RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-04446 COUNSEL: HEARING DESIRED: NO APPLICANT REQUESTS THAT: 1.  His Distinguished Service Medal (DSM), awarded on 31 Jul 13, be added to his DD Form 214, Certificate of Release or Discharge from Active Duty, and any biography or record of service maintained by the Air Force. (Administratively corrected) 2. His Letter of Counseling (LOC) from the Commander, US Central Command (USCENTCOM/CC), dated 28 Mar 11, be declared void and removed from his record, to include those records maintained by the General Officer Groups at AF/DPG and AF/REG. 3.  His Letter of Reprimand (LOR) from the Commander, Air Force Reserve Command (AFRC/CC), be declared void and removed from his record, to include those records maintained by the General Officer Groups at AF/DPG and AF/REG. 4.  The results of any command action, previously reported by AF/RE and/or SAF/IG to the Department of Defense Inspector General (DOD/IG), be corrected to show no command action was taken as the result of any investigation conducted in regard to events that arose while the applicant was serving as the Chief, United States Military Training Mission (USMTM) to the Kingdom of Saudi Arabia (KSA). 5.  His dates of service in his official military record be corrected to reflect he served on active duty through 30 Jun 12, and retired effective 1 Jul 12. APPLICANT CONTENDS THAT: In a 32-page brief of counsel the applicant asserts he was unjustly treated based upon both legal error and manifest injustice and makes the following contentions: 1.  The CENTCOM Investigating Officer (IO) who completed the commander directed investigation (CDI) met with the Ambassador of KSA prior to starting the investigation. Prior to conducting the investigation, the IO met with the Ambassador to the KSA, who disclosed an ongoing dispute between the applicant and the Ambassador, and made it clear he wanted the applicant reassigned. Because this information was unrelated to the allegations, the Ambassador’s desires should have been communicated directly to CENTCOM for treatment for what they were—a political request for reassignment. The IO accepted the Ambassador’s input, and improperly factored the Ambassador’s desire into this report. He started his investigation with a specific objective—the applicant needed to be reassigned. The IO never told the applicant about his meeting with the Ambassador, denying the applicant the basic due process of notice and the opportunity to respond. The IO did not record or summarize this meeting in his report. Further, the IO referred to a “widening gulf” between the applicant and his staff under the heading “Other Issues” in his report. The applicant was never notified this issue was under investigation and given to opportunity to respond. Here, the IO used the Ambassador’s ex parte input to justify his recommendations. 2.  The CENTCOM CDI by the assigned IO misrepresented or failed to discover a majority of the relevant facts; critical available witnesses were not interviewed; rumors and conjecture were taken as fact; and, the IO failed to ask the basic “who, what, where, why, and when” questions that would have established an accurate record. The IO was detailed to investigate six allegations. The CDI failed to substantiate any of them. In addition to starting out by considering information not within the scope of his investigation, the IO attempted to justify his one adverse finding based upon incomplete, unverified, and wholly inaccurate evidence. Instead he found a violation of the most general provisions of the Joint Ethics Regulation (JER). Concerns with the CDI include: a.  Utilizing the CDI rather than the IG. The IO was not a trained investigator. He violated virtually every cardinal rule for conducting a fair, impartial and complete investigation. He failed to interview critical, available witnesses; lectured and lead witnesses; reached conclusions prior to completing his investigation; and, accepted rumor and hearsay as fact. Air Force policy requires SAF/IGS to investigate allegations against general officers. Although combatant commands, like CENTCOM, are not bound by Service policy, this case vividly illustrates the wisdom of using trained Service resources to conduct senior personnel investigations. b.  Problems with the CDI: The IO did not find sufficient facts to substantiate any of the six allegations as made. Concerning Allegation 2 (Improper Contracting), in which the applicant was accused of improperly influencing contacting procedures to ensure a personal friend of his wife (“Mrs. C”) receive a contract to fill the position of Family Readiness Coordinator (FRC), the allegation was not substantiated. However, the IO still somehow found “special treatment” and the creation of an “appearance of a violation” of ethical standards. c.  Hiring the FRC. The circumstances surrounding the vacancy of the FRC position are relevant to the IO’s finding of favoritism. There is no evidence the applicant orchestrated the vacancy, the applicants, or the length of the vacancy in the FRC position to accommodate “Mrs. C.” The IO accepted as true the accounts of witnesses who had no direct involvement in the events he was investigating. His failure to gather and report all the available and relevant facts and testimony bearing on his “findings” is troubling. d.  Moving the FRC to the Special Staff. The IO reported that prior to Mrs. C’s arrival, the FRC fell under the USMTM/J1 and the applicant moved the FRC position to the Special Staff to have Mrs. C report directly to him, concluding that “this contributed greatly to the perception of favoritism.” However, the statement is absolutely untrue. The IO relied solely on the testimony of an individual who apparently never understood for whom the FRC worked. Before the arrival of Mrs. C, the former FRC was a member of the Special Staff, and the applicant made no changes in that regard. Specious facts cannot support a finding of favoritism. e.  Use of a Government Owned Vehicle (GOV). The IO found that “despite being advised that Ms. C, as a contractor, could not be provided with a government car for her use as FRC, the applicant directed it nonetheless.” This is again, absolutely untrue. None of the witnesses testified that they personally told the applicant of this situation. In direct contradiction to the finding, the Deputy J4 stated the former Chief of Staff directed Ms. C be issued a GOV. The applicant denied knowing Ms. C had been issued a vehicle, and testified that if anyone had told him it was not authorized, he would have put an end to it. To find favoritism, there must be a knowing and conscious act. f.  FRC access to the applicant. The IO asserts Mrs. C had a degree of access to the applicant “out of proportion to what her relative role should have been in the organization.” There is no evidence she had any greater access to the applicant than did the previous FRC. Furthermore, Mrs. C stated she intentionally limited her contact with the applicant because she had been informed her contact was creating a perception of favoritism. The IO also indicates Ms. C used her access to avoid the normal staffing process. There are only two examples presented to illustrate her “favored” role. In one instance, she had no control over an unanticipated (and inappropriate) gift for the FRC, and in the other she inappropriately attempted to use a government printer to reproduce a cookbook for fund raising which had been used for that same purpose the year before, apparently falling into the trap of “doing it like it’s always been done.” Further, the IO asserted Mrs. C “wore the general’s rank,” and that none of her shortcomings led to any kind of discipline. Whether she wore the general’s rank is largely a matter of perception and it is clear that certain members of staff did not like her aggressive approach. In fact, she was simply a go-getter and someone who pressed issues and did not readily accept “no” for an answer. g.  Staff Reaction to Mrs. C. The IO reported “because of Mrs. C’s access and influence with (the applicant), members of the staff were afraid to criticize the FRC lest they become targets for (the applicant).” Throughout this period, the applicant’s own perception was the staff was not supporting the “Return of Dependents” initiative and, consequently, supporting Mr. C’s effort. It is probable the applicant’s support for the FRC, which he viewed as a priority, was mistaken for support for Mr. C personally. h.  The FRC going away plaque. The IO asserted the plaque given to Mrs. C at the end of her contract during the “all hands” meeting in Feb 11 was an act of overt favoritism by the applicant. However, the applicant had directed his Executive Officer to “draft something” appropriate to recognize Mr. C’s work. He did not have any idea a plaque had been purchased to present to her until it was handed to him during the “all hands.” When the applicant found out his Command Master Chief (CMC) paid for the plaque out of his own pocket and had not been reimbursed, the applicant promptly reimbursed the Chief. This was most certainly not an act of favoritism. It is done routinely in all organizations, and the plaque came as a complete surprise to the applicant. i.  The Importance of the FRC. The IO found “However well intended” the applicant’s emphasis on the “Return of Dependents” initiative, it “was misplaced and clearly had a negative impact on the applicant’s effectiveness as Chief as well as a negative impact on his senior staff.” This statement expresses recognition of the reluctance of the USMTM staff to support his command program. It is also an assumption of the role of the Chief, USMTM, by the IO, who is substituting his judgment for that of the lawfully appointed Chief. Further, it flies in the face of the direction of the CENTCOM Commander. The IO’s assertion that this was somehow detrimental to the effectiveness of the USMTM is completely unsupported. The USMTM had just undergone an IG Inspection in Feb 11 immediately prior to the CDI and the IG found “the staff has superbly executed its training and advising mission to the Saudi Ministry of Defense Forces.” Based upon the above, the IO recommended the applicant receive an LOC in regard to Allegation #2, and he be reassigned from this position as Chief, USMTM. 3.  There was insufficient evidence for the punishment. a.  The Letter of Counseling: The CENTCOM IO attempted to justify his one adverse finding based upon incomplete, unverified, and wholly inaccurate evidence, which was inadequate to support the stated reasons for the LOC. The IO tortured the evidence to attempt to find some wrongdoing. He repeatedly summarized the evidence unfairly, ignored contradictory and favorable evidence and when all else failed, substituted his judgment for the applicants. The woeful ROI was the sole basis of the LOC. It is axiomatic that actual favoritism requires some element of knowledge or intent on the part of the actor. If the actor does not know of the act or does not intend an act to occur, the actor lacks the intent necessary to find favoritism. There is simply no evidence the applicant knew of the issuance of the GOV. The first time he became aware of the existence of a plaque was at an “all hands” meeting at which the plague was thrust upon him to present. There is no JER prohibition on giving items of small intrinsic value to contractors, so long as appropriated funds are not used. There is no evidence Mrs. C was given any greater access to the applicant than any other special staff member or her predecessor. The assertion the applicant was unwilling to consider any criticism of Mrs. C for her performance and that that created an oppressive atmosphere is devoid of any factual predicate. The applicant’s disappointment and reaction to what he perceived to be staff resistance may well have been translated and misperceived as support for Mrs. C personally. Lacking knowledge that a GOV had been issued to Mrs. C and lacking knowledge that a plaque had been procured for her, until it was thrust upon him at an all-hands meeting, the allegation the applicant showed actual favoritism cannot be sustained. Similarly, a reasonable person, with knowledge of all the relevant facts rather than the rumors and myths surrounding Mrs. C, could not conclude the applicant created the appearance of favoritism. The incidents cited to support the creation of an appearance of favoritism crumble under examination. The facts, devoid of rumor, innuendo, and speculation, do not reasonably support the assertion that the applicant committed acts constituted as a violation of the JER. The proper remedy is to delete all references to the LOC from all Air Force records. b.  The Letter of Reprimand: The SAF/IG relied almost exclusively on the IO’s flawed CDI in substantiating the complaints of reprisal against the applicant. Unfortunately, in applying the “Acid Test” for determining reprisal, the SAF/IG never examined the quality of accuracy of the CDI, nor appreciated or acknowledged the role “politics” played in the IO’s comments and recommendations, causing the SAF/IGS to unwittingly reach its own erroneous conclusions. Concerning the Acid Test, the Deputy Chief did testify during the CDI and it was conceded his reassignment was an unfavorable personnel action. However, all four parts of the Acid Test must be met to substantiate reprisal. In applying the Acid Test, the IO concluded that a preponderance of the evidence showed “(the applicant) knew that the Deputy Chief testified…and guessed that the testimony was not in (the applicant’s) favor…” These findings, particularly the IO’s curious, ephemeral word “guessed’ raise four questions: 1.  What did the applicant know? Fortunately for the applicant, the IO never disclosed any testimony directly attributed to the Deputy Chief, only “the staff,’ “some elements of the staff,” etc. Beyond knowing he had been interviewed, the applicant knew nothing of the substance of the Deputy Chief’s testimony. 2.  Why would he “guess” the Deputy Chief’s testimony was unfavorable? At worst, the applicant might have concluded the Deputy Chief was a part of the staff that held one or more of the perceptions to which the IO alluded. The IO gave the applicant no indication that any of these “perceptions” he had uncovered during his investigation were about violations of the law, regulations, or policy. Rather, the IO treated them as if they were misperceptions that were unfortunate consequences of the applicant not taking the time to educate his staff. There is no reason the applicant would have “guessed” the Deputy Chief’s testimony was adverse in nature. 3.  Why would the applicant care, at all, about the Deputy Chief’s testimony? Every signal the IO sent to the applicant was that there was no real problems; only perceptions, which were largely unavoidable in small organizations. There was no reason for him to be concerned about the results of the investigation and certainly nothing so serious as to warrant reassigning the Deputy Chief. 4.  Why was the Deputy Chief reassigned? Clearly, the Deputy Chief sided with the Ambassador on the issue of intelligence collection; believed the applicant unduly restrained the Division Chiefs; and, believed the applicant was not supporting the Ambassador. The Deputy Chief’s testimony validated the applicant’s belief the Deputy Chief did not agree with the applicant’s position and worked behind the applicant’s back to support the Embassy. That was the applicant’s motivation for reassigning the Deputy Chief. Further, the SAF/IG IO’s analysis of some of the characteristics listed in part 4 of the Acid Test are troubling: 1.  Reasons. There is no analysis in this subpart. The IO simple set out the CDI IO’s reasons for the Deputy Chief’s reassignment. 2.  Reasonableness. This subpart begins with comments the applicant made during his interview which generally praise the Deputy Chief, before he came to realize the extent of the Deputy Chief’s disloyalty. The IO followed with a quote from the Deputy Chief indicating he never received any “negative feedback.” This testimony directly contradicts testimony given the IO by a Lieutenant Commander (LCDR). The IO ignored the LCDR’s testimony even though it corroborates the applicant’s accounts of his problems with the Deputy Chief. The fact the SAF/IG IO attempted to use these comments to find the applicant acted unreasonably is graphic evidence of the extent to which the CDI IO report confused the issues and the SAF/IG IO’s reasoning. In addition, the SAF/IG IO’s analysis concluded by indicating it was not reasonable to replace an experienced O-6 with a newly arrived GS-13. No mention was made that the applicant was going to take on many of these responsibilities himself. 3.  Consistency. The IO found that placing a GS-13 was not consistent with the past practices of USMTM of having a GS-15 or O-6 as Chief of Staff. However, the reorganization was consistent with the summer of 2010 reorganization, and again, the fact that the applicant was going to take on additional responsibilities was not mentioned. 4.  Motive. The applicant know nothing of the CDI comments at the time he reassigned the Deputy Chief, and those comments could not have influenced or motivated his action. What motivated the applicant is what he did know—he had a Deputy who he no longer trusted. Knowledge of The Deputy Chief’s disloyalty came from observations unrelated to and independent of the CDI. The IO found the applicant was motivated to reprise against the Deputy Chief because the Deputy Chief said so. That is not analysis. 5.  Procedural Correctness. The SAF/IG IO’s confusion and lack of understanding of the “Acid Test” is further illustrated in his closing comments: “The applicant’s true motive was reprisal against (the Deputy Chief) for testifying in a CENTCOM CDI that resulted in the (the applicant) receiving a letter of counseling and being reassigned earlier than scheduled from the USMTM Chief job.” That the CDI resulted in an LOC is not relevant to the applicant’s motive for reassigning the Deputy Chief. The reassignment action preceded the LOC and the applicant’s reassignment by over a week. The receipt of the LOC and reassignment were not known to the applicant and could not have influenced his motive. Consistent with the CDI IO’s advice to the applicant, the applicant reassigned his Deputy Chief/Chief of Staff back to the position he had originally been assigned within USMTM, prior to being advised of the results of the CDI and at a time when he had no knowledge of the Deputy Chief’s testimony in the investigation. When the Deputy Chief claimed his reassignment was reprisal for his testimony during the CDI, the IG relied upon the flawed CDI to substantiate reprisal. However, the only three witnesses interviewed during the CDI had filed complaints against the applicant and had personal motives to shade their testimony. No effort was made to independently establish the validity of their characterization of events. The CENTOM CDI OI did the Ambassador’s bidding and crafted his ROI to provide the Ambassador top cover. The SAF/IGS completely overlooked the inappropriateness of the Ambassador’s ex-parte communication. The facts do not rationally support the findings in the LOR. The LOC and LOR are an affront to the honor and reputation of an officer who honestly and faithfully served his country for over 33 years. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant was an AF Reserve General Officer serving on Title 10 active duty orders during the matter under review. On 1 Mar 09, the applicant was initially assigned as the Chief, USMTM, KSA. According to the documentation submitted by the applicant, USMTM operates under the direction of the Ambassador to the KSA. On 28 Feb 11, the Commander, United States Central Command (USCENTOM/CC) appointed an Army Maj Gen to serve as the IO on a CDI to investigate numerous anonymous complaints made against the applicant. The IO summarized the complaints as follows: a.  Allegation 1 (Support Functions): USMTM maintains insufficient personnel support functions, resulting in the delay or denial of key personnel services. b.  Allegation 2 (Improper Contracting): The applicant improperly influenced contacting procedures to ensure a personal friend of his wife received a contract to fill the position of Family Readiness Coordinator (FRC). c.  Allegation 3 (Hostile Work Environment): The applicant created a hostile work environment such that numerous civilian employees were either removed from their positions or felt forced to resign. d.  Allegation 4 (Qualify of Life): The applicant ignores quality of life complaints, specifically, complaints relating to alleged harassment by Security Forces personnel of Eskan Village residents as they pass through the gate. e.  Allegation 5 (Spurious TDY): The applicant engages in excessive and spurious TDY travel. f.  Allegation 6 (Cohen Group Meeting): The applicant improperly met with, and provided information to, the Cohen group: a defense contractor. On 21 Mar 11, the CDI IO completed his report of investigation (ROI) and submitted the ROI to the USCENTOM/CC. The IO determined the preponderance of the evidence substantiated Allegation 2 (Improper Contracting), but did not substantiate the five remaining allegations. The JER requires that employees “act impartially and not give preferential treatment to any private organization or individuals.” In reference to the substantiated allegation (#2), the ROI states: “The preponderance of the evidence indicates (the applicant) provided special treatment and favoritism to Mrs. C, a contractor and family friend, to such an extent that it amounted to a violation of the Joint Ethics Regulation (JER).” Moreover, the evidence also supports the finding that the applicant’s actions created the appearance of violating ethical standards. The investigation included the following concerning the one substantiated allegation: 1.  When USMTM advertised for the job of Family Readiness Coordinator (FRC) in Oct 09, they received a list of several qualified applicants. Mrs. C did not make the list as she did not meet the educational or experience qualifications. The applicant did not find any of the applicants acceptable. 2.  In Jan 10, the applicant directed a short-term contract to fill the FRC until the position could be permanently filled. The applicant noted “we have a qualified wife of a Vinell Arabia (a contractor) person who wants (and applied for) the FRC job.” This was apparently a reference to Mrs. C., who has been described by all witnesses as a close personal friend to the applicant’s wife, as well as the applicant. In fact, Ms. C was at the time traveling with the applicant’s wife as a vacation companion. 3.  The contract was only advertised locally, and Mrs. C was the only bidder. While the contract was technically correct, it is clear those involved felt this was, essentially, a sham to get Mrs. C the position. The Staff Judge Advocate (SJA), Chief of Staff and Deputy Chief of Staff all advised strongly against the contract. 4.  In the Spring of 2010, the FRC position was re-advertised and again a list of qualified applicants was generated. It appears none of the qualified candidates were interested. At the direction of the applicant, Mrs. C’s contract was extended. Then, at the end of the extension contract, the applicant directed Mrs. C’s contract be extended yet again. However, the applicant acceded to his staff’s concern that continually extending her contract would create the appearance of an improper personal services contract. Her contract was allowed to lapse, and the position was advertised for a third time. 5.  When a qualified applicant was finally located and selected, that individual could not arrive until Apr 11. Therefore, a new contract for the FRC position was bid, Mrs. C was the only bidder, and she again was given the contract. When this contract neared its conclusion, the applicant again directed Ms. C be extended in the position. Again, based upon the advice of his staff, the applicant allowed the contract to expire, but “it was clear he did not wish to do so.” Since, then, the applicant has advocated in favor of hiring Mrs. C for a GS job in the front office. 6.  Upon the arrival of Mrs. C, the applicant moved her position from under the USMTM/J1 onto his Special Staff, reporting directly to him. 7.  Despite being advised Mrs. C, as a contractor, could not be provided with a GOV for her use as FRC, the applicant directed it nonetheless. This despite the fact that during this period there were not enough motor vehicles to meet the needs of the service members at Eskan Village. 8.  Mrs. C has a degree of access to, and tolerance by, the applicant which was out of all proportion to what her role was in the organization. It is clear she used this access to avoid the normal staff process and to bypass limits the legal office and other staff members might have placed on her conduct. For one example, she agreed to allow a private organization to donate a computer. In fact, there was the perception she had indirectly solicited the donation. Such a donation is improper. On another occasion, Mrs. C attempted to use government resources (printers, copiers, personnel, etc.) to print a cookbook to be sold for fundraising purposes. Moreover, it appears Mrs. C would use her favored status with the applicant to direct members of the staff to assist her with her tasks—in essence “wear the rank” of the General. 9.  Mr. C’s access and influence with the applicant created the impression she enjoyed a special status and members of the USMTM organization should defer to her in their own interests. There was fear of retaliation if Mrs. C was not supported. The applicant was described as becoming visibly angry at those who criticized her. 10.  The applicant sought to have her presented with an award to commemorate her service. The XO sought guidance for the appropriateness of such an award, and the SJA issued an opinion by 13 Feb 11 that contractors were only eligible for “honorary awards of little intrinsic value such as certificates.” The Command Master Chief recalls specifically telling the applicant “you cannot do that because she is a contractor.” Nonetheless, the applicant directed she be given some kind of an award. Then, the applicant presented a plaque to Ms. C at a USMTM-wide function (the same type typically given to departing military members). In summary, the IO determined the preponderance of the evidence supported the finding that the applicant’s conduct in regard to allegation 2 was improper. In addition, the IO stated in his report it was clear the applicant faced significant challenges in continuing as Chief, USMTM. He had alienated himself from his senior staff. His excessive focus on his “Return of Dependents” initiative and the Family Readiness Group betrayed a lack of appropriate emphasis on the USMTM mission. Other issues which warrant discussion arose during the investigation: The relationship between the applicant and the Ambassador and the Defense Attaché had become estranged and dysfunctional. The Ambassador in no way endorsed extending the applicant’s tenure as Chief, USMTM. The applicant’s relationship with his senior staff was estranged as well. The widening gulf between the applicant and his senior staff threatened to significantly reduce USMTM’s effectiveness. The applicant seemed almost willfully ignorant of the state of his staff in general and of issues related to Mrs. C in particular. Along with stating he did not know Mrs. C had been issued a GOV, he professed ignorance that enlisted staff members had been ordered to pick up his wife’s bags from the airport when she recently visited on a tourist visa. He stated he was unaware Mrs. C was not entitled to an award (despite the CSM’s recollection to the contrary) and he did not know the CSM had purchased the plaque given to her at the CSM’s own expense. He praised Mrs. C’s performance unreservedly and seemed completely unaware of the deep dissatisfaction and discord she provoked among his staff. The IO’s recommendation stated that while he did not believe the applicant’s conduct was sufficient to warrant non-judicial punishment, he did recommended the applicant receive an LOC addressing his conduct related to Allegation 2, and be reassigned at the earliest practical time (Exhibit C). On 28 Mar 11, the applicant received a LOC from the Commander, United States Central Command (USCENTOM/CC). The reason for taking this action was an investigation disclosed that between Feb 10 and Feb 11, the applicant inappropriately provided special treatment and favoritism to a family friend (Mr. C) who the applicant hired as a contractor, in violation of the JER. Specifically, the applicant provided her a GOV without authorization in her contract to do so, and awarded her a $75.00 farewell plaque at a public function, which his Command Sergeant Major paid for from his own pocket, despite the fact he know contractors were not authorized to receive such awards. Taken as a whole, the applicant’s conduct created an unacceptable appearance of favoritism towards Mrs. C. In addition, the applicant provided the contractor a degree of access to him out of proportion relative to her position in the organization, and pushed to extend her contract, even though his staff advised against it. His consistent unwillingness to consider any criticism of the contractor or her performance created an atmosphere so oppressive that members of his staff believed they would face both anger and retribution for voicing their opinions. On 27 May 11, the applicant requested approval from the Air Force Chief of Staff to retire from active duty in the grade of Maj Gen, effective 11 Jun 11 or the earliest possible date. On 15 Jul 11, the applicant was issued an Honorable discharge certificate, with a narrative reason for separation of “completion of required active service.” In Dec 11, the Inspector General of the Air Force (SAF/IG) completed their investigation into three separate allegations of reprisal filed against the applicant by members of his staff, and published their Report of Investigation (ROI) (Exhibit D). AFI 90-301, Inspector General Complaints Resolution, provides an “Acid Test” for IOs to utilize in analyzing whether or not reprisal has occurred. The questions/characteristics for the Acid Test are listed below, along with a brief summary of the SAF/IG IOs analysis of these questions with respect to the first of the three allegations, that of the USMTM Deputy Chief. Allegation #1: The applicant removed a subordinate Colonel from his position as the Deputy Chief, USMTM, Saudi Arabia, in reprisal for making a protected communications. Acid Test Q1.  Did the military member make or prepare a communication protected by statute, DoD Directive, or AFI 90-301? Yes. The Deputy Chief, USMTM, testified as a witness in the CENTCOM CDI looking into allegations of wrongdoing by the applicant. This was a protected communication. Acid Test Q2.  Was an unfavorable personnel action taken or threatened; or was a favorable action withheld or threatened to be withheld following the protected communication? Yes. The applicant removed the Deputy Chief from his position, returning him to the position of Division Chief, Marine Forces Division. Removing the Deputy Chief and reassigning him to be a subordinate division chief was an unfavorable personnel action. Acid Test Q3.  Did the official responsible for taking, withholding, or threatening the personnel action know about the protected communications? Yes. The applicant knew about the Deputy Chief’s protected communications. The applicant stated “I knew (the IO) talked to my Command Sergeant Major and I knew he talked to the (Deputy Chief)…” The applicant knew that at or close in time to the testimony, which took place on or about 10 Mar 11. The removal decision was made by the applicant on 26 Mar 11. Acid Test Q4.  Does the preponderance of the evidence establish that the personnel action would have been taken, withheld, or threatened if the protected communication had not been made? No. This question is analyzed in five sub-parts: a.  Reasons the responsible management official (RMO) took, withheld, or threatened action. The applicant explained the reassignment a “reorganization,” however, he also stated “it became clear the Deputy Chief has become a “de facto chief of mission, and I just couldn’t tolerate that.” In addition, the CENTOM CDI OI had told the applicant his “first-tier” staff had a perception issue with him (the applicant). b.  Reasonableness of the action taken, withheld, or threatened considering the complainant’s performance and conduct. The applicant made no comments about the Deputy Chief’s duty performance that could have been the least bit derogatory. In the interview with the IO the applicant commented that “things are moving along pretty smoothly, from my perception” since the Deputy Chief assumed his duties. The IO found the action by the applicant to remove the Colonel from the Deputy Chief job and replace him with a newly arrived GS-13 who was unfamiliar with the mission and staff to be unreasonable. c.  Consistency of the actions of the RMOs with past practice. When the applicant first took over as USMTM Chief, the Deputy Chief position was filled by a full Colonel, and the Chief of Staff position was filled by a GS-15. When the GS-15 left USMTM because of “friction between he and the applicant,” the Deputy Chief had to take on both duties. The applicant’s decision to have the new GS-13 act a both the O-6 Deputy Chief and GS-15 Chief of Staff was not consistent with past practices. d.  Motive of the RMO for deciding, taking or withholding the personnel action. After considering the various reasons the applicant gave for removing the Deputy Chief in light of the facts and circumstances surrounding the removal, the SAF/IG IO concluded the applicant’s true motive was reprisal against the Deputy Chief for his testimony in the CENTOM CDI. The applicant would not have taken the unfavorable personnel action had the Deputy Chief not made a protected communication. e.  Procedural correctness of the action. There was nothing procedurally incorrect about the removal of the Deputy Chief. The SAF/IG’s final conclusions concerning the three allegations of reprisal were: a.  Allegation #1: The applicant removed a subordinate Colonel from his position as the Deputy Chief, USMTM, Saudi Arabia, in reprisal for making a protected communication. The Colonel had testified as a witness in the CENTCOM CDI which looked into allegations of wrongdoing by the applicant. The SAF/IG IO concluded the applicant would not have taken the unfavorable personnel action against the Colonel had the Colonel not made the protected communication of testifying in the CENTCOM CDI, and the applicant’s true motive was reprisal. This allegation was substantiated. b.  Allegation #2. The applicant purposefully diminished the fitness report of a Lieutenant Commander in reprisal for making a protected communication. The Lieutenant Commander had testified as a witness in the CENTCOM CDI which looked into allegations of wrongdoing by the applicant. The applicant marked down the Lieutenant Commander in Military Bearing/Character and Average ratings on his FITREP. The applicant subsequently increased the ratings on the FITREP to higher scores, but the SAF/IG IO found the applicant had threatened an unfavorable personnel action when he signed the original FITREP, and found the applicant had purposely diminished the FITREP ratings as reprisal for making a protected communications. This allegation was substantiated. c.  Allegation #3. The applicant purposefully diminished the performance report of a Major in reprisal for making a protected communications. The Major had testified as a witness in the CENTCOM CDI which looked into allegations of wrongdoing by the applicant. The applicant allegedly weakened the verbiage from the draft of the Major’s officer performance report (OPR). The SAF/IG OI found no unfavorable personnel action had taken place because the Major’s OPR did not contain any comments that reflected poorly on the Major’s duty performance during the rating period. This allegation was not substantiated. (The Acid Test analysis presented above only applies to Allegation #1. Similar reviews can be found for Allegations #2 and #3, at Exhibit D, pages 15-24 and 24 to 27, respectively.) On 27 Apr 12, the applicant received an undated LOR from the AFRC/CC. The reason for this action was the investigation conducted in response to a complaint filed with the Department of Defense Inspector General (DoD/IG), and forwarded to the AF/IG for action revealed that he reprised against two of his subordinates after they made protected communications pursuant to 10 USC § 1034. On 11 Jan 13, the Secretary of the Air Force determined the applicant served satisfactorily in the grade of Maj Gen, and recommended he be retired in that grade. Under Special Order AA-0339, dated 12 Feb 13, the applicant was retired under Title 10 USC in the grade of Maj Gen, effective 1 Aug 11, and was credited with 23 years and 1 month of active service for retirement. On 23 Sep 15, AFPC/DPSIDR directed the applicant’s DD Form 214 be corrected to reflect award of the DSM. 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 E, F, and G. AIR FORCE EVALUATION: AFPC/DPSID does not make a recommendation. A review of the applicant’s official military personnel record indicates he was awarded the DSM, but it was not properly reflected on his DD Form 214. DPSID directed his DD Form 214 be updated to add the DSM. No further action is required by the AFBCMR. A complete copy of the AFPC/DPSID evaluation is at Exhibit E. ARPC/DPTT recommends denial of the applicant’s request to change his DD Form 214 to reflect he served through 30 Jun 12, with an effective retirement date of 1 Jul 12, indicating there is no evidence of an error or an injustice. The applicant requested and was approved for a retirement date of 1 Aug 11 in accordance with Title 10 USC § 8911. ARPC cannot comment on any alleged errors or injustice regarding the applicant legal status which might warrant a change of the applicant’s retirement date or additional active service. A complete copy of the ARPC/DPTT evaluation is at Exhibit F. SAF/MRBL recommends denial of the applicant’s request to remove the LOC and LOR and to remove all references to this investigation into his service in Saudi Arabia from his record, indicating there is no evidence of an error or an injustice. 1.  Whether utilizing a CENTCOM CDI rather than an IG investigation was in error or injustice. There is no error or injustice by utilizing a CDI rather than a service Inspector General (IG) office to gather relevant information to make an informed command decision. CDIs are usually less formal than other, formal service investigations and are often used for less serious or less technically complicated investigations. As the applicant's attorney points out in the application, the alleged offenses were relatively minor, and as such, a faster, more efficient, less disruptive CDI is a reasonable and appropriate command option. The applicant was not unjustly prejudiced by command's choice to use a CDI as the investigative vehicle. There are no procedural errors in the report that would warrant relief nor are there any errors that offend fundamental fairness such as to warrant relief. 2.  Whether the Investigating Officer (IO), by having a meeting with the Ambassador to the KSA prior to conducting the CDI, should have considered himself conflicted and removed himself from the investigation. There is no error or injustice by a CDI IO meeting with the country Ambassador before interviewing witnesses or otherwise proceeding with his investigation. Indeed, it is common that an IO would have an introductory visit with a subject's commander or other high ranking official whose operations or staff might be affected. In addition, IOs are not required to be devoid of knowledge of the situation or of individual preferences or beliefs regarding affected persons. The IO did not substantiate five of the six allegations suggesting he was not involved in a conspiracy or intentional, underhanded political effort to undermine the applicant as the applicant's attorney suggests. The applicant has provided insufficient evidence, beyond mere speculation, to find the IO was compromised by what could be characterized as a routine pre-investigation courtesy call. 3.  Sufficiency of evidence. The question presented is whether command's action was rationally based on the evidence or whether it was arbitrary or capricious or intentionally dishonest. For both the LOC and the LOR, the evidence rationally supports the command's position. The facts indicate the IO did indeed evaluate the case properly and even discussed the factors under question four of the acid test for reprisal. SAF/MRBL found nothing in the file to indicate the IO's findings or command actions were arbitrary or capricious. From a legal standpoint, the investigation and findings appear proper. Both AF/JAA and DoD/IG reviewed the SAF/IG ROI and concurred with the findings and conclusions. They do not see sufficient evidence to conclude command acted without an adequate factual underpinning or acted arbitrarily or capriciously. There is adequate evidence to support command's findings and actions. SAF/MRBL would caution the Board regarding substituting their own judgment for the command's. Additionally, SAF/MRBL does not recommend eliminating all reference to the CDI, since the protected communication was made to the CDI IO. Even if the Board considers the CDI flawed, the communication to the IO is still a protected communication and can still properly underpin an allegation of reprisal. A complete copy of the SAF/MRBL evaluation is at Exhibit G. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In further support of his request, the applicant, through counsel, took exception to the AFPC/DPTT and SAF/MRBL advisories, arguing: 1.  Concerning the AFPC/DPRR advisory: After AFPC/DPTT stated the retirement was executed properly in compliance with the Secretary of the Air Force guidance, and that they cannot comment on any alleged error or injustice which would warrant a change, they then recommended denying the applicant’s claim. Without examining or commenting on the facts and circumstances (outside the retirement processing), AFPC/DPTT should not have made a recommendation. 2.  Concerning the SAF/MRBL advisory: SAF/MRBL failed to reconcile the “so-called” facts in the CENTOM CDI with the “facts” he presented in his initial presentation, which he refers to as “overwhelming evidence.” While agreeing with SAF/MRBL that CENTCOM/CC’s use of a CDI rather than an IG investigation was not an error or injustice, the injustice was in the appointment of an incompetent, untrained investigator. Further, after agreeing with SAF/MRBL that it was not extraordinary for the IO to meet with the Ambassador, he reiterates his initial contention that rather than conducting a fair investigation, the IO chose to “integrate the Ambassador’s desires into his findings and recommendations,” resulting in a biased report addressing matters beyond the scope of the IO’s tasked investigation. Finally, while SAF/MRBL suggests the standard to be applied is whether the command acted “arbitrarily and capriciously,” in accordance with AFI 36-2603, Air Force Board of Correction of Military Records, the requirement for relief by the AFBCMR is whether an applicant has submitted “sufficient evidence of probable material error or injustice.” The first-hand statements of the witnesses gathered, not by the IO, but by the applicant, show the CDI has the “facts” wrong, and command, and later the IG, were misled into taking actions making findings based upon demonstrably inaccurate facts. The applicant’s complete response is at Exhibit I. 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 response to the advisory opinion, in judging the merits of the case; however, we agree with the opinions and recommendations of SAF/MRBL and ARPC/DPTT and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. First, while the applicant contends the CENTCOM CDI OI addressed matters beyond the scope of his tasked investigation, the Board disagrees and notes the IO’s appointment letter, dated 28 Feb 11, states “The scope of your investigation shall be as broad as you deem necessary. You may investigate any matter…” Further, the applicant contends both of the investigations which substantiated wrongdoing on his part were flawed and failed to uncover the truth, however, the Board found the conclusions and recommendations proffered by the IOs sufficiently supported by the information presented in the individual ROIs. Although not without minor error, the Board believes the CENTOM directed CDI was fair and reasonable, even giving the applicant the benefit of the doubt on several investigated allegations, and that the applicant reprised against his subordinates, as the SAF/IG investigation substantiated. The subsequent command actions taken by the applicant’s leadership in response to these investigations were well within their scopes of authority and levels of responsibility, and should remain a permanent part of the applicant’s official record. Further, the Board concurs with SAF/MRBL that the CENTCOM CDI IO was right to meet with the Ambassador prior to initiating his investigation, and during his investigation uncovered ample evidence of wrongdoing to arrive at his final conclusions independent of any initial in-brief with the Ambassador. Nothing in the documentation submitted by the applicant led the Board to believe the applicant’s final date of separation should change from its current date, which he himself requested and which was properly approved. Ultimately, the Board sees insufficient evidence of error or injustice to negate the collective opinions of the CENTCOM CDI IO, the CENTCOM/CC, the SAF/IG IO, the SAF/IG, the DoD/IG, and the AF/RE, or to replace them with the alternative perspective offered by the applicant. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 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-2014-04446 in Executive Session on 19 Jan 16 under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-04446 was considered: Exhibit A.  DD Form 149, dated 23 Oct 14, w/atchs. Exhibit B.  Applicant's Master Personnel Records. Exhibit C.  Command Directed Inquiry, CENTCOM/J4, dated 21 Mar 11. Exhibit D.  Report of Investigation, SAF/IG, Dec 11 Exhibit E.  Memorandum, AFPC/DPSID, dated 23 Sep 15. Exhibit F.  Memorandum, ARPC/DPTT, dated 18 Nov 15. Exhibit G.  Memorandum, SAF/MRBL, dated 7 Aug 15 Exhibit H.  Letter, SAF/MRBR, dated 1 Dec 15. Exhibit I.  Letter, Applicant, dated 23 Dec 15.