RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 99-02729
INDEX CODE: 115.00
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
He be repaid the $3,943.33 in flight pay that was recouped by the
Defense Finance and Accounting Service (DFAS).
_________________________________________________________________
APPLICANT CONTENDS THAT:
The flight pay he received between Jan 98 and Jun 98 was recouped
inappropriately and was based on a disregard of the Air Force
Instructions.
The 43 ECS and 355 Wing neglected to suspend his aviation service for
six months.
The retroactive suspension of his aviation service was unauthorized.
The suspension of his aviation service was based on questionable
urinalysis evidence.
The Finance Office at Davis-Monthan Air Force Base (AFB) has
repeatedly ignored his requests for documentation explaining his
debts/payments.
In support of his appeal, the applicant provided a personal statement,
copies of a court-martial order, the letter of notification concerning
the suspension of his aviation service, and other documents associated
with the matter under review.
Applicant’s complete submission is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
Available documentation indicates that, on 10 Nov 97, an inspection
urinalysis was performed on the applicant and his urine specimen was
positive for cocaine.
On 22 Dec 97, the 355th Medical Support Squadron Laboratory notified
the Air Force Office of Special Investigations (AFOSI) that the
applicant’s urine, provided during a random urinalysis, tested
positive for cocaine. As a result, the AFOSI conducted an
investigation into the matter of the applicant’s wrongful use of
controlled substances (Exhibit C).
On 15 Jun 98, the applicant was notified by his commander that he was
suspending him from aviation service, effective 22 Dec 97.
On 17 Dec 98, the applicant was convicted by general court-martial of
wrongful use of cocaine. He was sentenced to a dismissal, confinement
for one year, and forfeiture of all pay and allowances, but only so
much of the sentence which provided for a dismissal, confinement for
eight months, and forfeiture of all pay and allowances was approved.
Information extracted from the Personnel Data System (PDS) indicates
that the applicant is serving on active duty in a prisoner status,
effective 17 Dec 98.
_________________________________________________________________
AIR FORCE EVALUATION:
The Operational Training Division, HQ USAF/XOOT, reviewed this
application and indicated that according to AFI 11-402, paragraph
3.6.2.3 and 3.6.2.5, a rated officer should be suspended when he/she
is under investigation for drug abuse or is the subject of a criminal
charge under the UCMJ. According to the USAF Judiciary/ADC
memorandum, dated 23 Oct 98, on 22 Dec 97 a drug abuse investigation
was initiated on the applicant. Under normal circumstances he should
have been suspended shortly after the investigation had begun, if not
on the same day. Since there is nothing in the documentation that
indicates why the suspension was not initiated earlier, they must
assume that it was due to an administrative oversight. There is
nothing in AFI 11-402 that prevents an appropriate suspension from
being backdated when it meets the guidance of AFI 11-402. Based on
the documentation provided, XOOT believes that the suspension was
appropriate and should have begun on 22 Dec 97, the date the
investigation was initiated. Therefore, in their view, the
applicant’s commander followed the appropriate procedures.
XOOT stated that the applicant was correct when he indicated that a
member should not be suspended for more than 180 days without major
command (MAJCOM) approval. However, they do not believe this has any
bearing on this case. The intent of the 180-day period is to ensure a
member's case continues to be processed at the local level for closure
as soon as possible. It is not unusual for a case such as this to be
extended beyond the 180-day period. Subsequently, a MAJCOM would have
undoubtedly approved an extension. If a case will take longer than
the 180-day period, then it becomes the MAJCOM's responsibility to
monitor and ensure the case continues in the most expeditious manner.
According to XOOT, the applicant was not entitled to any aviation
career incentive pay (ACIP) while he was under investigation for drug
abuse, and, in their view, the applicant should have been suspended on
22 Dec 97, the date of initiation of the drug abuse investigation.
XOOT recommended that the ACIP not be reinstated to applicant until
the final outcome has been decided on whether he will remain qualified
or be disqualified.
A complete copy of the XOOT evaluation, with attachments, is at
Exhibit D.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Applicant indicated that he agrees that the suspension of his aviation
service should have begun on 22 Dec 97, but the fact remains that it
did not. In his view, the advisory opinion both selectively and
erroneously addressed the issues to support the Air Force position.
Air Force Instructions are mandatory directives created and
distributed by the Air Force. Attempting to justify or rationalize
violations of these directives only serves to weaken them. At a
minimum, he should be repaid ACIP from the period 22 Dec 97 to 7 Jul
98, if not through 17 Dec 98, the date of termination of his pay and
allowances.
Applicant’s complete submission is at Exhibit F.
_________________________________________________________________
ADDITIONAL AIR FORCE EVALUATION:
Pursuant to the Board’s request, the Staff Judge Advocate, AFPC/JA,
reviewed this application and noted that on 15 Jun 98, the applicant
was suspended from aviation service under the provisions of AFI 11-
402, paragraphs 3.6.2.3, 3.6.2.5, and 3.7.1.6, due to the fact that he
was under investigation for drug abuse and was the subject of a
criminal charge under the Uniform Code of Military Justice (UCMJ).
The investigation for drug abuse had been initiated back on 22
December 1997, and the suspension action should have been taken at
that time. Due to an administrative oversight, it was not. As a
result, the suspension was made retroactive to 22 December 1997. A
consequence of this retroactive suspension was the recoupment from his
military pay of the $3,943.33 in flight pay he had received from 22
December 1997 to 15 June 1998.
According to JA, the applicant's argument that the 198-day retroactive
suspension was unauthorized because the 355th Wing Commander did not
obtain MAJCOM approval may be creative, but is not persuasive. The
reasoning behind the 180-day rule in the AFI certainly did not
anticipate the circumstances they had before them in this case. This
was not a suspension that actually ran for 198 days, or one in which
MAJCOM approval was not properly obtained for it to continue beyond
the 180-day mark. Upon inception, due to its retroactive nature, it
just suddenly became a 198-day suspension. It is safe to assume that
if the suspension had actually been made effective on 22 December
1997, that MAJCOM approval would have been sought and granted at the
180-day point, as the applicant was still under investigation and the
subject of a criminal charge under the UCMJ at the time.
Nevertheless, JA indicated that there clearly was an error committed
by the 355th. AFI 11-402, paragraph 3.6.2.3, says to “suspend a rated
officer when the officer is under investigation for drug abuse.” The
investigation against the applicant for drug abuse was initiated on 22
Dec 97. His suspension from aviation service should have begun on
that day as well. Due to an administrative oversight on the Air
Force's part, he was not suspended, and the error was not realized
until Jun 98. During this time period, the applicant, through no
fault of his own, obviously continued to receive flight pay as he had
not been suspended from aviation service. Reasonably thinking that he
had a right to this money, he either spent or obligated the money.
Thus, the Air Force's recoupment action, which was made necessary due
to its own error, arguably imposed an injustice on the applicant.
Due to both the error committed by the Air Force, and the resulting
injustice caused by the recoupment action, JA recommended that the
applicant's request be granted. His records should be changed to
reflect that he was on aviation service during the relevant time
period involved.
A complete copy of the JA evaluation is at Exhibit G.
_________________________________________________________________
APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:
Applicant indicated that he appreciated the fact that someone finally
had the courage to admit an error was made resulting in an injustice.
However, it fell short of addressing the vindictive nature of the
retroactive suspension. Not to mention that he was prosecuted for
larceny, based on two Finance Office errors, by the same command.
Nevertheless, he looks forward to the reimbursement of the funds that
were unjustly recouped.
Applicant’s complete response and additional documentary evidence is
at Exhibit I.
________________________________________________________________
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. Having carefully reviewed
this application, we agree with the recommendation of AFPC/JA and
adopt their rationale as the basis for our decision that the applicant
has been the victim of either an error or an injustice. Accordingly,
we recommend that the applicant’s records be corrected as 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 he was not suspended
from aviation service for the period 22 Dec 97 to 15 Jun 98.
_________________________________________________________________
The following members of the Board considered this application in
Executive Session on 10 Oct 00, under the provisions of AFI 36-2603:
Mr. Vaughn E. Schlunz, Panel Chair
Ms. Brenda L. Romine, Member
Mr. Roger E. Willmeth, Member
All members voted to correct the records, as recommended. The
following documentary evidence was considered:
Exhibit A. DD Form 149, dated 14 Oct 99, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. AFOSI Report (withdrawn).
Exhibit D. Letter, HQ USAF/XOOT, dated 7 Jan 00.
Exhibit E. Letter, SAF/MIBR, dated 4 Feb 00.
Exhibit F. Letter, applicant, dated 9 Feb 00.
Exhibit G. Letter, AFPC/JA, dated 15 Aug 00.
Exhibit H. Letter, SAF/MIBR, dated 25 Aug 00.
Exhibit I. Letter, applicant, dated 29 Aug 00, w/atch.
VAUGHN E. SCHLUNZ
Panel Chair
AFBCMR 99-02729
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 he was not suspended
from aviation service for the period 22 Dec 97 to 15 Jun 98.
JOE G. LINEBERGER
Director
Air Force Review Boards Agency
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