RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  00-01478
            INDEX CODES:  110.03, 111.02,
                                               135.02

            COUNSEL:  GEORGE E. DAY

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

By amendment, he be reinstated in the Air Force Reserves; receive back
pay and points; promoted to  the  grade  of  colonel;  and,  that  his
Officer Performance Reports (OPRs) be scrutinized for adverse  remarks
from the period of Dec 95 to his discharge in Feb 98, and, if  adverse
remarks are discovered, they be removed.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was wrongfully  grounded,  transferred  to  a  nonexistent  job  in
maintenance, slandered, and libeled by claims  of  mental  instability
for filing a complaint with the Office of Special Investigations (OSI)
regarding fraternization between a unit colonel and a major, in  which
sex was exchanged for special favors, treatment, and assignments.

In support of his appeal, the applicant provided expanded  statements,
congressional correspondence, 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:

Applicant was honorably discharged from the Air National Guard  on  18
Feb 98.  On 19 Feb 98, he was transferred to the Air Force Reserve and
his name was placed on the Reserve Retired List effective 20 Feb 98.
Applicant's OPR profile since 1990 follows:

      PERIOD ENDING    EVALUATION

      18 May 90  Meets Standards (NON-EAD)
      18 May 91  Meets Standards (NON-EAD)
      18 May 92  Meets Standards (NON-EAD)
      18 May 93  Meets Standards (NON-EAD)
      13 Mar 94  Meets Standards (NON-EAD)
      13 Mar 95  Meets Standards (NON-EAD)
      26 Dec 95  Meets Standards (NON-EAD)
      26 Dec 96  Meets Standards (NON-EAD)
      17 Oct 97  Meets Standards (NON-EAD)

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

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.

On 14 Mar 01, the applicant’s  appeal  was  temporarily  withdrawn  in
accordance with his request for more time to provide a response to the
advisory opinions.

By letter, dated 29 Apr  01,  the  applicant  indicated  that  he  was
prepared to proceed with his appeal.

_________________________________________________________________

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  removal  of  any
adverse remarks from his personnel files to include his  OPRs  or  any
other documentary evidence but did not indicate which  documents  were
improper or why.  The OPRs provided in his application  all  show  him
meeting standards and most are quite laudatory.  Without knowing which
OPRs or documents he is really complaining about, it is  difficult  to
respond  to  his  removal  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  and  the  Board
should not consider his complaints in this regard without first giving
the administrative processes relative to OPRs the opportunity to work.
 In short, he has  not  exhausted  his  administrative  remedies  with
respect to the OPRs prior to bringing his  complaint  to  this  Board.
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."

      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  timeframe  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, reassignment to non-
flying duties,  OPR  comments,  threats  of  psychiatric  evaluations,
mandated turn-in of flight  gear,  and  barment  from  the  operations
building.  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 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  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’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.

The Chief,  Personnel  Operations  Branch,  ANG/DPFOC,  reviewed  this
application and recommended denial.  According  to  DPFOC,  there  was
insufficient evidence to support the applicant’s contention  regarding
his unfavorable OPRs.  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.
DPFOC believes that to be the reason for the applicant’s transfer  and
not his contentions he was used  as  a  scapegoat  in  regard  to  the
revealing of unprofessional relationships and  preferential  treatment
discussed in the Report of Investigation.  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:

Applicant reviewed the advisory opinion and furnished a  response  and
additional documentary evidence which is attached at Exhibit G.

Subsequent to the applicant’s response, two statements  were  provided
on his behalf for the Board’s consideration,  which  are  attached  at
Exhibits H and I.

By   letter,   undated,   the   applicant    provided    congressional
correspondence for the Board’s consideration (Exhibit J).

_________________________________________________________________

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  adverse
remarks be removed from his OPRs, he has not only not  specified  what
he considers adverse remarks in the reports, he has not specified what
reports contain adverse remarks.  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 19 October 2001, 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 20 Jun 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.
    Exhibit G.  Letter, applicant, dated 14 May 01, w/atchs.
    Exhibit H.  Letter, in applicant’s behalf, dated 17 May 01.
    Exhibit I.  Letter, in applicant’s behalf, dated 18 May 01.
    Exhibit J.  Letter, applicant, undated, w/atchs.




                                   HENRY ROMO, JR.
                                   Panel Chair