AIR FORCE'BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER:  93-00015 
COUNSEL : 
HEARING DESIRED:  Yes 

MAY  2 3  iw 

1.  He be reinstated into active duty in the grade of major, with 
all back pay and allowances; all records of his duty status and 
date of  rank be  corrected to reflect  continuous, uninterrupted 
service  on  active  duty;  and  all  personnel  records  similarly 
corrected  to  reflect  the  hiatus  in  his  service  to  read,  "on 
special academic and legal training duty for the convenience of 
the Government. 
2.  He  be  promoted  to  the  grade  of  lieutenant  colonel  by  the 
Calendar  Year  1989  Central  Lieutenant  Colonel  Selection Board, 
effective and with date of rank 1 September 1989. 
3 .   Any  Officer  Effectiveness  Reports 
(OERs)  reflecting 
administrative board action between 1989 and 1991, be voided and 
removed from his records. 
4.  He be  assigned in the air operations field remote  from  his 
recent oppressors and well-suited to his training and experience 
in which  he  will  be  able  to  compete  for promotion  fairly  and 
without hindrance. 

The  Board  of  Inquiry  (BOI)  that  resulted  in  his  discharge, 
violated numerous provisions of the US Constitution, the Uniform 
Code of Military Justice  (UCMJ) ,  the Manual  for Court-Martials, 
and the governing Air Force regulation (AFR 36-2). 
The applicant states that on 12 June 1989, he was accused of  a 
military crime  (making a false official statement) by  Col L and 
interrogated without first being warned of his Article 31 rights. 
Col L also attempted to strike a Itplea-bargainit with him whereby 
his  confession  would  be  accepted  in  return  for  a  promise  of 
silence.  In addition, for a period of two weeks or more, Col  L 
illegally and oppressively withheld and delayed the military due 
process to which he was entitled.  Col L played  detective with 
the charge by  investigating it personally, a task  for which  he 

lacked the requisite training and authority.  By so doing, the 
applicant believes Col L disobeyed the precepts of the UCMJ and 
MCM  which  require that suspicions/charges be  reduced to writing 
and a copy served upon the accused. 
He also states that  the commander was  aware of  the accusations 
against him  and  failed to drop the charges or take appropriate 
action in accordance with the UCMJ and MCM.  In this respect, he 
notes that the commander neglected to have the charges reduced to 
writing on Charge Sheets and have them sworn by the accuser.  In 
addition,  the  commander did  not  advise  him  th3t  he  was  under 
criminal  charges,  and  the  nature  and  specifications  of  the 
charges.  He states that the commander adopted the accusations of 
Col  L  on  the  basis  of  unsworn  testimony,  and  took  action  to 
withhold his promotion to lieutenant colonel, thereby denying him 
of  his  deserved promotion and  his  right  to  the presumption of 
innocence  until  proved  guilty  beyond  a  reasonable  doubt  in  a 
competent  court  of  law.  He  feels  he  was  deprived  of  equal 
protection of the laws by referring his case to an administrative 
forum with its less protective regulations and procedures, rather 
than to a criminal forum  (Le., court-martial) with its far more 
protective laws and procedures. 
In support of his appeal, the applicant has provided a copy of a 
special  order  indicating  that  he  participated  in  the  IIThird 
Lieutenant" program while  at  the Air  Force Academy and flew F- 
ed  an  order which  assigned  him  from 
which  indicates that  a distribution 
AFB . 

AFB  to 
copy was provide 
The applicant's complete submission is attached at Exhibit A. 

He  has 

While  an Air  Force  Academy  Cadet, Special orde-, 

dated 
il  1971,  assigned  the  applicant  temporary duty  (TDY)  to 
AFB as an Assistant Squadron Operations Officer, F-105 for 

Upon  graduation  from  the Air  Force Academy,  the  applicant was 
commissioned  a  second  lieutenant  in  the  Regular Air  Force  and 
entered active duty on 6 June 1973. 
He  was  assigned  to  the  Air  Force  Element  US  Atlantic  Command 
(USLANTCOM) on 17 January 1987. 
On 24 July 1989, the Deputy Inspector General, USLANTCOM  (Col L) 
provided  information  to  the  Air  Force  Office  of  Special 
Investigations  (AFOSI) ,  indicating  that  the  applicant  made 
erroneous statements concerning his flying experience and altered 
his  personnel  records  to  substantiate  his  exaggerated  claims. 

2 

a 

Based  on  this  information,  the  Commander,  AFOSI  District  4, 
Andrews AFB initiated an investigation. 

On 21 August  1989, Col L provided the AFOSI further information 
indicating he had a conversation with Col S who told him that the 
applicant's Promotion Recommendation Form  (PRF) had been based on 
information provided  by  the  applicant  and  he  (Col SI- was  75% 
certain  he  had  seen OERs  with  F-105  flying  time  reflected  on 
them. 
The  applicant  was  selected  for  promotion  to  the  grade  of 
lieutenant  colonel  by  the  CY89  Lt  Col  board;  however,  the 
commander delayed his promotion for a period of six months from 
the promotion effective date  (1 September 1989).  The commander 
indicated the reason for this action was that he had  reason to 
believe  that  the applicant was not  professionally qualified to 
perform the duties of a lieutenant colonel.  Specifically, that 
he altered a public record, his Unit Personnel Record Group. 
On  24  October  1989,  the  commander  requested  the  applicant's 
reassignment from AFELM USLANTCOM to the 1st Tactical Fight Wing, 
Langley AFB,  for the  purpose  of  initiating AFR  36-2  discharge 
action.  The request was approved and he was reassigned. 
AFOSI  completed their  investigation on  21  November  1989.  The 
Report of Investigation indicates that in February or March 1989, 
prior  to  the  Lt  Col  promotion  board,  the  applicant  requested 
access to his  record  in order to replace OERs which  he  stated 
were  missing.  Witnesses  stated his  record was  later found to 
contain OERs which reflected duty inconsistent with his permanent 
military  records, including time as an F-105 pilot.  Applicant 
was made aware of these OERs, and on 14 June 1989 was  found to 
have  been  alone  with  his  records;  after  which  the  OERs  in 
question were  missing, with  the  exception of  two OERs  for the 
same time period. 
On  6  December  1989,  he  was  notified  that  action  had  been 
initiated  under  AFR  36-2  for  serious  or  recurring  misconduct 
punishable by  military  or  civilian authorities and  intentional 
misrepresentation of  facts in officials statements and  records. 
Specifically, that he altered one or more OPRs to indicate that 
he  had  fighter pilot  experience in the F-105 aircraft and made 
false official statements misrepresenting his flying experience. 
The commander specific reasons for the action were as follows: 

a.  The  applicant  wrongfully  altered  one  or  more  OERs  to 
indicate  that  he  had  fighter  pilot  experience  in  the  F-105 
aircraft and service at Beale AFB, as well as currency in t h e   T- 
38A aircraft.  These altercations were made with the  intent to 
deceive all those reviewing his OER records. 

b.  He  did  make  false  official  statements  on  diverse 
occasions misrepresenting his flying experience by professing to 
be  a  F-105 pilot  to  various  supervisory personnel  and  others. 

3 

73 

-- 

1\55 

Specifically, during the period of August  1987 to May  1989, he 
falsely stated to Col S ,   his supervisor at the time, that he was 
a qualified F-105 pilot. 

c.  He falsely stated to Col L, his supervisor at the time, 

that he had F-105 pilot experience while assigned to George AFB. 
d.  He  further misrepresented  his  flying experience to Col 
S ,  by stating that he had flown the F-105 IIWild Weaself1 at George 
AFB . 

e.  He  falsely stated to Col  S that he  received his  F-105 
checkout  at  Nellis  AFB  and  completed  the  USAF  Fight  Weapons 
Instructor Course. 

f.  He falsely stated to Col L that some of his over 1,000 
hours of KC-135 flying time should be F-105 time and that he flew 
F-105s for a number of months before entering KC-135 training. 

g.  On  1  September  1989,  he  submitted  a  statement  in 
response to a Propriety of Promotion Action, in which he falsely 
states that  he  flew in the  rear seat of  the  F-lOSG/F aircraft 
while  at  George  AFB  on  TDY  status  during  a period  from  late 
August 1974 through mid-October 1974. 
After  consulting with military  counsel, on 12 January  1990, he 
tendered his resignation in lieu of further action under AFR 36- 
The  major  air  command  recommended  acceptance  of  his 
2. 
resignation; however, on 14 March 1990, the Secretary of the Air 
Force declined to accept his resignation. 
On 9 April 1990, he was notified that action was being initiated 
to  discharge him  under  the  provisions  of  AFR  36-2  and  that  a 
board  of  officers  had  determined  that  he  be  required  to  show 
cause  for retention in the Air  Force.  He acknowledged receipt 
and  requested his  case be  processed under AFR  36-2, indicating 
that he desired to appear before a Board of Inquiry (BOI). 
A BO1 convened from 30 May  1990 to 2 June 1990, and recommended 
that  he  be  removed  from  active  duty  with  a general  discharge. 
The board found that he engaged in misconduct in that he: 

a.  Did wrongfully alter one or more OERs to indicate that 
he  had  fighter pilot  experience  in  the  F-105  aircraft.  This 
alteration was made  with  intent  to deceive all  those reviewing 
the OERs . 

b.  Did  alter  an  OER  to  indicate  service at  Beale  AFB  as 
well  as  to  indicate  currency  in  the  T-38A  aircraft. 
This 
alteration was made  with  intent  to deceive all  those reviewing 
the OERs. 

4 

8 

c.  Did  make  false  statements  on  divers  occasions 
misrepresenting his flying experience by professing to be  an F- 
105 pilot to various supervisory personnel. 
On  17  January  1991,  the  case  was  found  legally  sufficient  to 
support the recommendation of  the BO1 and was  forwarded to the 
Air Force Board of Review. 

On 10 April 1991, the Secretary of the Air Force directed that he 
be removed from active duty and issued a general discharge. 

He was discharged under the provisions of AFR 36-12  (Involuntary 
Discharge:  Misconduct,  Moral,  or  Professional  Dereliction; 
Serious or Recurring Misconduct)  with  a general discharge.  He 
completed 17 years, 10 months and 14 days of active service. 
His performance profile since 1979, follows: 

6 Oct 79 
17 Aug 80 
17 Aug 81 
1 Jul 82 
30 Jan 83 
30 Jan 84 
30 Aug 84 
30 Aug 85 
28 May 86 
16 Jan 87 
16 Oct 87 
*  16 Oct 88 
1 May 89 
4 Sep 89 

1-1-1 
1-1-1 
1-1-1 
1-1-1 
1-1-1 
1-1-1 
1-1-1 
1-1-1 
1-1-1 

1-1-1 

Training Report  (TR) 
Meets Standards 
Meets Standards 
Meets Standards 

*  Top report reviewed by the CY89 Lt C o l   board. 

IR STAFF RV.UATTON: 

The  Chief,  Separations  Branch,  AFMPC/DPMARS,  reviewed  the 
application  and  states  that  there  is  little,  if  any,  new 
information  submitted  in  the  applicant's  request. 
In  this 
respect, they note  that  the  arguments presented  were  generally 
presented  earlier,  either  during  the  BO1  or  in  the  member's 
counsel s  lengthy  affidavit  appended  to  the  BO1  proceedings 
forwarded  to  the Board  of  Review.  They  defer  those  arguments 
concerning the legality of  the commander's actions to AFMPC/JA. 
They  can  conclude, based  on  their  experience with  hundreds  of 
officer  discharge  cases  from  across  the  Air  Force,  that  the 
characterization of  discharge  applicant  received, based  on  the 
reasons  for  discharge  and  substantiation  in  the  case,  was 
consistent  with  other  similar  cases.  They  have  reviewed  the 

5 

proceedings of the BO1 and resulting discharge action.  The state 
that  the  board  was  properly  constituted  and  the  evidence  of 
record indicates no inequity or impropriety to the process.  They 
note  that  applicant's discharge was  accomplished in accordance 
with  the  regulations in  effect  at  the  time.  Therefore, they 
recommend denial of the request. 
A  complete  copy  of  the  Air  Staff  evaluation  is  attached  at 
Exhibit C. 
The Acting Chief, Promotion Division, AFMPC/DPMAJ, reviewed the 
application and  notes  that  the  applicant's promotion  potential 
has  been  aptly  demonstrated  as  evidenced  by  his  original 
selection.  They  state  that  this causes them  to discern there 
should be no reason to deny the promotion should subsequent facts 
reveal the original withholding action and  the  entirety of his 
discharge process were  unjust  and  a  nullity.  Furthermore, if 
declared unjust, they would not object to placement of an AF Form 
77  in  the  record  to  reflect,  "No report  available  for period 
5  September  1989  through  (yet  to  be  determined). 
Officer 
restored to active duty by direction of the Secretary of the Air 
Force  under  31-3, Air  Force  Board  for  Correction  of  Military 
Records."  They  note  that  this  statement  is  as prescribed  by 
paragraph 2-24g, AFR  35-44, 11 October 1991.  Only two Officer 
Performance Reports  (OPRs), closing 1 May  1989 and 4 September 
1989, equate to the period  specified.  They note that  each  is 
complimentary in words and ratings - -   neither of the two contain 
a  reference  to  the  contested  administrative  board  action. 
Without  an  invalidation  of  the  facts  of  record  and  the 
applicant's complete exoneration, they  recommend denial  of  his 
requests. 
A  complete  copy  of  the  Air  Staff  evaluation  is  attached  at 
Exhibit D. 
The  Assignment  Procedures Advisor,  AFMPC/DPMRPP2,  reviewed  the 
application and states that if the decision is made to overturn 
the applicant Is  separation, then it would be appropriate that he 
be  assigned  based  on  his  qualifications  and  eligibility  for 
specific assignments at that time and consistent with the needs 
They  note  that  if  the  separation  is 
of  the  Air  Force. 
overturned, it cannot be assured an assignment could be made, at 
that time, which would accomplish all of the stipulations of the 
application.  In this respect, they note that changes in military 
personnel management  concepts, structure changes Air  Force-wide 
and other variables could limit which elements of the application 
could be  fulfilled.  However, every reasonable effort would be 
made to meet as many of the stipulations as possible. 
A  complete  copy  of  the  Air  Staff  evaluation  is  attached  at 
Exhibit E. 
The  Acting  Staff  Judge  Advocate,  AFMPC/JA,  reviewed  the 
application  and  states  that  despite  the  applicant's  counsel's 

6 

, 

contention that the applicant was  Ilchargedll with the commission 
of three military crimes, criminal charges within the meaning of 
the  UCMJ  were  never  preferred  against  the  applicant.  As  a 
result, the steps in the criminal justice system which applicant 
claims  were  violated  were  never  applicable  to  his  case. 
Furthermore,  the  commander  was  under  no  obligation  to  prefer 
court-martial  charges.  In  this  respect,  they  note -that the 
Manual  for  Court-Martials  (MCM)  provides  that  administrative 
separation is a perfectly appropriate alternative disposition of 
an offense in certain circumstances.  They state that the Board 
of Inquiry (BOI) and discharge were fully conductedyin accordance 
It  is  their  opinion  that 
with  all  applicable  authorities. 
applicant has failed to present material evidence of any error or 
injustice.  Therefore, they recommend denial of his request. 
A  complete  copy  of  the  Air  Staff  evaluation  is  attached  at 
Exhibit F . 

The  applicant's counsel reviewed  the Air  Staff  evaluations and 
states that  the applicant was  unfairly, unjustly and  illegally 
deprived  by  the  dereliction of  his  superiors of  the  only  two 
provisions  of  military  due  process  that  could  have  saved  the 
applicant  and  his  family  from  all  the  degradation, misery  and 
hardship  they  have  undergone.  In  this  respect, counsel notes 
that  applicant  was  deprived  effective  assistance  of  competent 
counsel and processing of his case according to Article 31 of the 
UCMJ. 
Counsel  notes  that  this  would  have  provided,  at  the 
earliest possible stage, an Article 32 Investigation which would 
have developed the evidence required to defend him. 
Counsel  contends  that  the  BO1  was  unfairly  and  unlawfully 
organized, conducted and  adjudicated, and  that  the  interest  of 
justice requires that its findings and sentence be overturned and 
set  aside,  and  that  the  applicant  be  provided  the  requested 
relief.  In this respect, he notes that AFR  36-2, paragraph 3-3, 
emphasizes  that  the  regulation governs  administrative and  not 
criminal offenses, prohibiting its use as a substitute for action 
under the UCMJ.  Counsel also contends that the applicant was not 
provided  the  proper  notification letter of  the  BO1  action, as 
required  by  regulation. 
In  addition  in  cases  involving 
misconduct  that  usually would  be  within  the purview  of  UCMJ  a 
letter indicating what disciplinary or punitive action was taken 
or  the  reason  why  such  action  was  not  considered  proper  is 
forwarded to the MAJCOM, AFMPC and servicing CBPO.  However, this 
was not done.  Counsel states that had the letter been properly 
transmitted, it  possibly would  have  put  higher  headquarters on 
notice that  something was going on.  It would  have  told higher 
headquarters that one of their nits was preparing to "boardll one 
of  its. officers  out  of  the  service  for  commission of  serious 
military crimes. 

7 

I 

. 

Counsel states that the evidence accepted by the BO1 proved that 
the  applicant  was  in  the  top  5-10  percent  of  eligibles  for 
promotion, and that all he had to do was "to keep his nose clean" 
until  the  promotion  board  met, and  he  would  be  promoted.  In 
addition,  from  the  documents  and  testimony  received,  it  was 
proved  that  he  was  an  exceptionally  intelligent  young  officer 
with  a brilliant  record  who  certainly did  not  need  to  lie  in 
order to get promoted.  The evidence accepted by  the BO1  also 
proved that all of  those who knew him and who had ever had any 
experience  with  him  were  convinced  that  he  was  s'imply 
constitutionally  incapable of  indulging  in such stupidity.  By 
evaluating  the  evidence  of  the  BO1  by  is  preponderance  and 
weight, counsel believes that it proves that it was very unlikely 
that the applicant committed any of the offenses.  Counsel states 
that  there  is  no  direct  or  real  evidence  that  the  applicant 
committed the offenses.  However, he feels the evidence does show 
that  Col  L  had  the  run  of  the  Langley AFB  Consolidated Base 
Personnel Office  (CBPO) and  that  custodial  control  of  officer 
records was deficient to non-existent.  Counsel states that while 
the BO1 determined the OER was fabricated, it did not prove that 
it was a fabrication of the applicant or was  inserted into his 
records. 
Counsel  notes  that  the  only  evidence  against  the 
applicant was obtained by Col L. 
In regard  to  Col  LIS  motives  for manipulating  the  applicant's 
case,  applicant's  counsel  notes  that  the  applicant  became 
involved in the so-called SR-71 controversy.  In this respect, he 
notes  that  during  his  tenure  as  an  aerial  reconnaissance 
specialist  at  HQ  USCINCLANT,  the  USAF  Chief  of  Staff  had 
identified the SR-71 as a prime candidate for early retirement, 
his  theory being  that  all  the  jobs which  the  SR-71 was  doing 
could  just as well  be  done by  other, newer, less-expensive-to- 
operate, recce platforms.  Thus, SR-71 operations were cut back 
and supplanted by those of other recce machines.  However, when 
the imagery from these replacement vehicles was received, it was 
considerably  inferior  to  those  of  the  SR-71.  Therefore,  the 
Commander USLANTCOM began requesting a return of  the SR-71, and 
various  USAF  staff  deputations began  to  arrive, all  aiming  to 
talk  the  admirals  out  of  it.  At  these  meetings  the  admirals 
required  the  applicant  to  sit  adjacent  to  them  for  ready 
consultation.  During  these  sessions, the  applicant  was  often 
observed by the visiting USAF officials to be whispering with the 
admirals, presumably providing them with ammunition to fire back 
at  the USAF.  Counsel contends that applicant  failure to  Ilroll 
over  and  play  dead"  regarding  the  SR-71  issue  reached  the 
Pentagon, and that Col L I S   actions may have been the end result. 
Concerning fairness to the applicant, counsel notes that his case 
was delayed by  Col L  so that he could  Itplay detective", rather 
than turning it over immediately to the local military criminal 
investi.gation authorities.  Furthermore, his demand for trial by 
court-martial was rejected by the legal advisor and he was tried 
by an administrative "fact finding" board.  Counsel contends that 

8 

3 3  - @OO 1.5 

not only did the BO1  lack  jurisdiction, they were  incapable of 
conducting such hearing fairly, justly, and professionally.  In 
this  respect,  counsel  notes  that  members  of  the  BO1  were  all 
appointed  from  the  Commander  T A P S   staff,  all  of  whom  were 
closely  associate  with  the  accuser.  Counsel  states  that  the 
state of mind  of  the board  -  obviously strongly under- improper 
command influence -  can best be adjudged from the exclamation of 
its senior member when instructed by the recorder "that burden of 
the proof  to show that the Respondent  should not  remain in the 
Service is upon the Governmentll, he turned to the legal advisor 
in obvious astonishment and asked, ''1s that correct?Il.- 
Counsells  complete  response, with  attachment,  is  attached  at 
Exhibit H. 

ES T W :  

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 probable error or injustice.  After 
thoroughly  reviewing  the  evidence  of  record  and  noting  the 
applicant's contentions, we  are not  persuaded that  he  has been 
the victim of an error or injustice.  In this respect, we note 
the following: 

a.  The applicant contends that the BO1 that resulted in his 
discharge, violated numerous provisions of  the US  Constitution, 
the UCMJ, the MCM, and AFR 36-2.  In addition, he contends he was 
denied  the  effective  assistance  of  counsel  throughout  the 
discharge  process  and  that  the  discharge  process  itself  was 
legally  flawed.  We  disagree.  In this  respect, we  note  that 
criminal  charges  within  the  meaning  of  the  UCMJ  were  never 
preferred  against  the  applicant.  As  such,  the  steps  in  the 
criminal justice system which he claims were violated were never 
applicable to his case.  We do not believe an error occurred by 
virtue  of  the  fact that  the allegations against him  were never 
preferred as criminal charges.  To the contrary, under the UCMJ 
and  MCM,  the  preferral  of  criminal  charges  would  never  be 
appropriate until after the preliminary inquiry is completed and 
a commander were to determine that trial by  court-martial rather 
than some other less severe disposition was appropriate.  Based 
on  the  evidence  of  record,  it  appears  this  requirement  was 
complied with.  Furthermore, we  do not  believe  he  was  treated 
unlawfully by his case having resulted in an AFR  36-2 discharge 
rather than a prosecution by court-martial. 

b.  The applicant contends that he  should have been advised 
of  his  rights during the  12 June  1989 meeting, and  that  Col  L 

9 

unlawfully attempted a plea  bargain.  We  believe  there was  no 
rights  advisement  necessary  at  that  time  the  meeting  began 
because he was not  suspected of any criminal wrongdoing.  Based 
on  the  evidence  of  record,  it  appears  Col  L  appropriately 
interrupted the meeting  when he  determined it  was necessary to 
advise  the  applicant  of  his  rights  under  Article  31. 
Consequently, we do not believe a violation of law or his rights 
occurred during this meeting. 

c.  In  regard  to  his  contention  that  due  process  was 
oppressively withheld  and  delayed, we  note  that  the  rights  to 
which he contends he was deprived do not apply to administrative 
proceedings.  As  indicated  above,  he  was  not  charged  with  a 
criminal offense, and we believe no error occurred by virtue of 
the fact that the allegations against him were never preferred as 
criminal charges. 

d.  He  contends that Air  Force officials tried  to  separate 
him  with  a  llplea bargain  discharge";  however,  we  find 
insufficient  evidence  has  been  presented  to  support  this 
contention. 
We  note  that  he  was  properly  notified  that 
administrative discharge action had  been  initiated against  him 
under AFR  36-2 and was advised of  the basis for the action and 
his  rights. 
His  allegations  were  considered  by  a  properly 
constituted BO1 and the BO1 recommended he be removed from active 
duty  with  a  general  discharge. 
Based  on  the  BOI's 
recommendation, the Secretary approved his discharge.  Based on 
the evidence of record, we believe the applicant's discharge was 
accomplished in accordance with the regulations in effect at that 
time and  find no  inequity or impropriety in the processing his 
discharge. 
Therefore,  in  the  absence  of  evidence  to  the 
contrary, we  find no basis to overturn their recommendation and 
the decision of the Secretary. 

e.  He  states the  action taken against him  was  due  to  his 
assignment to a  senior Navy official during a period of debate 
between Air Force and Navy officials regarding the reduction of 
SR-71  requirements. 
In  support  of  this  contention,  he  has 
provided a copy of a news article, SR-71 R e t i . r e m :  Don Mistake. 
While  the  article  does  indicate  there  was  considerable  debate 
between Air Force and Navy officials regarding the retirement of 
the  SR-71,  it  does  not  substantiate  that  Air  Force  officials 
plotted to remove him from the Air Force due to his duties while 
assigned to a senior Navy official.  Therefore, in the absence of 
evidence  to  the  contrary,  we  find  no  compelling  basis  to 
recommend granting 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 ( s )  
involved.  Therefore, the request for a hearing is not favorably 
considered. 

. 

ADDENDUM TO 

RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

AUG 0 4 1998 

IN THE MATTER OF: 

DOCKET NUMBER:  93-00015 

HEARING DESIRED:  YES 

RESUME OF CASE: 
In an application, dated  29  July 1992-,  the applicant requested 
the following: 

a.  He be reinstated into active duty in the grade of major, 
with all back pay and allowances; all records of his duty status 
and  date  of  rank  be  corrected  to  reflect  continuous, 
uninterrupted service on active duty; and all personnel records 
similarly corrected to reflect the hiatus in his service to read, 
"on special academic and legal training duty for the convenience 
of the Government. 

b.  He be promoted to the grade of lieutenant colonel by the 
Calendar  Year  1989  (CY89) Central Lieutenant  Colonel  Selection 
Board, effective and with date of rank of 1 September 1989. 

c.  Any  Officer  Effectiveness  Reports  (OERs)  reflecting 
administrative board action between 1989 and 1991, be voided and 
removed from his records. 

d.  He be  assigned in the air operations field remote from 
his  recent  oppressors  and  well-suited  to  his  training  and 
experience  in which  he  will  be  able  to  compete  for promotion 
fairly and without hindrance. 
On 19 April  1994,  the Board considered his request in Executive 
Session and was not persuaded that he had been the victim of an 
error or injustice.  A complete copy of the Record of Proceedings 
containing applicant's  contentions and  the  Board's  findings  is 
attached at Exhibit I. 
In  a  letter,  dated  7  April  1997,  the  applicant's  counsel 
requested de novo  consideration of  the  application and  amended 
applicant's requests to include the following: 

a.  The  Officer  Effectiveness Reports  (OERs) rendered  for 
the periods 17 October 1988 through 1 May  1989,  and 2 May  1989 
through 4 September 1989, be declared void and removed from his 
records. 

b.  Voiding his 19 April 1991 discharge from the Air Force. 
c.  Retroactive restoration to active duty in a commissioned 

status, effective 19 April 1991. 

d.  His  records be  corrected  to  show  that  he  continuously 
served on active duty in a commissioned status from 19 April 1991 
to 5 June 1993. 

e.  He  was  promoted  to  the  grade  of  lieutenant  colonel, 
effective  1  September 1989,  and: served on active duty  in that 
grade from 1 September 1989 to 5 .,June 1993. 

f.  He was retired in the grade lieutenant colonel on 6 June 

1993 by reason of years of service. 

g.  Voiding  and  expunging  his  records  of  any  and  all 
documentation  relating  to  the  administrative  discharge 
proceedings; the promotion propriety actions taken to delay his 
promotion to lieutenant colonel and to remove him from the list 
of officers selected for promotion by the CY89 Central Lieutenant 
Colonel Selection Board; the 6 September 1989  revocation of his 
SCI  clearance; and  his  tendering  of  resignation on  12  January 
1990. 

h.  A  nonprejudicial  statement  be  placed  in  his  records 
indicating that he was not rated during the period 19 April 1991 
to 5 June 1993. 

i.  Such  other  and/or  further  relief  as  may  be  deemed 
necessary and/or appropriate in order to  accord applicant  full 
and complete relief including, but not limited to, the payment of 
any pay and allowances due as a result of the correction to his 
records . 
Counsel's complete submission is attached at Exhibit J. 

THE BOARD CONCLUD ES THAT: 
1.  Insufficient evidence has been presented to demonstrate the 
existence  of  a  probable  error  or  an  injustice  warranting 
favorable action on the applicant's  request  that  we  vacate  the 
prior decision in this case and consider his amended application 
de novo.  Counsel submits that: 

a.  The  Board's  denial  of  relief  on  19  April  1994  was 
legally  objectionable  in  that  the  panel  of  the  Board  that 
adjudicated  applicant's  basic  application  was  improperly 
constituted by  reason of  Walter  A.  Willson, Esquire, Assistant 
General Counsel, Department of the Air Force, having served as a 
voting. member  of  the  Board  panel. 
The  impropriety  of  this 

2 

individual's  having served as a voting 
is  readily  demonstrated  and  proven 
documentation being submitted with this 

member of the Board panel 
by  the  elements  of  the 
brief . 

b.  In his letter to applicant, dated  28  January 1991, the 
Director, Secretary of  the Air  Force Personnel Council  (SAFPC) , 
advised applicant, in pertinent part, that if the Air Force Board 
of Review  (AFBR) concluded that applicant should not be retained 
on active duty that the SAFPC would  send the entire record and 
allied documentation  "through the Air  Force General  Counsel to 
the Deputy for Air Force Review Boards. .." 

c.  On  15  April  1996  he  requested  information  and 
documentation from the OGC relating to applicant including, but 
not  limited  to,  \\any review ( s )   and/or  advisory  opinion ( s )  
conducted and/or  rendered  by  the  [OGC]  in  connection with  the 
processing of  [AFR] 36-2 proceedings relating to  [applicant] , as 
referred to in the SAFPC Director's letter of 28 January 1991, or 
to the  subsequent adjudication of  [applicant's]  application for 
correction of military records (Docket No.  93-00015".  Counsel's 
request  for  information  and  documentation  from  the  OGC  was 
addressed in letters dated 8 August 1996 and 18 November 1996, 

d.  In the OGC's  8 August 1996 letter he was advised that a 
\'search of the files of the  [OGC] had found the following records 
pertaining to  [applicant]:  two memoranda to the General Counsel, 
dated  February 19,  1991,  and  signed by  Mr.  Barret  E.  Kean, an 
attorney in that office, and a memorandum to the Deputy for Air 
Force Review Boards (SAF/MIB), dated March 17, 1991 and signed by 
Mr.  Kean." 
The  OGC  asserted  that  these  memoranda  were  not 
releasable to applicant  in that  they were, among other things, 
privileged communications.  The claims of privilege were restated 
by the OGC in its letter of 18 November 1996. 

e.  Review of  the August  1993  and  December 1994  issues of 
the Department of Defense Telephone Directors shows, in pertinent 
part,  that  the  attorney  in  question  was  serving  as  Assistant 
General Counsel for Civilian Personnel and Fiscal Law in the OGC 
during the August  1993 to December 1994 time interval,  In this 
regard, the attorney, as a member of the staff of the OGC, would 
have or could have had access to the 
parte February and March 
1991 memoranda cited in the OGC's  8 August 1996 letter which, in 
turn, would have or could have \\impacted" on his ability to serve 
as a member  of  the  Board's  panel  on an impartial or objective 
basis.  In this frame of reference it  is self-evident that this 
attorney should have recused himself from serving as a member of 
the 19 April 1994 panel of the Board. 
We  disagree.  The  Office  of  The General  Counsel performs many 
different legal functions and is responsible for providing legal 
advice on a wide variety of subjects.  Among those functions are 
advice to the AFBCMR on  individual cases, and on FOIA matters. 
That  office  also  reviews  all  FOIA  appeals.  These  functions, 
however,  are  performed  in  different  offices  within  the  large 

3 

General Counsel organization.  The member counsel takes exception 
to considering his  client's  case had  the responsibility within 
SAF/GC  for,  among  other  things,  reviewing  and  deciding  FOIA 
appeals.  When  he  recognized that  a  FOIA appeal related to an 
AFBCMR  case in which he  had participated, he  referred the FOIA 
appeal  to  other  attorneys  in  SAF/GC. 
Similarly,  when  this 
attorney and other AFBCMR  members have previously been- involved 
in a matter during the course of their regular duties, they will 
not participate in an AFBCMR case related to that matter.  Since 
the attorney in question did not recuse himself, it is reasonable 
to presume  that  he  did  believe  that  his  participation  in  the 
applicant's  case constituted a conflict of interest.  Therefore, 
given  the  presumption  of  regularity  and  in  the  absence  of 
substantive evidence to the contrary, we find no compelling basis 
to conclude that the original panel: that decided the applicant I  s 
case was  improperly constituted.  Since we do not believe that 
every  advisory  writer  in  the  -Air  Force  participated  in 
applicant's AFR 36-2 case, we would also have found no compelling 
reason to grant counsel's  request that we  not  seek the advice, 
assistance, and/or counsel of  the Office of  The Judge Advocate 
General, the  Staff Judge Advocate, Air  Force  Personnel Center 
(AFPC) , and/or the Office of the General Counsel in adjudication 
of  applicant's  amended  application.  However,  in  view  of  our 
decision to grant reconsideration based on the submission of new 
evidence  without  the  benefit  of  additional  advisory  opinions, 
this request is moot.  Lastly, because the staff failed to timely 
respond to counsel's  request for a waiver of the page limitation 
contained  in  AFI  2603,  this  request  is  considered  to  be 
constructively granted. 
2.  Sufficient  relevant  evidence  has  been  presented  to 
demonstrate  the  existence  of  probable  error  or  injustice. The 
applicant states that while he was assigned to LANTCOM, there was 
a heated  and highly visible disagreement between Air  Force and 
The 
Navy  officials  regarding  the  retirement  of  the  SR-71. 
applicant contends that as a result of providing his commander (a 
Navy  Admiral)  with  material  supporting  the  Admiral's  position 
that the SR-71 should be  retained, action was taken against him 
to  insure  that  he  was  severely  punished.  Although  we  find 
insufficient  evidence  to  support  this  contention,  after 
thoroughly  reviewing  the  additional  documentation submitted  by 
applicant's  counsel, and considering the totality of the evidence 
of  record, we  believe  the  applicant  has been  the victim  of  an 
error or injustice.  In this respect, we note the following: 

a.  We are not persuaded that the applicant altered one, or 
more OERs to reflect that he had fighter pilot experience in the 
F-105 aircraft  or  currency  in  the  T-38A aircraft.  To believe 
otherwise, we would have to assume that the applicant was able to 
alter the OER  forms, place  them  in his records undetected, and 
then  remove  them  from  his  records.  We  find  no  evidence  the 
applicant placed altered OERs in his records. We note too, that 
the President of  the BO1 nonconcurred with  the  findings of  the 
majority of the membership of the BO1 regarding this issue. 

4 

b.  We  also believe that had  the applicant been tried by  a 
General Court-Martial, there was insufficient evidence to convict 
him  of  the  alleged  offenses, 
Although  the  applicant  did 
voluntarily tender his resignation, he did so by attaching a copy 
of  a  successful  polygraph  examination  that  he  was  unable  to 
present into evidence at the BOI. 

c.  The Deputy Inspector General ,  LANTCOM,  (Colonel Linder) 
was apparently obsessed with prosecuting the applicant.  This is 
evident  by  the  fact  that  he  notified  OS1 .of the  allegations 
(without the applicant s  supervisor's  knowledge) ,  conducted his 
own investigation in which he elicited testimony  (later recanted 
during the BOI), and called over 70 people in an attempt to gain 
damaging  testimony  against  the  applicant.  Colonel  Linder 
testified that on  13 June 1989, the applicant stated he  really 
wanted to get his F-105 time added in his records before the CY89 
board convened.  However, we find this difficult to accept since 
the applicant knew at  the time that the CY89 board  had  already 
convened on 15 May  1989 and that he had  received a  "Definitely 
Promote"  recommendation  from  the  Management  Level  Evaluation 
Board  (MLEB) President. 

d,  Based  on  the  evidence  of  record,  the  applicant's 
statement that he flew in the F-105 is true.  While participating 
in the  3rd  Lieutenant program at  the USAFA, he was assigned TDY 
as  an F-105 Assistant  Operations  Officer  with  the  57th Fighter 
Weapons Wing at Nellis AFB.  While in this position, he was given 
orientation rides in the F-4 and F-105, and had an opportunity to 
have  operated the  aircraft  when  permitted  to do  so.  In  fact, 
during  the  BO1  the  applicant provided  a  photograph  of  himself 
standing at the side of an F-105 being given a certificate as a 
honorary  "Wild  Weasel". 
In  addition,  the  applicant's  T-38 
instructor corroborated this by  indicating that applicant, "was 
able  to get  an F-105 spot" and  "shag some rides in an F-105." 
Although the applicant's statements regarding his time in the F- 
105 may have been misconstrued, we do not believe he intended to 
deceive anyone.  During the BOI, Colonel Squiers (the applicant's 
supervisor and one of the officers the applicant was alleged to 
have  made  the  false  statement  to)  testified  that  during  an 
informal  impromptu  gathering,  the  applicant  indicated  that  he 
flew an F-105 one time and never said that he was a qualified F- 
105 pilot.  In addition, Colonel Squiers indicated that he never 
authorized anyone to bring the charges against the applicant in 
his  name.  Colonel  Squiers  testified  during  the  BO1  that  he 
reviewed the applicant's  records  (in early 1989) in conjunction 
with the preparation of the PRF for the CY89 board and never saw 
anything that said F-105 on it. 

e.  In view  of  the  above, we  see no  reasonable motive  for 
the applicant to have falsified his record.  He had established a 
superior record as a U-2/TR-1 and KC-135 pilot, as evidenced by 
him  being  selected for promotion below-the-zone  (BTZ).  He was 
the  recipient  of  the  Koren  Kolligian,  Jr.  Trophy  for 

5 

? 

extraordinary airmanship and the 1986 Jabara Award for Airmanship 
for heroic actions.  Furthermore, since he had already received 
a "Definitely Promote" recommendation on the PRF prepared for the 
CY89 board, he  had  nothing to gain by  altering  his  records to 
indicate  that  he  had  fighter  pilot  experience  in  the  F-105 
aircraft or currency in the T-38A aircraft. 

f.  The applicant is not requesting reinstatement to active 
duty.  The applicant has amended his application to reflect that 
he was retired in the grade of lieutenant colonel.  Based on the 
circumstances of this case, we agree.  In view of the above, and 
given  the  strong  suppor-t, from  the  applicant's  supervisor,  we 
recommend  the  applicant's  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 APPLICANT, be corrected to show that: 

a. All  documents  and  references  to  the  applicant's 
administrative discharge and  removal  from  the  list  of  officers 
selected  by  the  Calendar  Year  1989  Central  Lieutenant  Colonel 
Selection Board, be declared void and removed from his records. 

b. Upon Senate confirmation, he be promoted to the grade of 
lieutenant  colonel,  effective  and  with  date  of  rank  of 
1 September 1989. 

c. On  6  September  1989,  his  Special  Compartmented 

Information (SCI) clearance was not revoked. 

d. The  Officer  Effectiveness  Reports,  AF  Forms  707, 
rendered for the periods 17 October 1988 through 1 May  1989, and 
2 May 1989 through 4 September 1989, be declared void and removed 
from his records. 

e. On 12 January 1990, he did not tender his resignation. 
f. He  was  not  removed  from  active duty on  19 April  1991, 
but was continued on active duty and was ordered Permanent Change 
of Station (PCS) to his home of selection. 

g. An  AF  Form  77,  Supplemental  Evaluation  Sheet,  be 
prepared  and  inserted  in  the  record  in  its  proper  sequence 
indicating that no performance report is available for the period 
when  member  was  not  serving on active  duty  and  containing the 
statement,  "Report  for  this  period  not  available  for 
administrative reasons which were not the fault of the member." 

6 

c 

h. On  31  June  1993,  he  was  released  from  extended  active 
duty and on 1 July 1993,  he  retired in the grade of  lieutenant 
colonel for length of service. 

The following members of the Board considered this application in 
Executive Session on 21 January 1998, under the provisions of AFI 
36-2603: 

Mr. Vaughn E. Schlunz, Panel Chair 
Mr. Henry R. Romo, Member 
Mr. Kenneth L. Reinertson, Member 
Mr. Phillip E. Horton, Examiner  (without vote) 

All  members voted  to correct the records, as .recommended.  The 
following documentary evidence was considered: 

Exhibit I.  Record of Proceedings, dated 23 May 94, w/atchs. 
Exhibit J.  Letter, Counsel, dated 7 Apr 97, w/atchs. 

VAUGH~ E. SCHLUNZ 
Panel Chair 

7