RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2018-03743

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	HEARING REQUESTED:  YES

APPLICANT’S REQUEST

Counsel, on behalf of the applicant, requests the following corrections to her records:

1.	Removal of a Letter of Reprimand (LOR), dated 15 May 15.
2.	Removal of a referral Officer Performance Report (OPR), dated 14 Dec 15.
3.	Reinstatement of the Calendar Year 2013 (CY13) Brigadier General (Brig Gen) Line of the Air Force-Judge Advocate (LAF-JA) Selection Board’s promotion recommendation.
4.	In the alternative to No. 3 above, reconstitution of her records and the convening of special selection boards for the 2014, 2015, and 2016 Brig Gen LAF-JA Selection Boards, the boards at which she would have been considered, but for her pending promotion that was allowed to expire.
5.	Upon promotion selection, re-initiation of recommendations and actions necessary to forward promotion recommendation through the Department of Defense (DoD), and the President, to the Senate for its advice and consent prior to the expiration of the statutory window for Senate confirmation.
6.	Backdating her promotion to Brig Gen to its original effective date.
7.	Retirement in the grade of Brig Gen, effective 1 Jan 17.
8.	Secretarial referral of Inspector General (IG) report (S8033P) back to The Inspector General (TIG) with a request for reconsideration of its findings.
9.	Removal of the grade determination proceedings.
10.	Any and all other actions necessary and proper to accomplish the above.

APPLICANT’S CONTENTIONS

Counsel, on behalf of the applicant, contended this application is based on error and injustice.  At its core, this application involves a single fatal process error; the failure of TJAG to fulfill his statutory responsibility to supervise the professional conduct of judge advocates.  In failing to follow the statutorily mandated, historical process for investigating professional responsibility complaints, the applicant, and three other judge advocates simultaneously investigated with her, are, to the best of their knowledge and belief, the only judge advocates whose professional conduct was investigated by an unqualified investigating officer assigned to the IG. The IG investigating officer lacked the qualifications, experience, and training to make such a determination and never should have undertaken to do so.

The IG focused on the applicant’s professional conduct in her assigned duty position as the Air Education and Training Command (AETC) Staff Judge Advocate and her role as a supervisor of subordinate judge advocates. The IG cited specific, alleged violations of the Air Force Rules of Professional Conduct (AFRPC). The AFRPC establish the professional standards for Air Force officers designated as judge advocates and have no application to line officers not so designated.  In short, a line officer assigned to the IG, who was not a judge advocate and who had no legal training, legal experience, or familiarity with the AFRPC, was allowed to pass judgment on the applicant’s professional conduct.

Not until 2015, did the succeeding TJAG appoint a judge advocate to conduct a professional responsibility review of the same complaint the IG previously investigated.  The review should have been conducted in 2013, but was not completed until Feb 16, almost three years after the complaints.  The judge advocate findings directly contradicted the IG findings.  He concluded the applicant fully complied with the AFRPC and the initial IG investigator was unqualified to make such a determination.  TJAG concurred with the second investigation in May 16. In light of this new evidence, the initial IG was in error.  

No effort was made to repair the damage to the applicant’s career.  Discouraged, the applicant applied for retirement.  Despite an enviable career full of laudatory accomplishments, upon retirement, the applicant had to undergo the further indignity of a grade determination, solely due to the erroneous IG finding. The grade determination proceedings were conducted prior to the applicant’s retirement.  

United States v. Barry, No. 17-0162 (C.A.A.F, 5 September 2018), is an example of the United States Court of Appeals for the Armed Forces discussion and acknowledgement of political pressures put on the Armed Services.  Lastly, legal advisories from a sister service is warranted due to the intricate roles of SAF/GC and AF/JA.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force colonel (O-6).

On 24 Aug 12, AETC/CC, the applicant’s commander tasked her to lead an effort to assess command action taken in response to Military Training Instructor (MTI) misconduct at Lackland Air Force Base, Texas.  This assessment came to be known as the Accountability Review.

On 2 Oct 12, AETC/JA presented AETC/CC with the “MTI Misconduct and Accountability Final Brief.”

On 16 Oct 12, AETC/JA compiled their investigative work and assessments in an unsigned AETC/JA Basic Military Training (BMT) Chain of Command Accountability Review.

On 26 Oct 12, AETC/CC admonished or reprimanded seven individuals (one enlisted training superintendent, four squadron commanders, a group commander, and a wing commander) for their actions and/or inactions which occurred while they were assigned at BMT.  AETC/CC used the Accountability Review as assessed by AETC/JA as part of the basis for his adverse administrative actions.

On 6 Aug 13, according to HQ USAF/A1LG, the CY13 Brigadier General Line of the Air Force-Judge Advocate (LAF-J) Selection Board convened and the applicant was recommended for promotion to the grade of brigadier general.  

On 3 Oct 13, according to the Report of Investigation, one commander that received adverse administrative action from AETC/CC filed an Article 138, Request for Redress, and within that action, recommended the AETC/CC investigate the conduct of AETC/JA (legal office) and the JAG Corps.

On 7 Oct 13, according to HQ USAF/A1LG, the Secretary of Defense approved the applicant’s promotion board results.  She became subject to an initial 18-month promotion eligibility period (PEP).  

On 22 Oct 13, according to HQ USAF/A1LG, the President signed and forwarded the applicant’s promotion nomination to the Senate for confirmation.  She was subject to an initial 18-month promotion eligibility period (PEP) which began when the Secretary of Defense signed the Board report.  The PEP was gave an additional 12-month extension. 

On 29 Oct 13, according to HQ USAF/JAA, on AETC/JA’s recommendation, AETC/CC and AETC/JA forwarded the original complaint in regards to the Accountability Review process (and subsequently all others) to SAF/IG for investigation.

On 30 Oct 13, according to HQ USAF/A1LG, the General Officer Management Office was notified of pending allegations against the applicant and her nomination was placed on hold at the Senate as required by the Department of Defense Instruction (DoDI) 1320.04, Military Officer Actions Requiring Presidential, Secretary of Defense, Or Under Secretary of Defense for Personnel and Readiness Approval Or Senate Confirmation.  

On 19 May 14, according to the Report of Investigation, SAF/IG opened an investigation into three allegations of misconduct by the applicant.  

In Oct 14, a Report of Investigation (ROI) prepared by an investigating officer of the Inspector General office, substantiated one allegation.  Specifically, that the applicant failed to institute adequate measures in her supervision of subordinate lawyers to prevent inaccurate information and recommendations presented to AETC/CC.  However, the other two allegations were not substantiated.  Specifically, the preponderance of evidence supported the conclusion that the applicant provided independent professional legal counsel and rendered candid advice to AETC/CC, as well as, that she was competent in her actions transferring information from AETC to AMC.  

On 29 Apr 15, TJAG appointed an inquiry officer to conduct a professional responsibility review of the three aforementioned allegations against the applicant.

On 15 May 15, according to documentation submitted by the applicant, the Vice Chief of Staff of the Air Force (VCSAF), issued her a Letter of Reprimand (LOR) for her failure to ensure that attorneys under her supervision performed their duties with the competence, diligence, and precision owed to AETC/CC, especially on a matter of such significance to the Air Force, the Department of Defense, and the Nation.  

On 27 Aug 15, counsel, on behalf of the applicant, provided a response to the LOR presented by the VCSAF, stating the ROI, on which the LOR was solely based, was flawed conceptually, legally, and factually.

On 21 Oct 15, according to SAF/IGS, after an additional review of the ROI was conducted to evaluate the applicant’s assertions in regards to her LOR, TIG concluded the minor inaccuracies did not change the ROI conclusion with respect to the substantiated allegations.  Specifically, it did not change the IG view of the applicant’s deficiencies in supervision of her team and in the quality of advice to the commander, nor did it change command’s view on the appropriateness of administrative action.  

On 14 Dec 15, the applicant’s contested OPR was referred to her for comments in block 11 indicating the Inspector General substantiated an allegation of inadequate supervisory measures to ensure attorneys under her supervision were competent and diligent in conducting an Accountability Review and in processing adverse administrative actions taken by command.   

On 1 Feb 16, according to a Report of Findings prepared by the Inquiry Officer (IO), the three allegations against the applicant were not substantiated.   

On 1 Apr 16, the applicant’s 30-month PEP expired.  In accordance with Title 10 United States Code, Section 629 (c)(4), there are no further extensions.

On 10 May 16, the President removed the applicant from the CY13 Brig Gen LAF-J Selection Board due to the expiration of her promotion eligibility period.

On 11 May 16, the applicant was notified by TJAG’s Professional Responsibility Administrator, that TJAG reviewed the professional inquiry into the three allegations against her.  Specifically, being in violation of the Air Force Rules of Professional Conduct as it relates to her competence, diligence, and responsibilities of a supervisory lawyer.  TJAG did not substantiate any of these allegations as professional conduct violations and closed her case without further action. 

On 24 May 16, according to HQ USAF/A1LG, the CY16 Brig Gen LAF-JA Selection Board convened.  The applicant was eligible for consideration but was not notified until 31 May 16, and missed consideration.

On 6 Jul 16, according to HQ USAF/A1LG, the applicant was notified of her eligibility for a Special Selection Board (SSB), to be convened on 2 Aug 16.  On 12 Jul 16, the applicant waived her right to meet an SSB for the CY16 Brig Gen LAF-JA Selection Board with her records as they existed at that time.

On 28 Sep 16, an Officer Grade Determination (OGD) Board convened, after considering the facts of the case under the applicable law and directives, the recommendations of the commanders concerned, and the matters submitted by the applicant, the Board unanimously recommended the applicant retire in her current grade of O-6.  

On 4 Nov 16, the Secretary of the Air Force found the applicant served satisfactorily in the grade of Colonel (O-6) within the meaning of Section 1370(a)(1), Title 10, United States Code, and directed that she be retired in that grade.  

On 31 Dec 16, the applicant was furnished an honorable discharge, with Narrative Reason: Vol Retirement:  Sufficient Service for Retirement, and credited with 26 years, 11 months, and 3 days active service.

On 1 Jan 17, the applicant retired in the grade of colonel (O-6), with the highest grade held on active duty of colonel (O-6).

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

APPLICABLE AUTHORITY

In accordance with Air Force Instruction (AFI) 36-3203, Service Retirements:

7.6. Officer Grade Determination (OGD) in Conjunction with Retirement (10 USC §1370 and 10 USC §12771).  An officer is not automatically entitled to retire in the highest grade held. Instead, an officer is retired in the highest grade served on active duty satisfactorily or creditable service for ARC members retiring under §12731, as determined by the Secretary of the Air Force (SecAF) or delegee.  The SecAF or delegee may seek the review and recommendation of the SAF Personnel Council prior to making a determination of satisfactory service for an OGD in the case of any officer in the grade of 0-6 or below who is seeking to retire.

7.6.3. Initiating an OGD. The unit commander or other appropriate authority (including an authority designated for this purpose by the SecAF or designee) will initiate an OGD when (T-0): 
7.6.3.1. The officer has applied for retirement in lieu of judicial or administrative separation action (Table 2.2, Rules 3 thru 5). In this case, the SecAF makes an OGD in conjunction with his/her decision to permit the officer to retire or not. See paragraph 7.6.6 below. 
7.6.3.2. The officer has a court-martial conviction. 
7.6.3.3. The officer has a civil court conviction for misconduct which, did (or would) result in a mandatory comment and referral in the member’s next OPR, training report, PRF, in accordance with AFI 36-2406. 
7.6.3.4. The officer received nonjudicial punishment pursuant to Article 15, Uniform Code of Military Justice (UCMJ), a reprimand or an admonition, since the officer’s last promotion;
7.6.3.5. The officer, in the grade of Major (O-4) or above, since their last promotion, has been the subject of any substantiated adverse finding(s) or conclusion(s) from an officially documented investigation, proceeding, or inquiry conducted by competent military or civilian authorities (exception minor traffic infractions), regardless of the command action taken against the officer (if any). 
7.6.3.6. In any other case in which the commander or other appropriate authority believes an OGD appropriate.

AIR FORCE EVALUATION

SAF/IGS determined there is no factual, legal or policy reason that requires the AFBCMR to invalidate the substantiated allegation noted in the applicant’s ROI.  The applicant’s central argument is SAF/IGS did not have the authority to investigate her because only TJAG can investigate professional responsibility complaints against judge advocates.

Additionally, in response to her LOR, the applicant asserted factual deficiencies in the ROI.  SAF/IGS conducted an additional review of the ROI, and redacted those points that were found to be inaccurate.  Ultimately, the minor inaccuracies did not change the ROI conclusion with respect to the substantiated allegation.

Regarding the assertion that the SAF/IGS investigation was without authority as only TJAG can investigate and take action against a judge advocate for professional misconduct, this argument ignores the facts, the duties a judge advocate owes his or her commander as both an officer and a lawyer, and the details of AFI 51-110, Professional Responsibility Program, 5 Aug 14.

TJAG was aware at the time, and concurred, that investigation by SAF/IGS into potential senior-leader misconduct by the former AETC/SJA was appropriate.  On 29 Oct 13, AF/JAA informed TJAG via email of AETC/CC’s decision to refer the matter to SAF/IG with SAF/IGS taking the lead on the case and discussed the matter with him.  On 30 Oct 13, TJAG acknowledged the 29 Oct 13 e-mail indicating his concurrence with SAF/IGS conducting the investigation.

This process was wholly consistent with TJAG’s responsibilities as detailed in AFI 51-110 and belies the applicant’s assertion that the Judge Advocate General Corps (JAGC) alone could investigate judge advocate/officer misconduct.  AFI 51-110, paragraph 5.1. allows deferring a professional-misconduct inquiry when the underlying violation is criminal in nature, or “when otherwise warranted.”  Similarly, AFI 51-110, paragraph 2.1. counsels that “[a]cts or omissions may constitute professional misconduct, criminal misconduct, poor duty performance, or a combination of all three,” and that “[c]are must be taken to appropriately characterize the nature of the conduct to determine who should take official action.”  AFI 51-110, paragraph 2.1.2. makes clear TJAG is not the only individual who can take action against a judge advocate for engaging in professional misconduct:  “Nothing in this instruction limits the authority of commanders or other supervisors from taking appropriate disciplinary or administrative action when warranted.”

The applicant was tasked with the responsibility to lead the Accountability Review and appropriately supervise her subordinates during that process.  She had a duty to AETC/CC, as leader, supervisor, officer, and a judge advocate, to fulfill her responsibilities competently.  When evidence of her failure to fulfill those responsibilities arose, the JAGC itself recommended an impartial arbiter (SAF/IG) assess any failure, well aware action that negatively affected her “professional certification” remained the province of the JAGC.  The applicant was subject here to the same process any senior leader/subordinate would be if there were a concern they failed to live up to their obligations as an officer.

AFI 51-110 does “shield” the applicant from anyone but TJAG taking action that negatively affects her ability to practice law in the Air Force.  The IG process, to include command action taken by AF/CV via Letter of Reprimand, had no impact on the applicant’s professional licensure as a lawyer or judge advocate, or her ability to practice law in her state of licensure or in Air Force courts.

The SAF/IGS investigation expressly noted that it was not determining whether there had been a professional-responsibility violation under the procedures of AFI 51-110 but rather used the professional standard therein to determine what the applicant’s duties were and whether she failed to satisfy them.  SAF/GCI, in their legal review of the SAF/IGS ROI, likewise expressly noted that SAF/IGS did not conduct an AFI 51-110 professional-misconduct inquiry but simply used the professional standards laid out in that instruction as the basis of the professional duty the applicant owed to her commander as a subordinate officer.

Subsequent to the SAF/IG investigation and command action, the applicant’s actions were subject to a professional-responsibility inquiry pursuant to AFI 51-110.  That inquiry reached a different conclusion than the SAF/IGS investigation, but that is not remarkable given the different focuses of the investigations and the consequences that potentially flow from different types of investigations available for a judge advocate’s professional misconduct.  One focused more generally on the applicant’s failure as an officer, while the other focused more specifically on her failure as a judge advocate.

The SAF/IGS case and the subsequent reviews found the IGS ROI’s substantiated allegation supported by preponderance of the evidence and legally sufficient.  TJAG was aware and approved of IGS conducting the investigation.  As expressly noted in the ROI itself and in subsequent legal review, IGS was not conducting a professional-responsibility inquiry.  As such, there is no evidence to support the applicant’s assertion that SAF/IGS lacked the authority to conduct the investigation and no factual, legal, or policy reason that requires the Air Force Board for Correction of Military Records (AFBCMR) to invalidate the substantiated allegation.

The complete advisory opinion is at Exhibit C.

AF/A1LG recommends partially granting the application predicated upon the removal of all adverse information.  Specifically, should the AFBCMR find all substantiated allegations in the Inspector General Report (S8033P) were erroneous, the Letter of Reprimand and Referral OPR are no longer proper, and the following actions could be taken: 

a.	Removal of the contested OPR from the applicant’s record.    
b.	Removal of the AF Form 78, Air Force General Officer Promotion Recommendation, for the period 18 Apr 14 to 31 July 31 and replace with an AF Form 77, Letter of Evaluation.
c.	Removal of the AF Form 78, for the period 1 Aug 14 to 31 Jul 14, and replace with an AF Form 77.  
d.	Generate an AF Form 77 for the period 18 Apr 14 to 17 Apr 16.
e.	Consideration by Special Selection Board (SSB) for promotion to the grade of Brigadier General by the Calendar Year 2016 Brigadier General LAF-J Selection Board.
f.	If recommended for promotion, upon Senate confirmation and appointment to the grade of Brigadier General, the Secretary of the Air Force may determine the applicant be granted the date of rank and effective date of 2 Apr 14.

The President removed the applicant from the CY13 Brigadier General LAF-J Selection Board Promotion List, due to the expiration of her promotion eligibility period.   Therefore, it is beyond the Secretary of the Air Force to reinstate the applicant to the promotion list.  While the applicant request as an alternative to reinstatement, that she receive consideration by Special Selection Boards for CY14 and CY15, we note LAF-J Selection Boards did not convene in CY14 and CY15.  

To prepare the applicant’s records for the CY16 SSB, her two AF Forms 78 need to be removed and replaced with AF Forms 77.  This would indicate a void in documentation because it would be impracticable to create an AF Form 709, Promotion Recommendation Form, and an AF Form 707, Officer Performance Report, to cover the timeframe from 18 Apr 14 through 31 Jul 15.  The AF Form 78 serves as both the annual performance report and promotion recommendation form.  Please note, that by replacing so many documents in the applicant’s record with the AF Forms 77, it could place her at a disadvantage in meeting an SSB.  

While the applicant request to be retired in the grade of Brigadier General, effective 1 Jan 17, in accordance with Title 10 United States Code, Section 1370, in order to be eligible for voluntary retirement, a commissioned officer must have served on active duty in that grade for not less than three years.  Additionally, the Secretary of the Air Force is the approval authority for all retirements of officers, except those requiring a Service-in-Grade waiver.  The approval authority for a Service-in-Grade waiver for Brigadier Generals is the Under Secretary of Defense for Personnel and Readiness.  If the Senate should confirm, and the applicant is appointed to the grade of Brigadier General, effective 2 Apr 14, she would not have the required 3-years time-in-grade as of 1 Jan 17.  In addition, it is beyond the authority of the Secretary of the Air Force to approve a Service-in-Grade waiver.  

The complete advisory opinion is at Exhibit D.

AF/JAA determined TJAG and TIG appropriately exercised their authorities, as it relates to the applicant. TJAG relied on the conclusions from the IO for the professional-responsibility inquiry to determine the applicant’s actions should not result in any consequence to her military or civilian professional licensure.  However, command relied on the facts found by SAF/IG to more broadly determine that as an officer, the applicant deserved a reprimand for failing to live up to her duties of competence and diligence.  Nothing inappropriate or inequitable took place.        

In response to the applicant’s petition, SAF/IGS provided a memorandum addressing the applicant’s factual and legal issues and recommended referral to AF/JA for formal interpretation of AFI 51-110.  AF/JAA concurs with the analysis provided by SAF/IGS and provides the following in addition.  

Applicant’s counsel failed to provide any support for their primary stated argument the TJAG failed “to fulfill his statutory responsibility to supervise the professional conduct of judge advocates.”  The only statutory authority counsel cites is 10 USC 9037.  Nowhere in that statute is there an express or implied requirement that only TJAG can investigate professional misconduct by a judge advocate.  As to personnel, all Section 9037 requires of TJAG is that he or she “shall direct the officers of the Air Force designated as judge advocates in the performance of their duties.”  A review of other code sections applicable to TJAG and the JAGC fails to disclose any such exclusive-investigation requirement.

Thus, counsel’s proposed limitation could only come from Air Force regulatory guidance related to judge advocates.  TJAG issues, and is OPR for, such guidance, and is allowed to waive any requirement not classified as Tier-0.  None of the AFI sections cited by applicant’s counsel are classified as Tier-0.  This is demonstrated by the preamble language of the then-existing AFI 51-110, which placed waiver authority (short of Tier-0) with TJAG or his headquarters-level subordinates.  Consequently, even if the regulatory guidance imposed an exclusive-investigation obligation in TJAG, TJAG could waive such a requirement in the face of mission need (such as ensuring a senior JA leader is investigated by an independent organization).

As applicable here, the relevant regulatory guidance is AFI 51-110, which expressly does not require the exclusivity counsel suggested.  AFI 51-110 makes it clear that TJAG is not the only individual who can take action against a judge advocate for engaging in professional misconduct:  “Poor performance of duty is properly addressed by the attorney’s chain of command through various administrative actions, including documentation in performance reports or appraisals.  Nothing in this instruction limits the authority of commanders or other supervisors from taking appropriate disciplinary or administrative action when warranted.”  Similarly, AFI 51-110 allows deferring a professional-misconduct inquiry when the underlying violation is criminal in nature, or “when otherwise warranted.”

In fact, AFI 51-110, expressly contemplates that other forums, “special proceedings,” may conduct investigations of judge advocates that then provide factual information related to a judge advocate’s conduct that violates professional-responsibilities rules.  Listed examples include, but are not limited to, courts-martial, nonjudicial punishment, administrative board, attorney disciplinary procedure, and “Inspector General investigation[s].”

On 29 Oct 13, AF/JAA informed TJAG via email of the AETC/CC’s decision to refer the matter to SAF/IG with SAF/IGS taking the lead on the case and discussed the matter with him.  On 30 Oct 13, TJAG acknowledged the 29 Oct 13 email indicating his concurrence with SAF/IGS conducting the investigation.  The deferral is consistent with AFI 51-110 and logical since the applicant is a senior official.  In accordance with AFI 90-301, Inspector General Complaints Resolution, SAF/IGS has the vested responsibility to conduct complaint analysis, and subsequent investigation, on all complaints involving Air Force senior officials such as the applicant, who was then being considered for promotion to brigadier general. 

Nowhere in AFI 90-301 does it shield judge advocates from misconduct/deficient performance investigations merely based on their status as judge advocates; they are treated the same as any other Air Force member.  It would be odd to suggest, as applicant’s counsel seems to do, that the JAGC should have conducted an internal inquiry into one of its own, a senior member of the Corps, to determine whether that member was an officer who should be promoted to one of the few general officer billets (and only command billet) in the Corps.  Without suggesting any such inquiry was or could have been infected with bias or was directed to a predetermined outcome, allowing an organization to investigate itself, to the exclusion of investigation by any outside entity as suggested by applicant’s counsel, would lead to the obvious perception of protecting one’s own.  The very purpose of an inspector general system is to avoid such a perception by providing independent, impartial, transparent, objective, fact-based analysis.

It would be perplexing to suggest that judge advocates are in a special category that shields them from non-JA command action for failing to do their jobs (i.e., failing to comply with their duties as officers and judge advocates).  Judge advocates are “officers first, lawyers second.”  SAF/IGS did not investigate for violation of any esoteric professional rules the substance of which would be indecipherable to non-lawyers.  The allegation was the applicant did not display the “competence” or “diligence” expected of any officer, particularly a “professional” one.

SAF/IGS investigated an officer who is a lawyer by technical specialty, just as the IG routinely investigates officers who are pilots by technical specialty or doctors or engineers or chaplains or other professions who have professional licensure requirements separate from their status as Air Force officers.  In each of these cases, where applicable, the IGS references the standards applicable to these discrete professions as part of an investigation to determine whether the member satisfied their duty as that “professional” officer.  The technical professional consequence of such a failure it determined by each specialty’s licensing function, such as a Flying Evaluation Board for a pilot or a Credentialing Board for a physician.  Ironically, applicant’s counsel made this very point in their petition, which undermined their argument.

TJAG exercised his exclusive regulatory authority in determining whether non-command action was appropriate as it relates to the professional licensure of the applicant.  Subsequent to the resolution of command-action against the applicant as an Air Force officer, a professional-responsibility inquiry under AFI 51-110 examined her qualifications to practice as a military lawyer.  Though that inquiry did not find violations of professional rules (contrary to the SAF/IGS findings), had such an inquiry found violations of professional rules, TJAG (and only TJAG) had a number of actions he could have taken regarding the applicant’s professional qualifications to practice as a military lawyer.  This is the process TJAG has sole responsibility for, and this is the process that occurred in the applicant’s case.

The complete advisory opinion is at Exhibit E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant on 13 Jan 20 for comment (Exhibit F), and counsel, on behalf of the applicant, replied on 31 Jan 20.  In his response, counsel contended the SAF/IGS and AF/JAA advisories relied on and referenced documents and facts not previously provided or made known to the applicant or her counsel.  Counsel further contended it was unfair to ask the applicant to comment on these advisories without being provided the evidence upon which SAF/IGS and AF/JAA relied heavily to support their advisories.  Finally, counsel, on behalf of the applicant, requested the AFBCMR provide copies of the “unprovided evidence” that was referenced in the SAF/IGS and AF/JAA advisory opinions.  The applicant’s complete response is at Exhibit G.

SAF/MRBC, in a letter dated 26 Mar 20 (Exhibit H), informed applicant’s counsel by providing the advisory opinions from SAF/IGS, AF/A1LG, and AF/JAA, as attachments to the advisory notification letter, dated 13 Jan 20, the AFBCMR met the requirements of AFI 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 8.1., Access to Records.

In turn, counsel, on behalf of the applicant, replied on 5 May 20.  In his response, counsel contended they generally concur with the AF/A1LG advisory opinion.  The 2015 LOR, 2015 referral OPR, and 2016 OGD can easily be expunged from the applicant’s record.  However, the loss of promotion and the consequences of her assignment to a staff position, vice a command position, are more difficult to correct.  Further, while AF/A1LG advisory indicates LAF-J Selection Boards were not convened in CY14 and CY15, this does not necessarily mean SSBs for those years could not be directed if the applicant’s record is corrected.  It appears to be within the AFBCMR’s power to show the CY13 board did not select the applicant and direct the board to be held as an SSB.  If selected by that SSB, the time for the applicant’s nomination, confirmation, and appointment would restart.  This would also allow the applicant to compete for promotion without having to reconstruct her record for the CY13 SSB.  If not selected by the CY13 SSB, the applicant’s record should be reconstructed to allow her to fairly compete in CY14 and CY15 SSBs, and CY16, if necessary.

Both the SAF/IGS and AF/JAA advisory opinions concede, or tacitly concede, only TJAG has authority to make professional responsibilities (PR) determinations regarding judge advocates’ professional conduct.  When TJAG made his PR determination as to the applicant’s professional conduct, based upon identical facts and the same PR standard as the IG applied, TJAG rendered the IG’s finding finally and conclusively wrong and void.

The IG now wants the AFBCMR to believe it did not conduct a PR review.  There is no evidence to support the IG’s position.  If the IG investigated any other facts or applied any other standard than the AFRPC, it did so without notifying the applicant.  Because no other misconduct was even suspected, the ROI discussed and analyzed no conduct but the applicant’s professional conduct.  From the IG’s initial notification, through every section of its ROI, it is plainly evident the IG investigated the applicant’s professional conduct as a “lawyer supervising other lawyers” and used the AFRPC to assess her conduct, and performed a de facto PR review before TJAG did.  In 2016, TJAG directed a PR review, and the IO examined the same evidence and analyzed the same AFRPC standard, as did the IG, to make his findings and recommendations to TJAG.  Then, TJAG, in making his final PR recommendation, reviewed that same evidence and used that same AFRPC standard.  The SAF/IGS and AF/JAA advisory opinions now attempt to distinguish the IG’s 2014 investigation from the 2016 TJAG-directed PR review and TJAG PR determination by resorting to misstatements, specious arguments, and by failing to disclose or refusing to disclose the evidence upon which the advisory opinions rely.

Counsel, on behalf of the applicant, further contended the applicant’s 2015 LOR response and/or application previously rebutted many of the advisory opinions’ assertions.  

In an attempt to avoid embarrassing the IG, the 2016 PR IO speculatively mused the applicant had not acted as a lawyer and the IG investigated something other than what was stated in the ROI.  The IO created a standard of perfection to create a duty the applicant owed to some unidentified higher authority, when the applicant was not acting as a lawyer.  Nothing in the IG’s ROI supports the IO’s revisionist speculation.  The IO failed to cite any authority for a standard of perfection, failed to establish any duty the applicant owed to any authority other than to her commander, and failed to identify any of the applicant’s conduct that was not in the capacity as a judge advocate.  In addition, the IG’s ROI specifically states the IG was investigating the applicant’s conduct as a lawyer supervising other lawyers and the IG used a standard that only applies to military lawyers.

Additionally, counsel, on behalf of the applicant, contended AF/JAA argued the IG was qualified to use the AFRPC as a standard by which to judge the applicant’s conduct, and equates its use to the use of other standards (e.g. UCMJ, AFIs) to investigate offenses.  Application of the two as standards could not be more dissimilar.  There is an entire body of law surrounding each UCMJ punitive offense to provide guidance to an IG investigation and its findings.  In contrast, AFRPC Rule 5.1.(b) states, “A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules.”  A determination of reasonableness is entirely dependent on the qualifications of the person reviewing the facts and circumstances.  Experience, as a lawyer, is a minimum prerequisite to gauge the reasonableness of a supervising lawyer’s efforts.  The IG’s IO had no experience as a lawyer or a supervising lawyer, had no qualifications to pass judgment on the reasonableness of the applicant’s professional supervision of her subordinate lawyers, and failed to properly employ the AFRPC.

Counsel, on behalf of the applicant, also contended the SAF/IGS and AF/JAA advisory opinions emphatically take the position the applicant sought to shield herself from the IG’s investigation, the implication being the applicant had something to hide.  The applicant has objected consistently, not to the initiation of a process that might result in a damaging finding about her professional conduct, but that the wrong person was doing it.  All the applicant ever asked was for TJAG to make the determination as to whether her professional conduct met AFRPC.  Asking for the correct authority to judge one’s professional conduct is quite different from trying to avoid investigation altogether.  Finally, counsel, on behalf of the applicant, contended the IG had other options.  The IG could have characterized the conduct to be investigated as dereliction of duty, or some other UCMJ offense, or could have investigated the facts and circumstances surrounding the alleged misconduct and forward the results, without a PR finding, to TJAG for his PR determination.

Counsel, on behalf of the applicant, further contended the SAF/IGS and AF/JAA advisory opinions argue that AFI 51-110 justified the IG investigation; however, the opposite is true.  The instruction notes allegations can fall into three categories:  professional conduct, criminal misconduct, and poor duty performance.  Allegations of violations of ethics and professional standards are within the exclusive province of TJAG.  The IG ROI states the IO found no evidence of a UCMJ violation.  Finding no criminal misconduct, the IG should have either returned the allegations to TJAG, pursuant to AFI 51-110, for his further processing or stopped its investigation.  By failing to properly characterize the nature of the allegations, the IG investigated the applicant’s professional conduct and made a finding that usurped TJAG’s authority and responsibility.

Additionally, counsel, on behalf of the applicant, contended because SAF/MRBC refused to release the relevant emails exchanged between TJAG and IG, it is unknown what TJAG knew at any particular point in time and what, if anything, he approved.  If TJAG believed the allegations might involve criminal conduct, then his approval would have been in accord with AFI 51-110.  When IG found no evidence of a UCMJ violation, that changed the investigation’s nature, and because TJAG approved initiation of an investigation does not mean he would have continued to approve had he been told of that change.  The SAF/IGS and AF/JAA advisory opinions address TJAG’s initial approval; however, without evidence, the assertions of TJAG continuous approval are worthless.  Counsel, on behalf of the applicant, submitted a Freedom of Information Act (FOIA) request for the relevant emails.

Further, counsel, on behalf of the applicant, contended the SAF/IGS and AF/JAA advisory opinions assert the IG’s focus was different than TJAG’s; the IG focused on the applicant’s performance as an officer and TJAG on her performance as a lawyer.  This is just a variation on the assertion the IG did not perform a PR review.  The IG focused exclusively on the applicant’s professional conduct and performed a de facto PR review, exactly as TJAG did two years later.

In an attempt to bootstrap the weight of their assertions, both SAF/IGS and AF/JAA advisory opinions reference reviews and legal reviews performed by other offices.  They are not part of the record and SAF/MRBC has refused to release them so far.  A FOIA request has been initiated for their release.

Counsel, on behalf of the applicant, also contended the AF/JAA advisory opines SAF/IG and the IO for the PR inquiry reached different conclusions, and reasonable minds can differ on which conclusion is correct.  However, the Department of the Air Force cannot be of two minds.  It is a single agency and can only take a single final action.  Consequently, in reaching its conclusions and recommendations, the AFBCMR must choose between the two, the findings of the IG or TJAG.

In closing, counsel, on behalf of the applicant, contended the case started out badly when the IG failed to properly characterize the nature of the allegations against the applicant, and failed to advise TJAG it was investigating the applicant’s professional conduct using the AFRPC.  When the IG published its finding, TJAG failed to react appropriately, and instead of asserting his exclusive responsibility for professional conduct of judge advocates, he allowed the applicant to suffer the consequences of the erroneous finding.  Finally, when the successor TJAG directed a PR review, he made the right determination regarding the applicant’s professional conduct, but failed to take action to rectify the damage previously done to the applicant’s career.  

The applicant’s complete response is at Exhibit I.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

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

3.  After reviewing all Exhibits, to include the applicant’s rebuttal, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationales of SAF/IGS, AF/A1LG, and AF/JAA.  However, the Board does not concur with the AF/A1LG recommendation of partially granting the application predicated upon the removal of all adverse information as the Board did not find the substantiated allegation in the Inspector General Report (S8033P) was erroneous.  As such, the Board finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board finds the applicant’s performance as a military officer to be subjected to the same process under the IG’s investigation as any other senior leader would be if there were a concern that they failed to live up to their obligations as an officer.   In this specific instance, the applicant failed to institute adequate measures in her supervision of her subordinates, to prevent conveying critically inaccurate information and recommendations.  Her Letter of Reprimand clearly indicates that it was her failure to ensure that attorneys under her supervision performed their duties with the competence, diligence, and precision required on a very significant matter.  At no time did the IG investigation seek to usurp AF/JA authority to remove, or otherwise impact, the applicant’s professional certification and/or licensure.  In fact, the LOR had no impact on the applicant’s professional licensure as a lawyer or judge advocate, or her ability to practice law.  To the contrary, the usage of the AFRPC was to establish the expected performance of a supervising officer over a subordinate officer within the applicant’s profession.  AF/JA later directing a professional-responsibility inquiry, that specifically addressed the applicant’s performance as a lawyer and her professional certification, supports this rationale. The LOR and referral OPR resulting from the IG ROI were legally sufficient.  All subsequent actions, based upon these documents, were appropriate, and in compliance with guidance in effect at that time.  The Board notes, it is the belief of counsel that the advisory opinions were prepared based upon facts and document not privy to the applicant or her counsel.  Through customary practice, the Board staff provide the applicant and/or counsel everything provided by the office of primary responsibilities that which the Board members will consider.    The Board further notes the request for legal advisories from a sister service; however, we do not believe this is necessary.  This Board is bound to review the evidence presented and through their entrusted judgment and integrity, each member is obligated to provide a fair and sound recommendation.  Therefore, the Board recommends against correcting the applicant’s records.

4.  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-2018-03743 in Executive Session on 29 May 20:

, Panel Chair 
, Panel Member
, Panel Member

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

Exhibit A:	Application, DD Form 149, w/atchs, dated 5 Dec 18.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, SAF/IGS, dated 7 Nov 19.
Exhibit D:	Advisory opinion, AF/A1LG, dated 21 Nov 19.
Exhibit E:	Advisory opinion, AF/JAA, undated.
Exhibit F:	Notification of advisory, SAF/MRBC to applicant, dated 13 Jan 20.
Exhibit G:	Applicant’s response, dated 31 Jan 20.
Exhibit H:	Response to applicant’s request, SAF/MRBC, dated 26 Mar 20.
Exhibit I:	Applicant’s response, w/atchs, dated 5 May 20.

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.