RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: 99-01265 (#1)
                                    & 99-02253 (#2)
                             INDEX CODE 115.02  111.01 111.05
      XXXXXXXXXX COUNSEL:  None

      XXXXXXXXXX HEARING DESIRED:  Yes


APPLICANT REQUESTS THAT:

Case #1:
The Letter of Reprimand (LOR) and Unfavorable Information File  (UIF),
dated 20 Apr 98, be voided  and  the  Flying  Evaluation  Board  (FEB)
disqualification, dated 21 Dec 98, [Aeronautical Order 49, 14 Jan  99]
be rescinded.

Case #2:
The referral Officer Performance Report (OPR) for the period 18 Feb 98
through 17 Feb 99 be declared void and removed from his records.

APPLICANT CONTENDS THAT:

Regarding Case #1:

He was not provided proper flying training, supervision  or  currency.
The lack of flying supervision and training as required by  Air  Force
Instructions (AFIs) indicates a significant violation  of  regulations
by the Aeronautical Systems Center and contrasts that provided to  all
other pilots in the USAF. The FEB was not conducted according  to  AFI
11-402.  It was inappropriate because he was not assigned to the  88th
Air Base Wing (88 ABW) that convened the board. The board was not fair
or impartial and did not properly evaluate the evidence. The  recorder
did not remain neutral during the hearing. Various board findings were
either completely or partly erroneous.  His UIF was given  by  someone
who did not have the authority to establish it.

In support, the applicant provides a personal statement along with  13
attachments, one of which consists of six binders containing  the  FEB
transcript and exhibits. One his legal counsels provides an affidavit,
indicating it is not contested  that  the  applicant  entered  Chicago
Center’s airspace at a high speed; what is critical was whether or not
there was a willful violation. However, an officer of the  board  [the
FEB recorder] tainted the board’s findings from the start by the abuse
of  the  process.  A  witness’s   affidavit   asserts   the   recorder
misrepresented himself and attempted to alter testimony  to  suit  his
idea of what happened.

Regarding Case #2:

The contested OPR was referred to him before the closeout date and was
downgraded based on a flying-related incident that occurred during the
previous reporting period. The investigation [of the incident]  should
have been concluded within 30 days of the incident and closed  out  in
Aug 97. A predetermined judgement against  him  was  made  before  his
response to the  referral  report  could  be  provided  and  reviewed.
Additionally,  he  was  not  provided  the  proper  flying   training,
supervision or currency and was required to  manage  a  high  priority
acquisition program while maintaining flying currency in  the  single-
seat F-16.  Flying duties were not described in  the  OPR  summary  of
duties, indicating excessive focus on an incident that should not have
received this level of scrutiny.

The applicant provides copies of the two  versions  of  the  contested
OPR, which was referred to him on 12 Feb and again on 12 Mar 99.

Copies of applicant's complete submissions are at Exhibit A.

STATEMENT OF FACTS:

The  following  information  was  extracted  from  official  documents
contained in the applicant’s submissions, his  records,  and  the  Air
Force evaluations and attachments:

The applicant was a Test Pilot School graduate with over 3000 hours in
the F-16. During the period in question, he was serving in  the  grade
of major as the Program Manager of the Theater Airborne Reconnaissance
System  (TARS),  Reconnaissance  Systems   Program   Office   of   the
Aeronautical Systems Center (ASC), Air Force Material Command  (AFMC),
Wright-Patterson AFB (WPAFB), OH.

On 10 Jul 97, the applicant flew an F-16 aircraft (Mint 99)  belonging
to the 127th Flight Wing (127 FW) into Class B airspace  near  Chicago
O’Hare, IL, airport on a flight from Selfridge Air National Guard Base
(ANGB), MI, to  Madison  ANGB,  WI.   Civilians  made  numerous  noise
complaints to the Barrington, IL police, who  forwarded  them  to  the
Federal Aviation Administration (FAA). Upon notification by the FAA of
a  possible  pilot  deviation,  the  127  FW,  MI  ANG,  initiated  an
investigation on  11  Jul  97.  The  FAA  filed  a  Preliminary  Pilot
Deviation Report on 14 Jul 97. Since the applicant was an active  duty
pilot assigned to ASC/RA, the Pilot Deviation Report investigation was
transferred to HQ AFMC Operations (DO) on 21 Jan 98. On 22 Jan 98,  HQ
AFMC/DOO requested a preliminary investigation by ASC/RA.

On  3  Feb  98,  the  ASC  vice  commander   (ASC/CV)   appointed   an
investigation officer (IO) to investigate allegations  of  applicant’s
dereliction of duty and unprofessional conduct on 10 and  11  Jul  97.
The allegations and the IO’s findings thereto subsequent to his 3 Feb-
6 Mar 98 investigation follow:

      1.    Wrongfully entered Class B airspace  on  or  near  Chicago
O’Hare Airport  without  proper  clearance  in  violation  of  Federal
Aviation Regulation (FAR) --- Substantiated.

      2.    Wrongfully exceeded 250 Knots Indicated Air  Speed  (KIAS)
below 10,000 feet Mean Sea Level (MSL) in violation  of  FAR  ---  Not
Substantiated.

      3.    Wrongfully operated an aircraft in a careless or  reckless
manner so as to endanger the life or property of another in  violation
of FAR --- Substantiated.

      4.    Wrongfully operated an aircraft  in  aerobatic  flight  in
violation of FAR --- Not Substantiated.

      5.    Negligently or willfully failed to file  his  flight  plan
with the 127th Fighter Wing (127 FW) Operation Desk as required by 127
FW’s standard operating procedures --- Not Substantiated.

      6.    Negligently or willfully failed to  fly  under  Instrument
Flight Rules (IFR) to the maximum extent possible as required  by  AFI
11-206 and other applicable directives --- Substantiated.

      7.    Made an official statement [on 11 Jul 97] with  intent  to
deceive by filing a Visual Flight Rules (VFR) flight plan in order  to
accomplish the mission objective of arriving at Madison ANGB  as  soon
as possible in order to attend a scheduled meeting, which was false in
that he deviated up to 50 miles from the direct route and requested  a
delay from  Chicago  Terminal  Radar  Approach  Control  (TRACON)  air
traffic controllers, and the statement  was  known  to  be  false  ---
Inconclusive.

      8.    Negligently or willfully failed to immediately  leave  the
Class B space when asked to do so by the Chicago  TRACON  air  traffic
controllers, as required by AFI and other applicable  directives,  and
instead did a 360 degree turn before leaving --- Not Substantiated.

      9.    Negligently or willfully failed to ensure  his  aircraft’s
altitude was at least 1000 feet above the highest  obstacle  within  a
2000-foot radius of the aircraft over a congested area as required  by
AFI and other applicable directives --- Substantiated.

       10. Negligently  or  willfully  performed  aerobatics   or   an
unauthorized flight demonstration, as  prohibited  by  AFI  and  other
applicable directives --- Not Substantiated.

      11. Negligently or willfully  used  excessive  speed  in  a  low
altitude environment and in Class B airspace, as prohibited by AFI and
other applicable directives --- Substantiated.

      12. Operated an aircraft in a careless or reckless manner or  in
a manner that could endanger life or property, as  prohibited  by  AFI
and other applicable directives --- Substantiated.

The IO recommended these findings be forwarded for further  action  to
the FAA, who still considered the case open  and  that  the  applicant
receive,  as  a  minimum,  remedial  flight  training  and  supervised
study/review of current FAA and AF flying directives prior to his next
flight. The IO indicated the applicant’s Class  B  airspace  violation
was primarily due to  improper  flight  planning  and  inattention  to
detail.  His poor flight planning and lack  of  situational  awareness
while entering Class B airspace displayed a clear training deficiency.
 The applicant’s interpretation of AFI 11-206 regarding filing  a  VFR
versus IFR flight plan contradicts the  intent  of  the  AFI  and  his
justification  was  weak.   His  inability  to  maintain  his  desired
altitude clearly indicated a strong lack of  flying  proficiency.  His
claim that the 1500 feet altitude change was a momentary deviation  or
he was unaware of the descent  is  implausible.  Finally,  he  clearly
disregarded the intent of the F-16 waiver to  exceed  250  KIAS  below
10,000 feet MSL.

On 20 Apr 98, the ASC/CV issued the contested LOR to the applicant for
the flying incident and established the UIF. The applicant provided  a
rebuttal on 22 Apr 98. [Effective 1 Feb 96, per the Air Force Chief of
Staff (AF/CC), UIFs are automatically established on officer personnel
administered a letter of reprimand.  The UIF remains on  file  and  in
the personnel database for a period of four years  or  upon  permanent
change of station (PCS) plus one year, whichever  is  later.  Removing
the LOR/UIF was not an option.  Additional changes to the officer  UIF
program were made effective 1 May 98. The AF/CC directed a  review  of
all officer UIFs by the officer’s wing commander  or  equivalent.  The
wing commander had three options:  retain  the  four-year  disposition
(expiration) date, shorten the  disposition  date  to  two  years,  or
remove the UIF and associated documents in its entirety.]

By letter dated 30 Apr 98, the  HQ  AFMC/CC  designated  authority  to
convene FEBs to all general  court-martial  convening  authorities  in
AFMC. The 88 ABW is a wing under ASC and the 88 ABW/CC acts as general
court-martial convening authority for WPAFB.

On 9 Jun 98, the 88 ABW/CC directed an FEB  be  convened.  A  FEB  was
convened on 3 Sep 98 and on 6 Sep 98 made the following findings  with
regard to the 10 Jul 97 incident:

      1.    The applicant wrongfully entered Class B  airspace  on  or
near Chicago O’Hare Airport without proper clearance in  violation  of
FAR(s) and, due  to  improper  planning  and  lack  of  knowledge,  he
transited Class B airspace unknowingly.

      2.    He wrongfully operated  an  aircraft  in  a  careless  and
reckless manner so as to endanger the life or property of  another  in
violation of FAR(s); however, he did not  come  so  close  to  another
aircraft as to create a collision hazard in  accordance  with  FAR(s).
Further, he operated his aircraft below 1000  feet  above  the  ground
over a congested area and greatly in excess of 200 knots in  the  area
underlying Class B airspace in a manner that caused people to fear  an
aircraft was crashing and to seek protection in violation of FAR(s).

      3.    He failed to fly under IFR to the maximum extent  possible
as required by AFI and other applicable directives.  He  filed  a  VFR
flight plan and flew a VFR flight from Selfridge to  Madison.  Conduct
of this flight under VFR was not mission essential and  the  operation
under IFR would have  enhanced  mission  accomplishment  by  providing
positive control  and  aircraft  separation  in  and  around  Class  B
airspace.

      4.    He failed to ensure his aircraft’s altitude was  at  least
1000 feet above the highest obstacle within a 2000-foot radius of  the
aircraft over  a  congested  area  as  required  by  AFI.   Audiotapes
indicated his intent to operate  at  low  level  in  the  vicinity  of
Northbrook VORTAC, and there was no mission requirement to be at  that
low an altitude.

      5.    He used excessive speed in a low altitude environment  and
in Class B airspace as prohibited by AFI.  Radar  data  and  videotape
showed he operated his F-16 at ground speeds in excess  of  410  knots
and as fast as 610 knots, which was greatly in  excess  of  250  knots
indicated below 10,000 feet and within Class B airspace,  and  greatly
in excess of 200 knots  indicated  in  the  area  underlying  Class  B
airspace in violation of AFI.  These  excessive  speeds  were  greater
than that required to maintain safe maneuverability and there  was  no
mission requirement to be at those airspeeds at low altitude.

      6.    He operated an aircraft in a careless or  reckless  manner
or in a manner which could endanger life  or  property  as  prohibited
AFI.  His operation of his aircraft caused people to fear an  aircraft
was crashing and to seek protection, in violation of AFI.

The FEB indicated that, although his record of  aviation  before  this
incident was outstanding in every regard, the extremely poor  judgment
indicated by his unacceptable performance and intentional disregard of
regulations and procedures compelled
them to recommend his disqualification for aviation service. The board
considered extenuating circumstances, including his heavy workload  in
his primary job as a program manager and  his  failure  to  accomplish
required sorties as indicated in his  one  month  look  back,  as  not
contributing to the events of this incident.

On  7  Dec  98,  HQ  AFMC/JA  found  the  proceedings,  findings,  and
recommendations  legally  sufficient.   After  reviewing   the   FEB’s
findings and recommendation, the HQ AFMC/CC determined on  21  Dec  98
that the applicant was disqualified for aviation service. Aeronautical
Order 49, dated 14 Jan 99, disqualified the  applicant  from  aviation
service effective Sep 98. On  20  Jan  99,  HQ  AFMC/DOO  advised  the
applicant of the FEB results and the HQ AFMC/CC’s determination.

The contested OPR was initially referred to the  applicant  on  12 Feb
99. The report indicated he did not  meet  standards  in  “Judgment  &
Decisions” and had assessment comments typed  in  for  the  rater  and
additional rater. At that time, only the rater had signed his  section
of comments; however, he had not dated his signature.   The  applicant
provided a rebuttal dated 23 Feb 99.

The applicant also appealed the  FEB’s  decision  on  25  Feb  99  and
requested that a new board reconvene. Based on the applicant’s  appeal
and at the request of HQ AFMC/DO, HQ AFMC/JA performed  another  legal
review  on  12 Mar  99  and  concluded  that  the  FEB  findings   and
recommendations were legally sufficient and recommended denial of  the
applicant’s request for a new FEB.

The contested OPR was again referred to the applicant on  12  Mar  99,
still not meeting standards in “Judgment & Decisions.” The  rater  had
signed and dated his  comments  on  12  Mar  99.  On  19 Mar  99,  the
applicant provided the same rebuttal comments.  The  additional  rater
signed the revised comments in his section of the OPR on  29  Mar  99,
indicating he had considered the applicant’s comments to the 12 Mar 99
referral letter.

The applicant’s request for a new board was denied on 29 Mar 99.

The reviewer of the contested OPR concurred with the assessment  on  5
Apr 99 but did not provide additional comments.

On 5 May 99, the applicant  submitted  an  appeal  under  AFI  36-2401
concerning the contested OPR; however, on  8  Jun  99  the  Evaluation
Reports Appeal Board (ERAB) denied his case.

The applicant was released from active duty on 27 Jun 99 and  assigned
to the AF Reserves.


AIR FORCE EVALUATION:

Regarding Case #1:

The Chief, Field  Activities  Division,  HQ  AFPC/DPSF,  reviewed  the
appeal and addresses the LOR and UIF issues.  The LOR is not  required
to be legally sufficient; it is a tool for commanders and  supervisors
to reprove or instruct subordinates.  In accordance with AFI  36-2907,
The  UIF  Program,  commanders,  supervisors,  and  other  persons  in
authority can issue reprimands. If the reprimand is from someone other
than the member’s immediate commander, the reprimand is  forwarded  to
the commander (after  the  member  has  a  rebuttal  opportunity)  for
establishment of  the  UIF.  DPSF  is  satisfied  the  vice  commander
maintained the intent of the AFI with the establishment  of  the  UIF.
The derogatory data was  administered  properly  and  it  appears  the
commander believed he had sufficient cause to administer the  LOR  and
establish the UIF. Denial is appropriate.

A copy of the complete evaluation is at Exhibit C.

The Director of Operations,  HQ  AFMC/DO,  also  evaluated  the  case.
According to AFI 11-402, Convening  Authority  Designation,  a  flying
unit commander (wing or comparable level)  normally  convenes  a  FEB.
WPAFB does not have an active duty flying wing. The AFI allows  MAJCOM
commanders  to  designate  additional  FEB  convening  authorities  if
required. The 88 ABW/CC  is  authorized  to  exercise  general  court-
martial jurisdiction and convene a FEB  over  all  Air  Force  members
assigned to WPAFB, including the ASC, the applicant’s unit. A previous
review by HQ AFMC/JA determined that the  FEB  conducted  a  fair  and
impartial hearing and the recorder’s actions reflect adherence to  the
pertinent AFI.  Government records do not support the contention  that
the applicant was not properly trained and supervised.  As  stated  in
the   board’s   recommendations,   extenuating   circumstances    were
considered.  A FAA Quality Assurance Office  Representative  testified
during the FEB that the  radar  controller  at  no  time  cleared  the
aircraft into Class B airspace. The board  found  that  the  applicant
operated his  aircraft  below  1000  feet  above  the  ground  over  a
congested area in the vicinity of  metropolitan  Chicago.  AFI  11-206
allows the F-16 to exceed a 250 knot speed restriction due  to  safety
reasons; however, the regulation is specific that the aircraft  should
be  flown  at  the  minimum  speed  possible.  A  review  of  the  FEB
transcripts and exhibits by HQ AFMC/JA shows no reason to believe that
the board did not properly weigh all testimony presented in this case.
The delay in  notification  of  the  FEB  results  was  caused  by  an
administrative oversight. This error had no bearing on the findings of
the FEB or disqualification decision. Denial is recommended.

A copy of the complete evaluation is at Exhibit D.

Regarding Case #2:

The Chief, Appeals & SSB Branch, HQ AFPC/DPPPA, reviewed the case  and
provided her rationale for recommending denial.

A copy of the complete evaluation is at Exhibit E.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Regarding Case #1:

The applicant addresses varies paragraphs of the HQ  AFMC/DO  advisory
with which he takes exception, contending in part  that  HQ  AFMC/DO’s
misrepresentation of the facts reflects their long-standing  objective
to conceal their goal of ending his career and preserving the  careers
of leadership positions at WPAFB. This is confirmed  by  their  highly
unusual actions of conducting a FEB  for  one  incident  and  is  more
plausible than someone of his level of experience  executing  as  many
errors as they allege.  The FEB  transcript  clearly  shows  extensive
violations of the governing regulations  and  absence  of  facts.  The
descent from 10,500 feet was initiated for  safety  concerns.  He  was
ensuring the airliner he was approaching did not have to make a sudden
climb, which could alarm or injure passengers.  The  recorder  totally
abandoned his duties of providing a fair  and  impartial  hearing.  He
requests that he present his case in person for the Board’s  impartial
review.

Regarding Case #2:

The OPR was referred to him on 12 Feb 99 before the  reporting  period
had closed out on 17 Feb 99, and  the  additional  rater  had  already
inserted  is  commentary  without  providing  him  an  opportunity  to
respond.  The first OPR shows  the  additional  rater  didn’t  mention
taking his rebuttal into account because he had not had  a  chance  to
provide one.  The military personnel flight (MPF) directed the OPR  be
reaccomplished after the close out period. This type of disregard  for
regulations affected his rights.

Copies of applicant’s complete rebuttals,  with  attachments,  are  at
Exhibit G.

THE BOARD CONCLUDES THAT:

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

2.    The applications were timely filed.

3.    Insufficient relevant evidence has been presented to demonstrate
the existence  of  probable  error  or  injustice.   After  thoroughly
reviewing the extensive documentation pertaining to  this  appeal,  we
must conclude that  the  evidence  of  record  does  not  support  the
applicant’s arguments for relief.  In fact, the  detailed  transcript,
exhibits, legal  reviews  and  other  submitted  materials  appear  to
sustain the FEB findings and the referral OPR and  LOR  comments  that
the applicant exhibited a lack of judgement. The applicant’s technical
arguments with regard to the convening  authority  for  the  FEB,  his
aerial maneuvers, the LOR/UIF, and the OPR are addressed  by  the  Air
Force evaluations and we find his rebuttals thereto unpersuasive.   As
for his assertion that an allegedly adversarial recorder  tainted  the
FEB’s deliberations and findings, causing the FEB  to  unfairly  weigh
the evidence and render a biased and unfair decision against  him,  we
disagree. In this regard, we believe the 12 Mar 99 legal review by  HQ
AMC/JA presents an accurate, succinct evaluation that  fully  captures
our own conclusions with  respect  to  the  FEB  and  the  applicant’s
contentions.  The available evidence demonstrates that  the  applicant
had not flown into a high traffic area for  a  number  of  years,  had
never flown into the Chicago O’Hare area, and placed  himself  into  a
situation beyond his capabilities  and  planning.  His  choice  of  an
indirect rather than direct route, loss of  situational  awareness  of
Class B airspace,  task  saturation  and  excess  speed  were  due  to
inadequate pre-mission planning as well as poor risk  assessment,  in-
flight judgements and decisions. In summary, the  evidence  of  record
appears to indicate that the FEB rendered fair and objective  findings
and recommendations with regard to the incident in question, and  that
the LOR/UIF and referral OPR  are  thus  sustained.  Inasmuch  as  the
applicant has failed to sustain his burden of having  suffered  either
an error or an injustice, we find no  compelling  basis  to  recommend
granting the relief sought.

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 applications were denied without a personal  appearance;  and
that the applications 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 14 March 2000, under the provisions  of  AFI  36-
2603:

                  Ms. Patricia J. Zarodkiewicz, Panel Chair
                  Mr. Jay H. Jordan, Member
                  Mr. Roger E. Willmeth, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149s, dated 4 May & 23 Aug 99, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPSF, dated 28 Jun 99.
   Exhibit D.  Letter, HQ AFMC/DO, dated 1 Oct 99, w/atchs.
   Exhibit E.  Letter, HQ AFPC/DPPPA, dated 24 Sep 99.
   Exhibit F.  Letters, AFBCMR, dated 8 & 15 Oct 99.
   Exhibit G.  Letters, Applicant, dated 8 & 20 Nov 99, w/atchs.




                                   PATRICIA J. ZARODKIEWICZ
                                   Panel Chair