RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  97-00814
            INDEX CODES:  131.09,110.02
                             110.03

            COUNSEL:  CURTIS GRIFFITH

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

He be reinstated into the Active Guard Reserve (AGR) program effective
   , with back pay and allowances.

He be promoted to the grade of lieutenant colonel effective     .

The word  Misconduct  be  removed  from  his  DD  Form  214,  and  all
references to this matter be expunged from his records.

Upon his reinstatement to the AGR program, he be permitted  to  retire
immediately under the 15-year active duty retirement program.

_________________________________________________________________

APPLICANT CONTENDS THAT:

All adverse actions  taken  against  him  were  based  on  flawed  and
inaccurate information.

He was improperly denied the services of an active duty attorney.

His attorney was denied fair  access  to  witnesses  due  to  improper
command action to intimidate such witnesses.

In support of his appeal, the applicant provided a  20-page  statement
from counsel, supportive statements, copies of his Officer Performance
Reports  (OPRs),  Promotion  Recommendation  Form,  (PRF),  letter  of
reprimand,  a  redacted  Inspector  General  (IG)  report,  and  other
documents associated with the matter under review.

Applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant submitted an initial application, dated      .  However,  on
    , he requested that his application be withdrawn.  He subsequently
submitted a revised application, dated    .

Available documentation indicates  that  he  was  appointed  a  second
lieutenant, Air National Guard and Reserve of the Air Force on  .   On
   , he was released from active duty under the provisions of AFI  36-
3209 (Misconduct) with service characterized  as  honorable.   He  was
transferred to the Kansas Air National Guard, effective      , in  the
grade of major.

Applicant's OER/OPR profile follows:

      PERIOD ENDING    EVALUATION

      16 Mar 83  2-2-2 (NON-EAD)
      16 Mar 84  1-1-1 (NON-EAD)
      13 Nov 84  1-1-1 (NON-EAD)
      30 Sep 85  1-1-1 (NON-EAD)
      31 May 86  1-0-1 (NON-EAD)
       7 Dec 86  1-0-1 (NON-EAD)
      19 Jul 87  1-0-1 (NON-EAD)
      31 Mar 88  1-1-1 (NON-EAD)
      31 Mar 89  Meets Standards (NON-EAD)
      31 Mar 90  Meets Standards (NON-EAD)
      31 Mar 91  Meets Standards (NON-EAD)
      31 Mar 92  Meets Standards (NON-EAD)
       9 Nov 92  Meets Standards (NON-EAD)
       9 Nov 93  Meets Standards (NON-EAD)
       9 Nov 94  Meets Standards (NON-EAD)
      10 Jun 95  Meets Standards (NON-EAD)

Available documentation indicates that the applicant received  an  LOR
on      for approaching Major F--- in an effort to  have  him  provide
false information during the course of  an  IG  investigation;  giving
false information to the IG Inspector when he denied that he requested
that SSgt G--- say trout to  a  senior  noncommissioned  officer;  and
engaging in an act of unprofessional conduct by having  SSgt  G---,  a
female member under his  supervision,  say  trout  or  words  to  that
effect, to a senior officer.

On     , the applicant’s commander notified him that  he  intended  to
recommend to the Adjutant General that  he  be  involuntarily  removed
from  the  AGR  status  for  cause.   The  specific  basis   for   the
recommendation was the misconduct outlined in the LOR.

A  National  Guard  Bureau  Office  of  Inspector   General   (NGB-IG)
investigation was conducted on      and     concerning  the  following
allegations (Exhibit C).

Allegation 1.  Col E--- reprised against the applicant  for  making  a
protected communication by  not  recommending  him  for  promotion  to
lieutenant colonel.

Allegation 2.  Col T--- reprised against the applicant  for  making  a
protected communication by not approving the recommendation  that  the
applicant be promoted to lieutenant colonel.

Allegation 3.  Col T--- reprised against the applicant  for  making  a
protected communication by  giving  him  a  letter  of  reprimand  and
recommending that his AGR tour be terminated.

Allegation 4. Col T--- reprised against the  applicant  for  making  a
protected communication by giving him a substandard OPR.

Allegation 5.  Col T--- reprised against the applicant  for  making  a
protected communication by giving him a letter of reprimand dated

Allegation 6.  Col T--- reprised against the applicant  for  making  a
protected communication by recommending that he be separated from  the
Kansas Air National Guard (KS ANG).

Allegation 7.  Lt Col B--- improperly withheld testimony from the M---
/B--- investigation used  as  a  basis  for  Col  T---‘s  decision  to
terminate the applicant’s AGR  tour  when  it  was  requested  by  the
applicant.

Allegation 8.  Lt Col M--- improperly denied the applicant an attorney
from the Area Defense Counsel when he requested one.

Allegation 9.  Col T--- abused his authority by  trying  to  influence
what MSgt W--- might tell the applicant’s attorney and tried to coerce
him into not talking.

Allegation  10.   Col  T---  abused  his   authority   by   improperly
influencing the selection of his son for pilot training.

Allegation 11.  Col T--- reprised against the applicant for  making  a
protected disclosure by indicating on his DD Form 214, that the reason
for his release from active duty was Misconduct.

Allegation  12.   The  Commander-Directed  Inquiry  into   allegations
against the applicant was not thorough and unbiased.

Allegation 13.  The applicant alleged that  he  received  more  severe
unfavorable  personnel  actions  than  given  to  other  officers  for
misconduct.

Allegations 1 through 7 and  9  through  11  were  not  substantiated.
Allegations 8 and 12 were substantiated.  Regarding allegation 13,  it
was concluded that, at first glance, it did appear that the  applicant
did receive more severe punishment than that given other officers  for
misconduct in the past.  However, Col T--- did not feel bound  by  the
lack of discipline taken by previous commanders and there was evidence
to suggest Col T--- was taking  a  more  aggressive  approach  towards
correcting misconduct.  Col T--- testified that he based his choice of
disciplinary action taken  towards  the  applicant  on  the  M---/B---
investigations.  Those investigations were found  to  be  shallow  and
incomplete.  Based on the additional information disclosed during this
investigation, it was concluded that the disciplinary actions taken by
Col T--- toward the applicant may not have been justified.

On     ,  the  applicant’s  commander  notified  him   that   he   was
recommending his separation from the Kansas Air National Guard.

On     , the applicant was notified by  the  Executive  Support  Staff
Officer, Kansas Air National Guard,  that  he  was  not  approved  for
retention by the Kansas Air National Guard Selective Retention  Review
Board.

On     , the applicant was relieved from his assignment and  separated
from the Kansas Air National Guard.

Information extracted from the Personnel Data System  (PDS)  indicates
that the applicant is assigned to the Retired Reserve Section Awaiting
Pay.  He was credited  with  20  years,  11  months,  and  24 days  of
satisfactory Federal service.

_________________________________________________________________

AIR FORCE EVALUATION:

The Chief, Utilization, ANG/MPPU,  reviewed  the  applicant’s  initial
application and  recommended  denial.   In  MPPU’s  view,  there  were
legally sufficient reasons for terminating the  applicant’s  AGR  tour
and indicating the basis for misconduct.  Subsequent IG investigations
into the applicant’s separation and the stated reason on the  DD  Form
214 concluded that the applicant was not retaliated against for filing
IG complaints or for testifying  regarding  the  financial  status  of
Colonel E---.

MPPU noted the applicant’s  contention  that  he  was  not  given  due
process during the termination proceedings.  Specifically  he  claimed
he was denied Active Air Force defense counsel.  MPPU  indicated  that
while they believe that Lt Col M--- should have assisted the applicant
by identifying an Active Air Force ADC when  the  applicant  requested
it, this omission did not rise to the level of an  ethical  violation.
Lt Col M--- indicated in his  statement  that  he  was  attempting  to
encourage the applicant to  use  Kansas  Air  Guard  judge  advocates,
because those attorneys would be more familiar with the Guard process.
 The applicant nonetheless contacted the ADC office at McConnell  AFB,
but  the  defense  counsels  are  routinely  advised  through  defense
channels that they are not to enter into attorney-client relationships
with ANG personnel as they are outside the scope of ADC duties.

A complete copy of the MPPU evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the advisory opinion, the applicant indicated that,
as previously stated in earlier correspondence, he believes he  became
a target once he brought to General C--- problems involving Colonel E--
-.  He further indicated that he made mistakes, but for management  to
not bring to his attention any concerns they may have had  and  afford
him an opportunity to correct or  explain  any  behavior  they  deemed
inappropriate was wrong.  In his case, it was  blatantly  wrong.   The
rules for him were simple, one strike and he was out.

Applicant’s complete response is at Exhibit F.

_________________________________________________________________


THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing  law
or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the
existence of probable error or injustice.

    a.  The evidence of record reveals that the applicant’s  AGR  tour
was terminated as a result of his receipt of an  LOR  for  misconduct.
Specifically, the applicant allegedly engaged  in  sexual  harassment,
created a hostile working  environment,  lied  to  investigators,  and
tried to get another officer to  lie.   However,  the  adverse  action
taken against the applicant appears to have been based on a commander-
directed inquiry into the  allegations  which  was  not  thorough  and
unbiased.  The available evidence  indicates  that  there  was  little
attempt to obtain  the  truth  about  the  alleged  sexual  harassment
incident.  Only two of the five females that worked for the  applicant
were interviewed and they were  clearly  hostile  witnesses.   Several
witnesses that were interviewed during the inquiry expressed  concerns
about the way  the  investigation  was  conducted,  and  finally,  the
reasons that allegations were  made  against  the  applicant  in  this
matter were seemingly ignored by the investigating officers.  In  view
of the above, we are of the  opinion  the  applicant’s  AGR  tour  was
wrongfully terminated and that corrective action is warranted in  this
case.

    b.  We are aware the Board lacks the authority  to  reinstate  the
applicant back into the state Air National Guard.  As to  his  request
for reinstatement of his unit vacancy promotion, we note that  such  a
recommendation does  not  automatically  result  in  approval  of  the
promotion by the duly  appointed  Federal  recognition  board  or  the
appropriate authorities at state headquarters.  We are  not  persuaded
by the evidence presented that the promotion recommendation would have
been approved but for the  investigation.   Finally,  as  for  as  his
request for a 15-year retirement, no evidence has been presented which
would  lead  us  to  believe  that  he  met  the  criteria  for  early
retirement.

    c.  Accordingly, in our view, the appropriate course of action  in
this case would be to correct the applicant’s records to show that  he
continued on active duty until the  end  of  the  original  AGR  tour,
change the reason for separation to Convenience of the Government, and
transfer him to the Air Force Reserve  and  have  him  assigned  to  a
position for which he is qualified on the earliest  practicable  date.
This will  afford  him  proper  and  fitting  relief,  and  we  do  so
recommend.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that:

      a.  He  was  not  released  from  active  duty  on    under  the
provisions of AFI 36-36-3209 (Misconduct), transferred to  the  Kansas
Air National Guard on  , discharged from the Kansas Air National Guard
on  , and assigned to the Retired Reserve on    ; but was continued on
active duty until  .

      b.  He was released from active duty   under the  provisions  of
AFI 36-3209 (Convenience of the Government) and transferred to the Air
Force Reserve and  assigned  to  such  a  position  for  which  he  is
qualified on the earliest practicable date.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 21 Oct 99, under the provisions of AFI 36-2603:

      Mr. Henry Romo, Jr., Panel Chair
      Mr. Laurence M. Groner, Member
      Mr. Patrick R. Wheeler, Member

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

     Exhibit A.  DD Forms 149, dated 28 Feb 97 and 5 Oct 98,
                 w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  NGB-IG Report of Investigation (withdrawn).
     Exhibit D.  Letter, ANG/MPPU, dated 6 Aug 97.
     Exhibit E.  Letter, SAF/MIBR, dated 7 Sep 97.
     Exhibit F.  Letter, applicant, dated 2 Sep 97.




                                   HENRY ROMO, JR.
                                   Panel Chair










AFBCMR 97-00814




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat 116), it is
directed that:

      The pertinent military records of the Department of the Air
Force relating to , be corrected to show that:

            a.  He was not released from active duty on 8 Mar 96 under
the provisions of AFI 36-36-3209 (Misconduct), transferred to the
Kansas Air National Guard on 2 Apr 96, discharged from the Kansas Air
National Guard on 31 Jul 97, and assigned to the Retired Reserve on 2
Aug 97; but was continued on active duty until 31 Jan 99.

            b.  He was released from active duty on 31 Jan 99 for the
Convenience of the Government and transferred to the Air Force Reserve
and assigned to such a position for which he is qualified on the
earliest practicable date.





    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency