RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-04932

	COUNSEL: YES

	HEARING: YES

APPLICANT REQUESTS THAT:

	1. Her Letter of Counseling (LOC) and the Report of Investigation (ROI) be declared null and void and removed to include any attendant documentation;

	2. Her Senate confirmed promotion to the grade of brigadier general (BG) be reinstated with the original date of rank and all rights and privileges;

	3. Her active duty retirement remain intact as permitted by AFI 36-2115, para. 1.21 and 10 USC 10145;

	4. In the event the promotion cannot be returned, she be referred to a Special Selection Board (SSB) for promotion consideration to the grade of BG;

5. Any and all remedies the Board deems appropriate; and,

6. Return of her 1-star flag.

APPLICANT CONTENDS THAT:

On 6 Dec 13 and following an Inspector General (IG) investigation, she received a LOC, as a brigadier general-select, for a substantiated allegation.  The investigation examined two allegations: 1) fraternization (in her military status), and 2) misconduct (in her civilian status).  Only the misconduct in her civilian status was substantiated.  As an Air Reserve Technician, (ART), she served in two statuses; military (Title 10) and ART (Title 5) and did not believe the LOC would adversely impact her promotion.  As an Air Force Academy cadet, she was taught early on to accept responsibility, adjust, and move on.  On 10 Dec 13, she accepted responsibility for perceptions created by her actions without qualifications.  

However, the core of the injustice in this matter is the LOC incorrectly combined behavior when the behavior was not in her military status but, rather, in her civilian status.  This is procedurally and legally incorrect and unjust.  The LOC states, “.…your close personal relationship with [AFRC Command Chief] bordered on being unprofessional….”  Because the Investigating Officer (IO) found the allegation of fraternization as unsubstantiated, there was no misconduct to attribute to her military status.  Therefore, it was erroneous and unjust to choose to attribute that which the IO found in her civilian status to her military status.  Moreover, the investigation of the alleged conduct in her civilian status was fatally flawed because it lacked impartiality and fairness.  Most importantly, the IO failed to apply the correct legal standard.  Hence, she is requesting the Board to declare both the LOC and the ROI null and void and request that they, and all the attendant documentation, be removed from her military record.

Her relationship with the AFRC Command Chief was not unprofessional nor was there a basis for it to be perceived as unprofessional.  She acted professionally at all times and, neither in her military status nor civilian status, did she have an unprofessional relationship with the AFRC Command Chief.  She was not the AFRC Command Chief’s supervisor at the time in question and there was no basis on which to find that she had been unprofessional in her conduct.  First of all, the AFRC Command Chief was not her subordinate so the nature of any perceived relationship was irrelevant in her civilian capacity unless it was proven to have had an adverse effect to the efficiency of the service.  The IO, failing to correctly apply the standard, never established that there was any adverse effect on the efficiency of Air Force Reserve Command, Directorate of Manpower, Personnel Services (AFRC/A1) operations, let alone by a preponderance of the evidence.

Both Secretary of the Air Force General Counsel (SAF/GC) and Headquarters Air Force Judge Advocate General (AF/JA) informed the Secretary of the Air Force (SECAF) that on 8 Nov 13, the Secretary of the Air Force Senior Officials Inquiries office (SAF/IGS) concluded that she engaged in unprofessional relationship while in her Air Reserve Technician status, but her conduct did not amount to fraternization while in her status as an Air Force Reservist.  SAF/GC went on to point out while she appeared in uniform as a colonel seven days a week, her conduct was compartmentalized and assessed under the separate standards applicable to military and civilian personnel.  (The status distinction is recognized in AFI 36-2909, Professional and Unprofessional Relationships, in that commanders and supervisors are to “tailor the application and enforcement of the principles in the instruction to Reserve Component personnel when not performing active duty or inactive duty training, in order “to appropriately address unique situations that may arise from part-time service.”)  Most importantly, SAF/GC went on to state, “That in this case, there was no adverse information about her before the promotion board that selected her for promotion.  Had the SAF/IG investigation occurred before the promotion board convened, a Senior Officer Unfavorable Information File (SOUIF) would not have been created because this investigation did not substantiate any period that she was in Title 10 status.”  SAF/GC, like the Air Force Reserve Commander (AFRC/CC), noted her “exemplary record of conduct and performance.”  Ultimately, both SAF/GC and AF/JA advised the SECAF that the file before the SECAF was legally sufficient to support the command’s recommendation to terminate the promotion delay and allow her to assume the grade of brigadier general.

On 13 May 13 [sic], the AFRC/CC notified her that he’d met with the SECAF and she stated her decision was to remove the applicant from the list.  She requested the written notification of SECAF’s decision three times.  The facts illustrate a failure to formally document and notify her of SECAF’s decision to pursue her removal from the Senate promotion list, this being the key element in her decision to apply for retirement.  Simply put, had the SECAF not decided as she did, she (the applicant) would not have retired.  Instead, after continuing to press for formal notification, her retirement was used in place of the SECAF decision in order to remove her from the promotion list.  On 6 Oct 14, she was notified of this five months after the AFRC/CC’s meeting with the SECAF, and two months after she retired, with no interim notification that her retirement was the reason for her removal from the list. 

Having not received anything in writing, as noted above, she relied on the 13 May 14 AFRC/CC’s statement to her regarding SECAF’s oral decision conveyed to him during the meeting in the SECAF’s office and she (the applicant) submitted her retirement effective 1 Aug 14. 

Her LOC and subsequent removal from the brigadier general list resulted from a flawed investigation into what was a clear character assassination based on her sexual orientation.  Instead of using easily verifiable facts, the IO relied on rumor, innuendo, and clearly false information to rebuke a professional officer with a stellar career.  Informed of being removed from the brigadier general list (13 May 14), she submitted her retirement request.  Instead of being promoted and continuing to serve as a reservist, her military career was ruined.

The applicant’s complete submission with attachments to include the LOC, the ROI, and several statements of support, is at Exhibit A.

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 31 May 89.

On 31 Oct 01, the applicant was furnished an honorable discharge and was credited with 12 years, 5 months, and 1 day of active service; however, she continued to serve in the reserve component.  

On 1 Jan 13, the Senate confirmed the applicant’s nomination to the grade of brigadier general.  

On 14 May 13, the applicant was notified by the AFRC/CC he was recommending her promotion be delayed based on the on-going IG investigation.  

On 12 Jun 13, the SECAF directed the applicant’s promotion be delayed.  

On Sep 13, the SAF/IG published a ROI (S7080P), substantiating the allegation, while in her ART status, she engaged in an inappropriate personal relationship with the AFRC Command Chief, in violation of AFI 36-703, Civilian Conduct and Responsibility, dated 1 Aug 99.  However, due to the limited time the applicant spent in Federal military service and her actions during this time, the IO found that her conduct did not constitute fraternization.  Fraternization only applies to active duty military members.  An ART serves in the same position whether in a Title 5 civilian status or as an Air Force Reservist and, while her status may change, her position remains the same.  ARTs usually are in civilian status during the week and reserve [military] status during drill weekends.  Her status, at a given time, was relevant as applied under the two standards, fraternization and unprofessional relationships.  Fraternization applies to the applicant’s actions while on military active duty only.  The unprofessional relationship standard is applied while she is in her civilian status as an ART.

On 6 Dec 13, according to evidence provided by the applicant, she received a letter of counseling from the AFRC/CC, concluding that she exercise poor judgement and, in both her military and ART statuses, her unduly familiar relationship caused consternation within the command.

On 18 Dec 13, the AFRC/CC, in memorandum to the SECAF, recommended the applicant be allowed to pin-on despite the applicant’s lapse in judgement in both statuses. 

On 1 Aug 14, the applicant retired in the grade of colonel and credited with 23 years, 1 month, and 20 days of active service.  

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C and D.

AIR FORCE EVALUATION:

HQ USAF/REG asserts the application was not timely filed and further recommends denying the application.  Records indicate the application was signed on 13 May 17; however, received on 15 Nov 17 by the AFBCMR – over three years after her 1 Aug 14 retirement.  

With regard to the applicant’s request to declare null and void both the ROI and the LOC, policy supports administrative actions for offenses that occurred in civilian status and there is no minimum burden of proof for administrative actions.  Furthermore, there is sufficient evidence that the AFRC/CC believe the applicant demonstrated poor judgement in both her military and civilian statuses.  The applicant declined opportunities to influence the investigation and, to the contrary, apologized for exercising poor judgement and understood her responsibility for the perceptions created by [her] action and, in some instances, inaction.  

With regard to her request to void her removal from the brigadier general promotion, the applicant was removed from the list due to her voluntary and self-initiated transfer to retired status – not as a result of a processed removal package in accordance with Title 10 and the governing DoD instruction.  

With regard to her request to reinstate her promotion to brigadier general, reinstatement assumes that any potential procedural or investigation flaws identified in the ROI would sufficiently serve to change the SECAF’s documented intentions and/or convince the POTUS to overturn the SECAF’s recommendation to remove her from promotion list.  

With regard to her request for a SSB, this request is not feasible for two reasons.  First, she was administratively removed from the list and her administrative removal eliminated her from eligibility for continued promotion consideration.  Second, she does not meet the conditions required by Title 10, section 14502, in order to be reevaluated for the same time period.

With regard to the applicant’s contention that both AF/JA and SAF/GC advised the SECAF that terminating her promotion delay was legally sufficient, both offices found legal sufficiency for either the termination of the promotion delay or the pursuit of removal from the promotion list.  Furthermore, the AF/JA stated that allowing the applicant to be promoted could be perceived as inconsistent with other similar cases processed during the same timeframe where similarly situated individuals were not supported for promotion.  Title 10, U.S.C., section 8583, requires all commanding officers and others in authority in the Air Force to meet the requirement for exemplary conduct.  There is no requirement of proof beyond a reasonable doubt in promotion propriety actions and it becomes the SECAF discretion to make a recommendation to the POTUS for final approval.  In this case, the CSAF’s and the SECAF’s intent to recommend the applicant’s removal from the promotion list is beyond question.

The complete advisory is at Exhibit C.

AFRC/JA asserts the application is also untimely and further recommends denying the application as there is no evidence of an error or injustice.  The ROI was competed in Sep 13 and the applicant had access to the ROI as of 10 Dec 13.  Since she was an ART and not on full-time active duty, the active duty 3-year rule does not apply from the date of the applicant’s retirement but from the date she had access to the ROI.  Looking at the stature of limitations in the most favorable light, she was still required to file no later than 10 Dec 16.  

With regard to the applicant’s request to void the ROI, the ROI merely captured the testimony of the witnesses and the IO weighed the facts obtained and found the allegation against the applicant in her military status to be unsubstantiated.  The AFBCMR has jurisdiction to grant relief on requests for corrections to military records; however, since there are no errors in this document needing correction, there is no relief for the AFBCMR to provide.  

With regard to the LOC, the LOC is a form of an administrative action, not a criminal action and as such not subject to the jurisdictional limitations under the Uniform Code of Military Justice.  The LOC the applicant received does not list fraternization as the basis for her counseling.  Instead, it is clear the LOC’s focus was there was still a significant perception problem.  Additionally, another fact that may have led to the AFRC/CC issuing an LOC was that the AFRC/CV cautioned the applicant previously about the negative perceptions yet she continued to meet with the AFRC Command Chief outside of work.  Since she had previously been verbally cautioned on expectations of behavior to avoid negative perceptions, the LOC was an appropriate graduated action to address the applicant’s conduct.

The complete advisory is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 6 Apr 18 for comment (Exhibit F), and the applicant’s counsel replied on 4 May 18.  In response, the applicant believes it is prudent to reiterate the clear and indisputable discovery date is 13 May 14 – the date the applicant was made aware of the SECAF’s decision.  The decision to remove her name from the Senate-confirmed promotion list was based on an unjust and erroneous ROI.  Since a Senior Officer Unfavorable Information File (SOUIF) would not have been created under the circumstances and the applicant’s conduct and performance were exemplary, the SECAF’s decision consummated the ultimate injustice triggering an application to correct the record.  The argument regarding timeliness clearly countermands the interest of justice to have the issue properly reviewed by the Board.  Also, the application was originally transmitted to the Board on 13 May 17 with a confirmed receipt of 15 May 17, thereby making the submission timely.  As indicated in the 20 sworn written statements, the ROI and LOC are a travesty of justice and the Board has the discretion to consider requests made outside the three-year period in the interest of justice.  

The IO erroneously applied the civilian standard in the investigation and the fact that AFRC/JA corrected the IO’s error brings the issue to the forefront and proves the merit of the application.  What the IO served on the applicant stated she engaged in an “inappropriate personal relationship” as an ART while the AFRC/JA advisory corrects and summaries the second allegation as whether the applicant engaged in an “unprofessional relationship…” while in ART status.  The civilian standard in AFI 36-703, Civilian Conduct and Responsibility, (Exhibit E) is that of an unprofessional relationship between a superior in his/her civilian capacity with a subordinate under his/her supervision.  As noted in the AFI, this requisite element did not exist in this case.  Both advisory opinions agree the civilian allegation and the ROI are part of the applicant’s military record and the fact the applicant held an ART position does not obviate the fact that the institution included information of a civilian nature in the applicant’s military record.  The Board is the applicant’s only recourse to correct this injustice.  

The facts provided by the 20 sworn witnesses demonstrate the IO’s flawed investigative methods, biased conclusions, and unjust ROI.  The SECAF relied on the ROI and LOC to make her decision.  Because of the injustice perpetuated by the IO’s incorrect application of the regulatory standard and her reliance on false statements, it must be reviewed to correct the egregious harm which resulted in the applicant’s removal from the promotion list. 

Another clear injustice in this process is the applicant was further forced to respond to the LOC without the direct testimony cited to in the ROI, making it nearly impossible for the applicant to properly defend herself.  USAF/REG asserts that a note handwritten by then CSAF, indicates he disagreed with the General’s promotion recommendation. This is a mischaracterization of that communication.

After learning of SECAF’s decision to remove her from the promotion list, the applicant retired. One cannot ignore the fact that she continued without pause in the same line of work with the Air Force, an indication that but for SECAF’s decision she would have continued her military career.  The USAF/REG advisory suggests the applicant’s actions demonstrate it was her preference to retire in lieu of competing for promotion at subsequent promotion boards and that she could have continued to compete for promotion by remaining in her existing position as the AFRC/A1.  This is a baseless assertion.  It was not within the applicant’ authority to determine if she would remain in place after the SECAF’s decision and, as previously noted, the AFRC/CC indicated his desire for her to continue to serve in a different capacity under his command.  The suggestion that the applicant merely needed to ride it out and she could be considered for promotion again is counter to the requisite development of senior officers within the available positions.  Finally, in USAF/REG’s own words, “the AFR has an adequate number of available officers to fill Service-specific Brigadier General or higher authorizations.”  For these reasons, it is incongruent to suggest the applicant could have reasonably concluded she would have remained in her then general officer position.  Without any doubt, there exists sufficient evidence of material error and injustice that have substantial merit and warrant corrective relief.  The applicant’s complete response is at Exhibit G.

ADDITIONAL AIR FORCE EVALUATION:

SAF/IGS finds no basis for voiding the ROI or changing its conclusions.  While some minor, non-substantive factual inaccuracies may be present in the ROI, the applicant does not provide sufficient basis to warrant changing the ROI’s ultimate conclusion that she violated Air Force standards.  Moreover, and importantly, we note she acknowledged in her response to the resultant Letter of Counseling that she was “responsible for the perceptions created by [her] action and, in some instances, inaction.”  

SAF/IGS further notes that in 2015, the applicant previously requested reconsideration of the ROI’s findings.  SAF/IGS determined at that time there was an insufficient basis to re-open the investigation or to change the ROI or its conclusions.  In response to her request for reconsideration, SAF/IGS reviewed 70 pages of then-“new discovery” provided by the applicant.  The reconsideration was conducted by the then-SAF/IGS Director and the then-SAF/IGS Senior Legal Advisor, and it was approved by then-The Inspector General, none of whom were involved in the 2013 investigation. The arguments presented by the applicant and her counsel in the present application are similar to those made in 2015.

The complete advisory is at Exhibit H.

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The Board sent a copy of the additional Air Force evaluation to the applicant on 13 Jul 18 for comment (Exhibit I), and the applicant’s counsel replied on 12 Aug 18.  In the response, counsel reiterates the applicant’s request for a personal hearing and remain confident the response demonstrates incontrovertibly that the investigative process was flawed, resulting in an unjustified LOC and removal from the BG selection lists.  The applicant lists several examples of the flawed investigative process and highlights the SAF/IGS incorrectly advises the Board that the ROI substantiated an allegation against the applicant (in military status).  In fact, the IO only substantiated an allegation, albeit erroneous, in her civilian capacity.  SAF/IGS’ failure to understand and recognize the applicant’s status was evident when they failed to advise the applicant of her remedy as a civilian when they denied her request to reopen the investigation.  
Furthermore, how the applicant responded to her LOC which was issued subsequent to the ROI has nothing to do with the quality or sufficiency of the ROI.  Nonetheless, it must be noted, SAF/IGS extracts a single phrase in the opening paragraph of applicant’s response to the LOC and proposes to the Board that this is an admission when, in fact, it only served to confirm her understanding of the AFRC/CC’s message to her in the LOC.  Contrary to the SAF/IGS advisory to the BCMR, the statement cited by SAF/IGS is in no way the admission SAF/IGS purports it to be, rather, this statement was simply restating what the command authority communicated.  Equally important, the command authority personally reiterates his full support for the applicant throughout the IG process, legal review, and SECAF decision and urges the Board to correct the injustice.  

The advisory response attributes to applicant the assertion that testimony and conclusions within the ROI were based on “discriminatory animus” when, in fact, the IO herself identified this prurient interest on the part of the witnesses as to applicant’s sexual orientation and severely undermines both the IO’s conclusion and the advisory opinion from SAF/IGS.

Despite evidence to the contrary, the IO erroneously concluded that a personal relationship existed that amounted to an unprofessional relationship that negatively affected morale and lessened the ability of the A1 office to work efficiently.  Throughout the ROI, the IO blurred the applicant’s statuses and reached incorrect conclusions.  It is inconceivable how an IO can reach the conclusion that the same person in a military capacity has not engaged in a “personal relationship” with the Command Chief, but in a civilian capacity he/she has engaged in an “inappropriate personal relationship” with the Command Chief who she did not supervise.  The IO provides no evidence other than a conclusion that a “personal relationship existed that amounted to an unprofessional relationship.  

The evidence is clear and indisputable: the flawed ROI drove the erroneous counsel given to the commander, resulting in an unjust LOC and SECAF’s unjust decision which, but for the IO’s errors and lack of due diligence, would not have occurred.  The applicant’s complete response is at Exhibit J.

THE BOARD CONCLUDES THAT:

1.  The application was timely filed.  

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of the offices of primary responsibility and finds that a preponderance of the evidence does not substantiate the applicant’s contentions.  In this regard, the Board agrees the ROI and LOC were not technically flawed as alleged and the subsequent decision to delay the applicant’s promotion and the option to pursue removal of the applicant from the promotion list were legally sufficient and within the SECAF’s authority.  However, since the applicant self-initiated her retirement, pursuing removal from the promotion list was no longer necessary.  We further agree with that of AF/JA that had SECAF allowed the applicant to be promoted, this action could have been perceived as inconsistent with other similar cases where similarly situated individuals were not supported for promotion.  

4.  The Board notes the offices of primary responsibility addressed most of the applicant’s request with the remaining issues predicated on the voiding of the ROI and LOC.  Since the Board found the two documents are valid and should remain a matter of record, and the SECAF acted within her authority, reinstating the original date of rank with all rights and privileges and returning her one-star flag would be inappropriate.  

5.  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 the Board’s understanding of the issues involved.

THE BOARD RECOMMENDS THAT:

The applicant be informed the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

The application was adjudicated without a personal appearance.

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-2017-04932 in Executive Session on 23 May 18 and on 28 Aug 18:

Chair
Member
Member

All members voted not to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, signed 13 May 17.
Exhibit B:	Documentary evidence, including excerpts from official records.
Exhibit C:	Advisory, HQ USAF/REG, w/atchs, dated 27 Mar 18.
Exhibit D:	Advisory, AFRC/JA, w/atchs, dated 2 Apr 18.
Exhibit E:	Miscellaneous Documents – Air Force Instructions.
Exhibit F:	Notification of Advisories, SAF/MRBC, dated 6 Apr 18.
Exhibit G:	Applicant’s response, dated 4 May 18.
Exhibit H.	Additional Advisory, SAF/IGS, dated 12 Jul 18.
Exhibit I.	Notification of Advisory, SAF/MRBC, dated 13 Jul 18.
Exhibit J.	Applicant’s response, dated 12 Aug 18.  

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings pertaining to BC-2017-04932 required by AFI 36-2603, paragraph 4.11.9.