RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-00989 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His Letter of Reprimand (LOR) and any reference to the LOR be declared void and removed from his records. 2. His referral Officer Performance Report (OPR) for the period of 1 Jul 2007 to 30 Jun 2008 be declared void and removed or redacted to eliminate any reference to the LOR. 3. His Unfavorable Information File (UIF) be removed. 4. He be transferred out of the Air Force Office of Special Investigations (AFOSI) and his Primary Air Force Specialty Code (PAFSC) be changed to 95A0, Non-extended Active Duty Air Force Reserve Component (AFRC) or Air National Guard (ANG) USAF Liaison Officer or Civil Air Patrol (CAP) Liaison Officer, and he be assigned where he can use his skills to the benefit of CAP. ________________________________________________________________ APPLICANT CONTENDS THAT: He had a personality conflict with his supervisor who ridiculed him openly, denied him perks offered to other agents and failed to provide him with the required evaluations to be removed from his probationary status as an AFOSI agent. At no time did he misuse his position as an AFOSI agent or make false statements to base authorities. He contacted the special agent in charge of counterintelligence at Eielson Air Force Base (AFB), AK, for the RED FLAG exercise, scheduled for 9 through 12 Apr 2008, and offered his assistance. She responded that his help would be appreciated since Red Flag was a busy time. He did not indicate that he was on Temporary Duty (TDY) orders when making lodging reservations for himself and his two friends. The Eielson AFB gate guard advised there was a 100 percent identification check in-place. He informed him that he was on- base for official business, provided his AFOSI identification credentials and advised that by policy OSI credentials were sufficient to vouch for himself and his guests. They were detained while the guard supervisor contacted the local AFOSI to verify whether OSI credentials were sufficient to bring civilians on base. He attempted to clarify that he was not using his credentials to sponsor his guests but was only questioning the gate guard’s understanding of the policy. The billeting receptionist viewed the reservation which was listed as a TDY and requested a copy of his orders. He replied that he did not need orders as he thought his reservations were space available. He presented his OSI credentials and she indicated they had three space available rooms. Due to weather the next day’s exercise events were cancelled. One of his guests was invited by another military pilot to view the base paint barn to observe new aircraft decals and although this access was pre-planned and authorized, he contacted the Public Affairs Office (PAO) as a courtesy. He gave the PAO officer his card but did not discuss gaining additional access to the flight line and he did not use his rank and credentials to coerce or influence her as she stated to the investigator. The vice wing commander was notified that he was hosting media personnel on base and that one of his guests had wandered away from his media escort. The vice wing commander requested a meeting with him and he received a call from his region commander telling him to stop whatever he was doing. During the meeting, the vice wing commander seemed more concerned with them staying on-base when billeting was in short supply. He apologized and advised that they were staying in billeting on a space available basis. The commander’s comment was “no harm, no foul” and he allowed them to continue staying in billeting until their departure the next day. Later, he was accused of lying to the vice wing commander about what he was doing at Eielson. On 21 Apr 2008, AFOSI initiated an investigation alleging that he inappropriately used his OSI credentials to provide access to two civilians, falsified official orders to obtain billeting for himself and his two guests and provided false statements to base authorities about his activities. The detachment commander who initiated the investigation was his previous supervisor who he had a personality conflict with. Three months after the completion of the investigation, he received an LOR and was notified of the intent to recommend his decertification as an AFOSI agent. He submitted a response to the LOR and his Area Defense Counsel (ADC) prepared a memorandum in rebuttal pointing out numerous investigative irregularities and the general lack of substantive evidence tying him to any offense. He received a referral OPR ending 30 Jun 2008 for not meeting standards, misuse of his authority as an AFOSI special agent, required improvement in maintaining integrity and professional standards. The punishment he received was unduly harsh and unjust. On 15 Jun 2009, he submitted a complaint to the AFOSI Commander In Accordance With (IAW) AFI 51-904, Complaints of Wrongs Under Article 138, Uniformed Code of Military Justice (UCMJ), asking to have the LOR, Unfavorable Information File (UIF) and OPR removed. The request was denied. On 22 Feb 2010, he submitted a complaint for redress under Article 138, UCMJ, to the Air Force District of Washington (AFDW) Commander stating that AFOSI’s decisions were based on a defective investigation that resulted in irrefutable determination of his guilt. Although the AFOSI Commander removed him from duty with OSI, his AFSC is still 71S3, AFOSI Agent, and he remains under AFOSI command and control. As a result, he has been unable to meet the bare minimum of points needed as an Individual Mobilized Augmentee (IMA). He has not accrued any active duty time since 2-4 May 2008. On 27 May 2010, USAF/JAA, by authority of the Secretary of the Air Force, denied his request for redress under Article 138, UCMJ. The legal review did not include any information on the validity of the action, except to say that the AFDW Commander’s action was appropriate, which essentially is no action. He has been unable to secure a paid billet and unable to provide any useful service to the Air Force. He has been diligently trying to obtain a position and was notified in Dec 2011 that he was selected for a position in the Pacific Command to only have the offer rescinded a month later without explanation. AFOSI has effectively ended his career without notification, opportunity to respond, separation board review or any regulatory requirements for due process. He never once thought about providing special favors but merely offered what any Air Force member could offer a civilian guest. He also saw it as an opportunity to fill a square in his training. As with other previous inactive duties, he provided his own transportation and lodging. Upon completion, he would submit to receive credit for work done. He knew that based on the false conclusion recorded as fact that his career was over. He was counseled to submit to the Board as no one would take him with a referral OPR. The effect of the OPR is beyond the intent of the actions taken against him and beyond the intent of the disciplinary process outlined by AFI. The most important factor is the truth which is not represented by the ROI or the OPR. He accepts the consequences of his actions and offers that he could have handled the events in a different manner. However, despite his missteps and communication failures, at no time did he misuse his position as an AFOSI agent for any reason, nor did he misrepresent the facts to anyone. His integrity is intact. In support of his request, the applicant provides a brief from his civilian counsel, a personal statement, copies of e-mail communique, ROI, letters to AFOSI and AFDW commanders, LOR, Notification of Decertification letter, referral OPR, USAF/JAA letter and letters of support. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant is currently a reserve officer in a non- participating status. The ROI summary, dated 10 Jul 2008, shows the applicant was investigated for inappropriate use of OSI credentials, falsifying orders and making false official statements to base authorities during the applicant’s visit to Eielson AFB, AK, from 9 through 12 Apr 2008. In a memorandum, undated, the AFOSI Commander disapproved the applicant’s Article 138 complaint to withdraw the LOR and UIF and reinstate him as a special agent. IAW AFI 54-901, the applicant’s Complaint for Redress Under Article 138, UCMJ, was reviewed and disapproved by the General Court Martial Authority (GCMA), the AFDW Commander, and reviewed by USAF/JAA for Secretarial review and disposition as required. ________________________________________________________________ AIR FORCE EVALUATION: AFOSI/JA recommends denial. The chain of command took appropriate action and complied with applicable regulations. An investigation revealed the applicant abused his authority when he attempted to access the installation using his badge and credentials rather than comply with security protocols which required 100 percent identification check of all members in the vehicle. He made billeting reservations using his badge and credentials rather than complying with protocol which required the presentation of TDY orders for himself and his guests. He attempted to use his rank of major to obtain further access to the flight line which was not otherwise allowable by public affairs protocols and he told the 354th Fighter Wing Vice Wing Commander he attempted to use his badge and credentials to access the base because he was testing the gate security procedures which was a false statement since the applicant was not on official duty during his visit. The applicant contends the LOR for his misconduct was too harsh and a less severe form of actions, such as a Letter of Admonishment (LOA) or Letter of Counseling (LOC) should have been taken instead. Choosing which form of administrative action to take is within the discretion and authority of a military commander. In this case, his commander acted within the scope of his authority and did not abuse said authority in issuing a LOR. The applicant’s misconduct occurred over the course of three days, involved personnel at the main gate, billeting, PAO, vice wing commander for the installation. Additionally, his actions disrupted the relationship between the local detachment and the host wing. The ROI supports the conclusion and the LOR was well within the appropriate range of action. The complete JA evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On behalf of the applicant, his civilian legal counsel states that asking AFOSI to analyze whether AFOSI actions were appropriate is not likely to yield any meaningful results. An analysis must be completed by an organization that has no interest in the outcome. Conflicting evidence should be resolved in favor of the applicant. The applicant’s guests were both authorized access to the installation and they did not need the applicant’s credentials to gain access. The applicant was also clear that he was not sponsoring guests but was merely attempting to clarify gate procedures for his own edification. There is no evidence that he used his badge for anything but to identify himself. There is also no evidence that he made billeting for anything else than space available and he did not attempt to gain any special favors. During the conversation with the PAO officer, she told the applicant she was a reservist with no authority so why would the applicant try to strong arm her to gain further access. Furthermore, there is absolutely no evidence he lied to the vice wing commander. The vice wing commander does not remember the specific details of the conversation and the applicant was only attempting to test security procedures. It is inconsistent and not in the best interest of the service to ruin an officer’s career over rumors, assumptions and feelings. The ROI states that the applicant was not on TDY orders and although orders are required for Title 10 status and UCMJ jurisdiction, it is not a requirement for official business. Based on the applicant’s e-mail communique with the Eielson AFOSI agent, he had every reason to believe he was on official business. Furthermore, he has not been decertified from the AFOSI specialty and as a result, has been denied opportunities. The applicant has been treated unfairly and unduly harsh because he was not “one of the boys” as evidenced by the detachment commander’s treatment of him over the course of time. He seized the opportunity to get rid of an officer who did not fit in. The applicant’s legal counsel’s complete submission, with attachments, is at Exhibit E. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We took careful notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt the rationale expressed as the basis for our conclusion that the applicant has not been the victim of an error or injustice. The applicant’s numerous contentions in response to the Air Force evaluations are duly noted; however, we do not find these assertions, in and by themselves, sufficiently persuasive to override the evidence of record or the rationale provided by the Air Force office of primary responsibility. We are not persuaded by the evidence that the actions taken by his commander were beyond his scope of authority, inappropriate, or arbitrary and capricious. Additionally, the evidence reflects that the applicant exercised poor judgment which negatively affected good order and discipline. Consequently, it appears there was a basis for the commander to question his judgment and take the administrative actions that he did. As such, and in the absence of persuasive evidence to the contrary, we find no basis to recommend granting any of the relief sought in this application. 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 issue involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that 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-2013-00989 in Executive Session on 4 Mar 2014 and 5 Mar 2014, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 4 Feb 2013, w/atchs. Exhibit B. Applicant’s Master Personnel Records. Exhibit C. Letter, AFOSI/JA, undated. Exhibit D. Letter, SAF/MRBR, dated 14 Nov 2013. Exhibit E. Letter, Counsel, dated 12 Dec 2013, w/atchs. Panel Chair