ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-02848-2

XXXXXXXXXXXXXX	COUNSEL: XXXXXXXXXXXXX
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

The Board reconsider his request that:

a. He be retired in the rank and grade of brigadier general (0-7) instead of colonel (0-6), and receive all benefits and entitlements associated with such action.  

b. His April 2014 SAF/IGS Report of Investigation (ROI) be removed from his military records, or alternatively reverse the finding to “UNSUBSTANTIATED” as related to the alleged misuse of public office for private gain.

c. His Letter of Reprimand (LOR) issued by the Air Force Vice Chief of Staff (AF/CV) on 24 July 2014, be removed from his military records, or in the alternative, mitigate the LOR to a Letter of Counseling (LOC).  

RESUME OF THE CASE

The applicant is a former Air National Guard brigadier general (0-7).  On 7 October 2015, the Secretary of the Air Force (SECAF) found the applicant did not serve satisfactorily as a general officer, and determined he should be retired in the grade of colonel.  On 26 September 2017, the Board considered and denied the applicant’s request to be retired in the rank and grade of 0-7 and to receive all benefits and entitlements associated with such action.  In addition, the Board denied the removal of the April 2014 SAF/IGS ROI from his military records, and the removal of all follow-on actions of the April 2014 ROI, to include removal of the AF/CV’s LOR.  The Board found that the applicant had provided insufficient evidence of an error or injustice to justify relief.

For an accounting of the applicant’s original request and the rationale of the earlier decision, see the AFBCMR Letter and Record of Proceedings at Exhibit G.

On 5 September 2019, the applicant requested reconsideration of his request.  He again contends he honestly misunderstood the one-year cooling off period and never abused his public position for private gain.  Additionally, he contends the previous AFBCMR action committed errors by failing to seek advisory opinions from SAF/GCA and SAF/GCR.  In addition, there was no substantive analysis of the SAF/IG ROI conducted by the authors of the advisory opinions, Secretary of the Air Force Personnel Councils (SAFPCs) Officer Grade Determination (OGD), or the previous AFBCMR panel.  In support of his request for reconsideration, the applicant provides  a witness statement, a memorandum from the former General Counsel, United States Office of the Government Ethics, and the former Air Force Deputy General Counsel (SAF/GCA), pertaining to procurement integrity, Officer Grade Determination (OGD), and the SAF/IGS investigation.  

The applicant’s complete submission is at Exhibit H.

AIR FORCE EVALUATION

SAF/GCA recommends denying the application.  The applicant requested the AFBCMR reconsider its 2 October 2017 denial of his original application for correction of his military record, and approve his retirement in the rank and grade of brigadier general (0-7) instead of colonel (0-6).  The applicant alleges that newly discovered evidence confirms: (1) the SAF/IGS investigation erred in finding that he used his public office for private gain; (2) the subsequent OGD was unjust in that it relied on an erroneous finding by the SAF/IGS investigation and was grossly disproportionate to his misconduct; and (3) the AFBCMR’s decision to uphold the OGD erred because it relied on an erroneous investigation and OGD, and failed to obtain an advisory opinion from SAF/GCA – an opinion that purportedly would have identified the investigation’s alleged errors and opined that a reduced retirement grade was inappropriate under those circumstances.  

Specifically addressing the applicant’s contentions in regards to the SAF/IGS investigation err in finding that he used his public office for private gain, we find that after reviewing the SAF/IGS ROI and its attachments, as well as, all submissions provided by the applicant, SAF/GCA concluded the record supports SAF/IGS’s conclusion by a preponderance of the evidence.  The applicant used his official position as a general officer (GO) and his Air National Guard position, and the authority that accompanied the same, to advance his private employer’s interests, which, in turn, resulted in personal gain.  By SAF/IGS’s calculations, the applicant spent more than half of the time he was on orders between 2011 and 2012 working issues with the NGB.  Therefore, the applicant enjoyed full access, while in uniform and in an official duty status, to the same government employees who worked with the applicant in his capacity as a government contractor with a private company.  They determined that evidence gathered in the various stages of this case, supports the new evidence submitted by the applicant that a former New York Guardsman asserted the applicant never expressly “used his rank” to coerce her to act on his behalf.  Similarly, the evidence does not reflect any instances in which the applicant, in his official capacity, ever explicitly directed a government employee to take actions to benefit himself or his private employer.  However, a reasonable person could review the evidence presented and conclude, as did SAF/IGS, the applicant engaged in behavior that blurred his statuses as an ANG GO and government contractor.  Implicitly he used the authority associated with his official position, in a manner intended to induce others, including NGB subordinates, to provide a benefit to himself, and his employer. 

In addition, the OGD was unjust in that it relied on an erroneous finding by the SAF/IGS investigation and was grossly disproportionate to applicant’s misconduct. 

SAF/GCA opined that a preponderance of evidence presented substantiates the applicant violated the provisions of 18. U.S,C. § 207(c) on multiple occasions in 2011 and 2012 when he knowingly represented his private employer back to the Air Force concerning existing and potential contracts within his rolling one-year cooling off period.  If he erred in calculating the length of his rolling one-year cooling off period, it was due to his own negligence.  His actions during this period resulted in his private employer’s award of well over $1.4 million in government contracts, and his fast rise in the company’s governance structure.  SAF/GCA reviewed the current issuance of DoD Standards of Conduct Office (SOCO) Encyclopedia of Ethical Failure, as well as SAF/IGS summary of GO misconduct cases and command actions, and identified no other cases with fact patterns that substantially mirror those of this case.  While several former supervisors and commanders wrote on the applicant’s behalf, ultimately, his chain of command supported SAF/IGS’ findings of culpability, issued him an LOR and determined a discretionary OGD was warranted.  Nothing in the record, to include the new evidence submitted, indicates the OGD action was inappropriate or the SECAF decision was erroneous, arbitrary, or unjust.  They concurred with the conclusion of SAF/PC’s Director in his 10 January 2017 memorandum to SAF/MRBC that, “SECAF has a wide discretion in making her determinations of satisfactory or unsatisfactory service and appropriately exercised her discretion in the case.”  

Based on the documentation provided by the applicant and analysis of the facts, there is no evidence of an error or injustice.  

The complete advisory opinion is at Exhibit I.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 28 July 2020 for comment (Exhibit J), and the applicant replied on 24 August 2020.  In his response, the applicant, via his counsel contended the SAF/GCA advisory opinion misled the Board by deliberately ignoring relevant evidence presented by the applicant to reconsider, adhering to the initial flawed recommendation of the SAF/IGS investigation.  Specifically, while the advisory opinion acknowledges the witness’s claim that the applicant never expressly “used his rank” to coerce her to act on his behalf; the advisory opinion appears to go rogue, stating a reasonable person could review the evidence presented and conclude the applicant blurred his status as an ANG GO and a government contractor.  Additionally, the advisory opinion entirely ignored the evidence (memorandum) of the former Air Force Deputy General Counsel (SAF/GCA), opining the decision to reduce the applicant in grade was grossly disproportionate to any recommendation he would have made in a similar case.  

The applicant’s complete response is at Exhibit K.

FINDINGS AND CONCLUSION

After reviewing all Exhibits, to include the applicant’s response, the Board remains unconvinced the evidence presented demonstrates an error or injustice.  The Board concurs with the rationale and recommendation of SAF/GCA and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Specifically, no new evidence presented rose to the level warranting this Board to overturn a thorough and valid SAF/IGS investigation, nor the decisions from senior Department of Defense and Air Force officials regarding the applicant’s letter of reprimand and subsequent officer grade determination.  Therefore, the Board recommends against correcting the applicant’s records.

The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2016-02848-2 in Executive Session on 28 July 2020, 24 September 2020, and 28 September 2020:

, Panel Chair 
, Panel Member
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit G:	Record of Proceedings, w/ Exhibits A-F, dated 26 September 2017.
Exhibit H:	DD Form 149, w/atchs, dated 5 September 2019.
Exhibit I:	Advisory opinion, SAF/GCA, dated 26 July 2020. 
Exhibit J:  Notification of advisory, SAF/MRBC to Applicant, dated 28 July 2020.
Exhibit K:	Applicant’s response, w/atch, dated 24 August 2020.   

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.