RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  00-01305
            INDEX CODES:  110.03, 126.03

            COUNSEL:  GEORGE E. DAY

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

He receive back pay and flight pay.

An order be issued returning him to a squadron flying position in  the
174th FW,  and  he  receive  requalification  training  in  the  F-16C
aircraft.

An order be issued enjoining the New  York  Air  National  Guard  from
further retaliation against him.

His nonjudicial punishment under Article 15 be set aside  and  removed
from his records.

He receive any other legal or equitable  relief  that  will  make  him
whole.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was wrongfully removed from  flying  status  without  due  process,
transferred to a ground job,  which  did  not  exist,  and  wrongfully
punished without proper authority.   He  was  retaliated  against  for
speaking out about perjury by a colonel and a female  major.   He  was
sexually harassed by the major, who was not punished.

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

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

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:

DMNA/ANG-ESSO  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.  His request for back pay was 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 to be paid for the drills he  was
forced to miss but nowhere in his  application  did  he  mention  what
dates  those  drills  took  place  and  this  precludes  a  meaningful
response.  The applicant seeks flying pay but  did  not  indicate  the
dates of duty covered  by  this  request.   He  also  seeks  an  order
returning him to flying status (reinstatement) with the 174th  FW  and
requalification training in the F-16, but, even if otherwise warranted
(which is  not)  reinstatement  to  an  Air  National  Guard  training
position is beyond the jurisdiction of the Board.  The applicant seeks
an order enjoining the NYANG from any further retaliation against him,
but the request for relief assumes facts which do not exist.   All  of
his retaliation claims were found unsubstantiated.  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  (ROI),  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."  This did  recommend  that
the applicant be considered for disciplinary action.

      b.  Pilots within the 174th Fighter Wing (FW) sympathetic to the
removed  commander  filed  retaliation  charges  under   10 USC   1034
concerning incidents at the 174th around the same time frame  referred
to by the applicant.  One of the pilots filing such  charges  was  the
applicant.  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 and reassignment  to
non-flying duties.  These are the same  issues  again  raised  by  the
applicant in this application.

      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.”   This  State
investigation devoted several  pages  to  the  personnel  actions  now
complained of by the applicant, including the Article 15 actions.

      d.  Yet another investigation of the 174th Fighter Wing (FW) was
completed on 1 Sep 99 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  DODIG  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.

DMNA/ANG-ESSO, noted the DODIG conclusion that the decision  to  award
nonjudicial  punishment  to  the  applicant  was  legally  sound,  was
implemented in  unusual  procedural  fashion,  had  no  rehabilitative
purpose, occurred long after the offense was committed, and duplicated
prior corrective action  taken  at  the  unit  level.   As  such,  the
nonjudicial punishment was materially unfair and  inappropriate.   The
NYANG agreed that the nonjudicial punishment imposed on the  applicant
was legally sound but denied the balance of the DODIG conclusion.

According to DMNA/ANG-ESSO, the applicant's request for  reinstatement
and back pay within the NYANG is clearly beyond the scope of authority
of the Board.  In their view, the applicant’s 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.

ANG/DPFP recommended denial.   According  to  ANG/DPFP  the  applicant
seeks relief that is outside the scope of  the  Air  Force  Board  for
Correction of Military Records (AFBCMR), such as  reinstatement  to  a
position within a  state  entity,  to  include  the  state’s  militia.
Appointments to officer positions in the Air National Guard (ANG)  are
within the sole  province  of  the  appropriate  state  officials,  in
accordance with Karr vs. Carper, 818  F.,  Supplement  687,  (Delaware
1993).

ANG/DPFP noted the applicant contention that senior  officers  of  the
NYANG and the National Guard Bureau officials did not want the matters
discussed in the Inspector General’s Report of  Investigation  to  get
out, and he and other pilots similarly situated  have  been  made  the
scapegoats.  In  reviewing  the  case  file,  it  is  noted  that  his
commander did transfer him to a non-flying position.  It is  difficult
to justify the assignment of an ANG  fighter  pilot  to  a  non-flying
position.  Nevertheless, ANG/DPFP indicated that they do  not  believe
the commander’s actions constituted error  or  injustice,  though  his
motive may appear to be questionable.  The commander was justified  in
wanting to know to what extent the applicant, a mid-level leader,  and
other pilots, were willing to go to  change  the  morale  and  culture
within the organization in the aftermath of  the  P---  investigation.
The commander was correct to hold the applicant and other unit leaders
responsible for what he considered to  be  serious  unit  shortcomings
that existed separate from the P--- matter.   The  applicant  did  not
demonstrate his ability to resolve the problems in  the  unit  to  the
satisfaction of the commander. The enclosed  Report  of  Investigation
concluded, and they concur, that  the  actions  of  the  commander  in
grounding the unit and transferring pilots, including  the  applicant,
to non-flying  positions  were  legitimate  exercise  of  his  command
authority.  They believe this to be the  reason  for  the  applicant’s
transfer and not his contention that he was used  as  a  scapegoat  in
regards to the  revealing  of  the  unprofessional  relationships  and
preferential treatment discussed in the Report of Investigation.

In regards to the nonjudicial punishment, ANG/DPFP noted that the most
recent DODIG Report criticized the administration of  the  Article  15
for the inappropriate radio call.  The  punishment  was  given  in  an
unusual procedural fashion, had no  rehabilitative  purpose,  occurred
long after the offense was committed, and duplicated prior  corrective
action taken  at  the  unit  level.   However,  the  NYANG’s  response
addressed each of these DODIG concerns, in pages 4-5 of the  DMNA/ANG-
ESSO  memorandum,  dated   31 Aug   00,   and   concluded   that   the
administration of the punishment  was  “legally  sound,”  and  further
stated that under NYANG procedures no record of  the  Article  15  was
made in any official file.  The  Article  15  was  administered  as  a
result of the applicant making a  joking  reference  to  shooting  the
female pilot, named in the ROI, in a radio call during a  flight.  The
applicant did not deny that he engaged in the conduct in  question  or
that such conduct was inappropriate.

In ANG/DPFP’s view, the application did not carry the necessary burden
of establishing error or injustice.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force  evaluations  were  forwarded  to  counsel  on
23 Mar 01 for review and response.  As of this date, no  response  has
been received by this office (Exhibit F).

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial of the applicant’s request to set  aside
his nonjudicial punishment under Article 15.  JAJM noted on 15 Nov 95,
the Chief of Staff of the NYANG,  offered  the  applicant  nonjudicial
punishment under Article VII, New York State Code of Military Justice,
for conduct unbecoming an officer for his inappropriate and  offensive
comments over an  unsecured  radio  frequency  and  for  making  false
statements in testimony regarding his  comments.   After  consultation
with civilian defense  counsel,  the  applicant  accepted  nonjudicial
punishment proceedings rather  than  demand  trial  by  court-martial.
After reviewing the evidence and applicant’s submissions, the Chief of
Staff determined the  applicant  committed  the  alleged  offense  and
imposed punishment of a reprimand and a $150 fine.  On 13 Sep 96,  the
applicant appealed the action and submitted matters in his own behalf.
 The appellate authority, the  Adjutant  General,  New  York  National
Guard, denied the appeal on 3  Nov  96.  Subsequently,  applicant  was
moved to another ANG position.

According to JAJM, the issue presented in this case is the ability  of
the Air Force Board for Correction of Military Records to correct  New
York State Air National Guard records.  The Board would  however  have
the power to correct applicant’s federal records with  regard  to  the
state Article 15, if the Article 15 was included therein, which it  is
not.  The Article 15 was administered under  state  law  and  not  the
Uniform Code of Military Justice (UCMJ).  Any remedy as to the Article
15 must be pursued under New York State procedures and not  the  UCMJ.
The DODIG’s reliance on the UCMJ  is  misplaced  in  regard  to  state
procedures.

JAJM indicated that even if the Board had any  jurisdiction  over  the
Article 15 portion of  this  application,  there  is  nothing  in  the
application that would support a set aside.  The  applicant  makes  no
claim of factual innocence.  He does not allege any error or defect in
the process.  His only claim, that the investigation board  found  his
Article 15 illegal,  is  in  error.  The  applicant  has  provided  no
evidence of a clear error or  injustice  related  to  the  nonjudicial
punishment proceedings.  They refer the  Board  to  the  DMNA/ANG-ESSO
memorandum, dated 31 Aug 00, pages  4-9,  for  details  on  the  State
Article 15 procedure.  Applicant has pursued  procedures  under  state
law and been unsuccessful.  No further action with regard to the State
Article 15 is warranted by the Board.  The records available  to  them
do not show any  Federal  documentation  of  this  state  action.  The
materials from the NYANG indicate there is not even a state record  of
the action and they note the applicant has been promoted to  the  next
grade, an action that would be unlikely if there  had  been  any  such
record.

According to JAJM, set aside should only be utilized where, under  all
the circumstances of the case, the punishment has resulted in a  clear
injustice.  This is not the case here.

The DODIG determined the action was legally sound, but in essence,  an
action they would not have taken.  This appears to  be  a  case  where
reasonable parties may differ, but that, in and of itself,  is  not  a
basis for substituting the judgment of one  party  for  another.   The
commander is charged with maintaining good order  and  discipline  and
the actions taken here neither amount to an abuse of  discretion,  nor
can be fairly determined to be arbitrary and capricious.  The evidence
presented by the applicant  is  insufficient  to  mandate  the  relief
requested, and does not demonstrate an equitable basis for relief.

A complete copy of the JAJM evaluation is at Exhibit G.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to applicant on  26
Sep 01 for review and response.  As of this date, no response has been
received by this office (Exhibit H).

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was not  timely  filed;  however,  it  is  in  the
interest of justice to excuse the failure to timely file.

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
nonjudicial punishment under Article 15 be set aside, we note that the
DODIG concluded that the nonjudicial punishment was materially  unfair
and inappropriate.  However, the  Article  15  was  determined  to  be
legally sound  by  the  DODIG  and  we  believe  that  the  NYANG  has
adequately addressed the DODIG’s concerns.  Furthermore, we note  that
the Board has no jurisdiction over  the  Article  15  portion  of  his
appeal.  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           , under the provisions of AFI 36-2603:

      Mr. David C. Van Gasbeck, Panel Chair
      Mr. Charles E. Bennett, Member
      Mr. William Anderson, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 5 May 00, 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 31 Aug 00, w/atchs.
    Exhibit E.  Letter, ANG/DPFP, dated 2 Mar 01.
    Exhibit F.  Letter, SAF/MIBR, dated 23 Mar 01.
    Exhibit G.  Letter, AFLSA/JAJM, dated 31 Aug 01.
    Exhibit H.  Letter, AFBCMR, dated 26 Sep 01.




                                   HENRY ROMO, JR.
                                   Panel Chair