiors as very strong and he was awarded only “Definitely Promote” recommendations during his In-the-Promotion Zone (IPZ) promotion windows.  He had extensive international and operational experience, served three combat deployment tours, over 11 years overseas, served in five joint billets and also served as a foreign exchange officer.  

He was the youngest colonel out of 37 Judge Advocate General (JAG) colonels to meet the CY13 SERB.  He met the date of rank eligibility for the SERB by a mere nine days.  He was the only sitting SJA selected by the SERB for retirement.  Based on his records, it was not reasonable to believe he was in the bottom 30 percent of 37 JAG colonels who faced the SERB.  He could not have predicted he would be selected to retire early while serving overseas as the 3rd Air Force Staff Judge Advocate (3 AF/SJA).  

On 26 February 2013, the 3 AF Commander (3 AF/CC), as the general court-martial convening authority, disapproved the findings and dismissed sexual assault charges against a lieutenant colonel.  The 3 AF/CC was severely castigated unfairly by Congress, advocacy groups and the media.  Although he recommended the court-martial findings of guilty be approved and the punishment of dismissal be converted to two years of confinement, he supported the 3 AF/CC’s decision to dismiss the findings.  In May 2013, he wrote to the United States Air Force Europe Commander (USAFE/CC) that relieving the 3 AF/CC from command due to his decision in the sexual assault case would be improper and would amount to unlawful command influence.  

He also reviewed another sexual assault case in July 2012 which involved an airman first class (A1C, E-3) assigned to Aviano AB, Italy who was charged with rape, sexual assault and disorderly conduct.  On 16 June 2013, the Article 32 investigation was concluded and the wing SJA notified him that in his view there was less than one percent chance of a conviction in the case.  Another independent investigation was completed and it was recommended that the wing commander dismiss the charges.  He met with the lead prosecutor in the case, discussed the case with his military justice staff and conducted his own independent review of the evidence.  His review revealed there were too many inconsistent statements by the alleged victim, along with a non-credible demeanor, selective memory, counter-intuitive behavior and several motives for fabrication.  Consequently, he concluded there was not sufficient evidence to warrant a referral to a court-martial as indicated by the investigating officer and two SJAs.

The applicant’s Special Victim Counsel (SVC) made a request the victim be permitted to meet with the 3 AF/CC and submitted a 12-page memorandum explaining her concerns in relation to the Article 32 investigation.  He ethically performed his military duty and obligation in relation to his position, and provided the 3 AF/CC with the SVC 12-page memorandum and recommended he not meet with the alleged victim.   The 3 AF/CC elected to not meet with the victim and dismissed the sexual assault case on 3 September 2013.

Two days after the dismissal of the court-martial charges against the A1C, the Air Force Judge Advocate General (AF TJAG) called him.  On 6 September 2013, then acting Secretary of the Air Force (SecAF) administratively attached the A1C to the Air Force District of Washington (AFDW) for disposition of sexual assault allegations.  The AF TJAG advised the SecAF such a transfer was necessary and proper because the 3 AF/CC did not meet with the victim prior to dismissal in violation of proper procedures.  The AF TJAG’s actions were in an attempt to change the general court-martial convening authority.  At the time, there was no legal requirement in law, regulation, or written policy that mandated or required a general court-martial convening authority to meet with an alleged victim prior to a dismissal of charges.  His legal advice and recommendation to the 3 AF/CC was correct and appropriate.  His recommendations were not based on improper, external or political considerations.  However, JAG officials and others mischaracterized the legal advice he provided to the 3 AF/CC.  

His SERB met on 9 December 2013 while the rampant political and media firestorms were continuing.  The Vice Commander for USAFE, the immediate supervisor of his 3 AF unit, was the President of the SERB.  He was a close professional colleague and personal friend of the 3 AF/CC.  Additionally, the Air Force Deputy JAG was also on the Board and would have been familiar with his role and legal advice to the 3 AF/CC in both of the sexual assault cases.  Given the media attention of both sexual assault cases, other members of the SERB would also likely have been familiar with his role as the SJA.  On 23 January 2014, he was officially notified that he was selected for early retirement by the SERB and would have to retire by 1 July 2014.  

Released e-mails show that on 11 November 2013, the AF TJAG conceded to the Chief of Staff of the Air Force (CSAF) that no requirement existed for the 3 AF/CC to speak with the alleged victim prior to the dismissal of court-martial charges.  Additionally, one month prior to his SERB, he was scheduled to meet with the AF TJAG who was attempting to remove him from his position as 3 AF/SJA for political expediency.  He was attempting to fire him at the same time he was incorrectly stating he gave inaccurate legal advice in recommending the 3 AF/CC not meet with the alleged victim when he knew he had given correct advice which was consistent with the law, regulation and written policy.

On 21 July 2014, three weeks after his retirement, he was appointed and began work as an assistant attorney general for the State of North Dakota.  In Aug 2014, he was requested to provide an affidavit to the court in the sexual assault case dismissed by 3 AF/CC and the transferred to AFDW.  

On 30 July 2015, the Military Judge found and ruled that the retirement of the 3 AF/CC and his retirement created an appearance of unlawful command influence.  The military judge further found and ruled that the AF TJAG committed actual unlawful influence by attempting to shape his future legal advice to a convening authority to reinterpret Article 34.  

On 5 August 2015, he made a Freedom of Information Act (FOIA) for all releasable information and documents related to the CY13 SERB.  On 18 August 2015, AFPC provided him with copies of his Officer Selection Brief (OSB), the board member list, the memo of instructions to the board and a report provided with redactions and staffing documents.  AFPC refused to provide the requested copies of the score sheets of members and any written or otherwise recorded discussions of board members stating proceedings of a selection board were not releasable.

On 28 October 2015, the defendant in the sexual assault case was acquitted of all charges.  Politics were finally rightly marginalized and justice was finally permitted to prevail.  Over two years earlier in September 2013, he had concluded the evidence was not sufficient to warrant a referral to a court-martial.

He was a Numbered Air Force (NAF) SJA and senior officer and not a politician.  He believes in due process and fair and impartial administration of military justice.  He did not allow himself to be influenced by political or improper agendas.  He followed all proper pre-trial procedures and acted ethically, with integrity and honor.  He followed the law.

However, both before and after the SERB, his actions in both sexual assault cases were inaccurately and improperly characterized by Air Force officials and politicians.  In short, it is reasonable to believe that while he was pursuing impartial administration of justice and following the law, he was unfortunately placed squarely in a political arena.

His commander was fired and he faced a SERB.  The narrative on his RRF was completed improperly and was not in compliance with the AFI.  His military record was very strong, like his commander, he was fired.  He requests his narrative reason for separation be changed to reflect a voluntary separation.  This small revision to his DD Form 214 would give him great comfort and properly memorialize a more fitting end to his nearly 30 years of honorable and upstanding military service.  The blight of an involuntary separation strongly appears to have been the result of improper and ulterior motives.

He is content with his new civilian life and career.  Nonetheless, past wrongs should be corrected whenever possible.  He does not ask for monetary compensation, any additional benefits and does not request to be returned to active duty.  He only asks for equity, propriety and fairness in regards to his DD Form 214. 

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

STATEMENT OF FACTS:

The applicant entered this period of active duty on 9 September 1992 and retired on 1 July 2014 in the grade of colonel (O-6) with a SPD of “SCC” and a narrative reason for separation of “Reduction in Force.”  He was credited with 21 years, 9 months and 22 days of active duty service this period.  He was also credited with 1 year, 3 months and 6 days of prior active duty service.    

The applicant provides a copy of his AF Form 3538, Retention Recommendation, which reflects he received a recommendation of “Retain” for Board S0613A.  

AFI 36-2406, Chapter 9, AF Form 3538, Retention Recommendation Form, paragraph 9.2.1.3.6, states “For Colonel RRFs only: Comments may be handwritten.  Comments should only relate to the officer’s record as a colonel.”

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 and D.    

AIR FORCE EVALUATION:

AFPC/DP2SP determined that the applicant should have been awarded the LOM and AFOR-ST w/2 BOLC during his period of service from 9 September 1992 to 30 June 2014.  No further action is required as the awards have been verified and the applicant’s record has been corrected.  

A complete copy of the AFPC/DP3SP evaluation is at Exhibit C.

AF/DPO recommends denial of the requests for a change to his narrative reason for separation and SPD code.  The applicant had the opportunity to voluntarily retire on or before 14 February 2014.  The SERB is an extremely competitive board process.  Colonels, by virtue of having been promoted and having achieved the grade of colonel, have competitive records and successful careers.  There is no clear evidence that the board deliberately targeted the applicant for retirement based on past legal cases or other factors.

Between July and 15 November 2013, colonels selected to meet the 2014 Force Management Program SERB could voluntarily apply for retirement with a maximum retirement date of 1 September 2014.  The applicant was in the 1991 year group and there were twelve 51Js (legal officer) eligible for the 2014 SERB.  By law, no more than 30 percent of the eligible in each grade by competitive category can be non-retained.  

The applicant references AFI 36-2406, Chapter 9, paragraph 9.2.1.3.6 dated 5 April 2013, which states for colonel RRFs, comments may be handwritten and should only relate to an officer’s record as a colonel.  The applicant received a copy of his RRF more than 30 days prior to the convening date of the SERB to allow corrections by the management level per Personnel Services Delivery Memorandum 13-70, which required senior raters to provide eligible officers a copy of their RRF no later than 6 November 2013 for the SERB scheduled to convene on 9 December 2013.  Per the PSDM, eligible officers were responsible for reviewing the accuracy of their RRF, their Officer Selection Record (OSR) and the data on their pre-selection brief prior to the board date.  Additionally, PSDM 14-05 informed officers non-selected for retention who wished to voluntarily retire on their mandatory retirement date or on an earlier date could submit a retirement application via the virtual Military Personnel Flight (vMPF) no later than 14 February 2014.  Both PSDMs provided guidance for the applicant to resolve his RRF and DD Form 214 prior to his effective retirement date of 1 July 2014.  

A complete copy of the AF/DPO evaluation is at Exhibit D.   

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He disagrees with the recommendation of AF/DPO to deny his request for change of his narrative reason for separation and SPD code.  He did not seek nor receive any additional entitlement, benefit, pay or waiver of any recoupment based on the current involuntary separation code and narrative reason for separation on his DD Form 214.  He only requests a correction to his records to remove the error or injustice.  His request is solely a matter of honor.  He asks for fairness and justice.

AF/DPO states that eligible officers were responsible for reviewing the accuracy of the RRF, their OSR and the data on their pre-selection brief prior to the board date.  He reviewed the accuracy of the substance of all the information and statements contained within them to include the RRF narrative.  In his view, all information and statements on the documents were factually accurate.  However, he was unaware that the narrative on his RRF was drafted incorrectly and was not in compliance with AFI 36-2406, Chapter 9, paragraph 9.2.1.3.6 dated 5 April 2013.  During the 30 days prior to the date of the SERB, he remained unaware of the specific requirements which reiterated that only comments related to an officer’s record as a colonel was to be included on the RRF.  This requirement as to the RRF narrative was not emphasized nor ever mentioned.  The lack of awareness of this obscure requirement was apparently widespread.  The AF/DPO statement apparently assigning the responsibility of knowing some obscure RRF comment requirement hidden within an AFI comprising hundreds of pages solely on the officer who faced the SERB is misplaced. The numerous commanders, command staff and administrative personnel who drafted, reviewed and processed his RRF within 3 AF, USAFE and AFPC fully shared the responsibility to ensure his RRF, to include the comment narrative, was drafted and finalized in a manner that was compliant with AFI 36-2406.

The AF/DPO advisory dated 16 February 2017 is the first time that he was informed that he could have voluntarily retired on or before 14 February 2014.  If the AF/DPO statement in relation to this option is true, then it would be the right thing to grant his request.  He would have been exceedingly grateful if this option was made known to him before his retirement.  When he was selected for early retirement, he experienced a great deal of anxiety.  The option to voluntarily retire, if it had been made known to him, would have alleviated a substantial amount of his consternation.  Unfortunately, he was not aware of this option.  

The AF/DPO evaluation did not discuss or refute any of the evidence of error or injustice presented in his application.  Instead, they simply state summarily that there is no clear evidence the board deliberately targeted him for retirement based on past legal cases or other factors.  AF/DPO makes this highly conclusory statement to conveniently dismiss the significant evidence presented that indicates otherwise.  The CY13 SERB either consciously or unconsciously considered matters outside the record when ranking his position among the 37 JAG colonels facing the SERB.  

On 12 August 2013, he was notified he would be facing a SERB.  At this time, he was notified that in lieu of being subject to the upcoming SERB, he could opt to request to retire effective September 2014.  He did not do so because he reasonably believed his strong military record would not make him susceptible to being selected for early retirement.  It is reasonable to believe that based on the evidence surrounding his selection for early retirement that matters outside the record were factors in ranking his position among 37 JAG colonels facing the board.  It is a reasonable conclusion based on the evidence he provides that his professional involvement in the two sexual assault cases led to his early retirement.  The factual and legal findings of a military judge that his compelled early retirement comprised unlawful command influence and that the majority of the evidence showing improper motives which led to his selection for early retirement did not come to light until after 15 November 2013.  However, had he been aware of all the various improper and ulterior motives at the time he was selected to undergo a SERB, he would have submitted a request for voluntary retirement immediately.

He wishes only to be satisfied that he was treated properly, fairly and equitably by the Air Force that he served honorably served for nearly 22 years.  The correction of his narrative reason for separation and SPD code appear inconsequential to others; however, remains highly important to him.  

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

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 injustice.   Counsel contends the applicant was improperly targeted by the CY13 SERB for early retirement as a result of his involvement as the 3 AF/SJA in highly public sexual assault cases; however, other than his own uncorroborated assertions, we find no evidence this to be the case.  Counsel also contends the applicant’s RRF was not prepared in accordance with AFI 36-2406; however, as pointed out by AF/DPO, eligible officers were responsible for reviewing the accuracy of their RRF, their OSR and the data on their pre-selection brief prior to the board convening date.   While it is unfortunate the applicant failed to properly review his RRF as required, we find no evidence that the SERB deliberately targeted the applicant for retirement based on past legal cases or any other factors and note the SERB also considered his OSR which includes his Officer Performance Reports (OPR) documenting his performance in the grade of colonel.  The applicant in his rebuttal response also contends his narrative reason for separation and SPD code should be changed to reflect his retirement was voluntary as he was not properly made aware he could have requested voluntary retirement.  In this respect, we find it unlikely a legal officer, a NAF SJA, in the grade of colonel with over 20 years of service was unaware of the options in regards to his retirement.  In the contrary, it appears the applicant, based on his own personal assessment of his records, firmly believed he would not be identified by the SERB for early retirement. Furthermore, it is our opinion granting the applicant’s request would result in an injustice to other similarly situated airmen identified for separation by a force management board or early retirement by a SERB and were issued a narrative reason for separation and SPD to reflect they were separated or retired as a result of a RIF.    Accordingly, we agree with the opinion and recommendation of AF/DPO and adopt the rationale expressed as the basis for our conclusion the applicant has not sustained his burden of proof that he has been the victim of an injustice.   Therefore, aside from the administrative corrections for award of the LOM and AFOR-ST w/2 OLC, we find no basis to recommend granting the requested relief.  

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-2016-01191 in Executive Session on 6 July 2017 under the provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 21 March 2016, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DP2SP, dated 29 August 2016.
	Exhibit D.  Memorandum, AFPC/DP, dated 19 October 2016.
	Exhibit E.  Letter, AFBCMR, dated 16 February 2017.
	Exhibit F.  Letter, Applicant, dated 9 March 2017, w/atchs.

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.