RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  00-03327
            INDEX CODE:  111.01, 126.03,
                              131.01
            COUNSEL:

            HEARING DESIRED:  Not Indicated

_________________________________________________________________

APPLICANT REQUESTS THAT:

His Officer Performance Report (OPR), with a close-out date of  24  Feb  98,
be removed from his records; any mention of his letter  of  reprimand  (LOR)
and letter of admonishment (LOA)  be  removed  from  his  records;  and,  he
receive  Special  Selection  Board  (SSB)  consideration  for  promotion  to
colonel.

_________________________________________________________________

APPLICANT CONTENDS THAT:

On 6 Dec 97, he  approached  the  main  entry  control  point  to  the  U.S.
compound at Al Jaber AB, Kuwait, following the same procedures he  had  used
since his arrival in May, 1997.  After passing through  the  inside  barrier
he was asked by the  Security  Forces  (SF)  sentry  to  enter  the  vehicle
entrapment area and await a check by the canine bomb unit.  He was asked  by
the sentry to turn off the vehicle and give him the keys.   Because  it  was
cold, he asked if he could keep the heater running.  Without  responding  to
his question, the sentry again asked him to turn off the  vehicle  and  give
him the keys.  The sentry repeated his request and  explained  to  him  that
they were not permitted to open the inside barrier  if  he  had  the  engine
running and they did not have the keys.  The canine team was not present  so
the vehicle search was delayed  until  their  arrival.   He  never  got  the
impression that this was an “order”  to  surrender  his  keys  nor  did  the
sentry indicate  that  he  was  disobeying  an  order.   He  then  left  the
entrapment area, using the so-called emergency exit lane  and  went  to  the
back of the line until the canine unit arrived.  At no time was he given  an
order to remain where he was.  He was then told by the sentry at  the  first
barrier that he could have waited in the  entrapment  area.   He  was  later
visited by the SF commander and asked about the incident.  The SF  commander
advised him that he had changed the entry point procedure,  which  was  done
without authority, coordination or approval of the  installation  commander,
and without advising the other commanders on the installation.

His immediate commander gave him an LOA after  the  incident  for  allegedly
disobeying the sentry’s directions and he was issued a written order not  to
drive in Kuwait and restricting him to the base.  He inquired as to  whether
or not he was being relieved of his duties as a commander and was told  that
he was not.  The following day he was seen driving on base, after  which  he
received an LOR.  Since he was still in command and expected to do his  job,
which is impossible to do without driving on base, he interpreted the  order
not to drive in Kuwait as meaning that his off-base driving privileges  were
revoked.  It was the commander’s responsibility to clarify the order.

His commander was  not  authorized  to  act  as  commander  because  he  had
previously been twice passed over as a reservist and should  not  have  been
on active duty in charge of a flying unit in accordance  with  AFI  36-2116.
Additionally, he exceeded his authority by imposing restriction to the  base
by administrative means.  This penalty can only be imposed  via  Article  15
or court-martial.  As a result of the aforementioned incidents, he  received
a career-ending referral OPR.

In support  of  his  request  applicant  provided  his  counsel’s  brief;  a
personal statement; AF Form 1168, Statement of  Suspect/Witness/Complainant;
his revocation order; documents associated with his authority  to  drive  in
Kuwait; his response to the LOR; character references; extracts from AFI 36-
2116, Extended Active Duty for Reserve Component Officers  and  AFI  10-402,
Mobilization Planning; a statement from his Area  Defense  Counsel;  letters
of  appointment  as  alternate  Military  Magistrate;  copies  of  OPRs  and
Promotion  Recommendation  Forms  (PRFs)  he  received  subsequent  to   the
referral OPR; letters of appreciation; and, copies of email  communications.
 His complete submission is appended at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Information extracted from the personnel data system reveals that  applicant
was appointed a second lieutenant, Reserve of the Air Force  on  17  Oct  77
and was voluntarily ordered to extended active duty on that same  date.   He
was  integrated  into  the  Regular  Air  Force  on  11  Nov  80   and   was
progressively promoted to the grade of lieutenant  colonel,  having  assumed
that grade effective and  with  a  date  of  rank  of  1  Nov  93.   He  was
considered and not selected for promotion to the grade  of  colonel  by  the
CY98C, CY99A, and CY00A colonel selection boards.   He  has  an  established
date of separation of 31 Oct 05.

The following is a resume of the applicant's OPR profile:

            PERIOD ENDING         OVERALL EVALUATION

                 18 Apr 00        MEETS STANDARDS (MS)
                 24 Feb 99        MS
                 24 Feb 98                 * DOES NOT MEET STANDARDS
                 24 Feb 97        MS
                 23 Mar 96        MS
                 23 Mar 95        MS
                  9 Apr 94        MS
                  9 Apr 93        MS
                  9 Apr 92        MS
                  8 May 91        MS
                  8 May 90        MS
                  8 May 89        MS

* - Contested Report

_________________________________________________________________

AIR FORCE EVALUATION:

The Chief,  Field  Activities  Division,  AFPC/DPSFM,  reviewed  applicant’s
request and states  that  on  17  Nov  99,  his  wing  commander,  17TRW/CC,
directed removal of his Unfavorable Information  File  (UIF).   Accordingly,
the UIF and LOR were destroyed, the UIF was deleted from the personnel  data
system, and the LOR was removed from  his  Officer  Selection  Record  (OSR)
(see Exhibit C).

The   Chief,   Performance   Evaluation   Section,   AFPC/DPPPEP,   reviewed
applicant’s request and states that the OPR is valid as  written.   The  OPR
was prepared in  accordance  with  guidance  established  in  the  governing
directives.   There  are  no  technical  errors  in  the   preparation   and
processing of the contested OPR.  Even though the UIF,  LOR,  and  LOA  were
subsequently removed early, they  were  active  at  the  time  the  OPR  was
written and were commented  upon  in  the  OPR.   The  rater  fulfilled  his
supervisory duties and considered the adverse information  relating  to  the
applicant and elected to include it in the OPR (see Exhibit D).

The Chief,  Officer  Promotion,  Appointments,  and  Selective  Continuation
Branch, AFPC/DPPPO, reviewed  applicant’s  request  and  recommends  denial.
DPPPO states that based on the recommendations of DPSFM and DPPPEP, they  do
not support promotion reconsideration (see Exhibit E).

The  Staff  Judge  Advocate,  AFPC/JA  reviewed  applicant’s   request   and
recommends denial.  After summarizing the facts of the case, JA states  that
the applicant’s argument is that since the SF procedure of taking  the  keys
of a driver who is awaiting canine inspection were not reduced  to  writing,
they are not valid, therefore, he was not required to follow them.   The  SF
commander stated that the procedures  were  implemented  at  his  direction.
The sentry  was  implementing  approved  procedures  when  he  directed  the
applicant to hand him the  keys  to  the  car.   Whatever  he  believes  the
procedures to be, he does not have the liberty to disregard  the  directions
of the sentry.  It is his duty to follow their instructions.  The  commander
made a correct  statement  that  he  made  an  error  in  judgement  by  not
following established force protection directions.

Applicant argues that the order not to drive only denied him  the  right  to
drive off base.  However, the order clearly states “your driving  privileges
are hereby revoked.”  What the order does is  (1)  deny  the  applicant  the
right to drive and (2) limit his right  to  go  off  base.   These  are  two
separate issues.  Instead he has converged the concepts and  interpreted  it
so that only his off  base  driving  privileges  are  restricted.   A  plain
reading of the  order  does  not  support  his  interpretation.   The  order
clearly denies him the right to operate a vehicle anywhere in Kuwait, on  or
off base.  The commander has authority to issue such  an  order  to  protect
unit morale,  good  order,  and  discipline.   At  the  time  of  heightened
security, the applicant, a senior member assigned  to  the  unit,  chose  to
disobey the direction of a sentry, his commander’s determination  to  revoke
his driving privileges is consistent with good order and discipline.

He argues  additionally  that  the  commander’s  order  is  not  enforceable
because it did not comply with all the procedures  governing  revocation  of
driving privileges.  In accordance with AFI 31-204, Air Force Motor  Vehicle
Traffic  Supervision,  the  installation  commander  may  withdraw  anyone’s
authorization  to  operate  a  motor  vehicle  on  the  installation.    The
applicant was not afforded an administrative hearing,  as  required  by  the
instruction, however, the right to  an  administrative  hearing  is  not  an
absolute one as provided in several cases outlined in the  instruction  (see
Exhibit F).

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel responded to the  advisory  opinions  and  refers  to  the  original
submission in response to the advisory opinions.  Counsel requests that  the
issues previously raised that  were  not  addressed  by  the  advisories  be
decided in the applicant’s favor.  The incident with the SF  sentry  was  an
honest misunderstanding with no intent on  anyone’s  part  to  do  something
wrong.  Counsel reiterates that there were no established  written  security
procedures for handling this situation  and  no  oral  procedures  had  been
cleared up the chain as required.  JA focuses on the wording  in  the  first
part of the order not to drive and the  acknowledgement.   Those  words  may
seem clear at first glance but they need to be viewed in  the  circumstances
that took place and the fact that they were being used in  conjunction  with
the term “off-base privileges.”  When  the  applicant  asked  the  question;
“Does this mean I am being relieved of my duties” the commander should  have
had the common courtesy of a proper response.  It was his responsibility  to
ensure his orders were clear and understood.

Applicant  responded  to  the  advisories  and  highlights   his   extensive
experience working with security policemen, adjudicating  cases  of  driving
and  jurisdictional  privileges,  and  working  with  regulations  from  all
echelons.  He, through this experience, had  thorough  knowledge  that  what
was said to him by the sentry and actions taken  by  his  commander  do  not
constitute disobedience on his part.  He  received  numerous  briefings  and
attended  training  sessions  prior  to  his  departure  to   Kuwait   which
consistently affirmed that you  may  be  permitted  to  drive  on  Al  Jaber
without being cleared to drive  off  base  in  accordance  with  the  CENTAF
directive.  The law enforcement jurisdiction of  Al  Jaber  rests  with  the
Kuwait Air Force personnel and that off  base  is  under  separate  civilian
jurisdiction of the Kuwait civilian police.  He reiterated the  events  that
occurred at the entry control point and the fact that the  conversation  was
never directive in nature as corroborated  in  the  statement  made  by  his
passenger.

When presented the LOA, LTC W--- wrote that his  signature  is  for  receipt
purposes only and does not signify admission of guilt  or  concurrence.   He
was given three duty days to submit any  matters  on  his  behalf,  but  was
immediately read the order not  to  drive,  indicating  that  LTC  W---  had
automatically found him guilty.  He was  not  permitted  the  three  working
days to respond nor was he advised of his Article  31  rights.   He  pointed
out several reasons why the written order to drive was in  fact  not  clear.
When he asked LTC  W---  if  he  was  permitted  to  continue  his  assigned
squadron commander duties, which he was permitted to do,  he  did  not  take
his assigned vehicle’s keys or driving credentials.   Those  duties  require
on-base driving.  They include responsibilities such as major  accident  on-
scene  commander,  responding  to  incidents  such  as  flight  emergencies,
suspicious packages, injuries, vehicle accidents,  and  many  other  duties,
which require that he respond by vehicle at a moment’s notice.  It  was  not
until after he was given the LOR, did LTC W--- take his keys  and  clarified
that he meant no driving at all.

He points out several areas that the advisories failed to  address  or  were
incorrect in asserting to include his contentions  concerning  the  legality
of the order not to drive;  the  fact  that  he  could  not  have  disobeyed
“established” procedures because there were none; the  fact  that  LTC  W---
had no legal authority to be in command of the  organization;  his  personal
knowledge; and his personal  accomplishments  and  kudos  he  received  from
several General officers (see Exhibit H).

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

AFPC/JA reviewed counsel’s response to  the  advisory  opinions  and  states
that with regard to applicant’s assertion that LTC W---  did  not  have  the
legal authority to issue the  LOR  to  him,  he  has  provided  no  evidence
whatsoever in support of  his  claim.   He  provided  copies  of  provisions
contained in several Air Force instructions that may or  may  not  apply  to
LTC W--- depending on what the facts are determined to  be  with  regard  to
his status.  The applicant bears the 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.

JA reiterated his right to an administrative board hearing,  in  regards  to
the  order  restricting  him  from  driving  on  base   is   not   absolute,
particularly if an immediate suspension is required to preserve  good  order
and discipline.  Immediate action was necessary in  this  case  due  to  his
status  as  a  field  grade  officer  and  commander.   In  any  event,  not
conducting a hearing would not justify violation of the order not to  drive.


JA disagrees with applicant’s military defense counsel that the  restriction
from leaving the base was improper because it could only be accomplished  by
nonjudicial punishment under Article 15,  or  by  court-martial.   JA  finds
nothing  restricting  a  commander  from  imposing  reasonable  restrictions
related to administrative sanctions.

The orders revoking his on-base driving privileges and  restricting  him  to
base were clear.  They stated unequivocally that his driving  privilege  was
revoked and that he was not to drive a motor vehicle anywhere  (in  Kuwait).
The second order stated that “additionally” he  could  not  leave  the  base
without the written permission of the commander.  This was the  modification
of his off-base privileges, that is, his ability to leave the base.  It  had
nothing to do with driving either  on  or  off  base.   Given  his  repeated
comments about his extensive  law  enforcement  and  command  background  he
should have readily been able to discern the clear intent of the orders  not
to drive and not to leave the base, notwithstanding the letters  of  support
he provided stating that he would not have intentionally violated the  order
not to drive if he  had  understood  it.   Applicant’s  endorsement  to  the
revocation of driving privilege notice  and  restriction  to  the  base,  is
crystal clear in acknowledging his understanding that he was  not  to  drive
and not to leave the base without written permission.

The AF Forms 1168  completed  by  the  gate  guard  and  MSgt  K---  contain
references to repeated requests for him to turn over his keys.  MSgt  K---‘s
statement also says the gate guard asked him not to  leave  the  containment
area.  While the incident may not have degenerated into a  screaming  match,
it apparently was deemed to be of such significance that it was  documented.
 His contention that the conversation with the gate guard never rose to  the
level of a “direct order” need not be resolved.  His driving  privilege  was
revoked and his ability to leave the base was restricted as a result of  his
conduct in not turning over  the  vehicle’s  keys  to  the  gate  guard  and
leaving the containment area.  The underlying conduct formed the  basis  for
the LOA, not any particular label the commander  may  have  placed  on  that
conduct in the LOA.  The Article 92 violation  for  which  he  received  the
LOR, was when he drove on the base after his driving privilege  was  revoked
was clear and constituted a direct order that he violated.

There is no requirement that  written  security  procedures  be  reduced  to
writing,  particularly  with  regard  to   the   facts   and   circumstances
surrounding the gate incident.  Clearly, military members must  comply  with
the reasonable requests of security policemen  at  controlled  entry  points
even if not written security procedures exist.

With regard  to  applicant’s  characterization  of  the  gate  incident  and
subsequent unauthorized  driving  as  isolated  incidents  in  an  otherwise
spotless career,  JA  states  that  he  apparently  believes  other  of  his
perceived shortcomings were considered by his commander given  his  comments
on them  in  his  written  request  for  reconsideration.   His  listing  of
personal notes from a number of generals is commendable, but  such  comments
do not give him  license  to  disobey  direct  orders  and  not  suffer  the
attendant consequences (see Exhibit I).

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant responded and states that JA erroneously stated there  was  not  a
shred of evidence that  LTC  W---  was  not  legally  empowered  to  act  as
commander.  He previously provided a base news article which said that  “LTC
W---‘s own contributions to freedom span a 28-yer  military  career...”   JA
has access to LTC W---‘s records at Randolph AFB.   The  government  is  not
permitted  to  use  his  lack  of  access  (LTC  W---‘s  personnel  records,
protected by the privacy act) to evidence against him when they can  readily
check them.  If JA had taken the time to  review  the  records,  they  could
have verified this point.  Additionally, JA failed  to  review  his  records
and LTC K---‘s statement, which would have fully confirmed that what he  was
accused of was not consistent with his many  years  of  military  leadership
and performance.

He  reiterates  that  he  knows  the  difference  between  an  order  and  a
conversation between an airman and a colonel as  all  leaders  do;  and,  he
fully understands the difference  between  a  person  asking  for  something
politely vice a direct lawful order being rendered.

The  evidence  previously  provided  from  the  Air  Force  Circuit  Defense
Counsel, clearly states that what LTC W--- did by restricting an officer  to
the  confines  of  the  base  can  only  be  done  lawfully  by  nonjudicial
punishment.  LTC W--- did not  possess  the  real  authority  to  administer
nonjudicial punishment to a lieutenant colonel, hence he was  not  empowered
to restrict his  liberty  to  the  confines  of  the  base.   JA  failed  to
investigate this legal action and failed  to  contact  the  Circuit  Defense
Counsel.

The OPR statement that he  did  not  follow  “established  force  protection
directions...” is untrue because there were no established force  protection
procedures.  Evidence previously  provided  indicates  that  LTC  W---,  the
installation commander, did not approve the procedures  implemented  by  the
security  police  commander.   Air   Force   directives   state   that   the
installation  commander  establishes  and  the  security   police   enforce.
Statements provided by SMSgt S--- corroborated  that  no  permanent  written
procedures existed for security personnel to follow.  This proves  that  the
statement in question within the OPR  was  false  but  was  not  taken  into
account by JA.  The OPR  statement  that  he  did  not  “properly  follow  a
written order” is totally untrue as he followed exactly, without  deviation,
what was written and what was issued by LTC W--- and not what  he  meant  to
say, which was explained  several  days  later.   Applicant  reiterates  his
argument regarding the issuance of the LOA and offers several  analogies  to
further clarify his contentions.

JA cited the statement of SrA R--- which states that he ”asked”  him  to  do
this or that, which once again  corroborates  that  he  did  not  receive  a
lawful order.  Applicant  cites  several  similar  court  cases  to  further
support his contention and states that when LTC W--- issued him the  LOA  he
charged him with violations of punitive UCMJ articles and never advised  him
of his self incrimination rights.  He used these charges as the  premise  to
falsely declare he was guilty of misconduct and imposed restriction  of  his
liberty, which he was not authorized to do under an  administrative  action.
Applicant again pointed out several court cases which  he  believes  further
support his argument.

Applicant states that JA took out of context the  statements  of  LTC  K---,
1FW/JA, and the Air Force Circuit Defense Counsel in an obvious  attempt  to
mislead  the  Board.    His   official   records   will   substantiate   his
professionalism,   upstanding   judicial   temperament,   officership,   and
leadership as evidenced in statements that he previously submitted.

In  further  support  of  his  request  applicant  provided  his   counsel’s
statement; a personal statement; an extract  from  AFI  51-202,  Nonjudicial
Punishment; additional copies of documents  previously  submitted;  extracts
from the Random House, Webster’s and Black’s Law  dictionaries;  an  extract
from AFI91-207/USCENTAF SUPPLEMENT 1, USAF Traffic Safety Program;  copy  of
an email communication; and,  an  extract  from  a  magazine  article.   His
complete submission is appended at Exhibit K.

_________________________________________________________________

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  careful  notice  of  the
applicant's complete submission in judging the merits of the case;  however,
we agree with the opinion and recommendation of the  Air  Force  offices  of
primary responsibility, in particular  that  of  the  Office  of  the  Judge
Advocate General, and adopt their rationale as the basis for our  conclusion
that the applicant has not  been  the  victim  of  an  error  or  injustice.
Persuasive evidence has not been provided which would  lead  us  to  believe
that the administrative actions taken  by  his  commander  were  beyond  his
scope of authority or that he abused his discretionary authority  in  taking
those actions.  We do not find his  uncorroborated  assertions,  in  and  by
themselves, sufficiently persuasive in this matter.   Additionally,  we  are
not persuaded by the evidence provided in support of his  appeal,  that  the
contested report is not a true  and  accurate  assessment  of  his  behavior
during the specified time period or  that  the  comments  contained  in  the
report were in  error  or  contrary  to  the  provisions  of  the  governing
instruction.  Therefore, in  the  absence  of  persuasive  evidence  to  the
contrary, we find no compelling  basis  to  recommend  granting  the  relief
sought in this application.

_________________________________________________________________

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 Jul 01, under the provisions of AFI 36-2603:

      Mr. Thomas S. Markiewicz, Vice Chair
      Mr. Steven A. Shaw, Member
      Ms. Barbara J. White-Olson, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated25 Nov 00, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPSFM, dated 17 Jan 01.
    Exhibit D.  Letter, AFPC/DPPPEP, dated 23 Jan 01.
    Exhibit E.  Letter, AFPC/DPPPO, dated 12 Feb 01.
    Exhibit F.  Letter, AFPC/JA, dated 19 Mar 01.
    Exhibit G.  Letter, SAF/MIBR, dated 31 Mar 01.
    Exhibit H.  Letter, Counsel, dated 24 Apr 01, w/atchs.
    Exhibit I.  Letter, Letter, AFPC/JA, dated 21 May 01.
    Exhibit J.  Letter, SAF/MIBR, dated 1 Jun 01.
    Exhibit K.  Letter, Counsel, dated 27 Jun 01, w/atchs.




                                   THOMAS S. MARKIEWICZ
                                   Vice Chair