RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-00458 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His Nonjudicial punishment (NJP), imposed under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), be set aside and all references thereto be removed from his records. 2. The Secretary’s action directing his retirement in the grade of colonel (O-6) be set aside and his record be corrected to show he retired in the grade of brigadier general (O-7), effective 1 Feb 09. 3. He be refunded the erroneously forfeited active duty pay resulting from imposition of the NJP and given any back pay resulting from the recomputation of his retired pay at the O-7 grade. ________________________________________________________________ APPLICANT CONTENDS THAT: 1. The DoD Inspector General (DoD-IG) investigation was replete with factual and legal errors, inappropriate conclusions, prejudice, and pre-judgment of the case. The investigators were misled by a key witness who had an undisclosed personal and professional stake in the outcome of the investigation. Both were females who gave automatic credence to this key witness, also a female, who filed the initial complaint against the applicant. Neither had field experience with a Joint command or comprehended the sometimes subtle but important culture differences among the services. They failed to pursue any exculpatory information which would have confirmed the facts as related by the applicant. They failed to recognize crucial service culture differences, resulting in conclusions of fact and law that reflected an Army centric view of the actions and relationships between the applicant and members of his staff. These factors, plus the tendency of the of IG investigators in general, and these investigators in particular, to formulate their conclusions too early in the investigation and then investigate in such a way as to validate the initial conclusions, resulted in findings not borne out by the actual facts. 2. The NJP was inappropriate. There was insufficient evidence, even under a preponderance standard, to conclude the applicant violated provisions of the Joint Ethics Regulation (JER) regarding conflict of interest or that he was derelict in the performance of his duties. The decision to punish him was made on the basis of incorrect conclusions of fact and the law governing both conflict of interest and dereliction of duty, and therefore constituted an error or injustice. 3. The action of the Secretary of the Air Force, on the recommendation of the Officer Grade Determination (OGD) Board, to retire the applicant in the lower grade was based on erroneous conclusions of fact and the law and the improper and erroneous application of the Secretary’s authority to determine the appropriate retirement grade of a senior officer. The decision was based on the erroneous and unjust NJP and overrode the commander’s discretion to evaluate the evidence contained in the DoD-IG Report of Investigation (ROI) and take appropriate action thereon. In support of his request, the applicant provides a personal statement, a 33-page statement of counsel, and copies of e-mail correspondence related to his relationship with certain defense contractors during the matter under review, correspondence related to his candidacy for a position with the Department of Homeland Security, six supporting statements, and a newspaper article titled, “From the Pentagon to the Private Sector.” The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant’s military personnel records indicate that he served in the Regular Air Force in the grade of brigadier general, effective and with a date of rank of 1 Jan 04. The Department of Defense Inspector General (DoD-IG) initiated an investigation to address the following allegations pertaining to the applicant while he served primarily as the Director of Command, Control, Communications, and War fighting Integration, Headquarters, United States European Command (USEUCOM-J6): Allegation 1. The applicant took official action on behalf of a company with which he was negotiating employment in violation of Title 18, United States Code (USC), Section 208, Acts Affecting a Personal Financial Interest, and DoD 5500.7-R, Joint Ethics Regulation (JER). Finding: SUBSTANTIATED Allegation 2. The applicant extended official travel for primarily personal purposes and claimed unauthorized expenses on travel vouchers in violation of the Joint Federal Travel Regulations (JFTR). Finding: SUBSTANTIATED Allegation 3. The applicant misused his position by directing subordinates to perform personal services in violation of the JER Sections 2635.702, Use of Public Office for Private Gain, and 2635.705(b), Use of Subordinate’s Time. Finding: SUBSTANTIATED During the course of investigation, the investigators became aware of the following additional allegations pertaining to the applicant: Allegation 4. The applicant misused his Government cellular telephone and on-post quarters Government telephone for personal telephone calls in violation of JER Section 2-301, Use of Federal Government Resources, and Army Regulation 25-1, Army Knowledge Management and Information Technology. Finding: SUBSTANTIATED Allegation 5. The applicant failed to use his Government travel card for expenses arising from official Government travel in violation of DoD 7000.l14-R, DoD Financial Management Regulation (FMR), and Headquarters EUCOM Staff Memorandum Number 30-1, Travel Management. Finding: SUBSTANTIATED The applicant was given an opportunity to review the tentative results of the investigation and, on 30 Aug 07, he provided a five-page rebuttal contending that he never knowingly or intentionally violated Federal ethics laws or regulations in his 33 years of service. He argued that: 1) he did not inappropriately grant or receive any benefit or favor from a government contractor, but was only performing his duties in exercising oversight of contractors providing services under his purview; 2) his numerous government trips were not for his personal benefit or that of a government contractor, but for proper military purposes and any variations between his actual travel and the itineraries of record were the result of innocent administrative, clerical, or technical mistakes, not from any intention to obtain additional travel money or leave time from the government; 3) he did not inappropriately direct subordinates to perform personal services, but believed his interaction with them was consistent with the customs and norms associated with the culture that exists at small overseas military installations; 4) his use of government telephones for personal phone calls was authorized and he paid each bill presented to him; and 5) his failure to use the government travel card on various occasions generally resulted from computer, scanner, or other technical failures and did not result in any significant personal benefit or cost to the government. After considering the applicant’s rebuttal, the IG determined the applicant did not provide new or material evidence that would cause a change to the tentative findings. DoD-IG published its findings and recommendations in an investigative report, dated 2 Nov 07, and recommended the Secretary of the Air Force consider appropriate corrective action in the matter, to include recoupment of the costs for unauthorized lodging, perdiem, and personal telephone calls, as well as reconciling the applicant’s leave account to accurately reflect leave taken during official travel. On 25 Apr 08, the applicant was notified by his commander of his intent to impose NJP under Article 15 of the UCMJ. The reasons for the action were as follows: 1) He did, on or about 5 Mar 07, and on or about 15 Mar 07, without authority, fail to go at the time prescribed to his appointed place of duty in violation of Article 86 of the UCMJ. 2) He was, on diverse occasions between on or about 1 May 06 and on or about 31 May 07, derelict in the performance of his duties in that he, by culpable inefficiency, failed to fully account for personal phone calls on his government cell phone and reimburse the US Armed Forces for the cost of said personal phone calls, as it was his duty to do. 3) He did, on diverse occasions between on or about 24 Jan 07 and on or about 30 Apr 07, wrongfully and dishonorably participate personally and substantially in a Federal agency procurement or other particular matter that, to his knowledge, had or would have had a direct and predictable effect on the financial interest of a private corporation, a prospective employer with whom he was seeking employment, in violation of 5 CFR 2635.604, which was conduct unbecoming an officer and a gentleman, in violation of Article 133 of the UCMJ. On 30 May 08, after consulting with legal counsel, the applicant acknowledged receipt of the action, waived his right to court- martial, elected to submit a written presentation in his behalf, and requested a personal appearance before the commander. On 6 Jun 08, the commander determined the applicant committed the alleged offenses and imposed punishment consisting of a reprimand and forfeiture of $2,500.00 pay per month for two months. The applicant acknowledged receipt of the commander’s decision the same day. On 1 Jul 08, the action was found to be legally sufficient and final. On 1 Jul 08, the applicant was notified by his commander of his intent to initiate an officer grade determination (OGD) in conjunction with his request to retire. The action was based on the findings described in the aforementioned DoD-IG ROI. The notification letter indicated the entire DoD-IG ROI, which included substantiated allegations not otherwise part of the NJP action, would be considered by the Secretary of the Air Force, or designee, in deciding his retired grade. On 2 Jul 08, the applicant acknowledged receipt of the action and elected to submit a written reply. On 14 Jul 08, both the applicant and his defense counsel submitted written replies. On 18 Jul 08, the commander forwarded the OGD case file to the Secretary of the Air Force and recommended the applicant be retired in the grade of brigadier general. While he found the applicant’s misconduct unacceptable, he opined that his misconduct was not sufficiently egregious to outweigh his otherwise satisfactory service as a brigadier general. He indicated the applicant proved himself to be an extremely effective leader during the course of his primary duties and noted specific advances to EUCOM’s war fighting capabilities that were directly attributable to his leadership. On 7 Aug 08, HQ USAF/JA concurred that a board of general officers should be convened to consider the matter, recommending the applicant be retired in the lower grade of colonel. He indicated the investigation revealed a disturbing pattern of misconduct, abuse of authority, and deceptiveness that strongly suggested the applicant’s service in the grade of brigadier general was anything but satisfactory. While his performance of his primary duties as was impressive and if only isolated, minor indiscretions or mistakes were involved, his conduct would not necessarily adversely affect a determination of whether he served satisfactorily. However, the facts went well beyond isolated instances of misconduct or mistakes and indicated long- term misconduct reflecting a consistent sense of personal entitlement at the expense of Air Force interests and included disingenuous excuses for such behavior. On 13 Nov 08, the OGD Board, comprised of a board of collateral general officers, determined the applicant did not serve satisfactorily in the grade of brigadier general and recommended to the Secretary of the Air Force that he be retired in the grade of colonel. On 12 Dec 08, the Secretary of the Air Force determined the applicant did not serve satisfactorily in the grade of brigadier general within the meaning of 10 USC 1370(a)(1); but found he did serve satisfactorily in the grade of colonel and directed he be retired in that grade. On 23 Dec 08, the applicant was ordered to be relieved from active duty and transferred to the retired reserve in the grade of colonel. On 31 Jan 09, he was so relieved and credited with 33 years, 10 months, and 5 days of total active service. ________________________________________________________________ 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. The applicant contends the findings of the DoD-IG investigation, which formed the basis of the contested NJP and OGD, were erroneous; he was the innocent victim of a faulty investigation, borne from and influenced by the ulterior motives of a member of his former staff, and driven to erroneous conclusions through the ineptitude of investigators who were predisposed to substantiate the initial allegations against him. After a thorough review of the evidence of record and the applicant’s complete submission, we are not convinced he has been the victim of an error or injustice. Counsel argues the investigators were inappropriately influenced by a member of the applicant’s former staff, but other than these assertions, he provides no evidence whatsoever that would lead us to believe the investigation sprang from, or was influenced by, the alleged ulterior motives of this or any witness. Counsel argues the investigators lacked the requisite skills and experience to conduct a thorough and fair investigation of the allegations against the applicant; however, his efforts to impugn the qualifications of or methods used by these investigators are not supported by any evidence he submitted or by that contained in the records available to us. Counsel further argues that investigators failed to pursue any exculpatory information which would have confirmed the facts as related by the applicant; however, he provides no evidence the applicant was precluded from providing such evidence during the course of the investigation or that it was not given due consideration by reviewing authorities. In this respect, we note the applicant was interviewed extensively by investigators and was provided an opportunity to submit statements and evidence in support of his version of the events, which was included in the final version of the ROI. Counsel argues that investigators failed to recognize crucial service culture differences, resulting in conclusions of fact and law that reflected an Army centric view of the actions and relationships between the applicant and members of his staff. It is not clear to this Board what Counsel means by the term “Army centric” and what the specific service culture differences are which adversely impacted the outcome of the investigation. The applicant’s counsel has not presented evidence that defines this assertion or how the investigation was specifically adversely impacted. Counsel argues the findings of the investigation are not borne out by the facts, but are the result of a tendency of investigators to formulate conclusions too early in the process and then investigate in such a way as to validate the initial conclusions. In support of this argument, Counsel cites what he believes are various inconsistencies in the evidence of record. However, we do not find these arguments persuasive or the evidence sufficient to conclude the investigators were predisposed to a preconceived outcome to the investigation. Aside from these arguments, we note the applicant provides a variety of supporting statements and documentation that describe his technical prowess and exemplary duty performance. Among these are four supporting statements from flag officers, each of whom uniformly express incredulity at the prospect the applicant committed the alleged misconduct. These statements are noted; however, they are insufficient to overcome the results of the factual investigation. In this respect, we note these statements are all based on the authors’ observations of the applicant during a period well outside the scope of the investigation into the matter at hand. Counsel argues the applicant could not have been guilty of taking official action on behalf of a company with which he was negotiating employment because no evidence was presented that he made an application for or was offered any employment, except that which he sought with the federal government. In support of this argument the applicant provides copies of correspondence related to his candidacy for a position with the Department of Homeland Security and e-mail correspondence between the investigators and two witnesses regarding his interactions with certain private defense firms. However, we do not agree with counsel’s argument. In this respect, we note the IG ROI indicates that in accordance with Title 5, Code of Federal Regulations (CFR), Section 2635.603(b)(1), “negotiating employment” is not predicated on the submission of an application or a specific employment offer being rendered – or accepted. Rather, 5 CFR 2635.603(b)(1) indicates that, amongst other things, directly or indirectly engaging in negotiations for employment with a view toward reaching an agreement regarding possible employment constitutes “negotiating employment.” Seeking employment includes more preliminary efforts which are not predicated on producing an application or resume. As such, in the face of what we believe is a comprehensive investigative report, we do not find this documentation, combined with Counsel’s additional arguments on the evidence of record, sufficient to conclude the DoD-IG investigation into the applicant’s misconduct was fatally flawed, the applicant was treated unfairly, or the ultimate findings and conclusions described in the DoD-IG ROI caused the applicant to be the victim of error or injustice. Therefore, having no basis to question the validity of the investigation or its ultimate findings and conclusions, we believe that it served as the legitimate basis for the subsequent NJP action. Notwithstanding Counsel’s assertions that the commander misapplied the law and the evidence with respect to the specifications for which the applicant was punished, we note the Article 15 was found legally sufficient and it appears the applicant was provided all of the rights to which he was entitled, including the right to refuse the Article 15 and 4. 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 our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ 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-2011-00458 in Executive Session on 24 Oct 11, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 1 Jan 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Panel Chair