RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-02823
            INDEX CODE: 110.03, 134.02

            COUNSEL:  DAVID P. SHELDON

            HEARING DESIRED: YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    He be reinstated into the active duty Air Force.

2.     He  be  promoted  to  1st  Lieutenant,  with  his  original  date  of
promotion.

3.    He be reinstated to the Undergraduate Pilot Training (UPT).

4.    He be granted an age waiver for returning to UPT.

5.    All records/documents that would  be  detrimental  to  his  career  be
voided from his personnel file.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was  unjustly  removed  from  UPT  in  February  1997;  he  was  unjustly
discharged from the Air Force Reserve in June 1998; he was never allowed  to
have legal representation through the Staff Judge  Advocate  Office  or  the
Area Defense  Counsel  Office;  and  the  appeal  and  grievance  mechanisms
available through the Inspector General and Congressional channels have  not
served adequately.  After 19 months, his case has become very  complex.   It
does involve the refusal of legal representation, no  “due  process”  and  a
violation of the concept of “double jeopardy.”  He has also  seen  his  name
slandered throughout the Air Force Reserve Command (AFRC).  During  all  the
investigations that were done, no one has ever called him to  inquire  about
his side of the case.  He cannot emphasize enough how hard he has worked  to
try to keep his case within the guidelines of  the  Air  Force  and  resolve
this matter internally.  Since this is no longer possible, he now  turns  to
the Board for assistance.

In support of the appeal, applicant submits  supporting  documentation.   In
further support of his appeal, he submits an  unsigned  statement  from  910
AW/IG stating the applicant was
assigned to UPT with the full knowledge of his history of wearing  contacts;
at no time since his removal from pilot training has he  been  afforded  the
opportunity to substantively defend himself through an investigation of  the
true facts of the case; he was  discharged  from  the  Air  Force  based  on
issues that had previously been forgiven by the 910th.  He urges the  AFBCMR
to do everything possible to determine the true facts in this case  so  that
a fair determination may be made of the fate  of  the  applicant’s  military
career.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 8 May 1995, applicant enlisted in the Air Force Reserve in the  grade  of
staff sergeant for a period of six years.  He attended the Officer  Training
Program from 26 June 1995 through 20 September 1995.

On 21 September 1995,  the  applicant  was  honorably  discharged  from  the
Officer Training Program  in  the  grade  of  staff  sergeant  to  accept  a
commission in the Air Force.

On 22 September 1995, the  applicant  was  commissioned  a  2nd  Lieutenant,
Reserve of the Air Force and assigned to the 756 AS, Andrews AFB, MD  on  29
September 1995.

On 23 October 1995, the Flight Surgeon found  the  applicant  was  medically
restricted from flying or special operational duty  due  to  failed  corneal
topography.

On 24 October 1995, the 3FTS/CC notified the applicant  that  he  was  being
entered into the commander’s  review  process  due  to  medical  elimination
initiated by Brooks AFB.

On  24  October  1995,  the  Commander’s  Review  Action,   Faculty   Board,
recommended the applicant for  elimination  from  training  due  to  medical
elimination from Brooks AFB.

On 25 October 1995, applicant  was  recommended  for  elimination  from  the
Enhanced Flight Screening Program due to  being  medically  disqualified  by
the Flight Surgeon’s Office (failed the corneal topography test)

On 26 October 1995, applicant’s elimination  was  approved.   The  applicant
secured a non-flying position with the 459th Airlift Wing  (AW)  at  Andrews
AFB, MD after the 756th AS released him from the  squadron  because  he  was
ineligible to fly.

On 7 December 1995, applicant expressed an  interest  in  becoming  part  of
773rd  AS, Youngstown, OH and be sent to UPT.

On 7 January 1996, the applicant was reassigned  from  Andrews  AFB  to  the
773rd AS of the 910th AW at Youngstown.

In August 1996, the 773rd AS requested the  applicant’s  reinstatement  into
flying training.

After  an  interview  in  January  1996,  the  910th  AW  Operations   Group
Commander, the final decision authority, approved the  applicant  to  attend
UPT.

On 3 February 1997, applicant was notified of intent to  withdraw  him  from
UPT Class 98-05 due to a pending investigation concerning  falsification  of
government documents and false statements during the interview process.

On 6 February 1997, the applicant’s UPT orders  were  canceled  and  he  was
directed  to  return  home  due  to  a  pending   investigation   concerning
falsification of  government  documents  and  false  statements  during  the
interview process.

On  22  February  1997,  the  applicant  received  a  letter  of  counseling
notifying him that he was  withdrawn  for  consideration  for  UPT  for  the
following reasons: 1 Actions taken by the applicant  on  numerous  occasions
to circumvent the normal processing of UPT candidates:  (a)  Numerous  calls
to the AFRES NCO (in charge of UPT processing) in order to obtain  an  early
UPT slot.  (b) Requests to senior officials to intervene in  his  behalf  to
obtain an early UPT slot.  (c)  Numerous  calls  to  other  agencies  (pilot
screening at Hondo, USAFA pilot screening), again to circumvent  the  normal
process.  2. Actions taken by the applicant that  constitute  abuse  of  his
position: (a) Harassing an NCO into authorizing a full complement of  flight
equipment after being told he would be  authorized  a  single  flight  suit.
(b) Utilizing  the  base  transportation  system  for  travel  to  and  from
commercial airports and  unauthorized  personal  use  of  staff  cars.   (c)
Harassment of administrative personnel during  inprocessing  at  Hondo.   3.
During the applicant’s interview, he failed to give  a  full  accounting  of
his actions at Andrews that resulted in his being  dropped  from  their  UPT
process: the applicant lied repeatedly to  Air  Force  officials  concerning
the  use  of  contact  lenses.   4.   The  applicant  made  calls  to  AFRES
requesting his UPT slot be changed to a fighter track which  indicates  that
he did not intend to return to Youngstown to fly the C-130.

Reserve Order BA-3439, dated 1 August 1997, notified the  applicant  he  was
selected for promotion to the grade of 1st Lieutenant, Reserve  of  the  Air
Force, with a date of rank and effective date of 29 September 1997.

On 4 August 1997, the applicant submitted an Article 138 complaint  that  he
was unjustly and unfairly removed from Pilot Training.

On 13 August 1997, the applicant was notified by his commander that  he  was
not recommending the applicant for promotion.  The  specific  reasons  were:
(a) misrepresentation of his medical history to a senior  officer,  and  (b)
Misuse of his Government American Express Card.

On 25 August 1997, Reserve Order BA-3439, was revoked.

On 7 September 1997, the applicant was notified by the Commander, 773rd  AS,
that he was not qualified for promotion to 1st  lieutenant.   The  Commander
also recommended, that if he was found not qualified for  promotion,  he  be
immediately separated from the Air Force.  Specific reasons  were:   (a)  On
16 February 1994, he was medically examined at USAFA Hospital  in  Colorado.
During that examination,  he  attempted  to  deceive  medical  personnel  by
denying that he had used contact lenses, when in fact he  had  used  contact
lenses.  (b) In October 1995, he was medically evaluated  and  screened  for
pilot training.  During the evaluation and screening process,  he  knowingly
and repeatedly misrepresented that he had never  worn  contact  lenses.   He
made these misrepresentations to U.S. Air Force Medical personnel  in  Texas
and to personnel at the 756th AS at Andrews AFB where he was assigned.   (c)
He  repeatedly  incurred  unauthorized  expenses  on  his  American  Express
Government Card from on or about 4 August 1996 through 16 December 1996.

On 16  September  1997,  the  applicant  filed  a  complaint  with  AFRC/IGQ
alleging  that  his  commander  reprised  against  him   for   a   protected
disclosure, by withholding his promotion to 1st lieutenant.

On 29 May 1998, the Secretary of the Air Force determined the applicant  was
not  qualified  for  promotion  to  1st  lieutenant  and  directed   he   be
immediately discharged from all appointments he held in  the  United  States
Air Force.

On 8 July 1998, the applicant was honorably discharged from  the  Air  Force
Reserve under AFI 36-3209, Second Lieutenants Not Qualified for Promotion.

_________________________________________________________________

AIR FORCE EVALUATION:

The  Chief,  Military  Personnel  Division,  Directorate  of  Personnel,  HQ
AFRC/DPM, reviewed this  application  and  states  that  the  applicant  was
removed  from  UPT  at  the  discretion  of  his  wing  commander   due   to
misrepresentation of medical  history  and  the  misuse  of  his  government
American Express card.   In  addition,  a  determination  was  made  by  the
Secretary of the Air Force (SAF) that he was not qualified for promotion  to
1st  lieutenant,  and  he  was  subsequently  discharged.    The   promotion
propriety package was reviewed by HQ AFRC/JA prior to submission to the  SAF
and  was  found  to  be  legally  sufficient.   Therefore,   it   is   their
recommendation that the applicant’s request for reinstatement be denied.

A complete copy of the evaluation is attached at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force  evaluation  and  states  it  has  been
almost two years since the 910th AW removed him from UPT.  All requests  for
an impartial hearing from within AFRC have been denied.  All  inquiries  for
information from Congressional offices in Minnesota have not  been  answered
to his satisfaction.  He was  provided  with  no  legal  representation,  in
spite of the fact that 910th AW and Senior AFRC  officers  continually  used
their Judge Advocate offices when questions arose about this case.   He  was
informed he was not entitled to representation since  no  “punitive”  action
was being taken against him.  He considers the loss  of  his  UPT  slot  and
discharge “punitive.”  The 14th Amendment to the Constitution of the  United
States prohibits deprivation of liberty or property without due  process  of
law.  This Amendment has been broadened by legal precedent such  that  today
the legal concept of due process includes  two  dimensions:  procedural  and
substantive.  Procedural due process speaks to the fairness and validity  of
rules and regulations.  Substantive  due  process  prohibits  arbitrary  and
capricious actions on the part of officials,  such  as  removing  a  student
from UPT.  Many of these Constitutional rights have  been  violated  in  his
case.  This case is a complete abrogation of due process and  actions  taken
by the 910th AW and AFRC have violated his 14th Amendment  rights.   He  has
continually stated that he will provide full disclosure on aspects  of  this
case.   AFRC  has  provided  little  or  no  documentation  to  support  its
position.   Due  to  the  denial  of  requests  for  hearings  and  lack  of
documentation by AFRC on almost  the  entire  case,  he  again  requests  to
appear before the AFBCMR to present  his  case  and  have  witnesses  submit
their testimony.

Applicant's complete response is attached at Exhibit D.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION

The Director, Policy Integration Directorate, Office of Air  Force  Reserve,
HQ USAF/REI, reviewed this application and states  that  the  applicant  was
not promoted to 1st lieutenant because he  misrepresented  the  facts  about
his use of corrective contact lenses in an attempt to acquire  a  UPT  slot,
and  he  repeatedly  used  his  Government   American   Express   Card   for
unauthorized expenses.  The military chain of command has the discretion  to
determine  an  officer’s  fitness  for  promotion.   In   this   case,   the
applicant’s commander recommended that he not be promoted to 1st  lieutenant
because a preponderance of evidence showed that he was unfit for  duties  of
the higher rank.  Subsequent reviews by the 910th AW/JA and HQ AFRC/JA  have
found that the  preponderance  of  evidence  standard  has  been  met.   The
applicant was discharged from the Air Force because he was not  promoted  to
1st lieutenant.  This case has  been  reviewed  repeatedly  in  response  to
successive Inspector General appeals and  six  congressional  inquiries,  up
through and including the Secretary  of  the  Air  Force.   Therefore,  they
recommend that the applicant’s requests be denied.

A complete copy of their evaluation is attached at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air  Force  evaluation  and  states  there  is  a
pattern of denial in this case where AFRC refuses to believe or  acknowledge
that there is an integrity issue with its senior officers.  Not one  officer
has  even  referenced  the  integrity   questions   raised   in   the   main
documentation submitted to the  AFBCMR.   Not  one  officer  from  the  wing
commander on up would  acknowledge  refuting  evidence  which  supports  his
case.  Not one officer will address the hearsay  information,  the  lies  by
senior wing officers, the lack of due  process,  the  slander/defamation  of
character and obstruction of justice referenced in  the  documentation.   If
Air Force senior officers  are  allowed  to  remove  subordinates  based  on
unsubstantiated or fabricated  information  and  then  refuse  to  allow  an
individual an open hearing or any chance  to  defend  oneself  in  order  to
protect the self interests of these same senior officers, the Air Force  has
a major problem.  It has  happened  in  this  case  and  it  violates  every
principle of fairness, justice and  moral  responsibility   If  there  is  a
preponderance of evidence against him, then let  him  see  it  and  let  him
confront his accusers; those people  that  eventually  discharged  him.   He
again requests that he be allowed to appear  before  the  Board  to  discuss
these issues that  he  raises  in  his  complaint  because  he  emphatically
believes that the AFRC has not answered his concerns.  This  is  his  career
that has been taken away by people who  assumed  and  then  acted  on  those
assumptions.  They never bothered to check with him to  find  out  what  the
truth was, they just acted.  So far, the US Air Force
has never wanted to listen to his side of the story.  He urges the Board  to
please grant this requested hearing so that the truth in this  can  be  made
known.

Applicant's complete response, with attachments, is attached at Exhibit E.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.    The application was timely filed.

3.    Insufficient relevant evidence has been presented to  demonstrate  the
existence of probable error or injustice.  After reviewing the  evidence  of
record and the documentation submitted with this appeal, we  note  that  the
commander’s  recommendation  that  the  applicant  was  not  qualified   for
promotion to 1st lieutenant was found legally sufficient  and  was  approved
by the Secretary of the Air Force.  Applicant’s complaint  of  reprisal  was
investigated and his allegation was not  substantiated.   We  have  reviewed
the  applicant’s  submission;  however,  the  evidence  submitted  does  not
convince us that the actions taken against him  were  in  violation  of  the
applicable regulation.  In view of the above findings,  we  agree  with  the
comments and recommendations of the Air Force and adopt their  rationale  as
the basis for our conclusion that the applicant has not been the  victim  of
an error or injustice.   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.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of probable material error or injustice; that the  application
was denied without a personal appearance;  and  that  the  application  will
only be reconsidered  upon  the  submission  of  newly  discovered  relevant
evidence not considered with this application.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 8 June 1999, under the provisions of AFI 36-2603:

      Mr. Oscar A. Goldfarb, Panel Chair
      Mr. Lawrence R. Leehy, Member
      Mr. David E. Hoard, Member
      Ms. Gloria J. Williams, Examiner (without vote)

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 26 Oct 98, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFRC/DPM, dated 14 Nov 98.
      Exhibit D. Applicant’s Response, dated 22 Jan 99.
      Exhibit E. Letter, HQ USAF/REI, dated 11 Mar 99.
      Exhibit F. Letters, AFBCMR, dated 12 Jan 99 and 16 Mar 99.
      Exhibit G. Applicant’s Response, dated 13 Apr 99, w/atchs.
      Exhibit H. Report of Investigation w/d.





                             OSCAR A. GOLDFARB
                             Panel Chair