RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  00-01281
            INDEX CODES:  110.00, 111.02,
                                              131.00

            COUNSEL:  GEORGE E. DAY

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

The forged Officer Performance Reports  (OPRs)  be  removed  from  his
promotion  file  and  he  be  given  Special  Selection  Board   (SSB)
consideration.

He be returned to flying status in the F-16 aircraft at Syracuse,  New
York.

The Board finds that he has been improperly sent to a non-flying  (and
non-existent) job, that he is entitled to back  pay  for  flying  pay,
missed drills, and any other equitable and proper relief.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was removed from flying status  without  cause,  moved  to  a  non-
existent job, was declared absent without leave (AWOL) without reason,
was harassed and retaliated against because he went to  the  Iraq  war
with another colonel, and issued a bad OPR for no reason.

In  support  of  his  appeal,  the  applicant  provided  an   expanded
statement, supportive  statements,  copies  of  his  OPRs,  and  other
documents associated with the matter under review.

Applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Information extracted from the Personnel Data System  (PDS)  indicates
that the applicant is currently serving in the Air National  Guard  in
the grade of lieutenant colonel, having been promoted to that grade on
10 Feb 95.

Applicant's OPR profile since 1989 follows:

      PERIOD ENDING    EVALUATION

      31 May 89  Meets Standards (NON-EAD)
      31 May 90  Meets Standards (NON-EAD)
      31 May 91  Meets Standards (NON-EAD)
      31 May 92  Meets Standards (NON-EAD)
      31 May 93  Meets Standards (NON-EAD)
      31 May 94  Meets Standards (NON-EAD)
       9 Feb 95  Meets Standards (NON-EAD)
      26 Dec 95  Meets Standards (NON-EAD)
      15 Jul 96  Meets Standards (NON-EAD)
      28 Feb 97  Meets Standards (NON-EAD)
       1 Mar 98  Meets Standards (NON-EAD)
      30 Sep 98  Meets Standards (NON-EAD)
      30 Sep 99  Meets Standards (NON-EAD)

* Contested Reports - Applicant does not indicate the reports he wants
voided.

The remaining  relevant  facts  pertaining  to  this  application  are
contained in the letters prepared by the appropriate  offices  of  the
Air Force and the Department of the Defense Office  of  the  Inspector
General (DOD IG) Report of Investigation  (Exhibit  C).   Accordingly,
there is no need to recite these facts in this Record of Proceedings.

_________________________________________________________________

AIR FORCE EVALUATION:

The Executive Support Staff  Officer,  New  York  Air  National  Guard
(NYANG), DMNA/ANG-ESSO,  reviewed  this  application  and  recommended
denial.  In DMNA/ANG-ESSO’s view, the  applicant’s  requests  are  not
valid.  The allegations  raised  by  applicant  have  previously  been
investigated on numerous occasions since 1995.   DMNA/ANG-ESSO  stated
that their review of  the  application  indicated  the  applicant  was
selective in the facts presented to the Board.  No member of  the  ANG
has a right to be appointed to the rank of Colonel.  The applicant had
never been recommended for promotion to Headquarters NYANG at  anytime
during his career.  A commander's recommendation and assignment  to  a
position with an authorized grade of  Colonel,  0-6,  is  a  mandatory
first step for anyone in the Guard to get promoted to that grade.  The
174th  only  has  four  colonel  positions;  the  commander  and  vice
commander, the medical squadron commander, and any one  of  the  three
group commanders.  The applicant has never been  assigned  to  any  of
these positions.  His request for back pay is not at all  specific  to
the times that he believes he would have  worked  or  served  had  the
actions he now complains of not occurred.  He seeks “purging”  of  his
OPRs but does not indicate which ones or why.  The  OPRs  provided  in
his application all show him to meet  standards  and  most  are  quite
laudatory.  Without knowing which OPRs he is really complaining about,
it is difficult to respond  to  his  “purge”  request.   Moreover,  to
DMNA/ANG-ESSO’s knowledge, he has never raised his concerns about  any
OPRs in the administrative process provided for challenging OPRs.  The
one OPR that was found to require correction, has  been  corrected  as
set forth later herein.  The investigative reports referred to by  the
applicant speak for themselves.  All investigations have confirmed the
right of the commanders referred to  by  the  applicant  to  take  the
actions that he and various others complain about in this application.
  He  simply  does  not  like  the   result   of   these   independent
investigations.  From the applicant’s perspective, no investigation is
complete or proper unless it draws the conclusions that he and  others
wish for.

DMNA/ANG-ESSO indicated that the following  information  was  provided
for the Board in reviewing this application:

      a.  Report of Investigation,  dated  10  September  1995.   This
34 page executive  summary  is  part  of  a  1,700  plus  page  report
generated by HQ NYANG.  This report was referred to as  the  “military
investigation” and sometimes as the “Hobbs Report” in the  applicant's
submission.  This investigation concluded that the commander whom  the
applicant feels was wrongly removed from command should be “considered
for disciplinary action for...abdication of...command responsibilities
and for failing to react appropriately to incidents which  called  for
prompt discipline with other unit members."  It was  noted  that  this
Report did not involve the applicant even though he referred to it  at
length in his submission to the Board.

      b.  Following a yearlong investigation, a report  was  completed
during  September  1997  by  SAF/IG.   This  headquarters   has   been
authorized by the IG to report only that all 32 complaints were  found
to be unsubstantiated. It  was  noted  that  all  of  the  applicant’s
allegations were found to be unsubstantiated.   These  unsubstantiated
allegations related to removal from flying status, reassignment to non-
flying duties, and OPR comments.  These  are  the  same  issues  again
raised by the applicant in this application.  The  SAF/IG  report  did
comment  that  the  applicant’s  OPR  closing  26  Dec  95   contained
procedural deficiencies in violation of AFR  36-10.   The  NYANG  took
action upon learning  of  this  criticism  and  made  the  corrections
necessary on 6 Mar 98.

      c.  New York State Office  of  State  Inspector  General  (OSIG)
Investigation, December 1997.  This investigation was referred  to  in
the  applicant's  submission  as  the  “New  York  Inspector  Generals
Report.”.  In relevant part, this separate  independent  investigation
analyzed the personnel actions taken by command with  respect  to  the
applicant and others and  found  all  to  be  proper  and  appropriate
actions.  In particular, with respect to the removal of the  commander
which  the  applicant  submitted  was  improper,   this   1997   State
Investigation concluded  there  was  “ample  evidence  to  remove  the
commander from his command for failures  of  leadership  separate  and
apart from his role in the R- P--- relationship.”

      d.  Yet another investigation of the 174th Fighter Wing (FW) was
completed on 1 September 1999 at the  mandate  of  the  United  States
Congress which directed that another investigation  take  place  as  a
part of the  statutory  enactment  of  the  1998-99  defense  spending
authorization.  This most recent  DOD  IG  investigation  specifically
addressed the removal of the commander from his  command  position  at
the 174th FW during 1995.  This report confirmed the propriety of  the
removal and replacement of the commander during 1995 and  all  of  the
personnel actions taken with respect to the applicant.

According to DMNA/ANG-ESSO, the applicant's  request  for  retroactive
promotion and backpay within  the  New  York  Air  National  Guard  is
clearly beyond the scope of authority of the Board.   In  their  view,
the applicant appeal is one further manifestation  of  his  effort  to
continue to “keep the pot boiling.”  The 174th FW has  moved  forward.
The unit is again at the forefront and was rated  “Excellent”  by  the
9th Air Force  during  a  Standardization  Evaluation  of  its  flying
operations and by a USAF Quality Assessment team, both of  which  have
occurred since the current commander assumed command.

A complete copy of the DMNA/ANG-ESSO evaluation, with attachments,  is
at Exhibit D.

The Chief,  Personnel  Operations  Branch,  ANG/DPFOC,  reviewed  this
application and recommended denial.  According to DPFOC, the Report of
Investigation (DOD IG) concluded, and they concurred that the  actions
of the commander  in  grounding  the  unit  and  transferring  pilots,
including the applicant, to non-flying  positions  were  a  legitimate
exercise of his commander authority.  In ANG/DPFOC’s view, the  appeal
did not carry  the  necessary  burden  of  establishing  an  error  or
injustice.

A complete copy of the ANG/DPPU evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force  evaluations  were  forwarded  to  applicant’s
counsel on 16 Feb 01 for review and response.  As  of  this  date,  no
response has been received by this office (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.  Insufficient relevant evidence has been presented  to  demonstrate
the  existence  of  probable  error  or  injustice.   The  applicant's
complete submission was thoroughly reviewed and his  contentions  were
duly noted.  However, we do not find the  applicant’s  assertions  and
the documentation presented in  support  of  his  appeal  sufficiently
persuasive to override the  rationale  expressed  by  the  offices  of
primary responsibility (OPRs) and  the  findings  of  the  reports  of
investigation, including the DOD IG  report  of  investigation,  which
concluded  that  the  applicant’s  reassignment  was  within   command
discretion, violated no law or regulation, and were appropriate  given
the changes  in  conduct  and  focus  that  the  commander  felt  were
essential.  With regard to the applicant’s request that  his  OPRs  be
purged, he has not only not specified what is wrong with  the  reports
he has not specified what reports are allegedly forged.   Furthermore,
no evidence has been presented which would lead us to believe that the
reports were inaccurate depictions of his performance at the time they
were originally prepared.  In  view  of  the  foregoing,  and  in  the
absence of clear-cut evidence to the contrary,  we  conclude  that  no
basis  exists  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 3 Jul 01, under the provisions of AFI 36-2603:

      Mr. Henry Romo, Jr., Panel Chair
      Mr. William Anderson, Member
      Mr. Teddy L. Houston, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 7 Apr 99, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  DOD IG Report of Investigation, dated 1 Sep 99
                (withdrawn).
    Exhibit D.  Letter, DMNA/ANG-ESSO, dated 10 Jul 00, w/atchs.
    Exhibit E.  Letter, ANG/DPFOC, dated 3 Jan 01.
    Exhibit F.  Letter, SAF/MIBR, dated 16 Feb 01.




                                   HENRY ROMO, JR.
                                   Panel Chair