RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-00565

            COUNSEL:  NONE

            HEARING DESIRED:  YES



APPLICANT REQUESTS THAT:

1.    The Officer Performance  Report  (OPR)  rendered  for  the  period  31
August 1996 through 28 February 1997 be removed from his records.

2.    The Letter of Reprimand,  dated  1  May  1997,  be  removed  from  his
records.

3.    All derogatory remarks be removed from his records.

4.    He be promoted to the grade of lieutenant colonel  effective  16 April
1996, the date of his state promotion order.


APPLICANT CONTENDS THAT:

He was unjustly reprimanded based on malicious rumor and  hearsay;  the  Air
National Guard (ANG) failed to follow procedures in HOI 36-001;  and  delays
in the investigation prejudiced his defense.  As a result, he  received  the
contested report which  is  an  inaccurate  assessment  of  his  performance
during the contested period.

The  applicant  states  that  the  Equal  Opportunity  and  Treatment  (EOT)
representative and management failed to react within a  reasonable  allotted
time which caused escalation to a formal investigation.   The  investigation
took over  eleven  months  to  complete  and  the  ANG  leadership  took  an
additional 10 months to make a decision.  These delays  denied  him  a  fair
and  expeditious  investigation.  He  was  never  interviewed  by  the   EOT
representative in accordance with HOI 36-001,  Section  7b(1)  and  the  ANG
leadership prematurely overreacted by escalating to a  formal  investigation
prior to completing the HOI 36-001 process.  As a result, he was denied  the
opportunity to resolve the issue at the lowest  level.   During  the  formal
investigation there was evidence that many  coworkers  who  could  have  and
would have provided a good report  on  his  behalf,  were  not  interviewed.
There was also evidence the investigators were biased in their  interviewing
process and that a favorable report from  an  interviewee  was  deliberately
excluded from the report.  The applicant believes  he  and  the  only  other
Hispanic officer  working  in  the  Financial  Management  Directorate  were
singled out as targets and discriminated against  because  of  their  ethnic
background.  The true motive for the  complaint  was  that  the  complainant
feared she was not going to be promoted because she had not completed her 7-
level training, so she lashed  out  toward  leadership  with  a  barrage  of
unfounded and false accusations.

The applicant states that at the same time he was being charged  with  these
allegations,  he  received  the  Meritorious   Service   Medal   (MSM)   for
outstanding performance and his records reflect  17  outstanding  evaluation
reports

In support of the appeal,  applicant  provides  several  statements  in  his
behalf.

The Vice Commander, Air National Guard Readiness Center (ANGRC) states  that
HOI 36-001 procedures were not followed and resolution  of  the  case  could
have been achieved if the process was completed.

The  applicant’s  supervisor  (Col  W---)  states   that   throughout    the
investigation there were many flaws that would seemingly cause a  reasonable
person to question the fairness of the outcome.  All interviews  were  taped
and transcribed by the  investigating  board,  rather  than  a  professional
transcriber. Because of this, his testimony was difficult  to  decipher  and
was not clear in his meaning and intent.  By the time  he  finished  reading
his statement, he found it necessary to  add  a  handwritten  statement  re-
emphasizing his true intent and meaning.  In addition,  the  makeup  of  the
investigating board appeared to lend itself to  a  bias  position  from  the
start, being made up of a white female, Lt Col, a black female, NCO,  and  a
black civilian representative.  Furthermore, a colonel advised him  that  he
was led and persuaded in answering questions by the  investigating  officer,
and that if all questions by the investigating  officer  were  conducted  in
the same bias fashion, the  applicant  could  not  receive  fair  treatment.
Actions substantiated on the  summary  report  were  misrepresented  by  the
facts, and  as  such,  he  has  acquired  new  statements  from  appropriate
individuals clarifying what was really said and occurred, in  the  event  he
would need them in the future.

The Chief of DOX (Col M---)  has  provided  statements  indicating  that  he
never observed the applicant have any negative attitude towards anyone.   In
addition, he states that when he was called for a phone interview and  asked
questions about the applicant, it was more than obvious  the  investigator’s
decision had already been made.  When what  he  related  was  not  what  the
investigator wanted to hear, he was told the interview was no  longer  going
to be used.  He believes that if the interview was typical of the  processed
used to investigate the applicant, he can only state how unprofessional  and
suspect the outcome must be.

The applicant’s complete submission is attached at Exhibit A.


STATEMENT OF FACTS:

The applicant is currently serving on active duty in the ANG  in  the  grade
of major.

On 21 February 1996, TSgt M--- filed a complaint alleging the applicant  and
management of the Financial Management and Comptroller Directorate  violated
Air Force policy regarding racial and gender discrimination  and  Air  Force
policy on training, supervision, performance  feedback,  and  total  quality
management.  In addition, TSgt May alleged that in 1994 or early  1995,  the
applicant discriminated by gender when he stated to Ms. M--- and  Ms.  L---,
“Women have no business in the workplace(, Woman’s place is  in  the  home(”
and “You need to find a major or lieutenant colonel to take care of you.”

On 11 March 1996, Ms. W--- filed a  complaint  alleging  fraud,  waste,  and
abuse by management and racial and gender discrimination against Major  S---
and management in general.

The applicant was promoted to the grade of lieutenant colonel in the  Puerto
Rican Air National Guard, effective  16 April  1996,  or  upon  approval  of
Federal Recognition.

On 29 April 1996, the 89th AW/SAE  (Social  Action)  initiated  an  informal
investigation  concerning  allegations  of  sexual  harassment  and   gender
discrimination.

From 29 April through 23 December 1996, the 89th AW/IG  conducted  a  formal
IG investigation regarding  the 21 February and 11  March  1996  complaints.
The investigation found the  allegations  that  applicant  discriminated  by
gender and sexually harassed through his comments, and management failed  to
take appropriate action to prevent it,  were  substantiated.   In  addition,
the investigation found that management failed  to  comply  with  Air  Force
Directives pertaining to performance feedback  and  performance  reports  by
failing to  provide  TSgt  M---th  performance  feedback  and  by  switching
supervisors so frequently she did not know who would be rating her  or  what
would be used as a basis for the rating.   The  allegations  that  applicant
showed preferential treatment  based  on  ethnic  background  and  willfully
violated Air Force Quality Policy by  stating  that  it  was  just  a  “F---
thing,” were not substantiated.  The allegations  of  racial  discrimination
and  fraud,  waste,  and  abuse  were  unsubstantiated.   The  Investigating
Officer noted that several other  general  complaints  provided  during  the
inquiry, pertaining to other offices in the  Air  National  Guard  Readiness
Center (ANGRC), give the appearance of at least  a  perceived  problem  with
discrimination and harassment throughout the organization.

On 1 May 1997, the applicant received a Letter of Reprimand from the   ANGSC
Commander for violating Article  134  of  the  Uniformed  Code  of  Military
Justice (UCMJ).  Specifically, for discriminating by gender  at  the  ANGRC.
The commander noted that  a  commander’s  directed  investigation  disclosed
that between on or about late 1994 and on or about early 1995, he stated  to
a female civilian employee, “women have no place in the  workplace,  woman’s
place is in the home,” or words to that effect.  The  commander  also  noted
that the investigation disclosed that on more than one occasion  between  on
or about January 1995 and on or about February 1996,  he  sexually  harassed
the same female civilian employee by repeatedly stating to  her,  “that  she
need to find a major or lieutenant colonel to take care of  her,”  or  words
to that effect.

On 19 May 1997, the applicant received a referral  OPR  for  the  period  31
August 1996 through 28 February 1997 based  on  comments  contained  in  the
report regarding the sexual harassment investigation.

The applicant was considered and not selected for promotion to  the  Reserve
grade  of  lieutenant  colonel  by  the  1999C  Central  Lieutenant  Colonel
Selection   Board.    The   applicant   received   an   overall    promotion
recommendation of “Do Not Promote”  on  the  Promotion  Recommendation  Form
(PRF) prepared for the 1999C board.  In Block IV, Promotion  Recommendation,
of the PRF, the senior rater stated that,  “Major  Ayala’s  performance  was
marred by inappropriate comments to a coworker which were  investigated  and
determined to be sexual harassment.”

HOI 36-001, Equal Opportunity and Treatment  (EOT),  Section  7b(1),  states
that during the complaint  clarification  process,  the  EOT  representative
will interview the complainant, the individual(s) alleged to  have  violated
the organizations EOT  policy,  witnesses,  and/or  anyone  else  possessing
information  relevant  to  the  complaint  and  complete  the  Fact  Finding
Document.

A resume of applicant’s performance since 1992, follows:

        PERIOD ENDING            OVERALL EVALUATION

          30 Aug 92             Meets Standards (MS)
          30 Aug 93                     MS
          30 Aug 94                     MS
          30 Aug 95                     MS
          30 Aug 96                     MS
        * 28 Feb 97 (Referral Report)   MS on all factors
                      except Professional
                       qualities
          31 Jul 98                     MS

* Contested report


AIR FORCE EVALUATION:

The Director, Personnel and Training, ANG/DP, reviewed this application  and
states that after a thorough review of  this  case  by  their  legal  office
addressing the “investigation procedures  and  regulatory  processes,”  they
find the applicant’s rights  were  not  prejudices.   The  Headquarters  ANG
followed its own regulatory requirements in accordance with HOI 36-001.

ANG/DP states that in the  absence  of  any  evidence  of  unfair  treatment
toward the applicant and a lack of substantial  evidence  of  any  incorrect
procedures in this case, they cannot support relief.  In is  their  position
that an officer who has been reprimanded for sexual  harassment  and  gender
discrimination should not be promoted to the grade of lieutenant colonel.

The General Law Team, Office of the Chief  Counsel,  NGB/JA,  reviewed  this
application and provided a legal review to ANG/DP on 17 April 1998.   NGB/JA
stated  that  it  was  impossible  to  determination   whether   applicant’s
allegations were supported by the record since the Report  of  Investigation
(ROI) was incomplete.  However, if the applicant was not interviewed by  the
EEO during the informal investigation, that would indicate a  gross  failure
to follow the regulations.  NGB/JA requested the  full  ROI  of  the  formal
investigation and  the  informal  investigation  report.   However,  the  IG
denied their request since the investigation had already undergone  a  legal
sufficiency review.  In regard to the  informal  investigation,  they  state
that under HOI 36-001,  the  ANG  had  the  option  of  either  pursuing  an
investigation informally within the agency, or requesting  the  help  of  an
outside agency.  In this case, after starting  the  informal  investigation,
but prior to the EOT interviewing the applicant, the ANG referred  the  case
to the 89th  AW/Social  Actions  Office.   The  institution  of  the  formal
investigation stopped  the  conduct  of  the  informal  investigation.   The
decision to conduct a formal, rather than informal investigation, was  based
on the number and seriousness of the allegations, rather than any  delay  by
the EOT in conducting the informal investigation.  They state the  applicant
did not have a right to have an informal  investigation  first  address  the
issues.  Furthermore, the EOT  representative’s  failure  to  interview  the
applicant  during  the  informal  investigation  did   not   prejudice   the
applicant’s  rights  because  he   was   interviewed   during   the   formal
investigation.  The NGB/JA opines the record supports  a  finding  that  ANG
correctly followed the requirements of HOI 36-001.

A complete copy of the Air Force evaluation, with attachments,  is  attached
at Exhibit C.



APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant  reviewed  the  Air  Force  evaluation  and  states  that  the
credible evidence he has presented, contradicts the advisory  opinion.    He
cannot reconcile how  the  ANG  reviewed  his  case  and  found  a  lack  of
substantial evidence  of  any  incorrect  procedures.   Since  only  partial
information was provided to  him  by  ANG/MPPUA  to  defend  his  case,  due
process was not served.  Enough evidence exists with  third  party  referral
letters and testimonies, to question the credibility of  the  final  report.
The ANG fact-finding process in HOI 36-001 was not clearly  adhered  to  and
fair treatment  is  questionable.   Furthermore,  the  formal  investigation
misrepresents the true  nature  of  the  investigation.   Hence,  management
decided punishment based on skewed  information  and  due  process  was  not
served.  In this respect, the applicant states the following:

      a.    Initially, he was only provided  the  one  page,  vague  opinion
from ANG/MPPUA.  It was not until he requested AFBCMR assistance in  getting
more information to rebut, that ANG/MPPUA  reluctantly  provided  copies  of
the  NGB/JA  opinions.   However,  it  appears  the   NGB   is   withholding
information relevant to his case.  It was his  understanding  that  when  he
began the records correction process, the NGB legal office would  conduct  a
thorough review of the full report of  investigation.   He  was  advised  by
ANG/MPPUA  that  they  were  having  validating  problems  with  NGB-JA   in
responding to their requests.  He is disturbed by the  manner  in  which  he
had to get this information.  He thinks the process is unfair and leads  him
to think that ANG/MPPUA and NGB-JA were not forthright in dealing  with  his
investigation  information.   If  he  had  not  requested  these  additional
letters from ANG/MPPUA, they would not have offered them.  He believes  this
casts doubt as to whether or not he is being treated fairly.

      b.    The legal opinion by NGB/JA,  dated  13  March  1998,  indicated
they were not provided an unredacted copy of the  investigation  to  analyze
the merits of his complaint, and that at least one  senior  officer  in  the
ANG had espoused the view that the investigation was  flawed.   He  believes
it was incumbent upon NGB-JA and ANG/MPPUA to acquire a copy of  the  entire
investigation for thorough review.

      c.    The legal opinion by NGB/JA,  dated  17  April  1998,  indicated
that it was impossible for them to determine whether  his  allegations  were
supported by the record  since  the  formal  Report  of  Inquiry  (ROI)  was
incomplete.  The letter also indicated that although the  informal  ROI  was
not provided, his allegations appeared to show a lack  of  concern  for  his
rights and those of the complainant.  The letter also indicated that  if  he
was not interviewed by the EEO, that  would  indicate  a  gross  failure  to
follow the regulations and noted that failing to  interview  the  individual
who  allegedly  violated  the  regulations,  deprives  that  person  of  the
opportunity to explain his  actions,  provide  countervailing  evidence,  or
suggest additional witnesses.  NGB/JA was also troubled  that  the  informal
process took so long that  the  complainant  decided  to  request  a  formal
investigation.   NGB/JA stated that complaints should  be  resolved  at  the
lowest level, before they impact morale  and  work  product.   Although  the
informal investigation should have been included in the  file  so  that  his
allegations could be investigated, NGB/JA  responded  to  his  case  without
acquiring a complete report.  However, they did indicate  that  the  letters
he provided appeared to substantiate some of his allegations.

      d.    After reviewing  only  the  executive  summary  of  the  report,
NGB/JA give a whole completely different response in  their  opinion,  dated
25 August 1998.  He believes it was impossible  for  them  to  evaluate  his
case based only the executive summary.   He notes that  the  author  of  the
favorable letter, dated 17 April 1998 was not the same  person  that  signed
the 25 August 1998 letter.  One can read both  letters  and  tell  different
people authored them, yet someone else signed the  second  letter  for  her.
He believe their behavior is suspicious.  Furthermore, as NGB/JA  previously
indicated, his allegations could not be analyzed because  only  the  summary
of the ROI was included in the file.  The IG did not comply with the  NGB/JA
request that the full ROI  be  supplied.   The  IG  contended  that  it  was
unnecessary  since  the  investigation  had  already   undergone   a   legal
sufficiency review.  He thinks it is ludicrous for ANG/DPPUA to  ask  NGB/JA
if they followed their own regulation.  He questions why the  ANG  will  not
believe the Vice-Commander of ANGRC, who was  there  when  it  happened  and
admits the process  was  not  followed.   Furthermore,  the  25 August  1998
NGB/JA opinion is misleading,  inaccurate,  and  takes  the  regulation  and
timeframe out of context.    Once  the  informal  investigation  started  on
21 February 1996, the EOT representative had over two  months  to  interview
other people in his organization.  However,  since  the  EOT  representative
was not  resolving  the  complaint  to  her  satisfaction,  the  complainant
decided to formalize the complaint on 18 April 1996.  Additional  complaints
that had nothing to do with his case irrupted in another division  of  their
directorate  that  caused  management  to  overreact.    They  should   have
maintained  the  two  informal  investigations  separate   but   the   other
investigation (Accounting  Division)  had  many  complainants.   The  NGB/JA
leads you to think that all allegations were related to his  case,  when  in
fact 95% were related with the other investigation.  He believes this  is  a
classic example of how information is manipulated to distort the truth.

      e.    He does not dispute that management has  the  option  to  either
pursue an investigation informally  with  the  agency,  or  request  outside
help.  However, the governing regulation, HOI 36-001, states  that,  “Should
official designee opt to proceed informally, the EOT representative will  be
instructed to complete the complaint clarification process.”  In  his  case,
the designee was the ANGRC Vice Commander who  authorized  them  to  proceed
informally.   The EOT representative  started  the  complaint  clarification
process one-month prior to changing to  a  formal  investigation.   However,
contrary to  HOI  36-001,  which  states  the  individual  alleged  to  have
violated the organization’s EOT policy will be  interviewed,  he  was  never
interviewed during the informal  investigation.  The  ANG/MPPUA  and  NGB-JA
opine that since  the  informal  investigation  became  overruled  by  their
opting for a formal investigation, the informal investigation is  no  longer
valid.   Based on their argument,  the  formal  investigation  should  stand
completely alone and not have all the informal investigation information  as
part  of  the  formal  investigation.    He   questions   why   the   formal
investigation was not conducted completely separate.  He  does  not  believe
that NGB-JA can say the informal investigation  is  invalid  when  the  full
report contains many documents from the informal investigation,  which  they
failed  to  read.   He  believes  that  mixing  both  formal  and   informal
investigation compromises the formal investigation.    If NGB/JA  uses  this
argument, then the EOT representative should  have  been  removed  from  the
formal investigation because of conflict of  interest.    However,  the  EOT
representative in the informal investigation continued to play a major  role
in the formal investigation and influenced the investigators.

      f.    Interviewing him in the formal  investigation  does  not  negate
the fact that the informal process was not done  correctly.    Common  sense
and fair play would have allowed him to be interviewed.  He believes  NGB-JA
was negligent by evading ANG/MPPUA  questions,  and  poorly  defended  their
arguments by statements not supported by facts.

      g.    He and his staff managed over $5 billion  dollars  for  the  ANG
under  very  stressful  conditions.  Because  of   downsizing,   they   were
understaffed  and  overworked  with   multiple   training   and   managerial
challenges.  He was so determined to prioritizing  their  limited  resources
and getting the job done that perhaps his level of expectations from  others
was too high. He took his job responsibilities very  seriously.   He  admits
that they had  some  management  problems,  but  there  were  a  few  people
disgruntled with management that he could not win over  no  matter  what  he
tried.  He agrees they had differences, but it was all work related  and  he
was not disrespectful in  any  way.   The  complainants  true  motives  were
obscured by management and training issues.

      h.    There were nine key personnel in FMB that were not  interviewed,
of which six were women. If he was being investigated  for  harassment,  the
investigators should have then interviewed everyone in the  organization  to
corroborate if anyone had witnessed this behavior  first-hand.  He  believes
the investigators selectively interviewed personnel that were identified  by
the complainant.

      i.    One of the  investigators  had  a  nonprofessional  relationship
with the complainant which  compromised their objectivity.  He  is  not  the
only person  who  observed  irregularities  with  the  investigation.   MSgt
Milgrim requested  that  one  of  the  investigators  be  removed  from  the
investigation.  If  this  investigator  was  not  removed,  the  possibility
existed that the complainant was being favored in the investigation.

      J.    He is being judged by an event that  happened  in  1994  and  is
based on hearsay.  As indicated in his supervisor’s statement, TSgt May  was
asked if she felt like she was treated any differently than anyone  else  in
FMB and she said no.  TSgt May said she has overheard comments made  to  Ms.
Maggio that she did not like.  His supervisor asked TSgt May  if  she  meant
she was filing sexual harassment complaints against the applicant  that  did
not concern her or had not been made to her directly and she said yes.   His
supervisor has indicated that it  is  his  personal  opinion  that  this  is
simply a matter of a personally conflict between the two  and  TSgt  May  is
using race and sex to achieve her own personal motives.

In further support of the appeal, applicant submits  a  statement  from  his
immediate supervisor, an additional statement from the  Chief  of  DOX  (Col
Mickelson), a copy of his most recent OPR, and excerpts from testimony.

The applicant’s immediate supervisor  states  that  applicant  has  strictly
adhered to the absolute highest standards of military  professionalism  with
regard to both his official duties and all of the people around him.

The Chief of DOX states that interviewers questions were  not  questions  as
to what he knew and  had  heard  in  regards  to  the  applicant,  but  were
construed to comply with stated facts.

The applicant’s complete response is attached 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 a probable error or an injustice to  warrant  voiding  the  LOR
and contested OPR,  and  setting  aside  the  applicant’s  nonselection  for
promotion.  After an extensive review of the evidence of record  and  noting
the applicant’s contentions, we are very concerned with the manner in  which
the informal and formal investigations were conducted.  In this respect,  we
note the following:

      a.    In their letter, of 17 April 1998, NGB/JA  states  that  if  the
applicant were not interviewed  by  the  informal  investigation,  it  would
indicate a gross failure to follow the  regulations,  and  that  failing  to
interview the individual who allegedly violated  the  regulations,  deprives
that  person  of  the  opportunity   to   explain   his   actions,   provide
countervailing  evidence,  or  suggest  additional  witnesses.   We   agree.
However, since he was interviewed during the  formal  investigation,  we  do
not believe the failure to interview him during the  informal  investigation
taints the results of the formal investigation.

      b.    While we  believe  the  formal  investigation  could  have  been
handled more professionally (i.e., interviews  were  not  transcribed  by  a
professional,  allegations  of  bias  on  the  part  of  investigators,  and
allegations that witnesses were led and persuaded  by  the  investigator  in
answering  questions),  the  evidence  obtained  during  the   investigation
appears sufficient to sustain the decision  that  applicant  was  guilty  of
making the alleged statements.

      c.     The  applicant’s  supervisor  has  indicated  that  applicant’s
statement to Ms. Maggio was not meant in disrespect, and  was  based  on  an
ideal perspective that it would be nice if she found someone  to  take  care
of her.  The applicant’s supervisor has also indicated that he  thought  the
situation was resolved after he counseled the applicant  in  1994  when  the
statements  were  initially  made.   Although  the  applicant’s   supervisor
honestly believes the allegations against him were  personality  driven  and
the  individuals  involved  in  making  them,   were   expressing   personal
dissatisfactions, rather than legitimate  sexual  harassment  problems,  the
fact remains  that  he  again  made  the  statements  in  1996  after  being
counseled regarding this issue.

      d.    After an exhaustive review of the evidence of record and  noting
the circumstances surrounding  these  statements,  we  believe  the  overall
punishment the  applicant  received  was  extremely  harsh.   We  note  that
applicant received an LOR, a referral OPR,  a  “Do  Not  Promote”  PRF,  his
early recommendation for promotion to the grade of lieutenant colonel to  be
effective in 1996 was not approved, and he was considered and  not  selected
for promotion by the FY99 board.  In view of these  actions,  he  will  have
virtually no chance to be  promoted  when  he  is  considered  by  the  next
promotion board, and if not selected by this board, he will be  required  to
be separated from the Air Force with over 16 years of service.

      e.    In recognition of his otherwise superior record and in  view  of
the discrepancies and less than ideal manner  in  which  the  investigations
were completed, we believe the overall effects of the punishment are  unduly
harsh and that a LOC would have been more appropriate.   We  note  that  had
the applicant received a LOC, it would no  longer  have  been  a  matter  of
record after his Permanent Change  of  Station  (PCS)  in  August  of  1997.
Therefore, we recommend the  LOR  and  referral  OPR  be  removed  from  his
records, and his promotion nonselection by the Fiscal Year 1999C Reserve  of
the Air Force Central Lieutenant  Colonel  Selection  Board  be  set  aside.
While more information regarding the circumstances  surrounding the  alleged
statements would have been helpful in deciding this  case,  we  believe  the
totality of the evidence presented supports and  justifies  the  recommended
corrections to his records and will provide him an  opportunity  to  salvage
his career in the Air Force.

      f.    The Board wishes to make it perfectly  clear  that  we  are  not
persuaded the  applicant  did  not  make  the  alleged  statements  and  our
decision should in no way be construed as a vindication of his actions or  a
determination of his innocence. Whether or not the statements were based  on
his beliefs, as indicated by the rater, the applicant  has  not  shown  they
were not inappropriate.

4.    Insufficient relevant evidence has been presented to  demonstrate  the
existence of a probable error or an injustice  to  warrant  the  applicant’s
promotion to the grade of  lieutenant  colonel  through  the  correction  of
records process.  As indicated above, we are  not  convinced  the  applicant
did not make the alleged statements and should have known they  were,  at  a
minimum, inappropriate.   In  addition,  because  of  these  incidents,  his
commander had the right to determine his qualifications for early  promotion
to the next higher grade.  The applicant appears to have  had  an  otherwise
outstanding  record.   Nonetheless,  since  he  has  not  shown   that   his
commander’s actions were arbitrary or capricious,  we  find  no  basis  upon
which to  recommend  favorable  consideration  of  his  request  for  direct
promotion through the correction of records process.

5.    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.


THE BOARD RECOMMENDS THAT:

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

      a.    The Field  Grade  Officer  Performance  Report,  AF  Form  707A,
rendered for the  period  31  August  1996  through  28  February  1997,  be
declared void and removed from his records.

      b.    The Letter of Reprimand, dated 1 May  1997,  declared  void  and
removed from his records.

      c.    He was not considered for promotion  to  the  Reserve  grade  of
lieutenant colonel by the  Fiscal  Year  1999C  Reserve  of  the  Air  Force
Lieutenant Colonel Selection Board.


The following members of the Board considered this application in  Executive
Session on 2 March 1999, under the provisions of AFI 36-2603:

                  Mrs. Barbara A. Westgate, Panel Chair
                  Mr. Roger E. Willmeth, Member
                  Mr. Michael V. Barbino, Member
                 Mr. Phillip E. Horton, Examiner (without vote)

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

      Exhibit A.  DD Form 149, dated 10 Mar 98, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, ANG/DP, dated 7 Oct 98.
      Exhibit D.  Letter, AFBCMR, dated 2 Nov 98.
      Exhibit E.  Letter, Applicant, dated 14 Dec 98.
      Exhibit F.  Letter, Applicant, dated 27 Jan 99, w/atchs.




             BARBARA A. WESTGATE
                                  Panel Chair






AFBCMR 98-00565




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 APPLICANT be corrected to show that:

            a.   The Field Grade Officer Performance Report, AF Form 707A,
rendered for the period 31 August 1996 through 28 February 1997, be, and
hereby is, declared void and removed from his records.

            b.   The Letter of Reprimand, dated 1 May 1997, be, and hereby
is, declared void and removed from his records.

            c.   He was not considered for promotion to the Reserve grade
of lieutenant colonel by the Fiscal Year 1999C Reserve of the Air Force
Lieutenant Colonel Selection Board.




                                        JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency