RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-05783 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: 1. His Non-Judicial Punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) imposed on 1 Dec 11, be declared void and removed from his records and the $3,820.00 of forfeiture in pay be reimbursed. 2. His referral Letter of Evaluation (LOE) for the period 25 Apr 11 through 5 Dec 11, be declared void and removed from his records or in the alternative be modified to reflect as non-adverse. 3. His Officer Performance Report (OPR) for the period 13 Jun 11 through 1 Apr 12, be declared void and removed from his records or in the alternative be modified to reflect as non-adverse. 4. His AF Form 8, Certificate of Aircrew Qualification, dated 14 Dec 11, be set-aside and removed from his records, or in the alternative be modified to reflect the findings of the Flying Evaluation Board (FEB) and Board of Inquiry (BOI). 5. He be reinstated into aviation service. APPLICANT CONTENDS THAT: In 2011, while serving in Afghanistan he performed a 1G aileron roll in an MC-12 aircraft. The maneuver was performed by many of the MC-12 pilots; however, he and two other pilots were the only ones to face adverse actions as a result. The primary question in the case was whether a maneuver was performed that was known to be unauthorized or prohibited in the MC-12. The Air Force claimed it was unauthorized or prohibited because the Pilot Operating Handbook (POH) for the civilian derivation of the MC-12 (Beechcraft King Air 350) prohibited aerobatic maneuvers for the commuter configuration of the King Air. After the maneuver was performed, the Air Force claimed the civilian POH was to be considered the equivalent to an Air Force Dash-1 technical order, which was disputed. As a result of having performed the maneuver and been onboard aircraft when others performed it, he faced multiple adverse actions and hearings. The core argument is that the MC-12 was rushed into service ahead of a Dash-1 being established. The MC-12 was not identical to the Beech King Air - it is a military modification of that aircraft. The unauthorized/prohibited maneuvers and flight parameters for the MC-12 were being established at the same time they were operating in theater. They were never instructed, officially or unofficially, formally or informally, that the civilian POH was supposed to be followed as equivalent to a Dash-1. To the contrary, they were flying the MC-12 in support of the special operations mission in Afghanistan and in a manner very different than the commuter version of the Beech King Air would be flown (which is what the POH applied to). An 1G aileron roll is a safe, nonaggressive maneuver that can be performed uneventfully by any aircraft in the Air Force or civilian inventory. It is a maneuver flown daily by Air Force fighter pilots, and it is commonplace in the F-15 and T- 38 communities in which he flew prior to the MC-12. Moreover, he had a reason to perform the roll as a confidence maneuver particularly for the on-board enlisted crew who felt uncomfortable in a small turbo prop plane. The crews' general lack of confidence in the MC-12 was based not only on their lack of familiarity with such an airframe, but based on a near fatal incident in which one of the MC-12 pilots became disoriented during a storm and wound up in a nearly unrecoverable dive. He prevailed in the FEB and was recommended for continued flying. However, the Air Education and Training Command commander (AETC/CC) disqualified him from further aviation service, rendering him permanently “grounded.” A Major faced an FEB that arrived at the same conclusion. However, the same convening authority and AETC/CC agreed with the recommendation of the Major’s FEB and he was returned to flying status. The other pilot, a Captain, did not face an FEB at all, nor did any other pilot. He requested reconsideration of the adverse actions he received based on discovering a Flight Crew Information File (FCIF) that was not previously provided and contradicted the Air Force’s claim that the POH had been considered equivalent to a Dash-1 during his deployment. His reconsideration request was denied and the AETC/CC attempted to administratively discharge him. Once again, he prevailed in front of the administrative discharge board and was retained. The flying maneuver was considered by three separate Air Force boards of officers including two separate boards of pilots and the 15 officers who sat on those three boards came to consistent conclusions, yet he is still not permitted to fly and his flying and personnel records are full of references to him performing a maneuver that was prohibited or not authorized. His past and present immediate commanders all supported and testified on his behalf. However, their support appears not to have mattered to the AETC/CC. In addition, it appears not to have mattered that the AETC/CC nonconcurred with his FEB, but concurred with the Major’s FEB and the Captain was not ordered to appear before a FEB. He had no reason to believe that the findings of two administrative boards clearing him of the alleged misconduct (and another board that cleared the Major would be ignored. Had he known that would be the case, he would have turned down the Article 15 and demanded trial by court-martial. In support of his requests, the applicant provides a 21-page memorandum, copies of the FEB findings and recommendations, Administrative Discharge Board findings, AF Form 3070C, Record of NJP Proceedings (Officer); LOE, OPR, AF Form 8 and various other documents associated with his requests. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant is currently serving on active duty in the grade of lieutenant colonel. According to the POH and Federal Aviation Administration (FAA) Approved Airplane Flight Manual, dated Oct 07, “Acrobatic maneuvers, including spins, are prohibited.” According to an AF Form 3070C, dated 27 May 10, on or about 16 Apr 10, the applicant, in a public place, exposed his genitals while in uniform, to the disgrace of the Armed Forces, in violation of Article 133, UCMJ. The applicant consulted counsel, waived his right to demand trial by court-martial, and accepted the NJP. He submitted written matters in his own behalf but did not request a personal appearance. The commander determined he committed the offense alleged, and imposed punishment consisting of forfeiture of $500.00 pay per month for two months and a reprimand. The applicant did not appeal the commander’s decision but submitted matters regarding the Officer Selection Record (OSR) decision. The commander decided the action would not be filed in his OSR. The Article 15 action was reviewed by the servicing and General Court-Martial Convening Authority (GCMCA) Staff Judge Advocate (SJA) offices and determined to be legally sufficient. According to a Commander-Directed Investigation (CDI) dated 24 Nov 11, on 18 Nov 11, the 9th Air and Space Expeditionary Task Force- Afghanistan commander (9 AETF-A/CC) appointed an Investigating Officer (IO) to conduct an investigation into three areas, only one allegation was substantiated: ALLEGATION #1: Were prohibited flight maneuvers performed by members of the 4th Expeditionary Reconnaissance Squadron (4ERS). ANALYSIS/CONCLUSION: A preponderance of the evidence existed to show that members of the 4 ERS engaged in Barrel Rolls, a flight maneuver prohibited while piloting an MC-12, on at least three occasions. SUBSTANTIATED. RECOMMENDATION: The IO recommended the applicant receive (as a minimum) an Article 15 based on his involvement in all three flights, his rank, role as a primary enabler, and attempts to conceal his actions. In addition, it was recommended that the Major receive an Article 15 based on rank, experience and evidence showing he also piloted a prohibited maneuver. Further, it was noted that all the officers involved demonstrated a breakdown in judgment, airmanship, and basic flight discipline. According to AF Form 3070C, dated 1 Dec 11, on or about 11 Sep 11, 22 Sep 11 and 26 Oct 11, the applicant was derelict in the performance of his duties in that he willfully failed to refrain from executing unauthorized aerobatic maneuvers as it was his duty to do, in violation of Article 92, UCMJ. The applicant consulted counsel, waived his right to demand trial by court-martial, and accepted the NJP. He submitted written matters in his own behalf but did not request a personal appearance. The commander determined he committed the offense alleged, and imposed punishment consisting of forfeiture of $3,820.00 pay per month for two months and a reprimand. The portion of punishment which extended to forfeitures in excess of $1,910.00 per month for two months was suspended through 30 May 12, at which time it was to be remitted without further action unless sooner vacated. The applicant did not appeal the commander’s decision or submit matters regarding the Officer Selection Record (OSR) decision. The commander decided the action would be filed in his OSR. The Article 15 action was reviewed by the servicing and General Court- Martial Convening Authority (GCMCA) Staff Judge Advocate (SJA) offices and determined to be legally sufficient. AF/CV memorandum, AF/CC FCIF 11-10, Flight Discipline, dated 5 Dec 11, states in part “that aircrew members will adhere to the basic principles of flight discipline and the disregard of basic flight discipline principles, including the execution of unauthorized maneuvers, cannot, and will not be tolerated.” The 9th Operations Group Commander (9th OG/CC) memorandum, ACC FCIF U11-01 MC-12W Aircraft Maneuvering Flight Restrictions, dated 6 Dec 11, states in part “in the absence of Air Force TO Dash- 1 data, maneuver restrictions are in accordance with the FAA- approved Hawker Beechcraft Corporation Super King Air 350ER and 350CER Pilot’s Operating Handbook.” Ref page 2-16 Maneuver Limits; “Acrobatic maneuvers including spins are prohibited.” On 13 Dec 11, the applicant received a Commander-Directed downgrade in the following flight areas: Safety, Crew Discipline and Risk Management. Specifically, the 4 ERS/CC stated the applicant performed aerobatic maneuvers prohibited by the MC-12W FAA-approved flight manual; demonstrated a clear lack of judgment, allowing potentially dangerous situations to develop putting the aircraft and his crewmembers at risk; failed to exercise strict flight and crew discipline; violated and ignored rules with respect to aircraft maneuvering; failed to provide direction or lead his crew in taking the proper and necessary corrective actions; failed to assess and mitigate risk by willfully and negligently performing unauthorized maneuvers; displayed a lack of concern and complete disregard for preserving combat capability; and as a pilot in command, he failed to establish proper balance between command authority and crewmember participation. Further, the commander noted, that due to a severe lack of judgment displayed in the applicant’s actions, he would remain unqualified until further notice. On 15 Dec 11, the applicant was notified of the 71 FTW/CC’s intent to convene a FEB to develop and consider evidence concerning his professional qualifications as a pilot and make recommendations regarding his future use in flying duties. On 19 Dec 11, in response to the FEB notification memorandum, dated 15 Dec 11, the applicant, through counsel, objected to the FEB and stated the processing of his case was tainted by the appearance of Undue Command Influence (UCI). Specifically, the Vice Chief of Staff of the Air Force (VCSAF) and the Combined Forces Air Component Commander (CFACC) have chosen to make an example out of him and the allegations against him before the case is resolved. They not only expressed their personal feelings about the case, but have signaled to their subordinates the case is being followed at the highest levels of the Air Force and what adverse consequences are to be expected at those levels. On 6 Jan 12, the applicant, through counsel was notified his objection to the FEB was not substantiated and the FEB would proceed. In addition, it was noted there was no evidence of UCI. On 8-9 Feb 12, a FEB convened and considered all the evidence presented to it, in closed session and found the applicant DID exhibit a lack of judgment on 11 Sep 11, 22 Sep 11 and 26 Oct 11, by accomplishing or allowing to be accomplished rolling maneuvers, a full 360 degrees of roll, in the MC-12W, similar to the instrument aileron roll described in AFMAN 11-217V1, Instrument Flight Procedures; DID NOT intentionally disregard instructions, regulations or procedures while accomplishing or allowing to be accomplished these rolling maneuvers on 11 Sep 11, 22 Sep 11 and 26 Oct 11. The FEB noted the evidence presented during the FEB indicates incomplete, confusing and contradictory MC-12W guidance. While a roll was not specifically prohibited by existing guidance, the aircraft was not certified for aerobatics; and while there were many benefits to rapid procurement and employment of the MC- 12W to operations in Afghanistan, the existing written guidance in the POH did not address the tactical employment requirements of the MC-12W. Lastly, the FEB noted a Dash 1 technical order had not been published. The FEB stated that although the applicant executed poor judgment on three separate dates, they considered this one event and recommended he be retained in aviation service due to his otherwise sound aviation record. On 5 Mar 12, the 71 FTW/CC (convening authority) reviewed the FEB proceedings, attachments and legal reviews and non-concurred with the board’s recommendation that the applicant be retained in aviation service. Specifically, the commander stated that regardless of whether the rolling maneuvers technically violated instructions, regulations or procedures, the applicant’s lack of judgment was very concerning. First, he clearly should have discussed the maneuvers with his commanders prior to taking the initiative to undertake them. Second, he participated in the rolling maneuvers on three separate dates over a 45 day period. Therefore, he could not treat this as a single event in good faith. Third, one of the “rolls” was flown by his co-pilot, at his direction, so he could reenlist an airman in the back of the aircraft just to make the reenlistment a memorable event. Fourth, he demonstrated this lack of judgment a mere 14 months after receiving an Article 15 for displaying his testicles in public at the club in front of civilian employees and student pilot family members. Further, the commander noted the applicant was influential within the pilot community and that his aviation record prior to 11 Sep 11, was outstanding; however, his aviation decisions by rolling the MC-12W have not only impacted himself but those he was flying with. The applicant was the senior aviator on each flight; therefore, he was ultimately responsible for his decisions and should be held accountable. Lastly, the commander stated the applicant was not fit to be in any position to influence aviators in the future and based on these multiple incidents, the best interest of the Air Force was to disqualify the applicant from aviation service. On 9 Jul 12, the AETC/CC concurred with the convening authority and directed the applicant be disqualified from aviation service. AETC/A3V notified AF/A3O-FT and AFPC to enter a copy of the FEB proceedings into the applicant’s personnel record and take recommended reassignment actions. On 26 Oct 12, the 71 FTW/CC recommended the AETC/CV initiate action under the provisions of AFI 36-3206, Administrative Discharge Procedures for Commissioned Officers, for Serious or recurring misconduct punishable by military or civilian authorities against the applicant. On 11 Dec 12, the applicant, through counsel, requested the AETC/CC reconsider the prior adverse actions taken against him for allegedly deviating from aviation standards and guidance based on newly discovered evidence. Specifically, the applicant requested his Article 15, dated 1 Dec 11, be set aside, his referral LOE and OPR be removed and reconsideration of the FEB non-concurrence at all command levels. The applicant states he obtained a copy of the ACC FCIF U11-10, dated 6 Dec 01 from the ACC Director of Operations, which established the King Air 350 POH as the stand-in for the nonexistent MC-12W Dash 1. The FCIF was dated 6 Dec 11 and issued 6 weeks after the last alleged performance of the maneuver; the CDI was published 12 days prior to the FCIF; and his Article 15 was finalized 10 days prior to the FCIF. The newly obtained FCIF does not reference the existence of any previously established guidance that the POH was a stand-in for the Dash 1. Therefore, the only written guidance regarding the POH was issued after the events at issue and specifically in response to them. On 11 Feb 13, the AETC/CC reviewed the applicant’s requests for reconsideration of prior adverse actions, dated 11 Dec 12; however, he denied his requests. On this same date, the applicant was notified of his commander’s intent to recommend he be discharged from the Air Force under the provisions of AFI 36-3206, paragraph 3.6.4, for Serious or recurring misconduct punishable by military or civilian authorities that required the applicant to show cause for retention on active duty. The applicant acknowledged receipt of the notification of show cause discharge. On 20 Feb 13, after consulting with legal counsel, the applicant elected to present his case before an Administrative Discharge Board/Board of Inquiry (BOI) and to submit a statement on his own behalf at the hearing On 11 Mar 13, the applicant, through counsel, filed an Inspector General (IG)/Article 138, UCMJ complaint with the Office of the Judge Advocate General (AF/JA) alleging abuse of authority by the AETC/CC. Specifically, the applicant contends his involuntary discharge action was initiated in retaliation for him requesting reconsideration of the adverse actions associated with the debated flight maneuver. On 21 Mar 13, the AF/JA reviewed the complaint and determined the Senior Officials Inquiries Directorate of the IG (SAF/IGS) would address the IG complaint; however, the Article 138 complaint was returned without action. Specifically, Article 138 specifies that “a member of the armed forces who believes himself/herself wronged by his/her commanding officer applies to that commanding office for redress. Only after redress is refused may the member complain to a superior commissioned officer, who forwards the complaint to the appropriate GCMCA.” On 8 Apr 13, the AETC/CC reviewed the applicant’s Article 138, UCMJ complaint and after consulting with the SJA determined his requests were not actionable under Article 138, UCMJ. Specifically, Article 138 complaints related to officer discharge actions are prohibited IAW AFI 51-904, Complaints of Wrongs under Article 138, UCMJ. Further, it was noted that commanders do not have the authority to investigate themselves. Accordingly, the applicant’s complaint was denied and returned without action. On 6 May 13, the applicant was notified of his commander’s intent to convene a BOI hearing to receive evidence and make findings and recommendations whether the applicant should be retained in the Air Force. On 16 May 13, the applicant, through counsel, acknowledged receipt of the notification of the BOI hearing. After consulting with counsel, the applicant elected not to make a personal appearance before the BOI. On 21-23 May 13, a BOI convened and considered all the evidence presented to it, in closed session and found the applicant DID on or about 16 Apr 10, expose his genitals while in uniform, to the disgrace of the armed forces and was not, on or about 11 Sep 11, 22 Sep 11 and 26 Oct 11, derelict in the performance of his duties in that he intentionally performed, allowed, or caused to be performed, prohibited or unauthorized aerobatic maneuvers in the MC-12W aircraft, while piloting the aircraft during three separate flights in Afghanistan theater of operations. The BOI recommended the applicant be retained in the Air Force. OPR PERIOD RATING 13 Jun 10 – 12 Jun 11 Meets Standards 13 Jun 11 – 1 Apr 12 AF Form 77 (Does Not Meet Standards) 2 Apr 12 – 1 Apr 13 Meets Standards 2 Apr 13 – 10 Dec 13 Meets Standards 11 Dec 13 – 10 Dec 14 Meets Standards AIR FORCE EVALUATION: AF/A3O-AIF recommends denial of the applicant’s requests to be reinstated into aviation service/qualification. The decision of the AETC/CC to disqualify the applicant from aviation service as a result of the findings during the FEB was not an error or injustice. The AETC/CC executed his right as the final approval authority for the FEB and concurred with the convening authority’s recommendation that the applicant be disqualified from aviation service based on his lack of judgment and violation of aviation instructions on diverse occasions. IAW AFI 11-402, Aviation and Parachutist Service, Aeronautical Ratings and Aviation Badges, paragraph 4.6.8., “the respondent’s MAJCOM commander is the final approval authority for FEBs convened at the MAJCOM level or below,” which grants the MAJCOM/CC sole authority to make the final determination on an FEB. Paragraph 4.5.6., states, “the best interest of the Air Force is the prime criterion when evaluating each case” and paragraph 4.5.6.1., states “Do not base a recommendation to disqualify on a single incident disregarding an otherwise sound record. However, if the incident demonstrates unacceptable performance or an intentional disregard of regulations or procedures, a recommendation to disqualify is appropriate.” Further, paragraph 4.6.4., states “Nonconcurrence with FEB Recommendation, “reviewing authorities must specify reasons for nonconcurrence.” The complete AIF evaluation is at Exhibit C. AFPC/DPSIM recommends denial of the applicant’s requests to set- aside and remove his Article 15 and states in part that the evidence presents only minor discrepancies which have no bearing on the administrative action itself. Specifically, there is no evidence on whether the commander properly finished the NJP, dated 25 Nov 11; however, this discrepancy does not invalidate the commander’s action and authority to administer NJP. On 25 Nov 11, the applicant received NJP for failure to refrain from executing an unauthorized aerobatic maneuver. The AF Form 3070C, reflects he acknowledged receipt on 30 Nov 11 and provided a written presentation in response. On 11 Dec 11, the commander imposed NJP and the applicant acknowledged receipt. However, DPSIM cannot determine whether the applicant appealed the commander’s decision, or the commanders and appellate authorities final decision, since the AF Form 3070 provided was incomplete. The complete DPSIM evaluation is at Exhibit D. AFPC/DPSID makes no recommendation regarding the applicant’s request to void and remove his referral LOE and OPR. Specifically, the applicant’s referral OPR, with a closeout date of 1 Apr 12 and the optional LOE, with a closeout date of 5 Dec 11 [sic], were never made a matter of record; therefore, there are no reports to contend. The applicant provided his copy of the contested reports; however, without them ever being made a matter of record or being a certified true copy of the original, they cannot confirm the legitimacy of the reports and will not be accepted. IAW AFI 36-2406, Officer and Enlisted Evaluations, paragraph 1.4.3.1., states “all evaluations are considered working copies until they are made a matter of record.” Further, paragraph 1.14.1.1.2., Missing, Late and Removed Evaluations, states “if the report is not located or cannot be justly reaccomplished, the Human Resources (HR) specialist, who identified the discrepancy will prepare an AF Form 77, (LOE) according to table 4.1” and table 1.2, note 3, which states “do not reaccomplish a lost or missing report that is more than 18 months past the close-out date.” Since the report closeout date is well over 18 months, the only action required is to place an AF Form 77 in the applicant’s records stating “No evaluation available for the period 13 Jun 11 through 1 Apr 12 for administrative reasons which were not the fault of the member. The system reflects an overall rating of “N” Does Not Meet Standards.” The complete DPSID evaluation, with attachment, is at Exhibit E. AFLOA/JAJM recommends denial of the applicant’s requests to set- aside and remove his NJP. The applicant received NJP for willfully failing to refrain from executing an unauthorized aerobatic maneuver in his MC-12W aircraft, as it was his duty to do. He performed barrel rolls in the MC-12W aircraft on multiple occasions, in violation of the applicable guidance and regulations. On 26 Nov 11, he was served NJP and on 28 Nov 11, he submitted a written response. In his response, the applicant apologized for his actions and assured his commander he would never fly in a way that would endanger his flight crew; however, he acknowledged there were other standards which he was required to follow while operating his aircraft. Further, he asked his commander for “the opportunity to redeem himself as a pilot and officer.” On 1 Dec 11, the commander determined the applicant committed the offenses and punished him to forfeitures and a reprimand. Prior to issuing the NJP, a CDI was performed to gather evidence surrounding the incidents. As a result of the investigation, the applicant’s commander had sufficient evidence to believe he committed the offenses. Despite the numerous letters of support, the commander decided to go forward with the NJP and punish the applicant. The commander followed all of the proper procedures and the applicant was provided due process. The applicant contends that because he received favorable outcomes at his subsequent FEB and BOI, the NJP should be set-aside. However, these subsequent proceedings are not a consideration when determining if NJP is legally sufficient and therefore, have no bearing on the determination. The applicant had a previous NJP action; therefore, he was warned about following standards. He was provided due process, afforded the opportunity to consult with counsel and given the opportunity to provide evidence and testimony to his commander in regard to his case. The complete JAJM evaluation is at Exhibit F. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant refutes the Air Force Offices of Primary Responsibility (OPRs) advisory opinions and states in part that: The A3O-AIF advisory opinion is centered on the right of the AETC/CC to make the decision – not whether the decision was unjust or erroneous. The opinion fails to mention the core argument of his request, specifically, that three formal boards found that no intentional or unintentional violation of aviation instructions took place. These findings are directly counter to the rationale stated by the AETC/CC in his Jun 2012, letter in which he nonconcurred with the findings of the FEB, citing “violation of aviation instructions on multiple occasions.” No one or organization in the Air Force to include the AETC/CC has ever provided an explanation of what specific “aviation instructions” were violated on multiple occasions, which were used in the AETC/CC’s nonconcurrence letter. The advisory opinion does not consider the AETC/DO FCIF from Dec 11, which he submitted to AETC/CC as part of his Dec 12 request to reinstate him to flying status. The FCIF establishes a policy that did not exist until after the dates of the flying incidents investigated at the FEB (as well as not existing at the time of the Article 15). The FCIF shows no regulation, instruction, rule or policy was in place which prohibited the maneuver he performed – so a new FCIF was issued in the absence of prior rules or guidance. The FCIF was not possessed by him at the time of the FEB; therefore, this FCIF was not considered at his or the other pilots FEBs but further reinforces, supports, and validates those board findings – that no flying rule or guidance existed at the time that prohibited the maneuver. The advisory neither analyzed the enormous discrepancy between the FEB findings and the AETC/CC’s decision, nor does it provide any explanation or rationale for the inconsistency. It is an injustice that he has been grounded, citing rationale that has been proven to be false in the findings in three formal AF boards. Both he and another airman were accused of performing the same maneuver, yet the recommendations were not equal. The difference in how two virtually identical cases that occurred during the same dates, were treated in a completely opposite manner by the chain of command is unjust and inequitable. The AIF advisory opinion fails to discuss the Q-3 Form 8 aspect of his grounding (failed check ride) that resulted in his loss of qualification as a MC-12W Instructor Pilot and Mission Commander. This was the direct result of the erroneous belief that he intentionally performed an unauthorized maneuver. No analysis of this paperwork or his request to have it removed/overturned was performed by AIF and no information was provided to counter his claim that it should be removed. The AFLOA/JAJM advisory opinion failed to consider the events, evidence, testimony, or other information that was part of the official record following the initial completion of the NJP in Nov 11. His case is one of those “rare and unusual cases” in which significant evidence raised a question regarding his guilt. In fact, his guilt was disproven despite the government’s low legal burden in the FEB and discharge board in which he prevailed. The May 13 BOI transcripts contains testimony from his former squadron commander that he voiced his doubts about the applicant’s guilt to his commander, the 71st OG/CC and 71st FTW/CC in Apr 12. However his former commander’s doubts and the information which fueled those doubts were ignored by the chain of command. The set-aside request in Dec 12, introduced additional information directly disputing the claim that he intentionally violated a flight rule. The set aside request was denied by AETC/CC. During the May 13 BOI, all of the previous evidence, testimony and board findings were considered in aggregate, along with additional new evidence and testimony. The omission of this in the advisory opinion is especially glaring given that the BOI’s findings specifically state the opposite of the findings in the Article 15, specifically: “WAS NOT, while piloting the MC-12W aircraft during three separate flights in Afghanistan derelict in the performance of his duties in that he intentionally performed, allowed, or caused to be performed, prohibited or unauthorized aerobatic maneuvers.” There were three occasions where injustices occurred relating to the Article 15; however, the JAJM advisory opinion does not even acknowledge they exist. Instead, the opinion states “we cannot find clear injustice, error, or good cause to reverse or otherwise change the commander’s decisions with respect to the NJP.” The Article 15 is the core of his BCMR request to have it set- aside and removed. He is confused by the AFPC/DPSID advisory opinion. He signed the final versions of the referral LOE and OPR. Therefore, as far as he and his counsel at the time were aware, they exist somewhere in his records even if DPSID was unable to locate them at AFPC. Despite their non-existence in AFPC’s records, they have been used as rationale for promotion recommendations in 2013 and 2014, as well as referenced by both the 70 OG/CC and 9 OG/CC in his OPR submitted on 2013 and 2014. Although not on file at AFPC, it does not preclude those signed documents from being “discovered” at some point in the future, forgotten on some folder or office, and being sent to AFPC for inclusion in the official record. Finally, his case has been considered by three “juries” (the administrative boards) who have found he did not do what he was accused of even though the government had a very low burden of proof. A poorly conducted CDI led to an Article 15, and subsequently led to his grounding from flight status, a referral LOE and OPR, and a Q-3 Form 8. All of these adverse actions where based on the erroneous analysis in the original CDI, which the government refused to depart from despite the contrary evidence and findings of the administrative boards. The government chose to depart from the original CDI when it came to the Major; however, they just did not depart from it in the same case against him. Three separate formal administrative review boards have found in his favor. The Major’s FEB ended as his did, yet the government accepted the Major’s FEB but not his. While the purpose of these administrative boards varied, the evidence and testimony given at each of these boards was carefully considered by 15 separate officers who consistently found conclusions completely opposite of both the CDI and Article 15. Three separate times, three separate boards have found that he did not violate aviation instructions or perform prohibited maneuvers. The additional injustice of the 71 FTW/CC having completely opposite recommendations and outcomes to two identical FEBs (his and the Major’s) with no attempt or ability to explain this difference, is completely unaddressed by any of these advisory opinions. The fact that he has been permanently grounded, and another pilot has continued flying with no adverse repercussions, is a significant inequity and should be considered and rectified. The advisory opinions seem to focus on procedures over substance; findings that the adverse actions were taken according to the procedures outlined in the instructions instead of looking at the substance of what made the decisions at issue in his appeal unjust and erroneous. This is a classic case of “failing to see the forest for the trees.” All of the negative actions he has requested to be removed (Article 15, referral LOE and OPR, Q-3 Form 8 and grounding) are inextricably related – they hinge on the core accusation of him having intentionally performed a prohibited maneuver which has been successfully defended against multiple times. All of the advisory opinions should have looked at this core issue first. Perhaps the absence of such analysis indicates they looked at the issue but knew it did not support the rubber stamp position of the government to deny his appeal. The applicant’s complete submission is at Exhibit G. 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 to warrant setting aside/modifying his AF Form 8 or to reinstate him into aviation service. We took notice of the applicant's complete submission in judging the merits of the case; however, we find insufficient evidence to substantiate that the applicant is the victim of an error or injustice. The central point of the applicant’s argument, as we understand it, is whether a maneuver was performed that was known to be unauthorized or prohibited in the MC-12. Consequently, he concludes that three formal boards found that no intentional or unintentional violation of aviation instructions took place. The applicant also alleges unjust and inequitable treatment stating that both he and another airman were accused of performing the same maneuver during the same dates, yet were treated in a completely opposite manner. After a thorough review of the evidence of record and noting the numerous character reference letters provided by the applicant along with the decisions of the FEB and the BOI, we are not persuaded that relief is warranted. Although other boards may have found that there was no intentional or unintentional violation in aviation instructions, as noted by the applicant’s commander, regardless of whether the rolling maneuvers technically violated instructions, regulations or procedures, the applicant’s lack of judgment was very concerning. Moreover, as pointed out by AF/A3O-AIF, AFI 11- 402, Aviation and Parachutist Service, Aeronautical Ratings and Aviation Badges grants the MAJCOM/CC sole authority to make the final determination on an FEB and the best interest of the Air Force is the prime criterion when evaluating each case. It is our opinion that the AETC/CC’s decision to disqualify the applicant from aviation service based on his demonstrated lack of judgment was in the best interest of the Air Force. While the applicant argues that he was treated differently than the other pilots, as noted in the CDI dated 24 Nov 11, based on his involvement in all three flights, his rank, role as a primary enabler, and attempts to conceal his actions, we do not find that he has been unfairly treated. Therefore, we find no basis to grant this portion of his request. With respect to the applicant’s request that his NJP under Article 15 imposed on 1 Dec 11, be declared void and removed from his records and the forfeiture in pay be reimbursed, given that we find no error or injustice in the AETC/CC’s decision, we are not inclined to disturb the judgments of commanding officers absent a strong showing of abuse of discretionary authority. We have no such showing here. Furthermore, we find no evidence that during the nonjudicial punishment proceedings he was denied any rights to which he is entitled. To the contrary, the evidence before us indicates that he consulted counsel and waived his right to demand trial by court-martial. He submitted written matters in his own behalf, did not request a personal appearance, waived his right to demand trial by court-martial, and accepted the Article 15 process as the forum for resolution of the charged offense. Having exhausted that forum and not having received a favorable result, he now contends that he had no reason to believe that the findings of two administrative boards clearing him of the alleged misconduct (and another board that cleared the Major would be ignored and had he known he would have turned down the Article 15 and demanded trial by court-martial). However, as previously stated, based on the applicant’s demonstrated lack of judgment, we believe it was reasonable for the commander to initiate nonjudicial proceedings. Moreover, we believe the appropriate time for the applicant to have raised this issue was when first offered the nonjudicial proceedings. Had he truly felt the charge was not supported, he could have demanded a trial by court- martial, with its higher standard of evidence, and contested the charge against him, rather than accept the nonjudicial proceedings. Therefore, this request is also denied. Regarding the applicant’s request to remove the LOE for the period ending 5 Dec 11 and the OPR ending 1 Apr 12, as pointed out in DPSID’s letter dated 3 Dec 14, these reports provided by the applicant were never made a matter of record; consequently, no action can be taken by the Board. Therefore, we agree with the recommendations of the Air Force offices of primary responsibility and adopt the rationale expressed as the basis for our conclusion the applicant has failed to sustain his burden of proof that he has been the victim of an error or injustice. In the absence of evidence to the contrary, we find no basis upon which to favorably consider this portion of his application. 4. Nothwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of an injustice to warranting partial relief. We note that DPSID states the OPR closing out 1 Apr 2012, was well over 18 months so the report was never accepted to file and instead DPSID placed an AF Form 77 in the applicant’s records stating "No evaluation available for the period 13 Jun 2011 through 1 Apr 2012 for administrative reasons which were not the fault of the member. The system reflects an overall rating of "N" Does Not Meet Standards." Although we are not persuaded that the contested report is not a true and accurate assessment of his behavior and demonstrated potential during the specified time period, given that DPSID determined that they cannot confirm the legitimacy of the report and did not accept it for file; we believe changing the AF Form 77 to reflect that it does not meet standards constitutes an injustice. As such, we recommend the applicant’s AF Form 77, Section IV, be amended to delete the verbiage “Does Not Meet Standards” and the Military Personnel Data System (MilPDS) be updated accordingly. Therefore we recommend, his records be corrected to the extent indicated below. THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT, be corrected to show that: a. The AF Form 77, Letter of Evaluation, dated 25 October 2014, Section IV, Comments/Impact On Mission Accomplishment, be changed from “No evaluation available for the period 13 Jun 11 through 1 Apr 12 for administrative reasons which were not the fault of the member. The system reflects an overall rating of “N” Does Not Meet Standards,” to “No evaluation available for the period 13 Jun 11 through 1 Apr 12 for administrative reasons which were not the fault of the member.” b. The Military Personnel Data System (MilPDS) be updated to reflect “X” Not Rated For This Period.” The following members of the Board considered AFBCMR Docket Number BC-2013-05783 in Executive Session on 15 May 15, under the provisions of AFI 36-2603: Panel Chair Member Member All members voted to correct the record as recommended. The following documentary evidence pertaining AFBCMR Docket Number BC- 2013-05783 was considered: Exhibit A. DD Form 149, dated 9 Dec 13, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AF/A3O-AIF, dated 25 Feb 14. Exhibit D. Letter, AFPC/DPSIM, dated 3 Mar 14. Exhibit E. Letter, AFPC/DPSID, dated 3 Dec 14, w/atch. Exhibit F. Letter, AFLOA/JAJM, dates 12 Jan 15. Exhibit G. Letter, SAF/MRBR, dated 20 Jan 15. Exhibit H. Letter, Applicant, dated 16 Feb 15.