RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-03970 COUNSEL: HEARING DESIRED: NO APPLICANT REQUESTS THAT: His Letter of Reprimand (LOR) be removed from his records. APPLICANT CONTENDS THAT: An Inspector General (IG) Report of Investigation (ROI) substantiated allegations against him. On 13 January 2014, he received a LOR from the Air Force Vice Commander (AF/CV). In a letter to the AF/CV dated 3 February 2014, he disputed the allegations. He submitted a request for disclosure of the IG ROI on 5 June, 15 July, 14 August, 15 August and 23 September 2014 in order to provide a substantive response to the allegations. He was denied disclosure of the IG ROI. As such, he was denied due process and deprived of the right to review the allegations against him. He was relegated to only submitting jurisdictional arguments in his defense. In August 2014, the Air Force Judge Advocate General (JAG) issued a legal opinion concerning the AF/CV’s jurisdiction over a Title 32 State Active Duty (SAD) general officer. AF/JAA declined to release any disclosure of the IG ROI and stated the AF/CV’s decision to issue a LOR is final and no factual submission would be considered. In support of his request, the applicant provides a memorandum dated 1 October 2014, copies of a LOR dated 13 January 2014, rebuttals to the LOR dated 3 February, 15 July and 15 August 2014, memorandum to AF/JAA dated 5 June 2014, Memorandum for Record (MFR) dated 16 August 2014, e-mail communique, Secretary of the Air Force (SECAF) and Air Force Chief of Staff (CSAF) letter dated 20 November 2012 and other various documents associated with his request. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant is a major general (0-8) in the Air National Guard (ANG) assigned to the Inactive Status List Reserve Section (ISLRS). According to the SAF/IG ROI dated May 2013, an investigation was conducted in response to complaints filed against the applicant and two other senior officers. The ROI substantiated the following allegations against the applicant: Allegation 10: The applicant from January 2010 to February 2012 was derelict in the performance of his duties as the Commander, Michigan ANG (MIANG) by failing to appropriately address issues impacting good order and discipline of the Wing, in violation of Section 32.1092 of the Michigan Code of Military Justice, violating or failing to obey lawful order, rule or regulation and dereliction in performance of duties. He failed to take any meaningful action to investigate multiple allegations of recruiter misconduct or to ensure the safety of MIANG personnel. Correspondingly, he failed in his duty to follow-up on underlying causes in Equal Employment Opportunity (EEO) complaints. He had duties impacting the IG complaints resolution process as detailed in AFI 90-301, Inspector General Complaints Resolution, one of which is not to investigate complaints of reprisal. His direct involvement in a reprisal complaint was in violation of his duty. Furthermore, his actions throughout the period directly fostered a culture wherein complaint information was purposefully mishandled with the intent to negotiate with subjects and complainants to “make complaints go away” which undermined the good order and discipline of the unit, circumvented legitimate Air Force processes and undermined confidence in leadership. Allegation 11: The applicant from May 2009 through January 2010 committed waste, as defined in AFI 90-301 by using Air Force funds for special training days not necessary to meet mission requirements. The applicant was placed on special training orders for 220 workdays without a valid requirement for the purpose of qualifying for active duty retirement benefits. Lacking a sufficient requirement, placing the applicant on extended orders was a needless and extravagant expenditure of Air Force resources. On 13 January 2014, the AF/CV issued the applicant a LOR. The LOR is for the substantiated allegations in the SAF/IG ROI. The SECAF and CSAF letter, Expectations of Conduct, dated 20 November 2012, addressed to all Air Force general officers and civilian senior executives states the Chief of the NGB asked the SECAF to delegate to the VCSAF the authority to discipline ANG senior officers with substantiated adverse findings. The letter states, “Expect to see the VCSAF involved in the disposition of those cases from now on.” AF/JAG’s legal opinion dated 5 August 2014, Authority to Impose Administrative Action Against State Adjutants General and Other ANG Officers, concluded, pursuant to the authority delegated by the SECAF, it is permissible for the AF/CV to impose administrative disciplinary actions against an ANG general officer, if a federal nexus exists between the officer’s ANGUS membership and a violation of law or federal military standards. SAF/GC and NGB/JA reviewed and concurred with this opinion. According to the legal opinion, when an ANG member is in Title 32 status, the duty is a mixture of federal and State service; training and other regulatory standards are set by SECAF and funding is provided by the federal government. The ANG member in Title 32 status reports to the governor, but may also perform specified federal missions. DOD directives and Air Force instructions recognize the statutory authority of the SECAF to regulate ANG activities in general, to inspect ANG units and personnel, and to investigate allegations of misconduct by ANG personnel. Therefore, service in the ANG is subject to the general regulatory and investigative authority of the SECAF and SAF/IG. Regardless of an officer’s duty status at the time of any violation of federal law or federal military regulation, all officers of the ANG, with rare exception, are federally recognized in some grade. Accordingly, membership in the ANGUS as a Reserve of the Air Force officer is maintained at all times, even if an ANG officer is not serving in a Title 10 or 32 duty status. The SECAF and SAF/IG’s authority to investigate allegations and take action on substantiated allegations of misconduct by ANG officers also stems from a combination of statutory and regulatory sources of authority. Pursuant to 10 U.S.C. §§ 8013(b) and 8013(g)(3), SECAF is “responsible for, and has the necessary authority necessary to conduct all affairs of the Department of the Air Force” and may “prescribe regulations” necessary to carry out that responsibility. That broad authority necessarily includes the power to prescribe regulations governing IG investigations of allegations of misconduct and when appropriate, take action on substantiated allegations of misconduct. The Army, likewise, utilizes this statutory authority to give the Secretary of the Army, and in turn Vice Chief of Staff of the Army, the authority to take administrative actions against Army National Guard officers for substantiated misconduct. AIR FORCE EVALUATION: AF/JAA recommends denial. The applicant appears to be under the mistaken belief that he is entitled to a copy of the entire ROI and all exhibits attached to the ROI. The vast majority of the report did not pertain to the applicant and he is not entitled to that information. At all times and in connection with all proceedings affecting the applicant, he has been provided with all relevant information pertaining to his misconduct. The applicant, along with two other senior officers, was the subject of an investigation conducted by SAF/IGS. The investigation included 11 specific allegations; however, only two pertained to the applicant. Both allegations were substantiated and referred to the AF/CV for appropriate command action. After reviewing the ROI, the AF/CV issued the applicant a LOR. The applicant was provided with an “official use only” copy of all relevant portions of the ROI to enable him to respond to the LOR. Because the majority of the ROI did not pertain to the applicant and was not relevant to his pending command action, he did not receive a copy of those portions of the ROI. On 3 February 2014, the applicant submitted a response to the LOR challenging the authority of the AF/CV to take administrative action against an ANG officer serving under Title 32. The AF/CV requested AF/JAA provide a written legal opinion addressing the issue raised by the applicant. AF/JAA provided a legal opinion dated 5 August 2014, stating the AF/CV, exercising the SECAF’s command authority (which had been formally delegated to him), through the AF/CC, had lawful authority to take adverse action against an officer serving in a Title 32 status for IG substantiated misconduct. SAF/GC, DOD/GC and NGB/JA concurred with the 5 August 2014 AF/JAA published opinion. The applicant did not provide an additional response to the LOR and did not provide any evidence supporting his contentions that the substantiated allegations were incorrect. On 5 August 2014, after considering the applicant’s response, the AF/CV determined the LOR remained appropriate and finalized the LOR. In the fall of 2014, the applicant applied for retirement. Based on the two substantiated allegations set forth in the ROI, the Director of the ANG initiated a formal Officer Grade Determination (OGD) to determine the highest grade the applicant served satisfactorily as required by 10 U.S.C. § 1370 for the purpose of establishing his retired grade. NGB GOMO requested AF/JAA provide all relevant portions of the ROI as part of the OGD package. Once again, the applicant was provided with an “official use only” copy of all relevant portions of the ROI with all relevant exhibits to enable him to respond to the OGD package. A complete copy of the AF/JAA evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In a letter dated 17 August 2015, the applicant, thru counsel, disagrees that the AF/CV and AF/CC maintained authority to take adverse action against an officer in a Title 32 status for IG substantiated misconduct. He also disagrees that he is not entitled to the additional information in the ROI and maintains that he was denied relevant discovery for purposes of responding to the LOR. The Rule of Law has several identifiers relevant to this present matter: (1) The State is bound by law and does not act arbitrarily; (2) The law can be readily determined and is stable; (3) Individuals have meaningful access to an effective and impartial legal system; and (4) Individuals rely on the existence of institutions and the content of law. In order to maintain a clear nexus between misconduct and federal military standards, any administrative action taken must clearly state that, regardless of the duty status of the officer at the time of the misconduct, the nature of the offense leads to question the qualifications of that officer as a member of the ANGUS and as a Reserve of the Air Force. However, the AF/CV’s LOR to the applicant contains no such determination or any comparable conclusion or representation. The very basis of the AF/JAA opinion is that the AF/CV’s “long arm jurisdiction” extends only to the extent that AF/CV questions the applicant’s qualifications. However, the AF/CV fails to establish this threshold based on his failure to question the qualifications for membership in the ANG. The LOR should be rescinded on these grounds alone. AF/JAA cites no relevant authority to reach its determination that the AF/CV may take administrative adverse action against a Title 32 or state status general officer. The affairs of the Department of the Air Force are separate and distinct from the affairs of the State of Michigan. It is this critical distinction that AF/JAA misses in its entirety. Air Force Doctrine Document 1 defines Administrative Control (ADCON) as the direction or exercise of authority over subordinate or other organizations. It expressly provides that ADCON, which includes discipline, is left to State authority. Accordingly, National Guard commanders and supervisors have the inherent authority to issue administrative admonitions and reprimands for ANG personnel in a Title 32 or SAD status. However, AF/JAA treats AF/CV as a commander with delegated federal authority from the SECAF over a State status or a Title 32 ANG general officer. The fact that SAF/IGS has authority to investigate alleged misconduct by the Adjutant General (TAG) does not automatically mean that the active duty officer has authority to take disciplinary action against a TAG for substantiated misconduct disclosed during the course of that investigation. Pursuant to Article 2 of the UCMJ, federal authority to exercise discipline over National Guard personnel attaches only when they are in a federal status. Per 10 U.S.C. § 802, all incidents of substantiated misconduct against ANG personnel acting other than in a federal (Title 10) status are referred back to State National Guard authorities for appropriate corrective action by their respective commanders or supervisors. TAGs by virtue of their position are rarely in a Title 10 status and thus generally fall under the disciplinary authority of the State, rather than federal authorities. Note that the lack of federal authority to take disciplinary action has no impact on the authority of the Air Force to investigate allegations of TAG misconduct. AF/JAA’s legal opinion ignores the U.S. Supreme Court’s holding in Parker v Levy, 417 U.S. 733,94S.Ct2547 (1974). The U.S. Supreme Court affirmatively defines administrative disciplinary action as within the UCMJ. Surprisingly, AF/JAA recognizes SECAF’s lack of jurisdiction as to Title 32 and SAD officers not being subject to the UCMJ but ignores the fact that administrative discipline is a command function. AF/JAA’s opinion would allow AF/CV to extend disciplinary action well beyond a general officer to include airmen with federal recognition and who hold membership in the ANG. However, Air Force policy and federal law prohibit such a radical extension. The AF/JAA opinion reaches absurdity by eliminating the State command structure. The opinion serves nothing more than to bootstrap a policy that lacked legal authority prior to its implementation. The AF/CV relies on a 20 November 2012 memorandum to all Air Force general officers and civilian senior executives, titled Expectation of Conduct. This memorandum states in relevant part “Because we are a Total Force, we need to make sure standards are uniformly enforced and disciplinary actions are consistent with Air Force values. Therefore, instead of conducting disciplinary action at the State level, the Chief of the NGB asked the SECAF to delegate to the AF/CV the authority to discipline ANG senior officers with substantiated findings.” However, 10 U.S.C. § 314(a) provides, there shall be a TAG in each state. He shall perform the duties prescribed by the laws of that jurisdiction. The applicant is a State actor and an instrument of the TAG and the Governor. As such, he exercises State authority over federal matters. Therefore, the standard in the SECAF memorandum does not apply to general officers who are in a Title 32 status. The policy memorandum would, however, apply to a general officer who is in a Title 10 status. The only way the Chief, NGB could request authority from the SECAF to allow the AF/CV to discipline Title 32 ANG officers is to request a delegation of authority from the States’ governors and not unilaterally assume he maintained such authority. The absence of the State Governor’s delegated authority creates a fatal flaw in the AF/CV’s authority and jurisdiction over a Title 32 general officer. The ANG is in the service of the United States only when it is in a Title 10 status. It is only then that an ANG officer is within the potential jurisdiction of the AF/CV. The ANG is not in the service of the United States when it is in a Title 32 or SAD status and therefore remains under the exclusive jurisdiction of the governor. AFI 90-301 defines the scope and application of the IG Complaints Resolution process: “ANG personnel not in federal status are subject to their respective State military code or applicable administrative actions as appropriate.” Hence, the governor is the commander who may appropriately determine administrative action of an alleged substantiated IG complaint for a Title 32 officer. In this case, AF/CV and AF/JAA characterize their action as administrative discipline against the applicant. This runs afoul of 10 U.S.C. § 10113 and 32 U.S.C. § 314(a); these federal laws address status, not membership in the ANG. DODD 5105.83, National Guard Joint Force Headquarters – State (NG JFJQs-State), fully embraces a governor’s command and control authority over their National Guard. Enclosure 3 provides: Each NG JFHQ-State is organized to conduct operations in SAD, Title 32 or 10 status. When in Title 10 status, the NG JFHQs-State shall be under federal command and control. Enclosure 5, paragraph 2 states each NG JFJQ-State shall report to the governor through the state TAG. DODD 5105.83 also defines Title 32 as the status of members performing training or other duty pursuant to authorities in Title 32. The performance of such duty is paid for with federal funds but the members of the ANG remain under the command and control of state authorities. For this reason it should be referred to as a federally funded state status. Should the AF/CV elect to usurp a governor’s command authority by administering adverse action, he treads on ground which is in direct contradiction to the U.S. Constitution, U.S.C., Congressional intent, DOD directives, Air Force instructions and well established legal precedence and usurps the authority of the governor. 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 error or injustice. After carefully reviewing the evidence of record and the applicant’s complete submission, we are not persuaded that corrective action is warranted. The applicant argues that he was denied due process because he did not receive the entire ROI with exhibits; however, he has not provided substantial evidence which, in our opinion, successfully refutes the assessment of the case by the Air Force Office of Primary Responsibility (OPR). The applicant was provided with the portions of the ROI pertaining to his own misconduct and we find no proper reason he should be entitled to information in the ROI pertaining to the alleged misconduct of other senior officers. Therefore, we find no evidence he was deprived of his rights to review the evidence against him. Although the applicant challenges the AF/CV’s authority to take adverse actions against a Title 32 general officer and cites several statutes, guidance and case law he believes supports his request, we are not persuaded by the evidence before us that the AF/CV abused his delegated authority or that the applicant’s rights were violated during the processing of the LOR and find no basis to disturb the existing record. As stated, in the AF/JAG opinion dated 5 August 2014, the SECAF’s authority, based in statute, to regulate ANG activities is documented in DOD directives and Air Force instructions and it is our opinion that it was permissible based on the delegated authority of the SECAF for the AF/CV to issue the applicant an LOR for the substantiated allegations of misconduct contained in the ROI. Moreover, the applicant has not provided any evidence that any of the allegations noted in the LOR make him the victim of an error or injustice. As such, we agree with the opinion and recommendation of the Air Force OPR and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden of proof of either an error or an injustice. In view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 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-2014-03970 in Executive Session on 1 October 2015 under the provisions of AFI 36-2603: , Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 25 September 2014, w/atchs. Exhibit B. Report of Investigation, SAF/IG (withdrawn). Exhibit C. Legal Opinion, AF/JAG, dated 5 August 2014. Exhibit D. Memorandum, AF/JAA, dated 14 July 2015. Exhibit E. Letter, SAF/MRBR, dated 10 August 2015. Exhibit F. Letter, Counsel, dated 17 August 2015.