RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-02042 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected to reflect the following: 1. He was selected for promotion to the grade of Lieutenant Colonel (O-5) by the V0510B Lieutenant Colonel Promotion Board that convened on 14 Jun 10. 2. He was not discharged on 1 Mar 11, but instead continued to serve with the Air Force Reserve through the present time. As an alternative, he be reinstated to duty in the Air Force Reserve preferably in a pilot position or as an Air Force Academy (USAFA) Air Liaison Officer (ALO), and be allowed to continue to serve on duty for a time sufficient to enable him to earn a retirement from the Air Force Reserve, and to compete without prejudice to be promoted to Lt Col. 3. An addendum be added to the Accident Investigation Board (AIB) Report, Safety Investigation Board (SIB) Report, and the 459 AW/CC-directed Report of Investigation (ROI) and all documents regarding the incident, indicating that he was completely exonerated by the Oct 97 Flight Evaluation Board (FEB). ________________________________________________________________ APPLICANT CONTENDS THAT: 1. Even though he was ultimately exonerated of any wrong-doing associated with a Dec 96 Class A Flight Mishap which resulted in the death of a fellow service member and an unauthorized low- level flight, the circumstances have repeatedly been used against him to unfairly deprive him of his rightful return to flying status in 2005 and a Definitely Promote (DP) recommendation in 2009. 2. AFRC/CC unfairly denied his request to return to flying status in 2005, citing his involvement in the aforementioned low altitude fly-over as the reason for his denial, even though a 2005 FEB found he was qualified for flying duty. In doing so, AFRC/CC wrongfully and punitively took it upon himself to determine the applicant’s career and fate with no basis in fact. 3. This situation was again unfairly used against him when his senior rater unjustly rendered a Promotion Recommendation Form (PRF) reflecting a recommendation of “Promote” (P), instead of “Definitely Promote” (DP) as originally proposed by his supervisor. He believes the senior rater, a graduate of the Air Force Safety and Accident Board President School, allowed the circumstances surrounding the 1996 unauthorized low-level flight and Class A mishap to influence his promotion recommendation, even though he was exonerated of any responsibility. As a result, he was unfairly non-selected for promotion, thereby prematurely ending his career after 17 years of service. In support of his request, the applicant provides an expanded statement and copies of a 23 Dec 10 Memo For the Record concerning his 2010 PRF, and 18 exhibits containing excerpts each of the documents cited in his expanded statement. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant initially entered active duty on 29 May 85 after graduating from USAFA. On 13 Sep 96, he separated from the Regular Air Force and entered the AF Reserve. On 3 Dec 96, while performing duties as a C-17 aircraft commander in a pilot not flying (PNF) role, the applicant was involved in a Class A Mishap in which a Navy SEAL lost his life. During the same mission, while the applicant was in the PNF role, the aircraft was flown well below the minimum authorized level of 500 feet during a low-level pass over the designated drop zone. The AIB looking into the incident issued a final report which concluded the applicant’s error was the cause of the accident. In addition, an SIB concluded the cause of the incident was an error by the applicant for failing to verify the cabin differential pressure gauge indicated zero as required by the Operation Stop Checklist. The 459 AW/CC reviewed the available reports and an ROI which he had ordered, and recommended the applicant be tried by court-martial for failure to follow mandatory C-17A Flight Manual instructions, but stated the applicant should not be held accountable for the unauthorized fly-over that occurred as part of the mission. On 8 Oct 97, an FEB (FEB #1) convened to review the case. The applicant was represented by legal counsel. The FEB #1 determined the applicant did not intentionally violate flying regulations, did not violate relevant checklists, and recommended he retain his aviation badge and be continued in the aviation service. In Dec 97, the applicant separated from the Reserves. On 1 Oct 98, the applicant was promoted to the rank of major. On 22 Apr 05, a second FEB (FEB #2) convened, as required by AFI 11-402, Aviation and Parachutist Service, Aeronautical Ratings and Aviation Badges, because the applicant was applying for a flying billet within the Reserves and he had not flown in the Air Force in over five years. FEB #2 recommended the reinstatement of the applicant to the Air Force Reserves and revalidation of his flying status. However, the AFRC/CC disapproved the recommendation of FEB #2, explaining in his 23 Mar 06 letter to the applicant that the AFRC/CC had relied exclusively on the ROI for his decision and based it entirely upon the applicant’s involvement in the unauthorized flyover. On 20 Apr 07, the applicant joined USAFA as a Reservist serving as an ALO in South Carolina. In 2010, after receiving a “Promote” PRF for the VO510B Lt Col Selection Board from the USAFA Admission Department, he was not selected for Lt Col for a second time and was required to separate. On 1 Mar 11, the applicant separated from the Air Force Reserve, was furnished an Honorable discharge, and was credited with 16 years of satisfactory service. The remaining relevant facts pertaining to this application are described in the letter prepared by the Air Force office of primary responsibility which is included at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: AFRC/JA recommends denial, indicating there is no evidence of an injustice. The applicant believes he has been treated unfairly and not promoted due to an aircraft mishap which occurred on 3 Dec 96. This application can be dismissed under the equitable doctrine of laches, which denies relief to one who has unreasonably and inexcusably delayed in asserting a claim. In the applicant’s case, he waited 15 years to file and took no action on the claim before that. It is clear from the application the applicant was aware of the contents of the documents he now wishes changed. The FEB #1, which he states exonerates him, is 15 years old. He should have made his request for the addendums at that time. The applicant’s unreasonable delay has also caused prejudice to the Air Force. To date, efforts to locate a copy of the ROI in Air Force possession has been unsuccessful. All indications are that the ROI has most likely been destroyed. Therefore, even if ordered to do so, there is no way for the AF to provide an addendum to a document which cannot be located. In short, the AFRC/JA asserts that the applicant’s unreasonable delay regarding a matter now dating back 15 years has greatly complicated its ability to determine the merits of the applicant’s position. It appears that at the heart of the applicant’s concern is the issue of several different command investigations reaching different conclusions regarding his culpability for the mishap. This is understandable—since the conclusions are at opposite ends of the spectrum. The AIB, SIB Report and the 459 AW/CC ROI each found the applicant responsible for the mishap. However, the FEB #1 and FEB #2 found him not responsible and recommended his return to flying status. Different individuals can come to different conclusions. Each of these reviews was conducted under different authorities. The bottom line is that three independent reviewers (AIB, Safety Investigation, 459 AW/CC Review) outside of the applicant’s unit, determined his actions, or lack thereof, led to the mishap. The FEB #1 and FEB #2 appear to rely heavily on witness testimony to reach their conclusions. Whatever the decision, it was within their discretion. Two points regarding the AFRC/CC’s disapproval of the applicant’s return to flying status. First, AFRC/JA is unable to locate a copy of the ROI referred to in the AFRC/CC’s letter. This makes it difficult to comment. Second, the recommendation of the FEB #2 is just that, a recommendation. It is within the discretion of the AFRC/CC to determine who flies. The portion of the ROI provided by the applicant clearly shows a conclusion that the applicant was responsible for the mishap even if not the flyover. This makes his determination reasonable and not arbitrary or capricious. The decision to place an addendum on the requested documents is for the owners of the documents to decide. There is no legal impediment to placing an addendum on the documents. However, if an addendum is added it should not use the term “exonerated” as requested by the applicant. That would be an inaccurate statement. Recommend attaching a copy of the results of the FEBs to the requested documents if the decision is made to grant the request. The applicant seems to believe AFRC/CC’s denial of his return to flying status resulted in his failure to be promoted to Lt Col. However, he was promoted to major AFTER the mishap. In 1998, when he was green lighted to fly, the applicant chose to pursue a career with a civilian airline. The position with USAFA was a second chance for the applicant and his Air Force career. Unfortunately, he did not take advantage of the opportunity as evidenced by the fact he went before the Lt Col selection board without completing ACSC—a known deal breaker. Based upon the documentation provided by the applicant, his last Air Force command reviewed his performance and determined it did not warrant a definitely promote. There is no evidence this decision was arbitrary of capricious. A complete copy of the AFRC/JA evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: He provides an expanded statement in which he restates his original requests, responds to several statements in the AFRC/JA evaluation, and resubmits supporting documentation: 1. In response to AFRC/JA’s comment that the applicant waited 15 years to file “and took no action on the claim before that,” the applicant states that he definitely did not wait 15 years to file the AFBCMR application without having aggressively taken previous actions to remedy the injustices stated in his case. He outlines his actions of contacting the AFRC/CC for an explanation of AFRC/CC’s decision to deny the applicant’s request to return to the AF Reserve to fly; his actions in initiating two separate Congressional Inquiries to look into his situation; and, his actions in response to having received a “Promote” recommendation on his PRF to Lt Col. 2. In response to AFRC/JA’s assertion that “The portion of the ROI provided by the applicant clearly shows a conclusion that the applicant was responsible for the mishap if not for the flyover. Although the AFRC/CC did not rely on them, other reviewers also found the applicant responsible for the mishap. This makes the AFRC/CC’s determination reasonable and not arbitrary or capricious,” the applicant explains that this statement illustrates why he is requesting relief from the AFBCMR to clear his name from incorrect, untimely, incomplete and irrelevant information. The AIB and SIB proceedings relied on incorrect and incomplete information. The FEB was the first forum in which he was given the opportunity to defend himself with any degree of fairness and accuracy. Key information was considered by the FEB but not by the AIB or SIB. Even the AFRC/JA advisory opinion wrongfully used the initial ROI as justification even though the 8 Oct 97 FEB completely exonerated him from culpability and was the final determining legal action regarding the Class A Mishap by the Reserves. The applicant cites specific information that was not available to the AIB and SIB in 1996. 3. In response to AFRC/JA’s comment that if an addendum is added to the earlier reports as the applicant requests it should not use the word “exonerated,” the applicant quotes the 317 AS/CC letter, dated 22 Jun 05, in which the it states “he was completely exonerated of responsibility for the accident as a result of the FEB.” 4. In response to AFRC/JA’s comment that “He seems to believe that AFRC/CC’s denial of his return to flying status resulted in his failure to promote to Lt Col,” the applicant reiterates that his application is based on an aggregate of actions prejudicial to him beginning with the AFRC/CC’s denial and including the USAFA Interim Director of Admissions changing his promotion recommendation from “DP” to “P.” 5. In response to AFRC/JA’s comment that “In 1998, when he was green lighted to fly, the applicant chose to pursue a career with a civilian airline,” the applicant states that he was not a hired by Delta Airlines until four months after the FEB results. His decision to leave the Air Force Reserve was because his family had incurred significant financial hardship over the twelve months of the FEB investigation, which forced them to relocate to live with his parents where no Reserve duty was available. 6. In response to AFRC/JA’s comment that, “The position with USAFA was a second chance for the applicant and his Air Force career. Unfortunately, he did not take advantage of the opportunity as evidenced by the fact that he went before the O-5 promotion board without completing ACSC—a known deal brake,” the applicant points out that the statement is inaccurate. His records show he did successfully complete ACSC. He also feels this statement contains prejudicial terminology unfairly implying wrongdoing on his part without reviewing his performance reports as an ALO. There is no contradicting document in the chronology of events that would lead him to believe that the recommendations from the AIB were not closed in the Oct 97 FEB. Yet, decisions regarding his Air Force career continue to be based on the initial report, not the final action that superseded the original report (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 an error or injustice. We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force office of primary responsibility (OPR) and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. While we note that the two Flight Evaluation Boards (FEBs) did not find the applicant at fault for the Class A Mishap and recommended he retain his aviation status, the results of the FEBs did not in themselves establish a requirement for the AFRC/CC to rehire the applicant. It is well within the discretion of the AFRC/CC to determine who flies within his organization, and whether the applicant agrees with the AFRC/CC’s decision or not, there is no evidence of an error in policy or procedure in the AFRC/CC’s execution of his authority concerning his decision not to hire the applicant. Similarly, the receipt of a draft Promotion Recommendation Form (PRF) annotated with a Definitely Promote “DP” prior to the final assignment of promotion recommendations is not a guarantee that a “DP” will be awarded for the selection board. The applicant has submitted no evidence, other than his own suspicion, that his senior rater acted in an arbitrary or capricious manner in assigning him a Promote “P.” Based on the presumption of regularity in the conduct of governmental affairs, we must assume the applicant’s senior rater’s decision was properly executed and in compliance with the directive under which it was affected. Finally, while the Board understands the applicant’s desire to have earlier reports addressing the Class A Mishap amended based upon the results of the subsequent FEBs, amending official reports is not appropriate. Each of these review activities was conducted for a different purpose and under a different authority and their final reports are stand- alone documents. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the 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 DETERMINES 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-2012-02042 in Executive Session on 10 Oct 12, under the provisions of AFI 36-2603: Panel Chair Member Member? The following documentary evidence pertaining to AFBCMR Docket Number BC-2012-02042 was considered: Exhibit A. DD Form 149, dated 20 Mar 12, w/atch. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFRC/JA, dated 12 Jul 12. Exhibit D. Letter, SAF/MRBR, dated 3 Aug 12. Exhibit E. Letter, Applicant, 30 Aug 12, w/atchs. Panel Chair