RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  00-00060
            INDEX NUMBER:  131.00; 111.01

      XXXXXXXXXXXX     COUNSEL:  Alison Ruttenberg

      XXX-XX-XXXX      HEARING DESIRED:  Yes

_______________________________________________________________

APPLICANT REQUESTS THAT:

His  application  be  processed  under  the   Military   Whistleblowing
protection provisions.

It appears that the applicant makes the following primary requests:

        a.  Reinstate him to active duty.

        b.  Promote him to the grade of lieutenant colonel.

        c.  Reinstate him to flying status.

        d.  Expunge his records of a series of adverse actions.

        e.  Reinstate his security clearance.

The applicant specifically states that he is appealing the following 10
items:

        a.  The termination of his flying privileges.

        b.  The termination of his security clearance.

        c.  The “Do Not Promote”  recommendation  he  received  on  his
Promotion Recommendation Form (PRF) for the Calendar  Year  (CY)  1994A
Central Lieutenant Colonel Promotion Board.

        d.  The referral Officer Performance Report (OPR)  rendered  on
him for the period 18 Dec 93 through 17 Dec 94.

        e.  The memorandum from his commander, dated 11  May  95,  that
established a Special Security File (SSF) on him.

        f.  Letter of Reprimand (LOR), dated 2 Nov 95.

        g.  The referral Officer Performance Report (OPR)  rendered  on
him for the period 18 Dec 94 through 17 Dec 95.

        h.  Letter of Reprimand, dated 28 Mar 97.

        i.  The Unfavorable Information File (UIF) established  on  him
for the 28 Mar 97 LOR.

        j.  The referral Officer Performance Report (OPR)  rendered  on
him for the period 18 Dec 96 through 23 May 97.

Although the applicant does not specifically state, it appears that  he
is also appealing the OPR rendered on him for  the  period  16  Nov  92
through 17 Dec 93.

_______________________________________________________________

APPLICANT CONTENDS THAT:

In an application totaling  nineteen  pages  with  57  attachments  and
eleven referenced reports (not attached), the applicant  contends  that
he suffered a series of egregious and deliberate retaliatory actions as
reprisals for whistleblowing.

In a chronological narrative, the applicant provides his account of the
events and actions taken against him and  why  he  should  be  provided
relief under whistleblowing provisions.

The applicant’s complete submission is at Exhibit A.

_______________________________________________________________

STATEMENT OF FACTS:

According to information taken from the personnel  data  system  (PDS),
the applicant graduated from the Air Force Academy and was commissioned
in May 1979.  He completed Undergraduate Pilot Training on  30  October
1980 and completed training on the F-4  weapons  system  in  1981.   He
completed training for conversion to the F-16C on 10 Jun 87.  In  1992,
the applicant transitioned to the F-117A Stealth Fighter.  According to
copies of documents provided by the applicant, In  a  memorandum  dated
22 Aug 94, his commander referred him for a mental  health  evaluation.
The memorandum stated that the request  was  based  on  statements  the
applicant made to the Office of Special Investigations (OSI) and  other
individuals.  The memorandum also stated that the referral was based on
perceived stalking and the applicant’s purchase of a shotgun,  and  the
commander’s belief  that  the  applicant  had  made  false  allegations
against  several  individuals  within  the  Wing.   According  to   the
applicant, on 14 Sep 94, he received his copy of a PRF with a  “Do  Not
Promote” recommendation for the CY  94A  Lieutenant  Colonel  Promotion
Board.  On 11 May 95, the applicant was notified in a  memorandum  from
his squadron commander that his access to  classified  information  and
unescorted entry into restricted areas was temporarily suspended due to
information contained in an OSI report, dated 18 Aug 94.  On 2 Nov  95,
the applicant received an LOR from his Wing Commander for engaging in a
long course of unprofessional conduct involving  multiple  breaches  of
his obligations as an Air Force Officer.  Specifically,  the  applicant
was  reprimanded   for   making   unsubstantiated,   serious   criminal
accusations against a fellow officer, for repeatedly violating a lawful
order from his squadron commander not to discuss the death of a  fellow
officer, and for violating an order to have no contact  with  a  female
friend following his assault on her.   On  28  Mar  97,  the  applicant
received a LOR from the numbered Air Force commander for the  following
offenses:

        a.  Committing several physical assaults from 1 Oct 94  through
19 Apr 95 against his then-paramour, by striking her in the  face  with
his hand.

        b.  For attempting to shirk responsibility for his violent  and
physically abusive behavior after his 19 Apr  95  physical  assault  by
wrongfully endeavoring to impede an investigation into  the  matter  by
instructing his paramour not to talk to anyone, and  to  say  that  she
hurt her eye writhing around on the floor, or words to that effect.

        c.  From about 1 Jul  92  through  18  Apr  95  for  wrongfully
engaging in adulterous, sexual intercourse on numerous  occasions  with
his paramour.

The letter  also  states  that  court-martial  charges  for  the  above
described misconduct were preferred against him on  2  Apr  96  by  his
commander.  On 6 Jan 97, the Numbered Air Force commander withdrew  the
charges against  him  only  after  his  paramour,  the  victim  of  his
misconduct and primary witness against him, terminated her  cooperation
with the prosecution.  His paramour refused to testify against  him  in
the court-martial action due to valid fears of reprisal.  The  LOR  was
also placed in an UIF.

The applicant retired from the Air Force as a major on 1 June 1999.   A
profile of his last 10 performance reports follows:

      Closeout Date               Overall Rating

        31 May 89                 Meets Standards
        28 Feb 90                 Meets Standards
        06 Mar 91                 Meets Standards
        15 Nov 92                 Meets Standards
       *17 Dec 93                 Meets Standards
       *17 Dec 94                 Does Not Meet Standards
       *17 Dec 95                 Does Not Meet Standards
        17 Dec 96                 Meets Standards
       *23 May 97                 Does Not Meet Standards
        03 Mar 98                 Meets Standards

* Four Contested Reports

_______________________________________________________________

AIR FORCE EVALUATION:

The Chief,  Evaluation  Programs  Branch,  AFPC/DPPPE,  evaluated  this
application and addressed the issues involving the four  OPRs  and  PRF
the applicant is appealing.  They recommend denial of  the  applicant’s
request.

DPPPE specifically addressed each of the contested reports as follows:

        a.  17 Dec 93 OPR.  The applicant contends that  his  commander
had the rater sign blank forms prior to the rater’s  departure,  edited
the rater’s original draft, then used the signed blank forms to prepare
and submit a “watered down” version  of  the  OPR.   As  evidence,  the
applicant provides a record copy of the “final” OPR  and  an  unsigned,
unmarked “draft.”  He does not indicate where or how  he  obtained  the
alleged “draft” OPR (ratees are not authorized  access  to  their  OPRs
until they are completed and  filed  in  their  Unit  Personnel  Record
Group).  Assuming the draft is authentic, the  differences  between  it
and the record copy do not by themselves invalidate the  final  report.
The applicant has not provided anything from the rater  confirming  the
validity of the “draft,” the allegation that he signed blank forms, nor
that his “draft” was altered without his consent.

        b.  CY94 PRF.  The applicant contends  that  the  senior  rater
would not explain the  “Do  Not  Promote”  recommendation  he  received
except to say that it  was  the  commander’s  determination.   He  also
contends that the PRF’s reference to “recent  events”  is  inconsistent
with the guidance in AFI 36-2401.  The senior rater is responsible  for
evaluating an officer’s record of performance (ROP)  and  may  consider
other  information  about  performance   and   conduct   as   well   as
recommendations from subordinate supervisors.  In  section  IV  of  the
PRF, the senior rater explains “why the officer should or should not be
promoted” and “should” include information from the  entire  Record  of
Performance… not just recent performance.  While the senior  rater  may
have considered the commander’s recommendations in deciding to give the
applicant a “Do Not Promote” recommendation  on  his  PRF,  he  assumed
authorship of, and responsibility for,  the  PRF  when  he  signed  it.
Further, while the PRF “should” include  information  from  the  entire
Record of Performance, there is no  prohibition  on  the  senior  rater
focusing on “recent” performance  or  behavior  when  such  information
forms the basis for the overall promotion recommendation  and,  in  the
senior rater’s’ opinion, overshadows the other information contained in
the Record of Performance.

        c.  17 Dec 94 OPR.  Other than disagreeing with the  statements
in the OPR that required it to be referred, the applicant contends  the
report was referred strictly to render him ineligible  for  assignment.
He also claims that there is a typographical error in block III in that
it “appears… text overflowed out of  the  block.”   Regardless  of  the
evaluator’s alleged motivation, the comments and  ratings  in  the  OPR
determine whether it must  be  referred.   The  applicant  provides  no
documentary evidence to invalidate  the  report.   Further,  while  the
typographical error in block III may be valid, there is no support from
the rater to validate the correction proposed by the applicant  in  his
rebuttal.  This administrative error is not sufficient justification to
void the OPR.  The applicant’s  counsel  also  raises  several  issues;
however, they are not considered sufficient to support the  applicant’s
request.

        d.  17 Dec 95 OPR.  The applicant  contends  that  the  OPR  is
flawed because it is based on an LOR he received that  he  contends  is
also flawed.  As support,  the  applicant  refers  to  his  26  Feb  96
rebuttal to the referral OPR.  There is no documentation  presented  to
support his arguments.

        e.  23 May 97 OPR.  As with the 17 Dec 95  OPR,  the  applicant
contends it is flawed as it is based on a flawed LOR.   In  support  of
his claim, he includes a rebuttal to the OPR that he prepared  but  did
not submit “on counsel’s  advice”  (his  attachment  38).   DPPPE  also
addresses several other objections the  applicant  expresses  over  the
OPR.  They do not consider any of the  arguments  the  applicant  makes
sufficient to grant his appeal.

The complete evaluation is at Exhibit C.

The Chief, Promotion, Evaluation, and Recognition Division,  AFPC/DPPP,
also evaluated this application and addressed  the  OPRs  and  PRF  the
applicant is  appealing.   They  state  that  all  of  the  applicant’s
contentions were addressed by AFPC/DPPPE and they accept  their  review
and findings.  They also provided a list of the promotion  boards  that
considered the applicant for promotion  to  lieutenant  colonel.   They
recommend denial based on the evidence presented  and  the  review  and
findings of DPPPE.

The complete evaluation is at Exhibit D.

The Staff Judge Advocate, Air Force  Personnel  Center,  AFPC/JA,  also
evaluated this application.  They recommend denial of  the  applicant’s
request.

They note that the applicant never appealed any  of  the  OPRs  he  now
attacks to the  Evaluation  Reports  Appeal  Board  (ERAB),  under  the
provisions of AFI 36-2401 (Correcting Officer and  Enlisted  Evaluation
Reports).  He said he did not appeal  because  to  do  so  successfully
would require supporting statements from the very persons  he  believed
had retaliated against him for his disclosures of Capt B’s  activities.
They believe applicant’s failure to seek relief  from  the  ERAB  is  a
circumstance that the Board should consider in assessing the merits  of
his claims.  If he had appealed each OPR as soon as he  received  them,
the OPRs could have been scrutinized in a timely fashion  in  light  of
his claims that they were based  on  retaliation.   To  wait  for  from
nearly three to more than six years and  then  ask  the  BCMR  to  find
retaliation to be the underlying motivation for the  OPRs  is  patently
unreasonable  in  light  of  applicant’s  bald-faced   assertion   that
retaliation is the reason for every action taken against him.  In their
opinion, the reason the applicant failed to appeal the OPRs in question
in accordance with accepted procedures is that he could  not  meet  the
burden of proof imposed on  him  by  the  instruction  with  regard  to
alleged discrimination or unfair treatment.

The fundamental flaw in applicant’s claim for relief is he has  not  in
any fashion whatsoever established that the actions taken  against  him
were in retaliation for any proper  actions  he  may  have  taken  with
regard to Capt B’s status of being gay or his activities with regard to
classified  materials.   In  their  opinion,  the  applicant  has   not
established any linkage between his allegation of retaliation  and  the
actions taken against him, and further, he has not established that his
own actions were proper.  Applicant submitted statements in rebuttal to
each of the referral OPRs he received, and he also submitted matters in
rebuttal to the administrative actions underlying  the  OPRs,  such  as
LORs he has  received.   His  claim  that  dismissal  of  court-martial
charges against him somehow vindicates him and invalidates all  of  the
administrative actions taken against  him  is  both  illogical  and  in
error.  In their opinion, each of the administrative actions taken  was
proper under the circumstances and was  procedurally  correctly  taken.
They note that when contesting military personnel actions, an applicant
bears a difficult burden and must overcome the strong, but  rebuttable,
presumption that administrators of  the  military,  like  other  public
officials, discharge their duties  correctly,  lawfully,  and  in  good
faith.  In this case, the  applicant  has  failed  to  provide  even  a
scintilla of evidence that any of the actions taken against him  was  a
result of retaliation.  Virtually all of his rebuttal comments  to  the
various adverse actions  consist  of  his  attempting  to  balance  the
favorable aspects of  his  military  career  against  its  obvious  low
points, and then have the decision maker, whether it be a commander  or
the BCMR, ignore his specific instances of misconduct and focus  solely
on his positive accomplishments.  The reasons cited in the  13  Feb  98
letter  notifying  applicant  he  was  not  qualified   for   selective
continuation provide a  clear  summary  of  applicant’s  dismal  record
supporting the actions against him:

        a.  You engaged in a long course of unprofessional  conduct  by
making unsubstantiated  criminal  accusations  against  Lt  Col  B;  by
violating a lawful order to you by your then-commander, Lt  Col  D,  to
refrain from discussing the cause of death of  another  officer  unless
given permission; and by violating a no contact order issued by Lt  Col
D and Lt Col M directing you to  have  no  contact  with  Dr  G.   Your
misconduct is evidence by your receipt of a Letter of Reprimand,  dated
2 Nov 95.  In addition,  your  access  to  classified  information  was
suspended on 11 May 95 and has not been reinstated.

        b.  From 1 Oct 94 through 19  Apr  95,  you  committed  several
physical assaults  against  your  then-paramour  Dr.  G  by  unlawfully
striking her in the face with your hand, resulting in black eyes and  a
fractured rib; you then attempted to impede the investigation into  the
assaults by instructing Dr. G not to talk to anyone and to say that she
hurt herself by writhing around on the floor.  In addition, you engaged
in an adulterous sexual relationship with Dr. G from on or about 1  Jul
92 to 18 Apr 95.  Your misconduct is evidence  by  your  receipt  of  a
Letter of Reprimand, dated 28 Mar 97.

The fact that the applicant may not agree with the findings  that  form
the basis for all of the administrative actions taken  against  him  is
not a sufficient reason compelling a  finding  that  the  actions  were
taken in  retaliation.   Applicant  wants  the  BCMR  to  remove  every
administrative action taken against him and  then  reward  him  with  a
direct promotion.  In their opinion, the applicant has not provided any
evidence of error or injustice that would justify any  changes  in  his
record.

The complete evaluation is at Exhibit E.

_______________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel responded to the three evaluations in an eleven-
page brief with five exhibits.  Counsel states that the  applicant  has
been systematically held up as the  sole  scapegoat  for  a  series  of
compromises of top secret information that began  on  11  Apr  94,  the
night that Capt B went to the emergency  room  (and  later  died),  and
ended with the inexcusable and inexplicable compromise  of  top  secret
documents by a four star general and his staff judge advocate.  Counsel
disagrees with the assertions  in  two  of  the  evaluations  that  the
applicant’s Petition was untimely.  He states  that  the  Petition  was
indisputably filed within three years of Adair’s retirement and thus is
timely pursuant to the binding authority of Detweiler v. Pena, 38  F.3d
591 (D.C. Cir. 1994) and SAF/GC guidance to follow Detweiler.

The Air Force contends that the applicant  has  no  evidence  that  the
adverse administrative actions taken against  him  were  “retaliation.’
However, counsel states that AFPC/JA’s own memorandum contradicts this.
 He cites an  example  taken  from  the  memorandum  that  accuses  the
applicant of making unsubstantiated criminal allegations against Lt Col
B.  Counsel asks the rhetorical question, what unsubstantiated criminal
accusations.  He  states  that  the  applicant  was  never  given  this
information, and therefore, never could  defend  himself  against  this
allegation because he was never  told  the  basis  of  the  allegation.
Counsel states that AFPC/JA has made a serious error  in  his  argument
against the applicant.  It is unjust in the extreme  (and  after  1996,
unlawful pursuant to 10 U.S.C. §1034) to take adverse action against an
individual such as the applicant for making allegations against another
officer that could not be substantiated.  All the criminal  allegations
against the applicant turned out  to  be  “unsubstantiated”  and  as  a
result the court-martial charges had to be dismissed.   Counsel  states
that the applicant’s accusers were not punished, of course,  because  a
privilege of disclosure applies unless it can be clearly shown that the
allegations were made in bad faith.  There is zero  evidence  that  the
applicant made his allegations in bad faith or with malicious intent.

In any case, the applicant does not  have  to  “prove”  retaliation  in
order to be entitled to relief from the AFBCMR.  He has  to  show  that
adverse administrative action was unjust.  According  to  counsel,  the
administrative actions were unjust for the following reasons:

        a.  The applicant was singled out as the sole scapegoat for the
“Top Secret” security breaches.

        b.  The court-martial charges were based on incredible and even
ridiculous allegations and all the most damaging administrative  action
taken against him were based on these allegations.

        c.  The list of events characterized, as dismal by  AFPC/JA  is
not supported by credible evidence.

Counsel provides expanded discussion  of  each  of  the  three  reasons
listed above to make his point that the applicant has been  the  victim
of an injustice.

Counsel’s complete submission is at Exhibit G.

______________________________________________________________

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.  We took  notice  of  the
applicant's complete submission in judging  the  merits  of  the  case;
however, we agree with the opinions and recommendation of the Air Force
offices of primary responsibility and  adopt  their  rationale  as  the
primary basis for our conclusion that the applicant has  not  been  the
victim of an error or injustice.  The allegations made by the applicant
are indeed serious. Unfortunately, due  to  his  delay  in  filing  his
application, none of  the  reports  and  documents  he  references  are
available for the Board’s review.  The lack of  corroborating  evidence
for his allegations leaves the Board with only his account of events to
consider.  The Board was not persuaded by  the  applicant’s  submission
that he has been the victim  of  retaliation.   The  Board  notes  that
actions taken against  the  applicant  involved  or  were  reviewed  by
officials up through the highest level of his chain  of  command.   The
Board does not find it reasonable that all  of  these  officials  would
have conspired or cooperated to retaliate against him for his  actions.
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 issues 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 May 2001, under the provisions of AFI 36-2603:

      Mr. Teddy L. Houston, Panel Chair
      Mr. John L. Robuck, Member
      Mr. Edward H. Parker, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 17 Dec 99, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFPC/DPPPE, dated 25 Feb 00
    Exhibit D.  Memorandum, AFPC/DPPP, dated 20 Mar 00.
    Exhibit E.  Memorandum, AFPC/JA, dated 31 Mar 00.
    Exhibit F.  Letter, SAF/MIBR, dated 14 Apr 00.
    Exhibit G.  Letter, Applicant’s Counsel, dated 23 Feb 01,
                W/atchs.




                                   TEDDY L. HOUSTON
                                   Panel Chair