RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  01-03128
            INDEX CODE:  110.03
            COUNSEL:  Mr. Eugene R. Fidell

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

a.  He be promoted to the grade of colonel.

b.   He  be  reinstated  into  the  Air  National  Guard  (ANG)  or  in  the
alternative, he be placed into a comparable  Federal  position  in  the  Air
Force Reserve.

c. He receive pay and allowances and retirement  credit  retroactive  to  31
Dec 00.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was unlawfully and unjustly separated from the ---- ANG in December  2000
as the result of  improper  acts  of  a  Selective  Retention  Review  Board
(SRRB).  The SRRB is essentially a force management tool  to  effect  needed
personnel adjustments to maintain a stable and viable  force-structure.   In
the preliminary process of the 3  May  00  SRRB,  Colonel  P----,  his  wing
commander, recommended retention.  Three ---- ANG members served  as  voting
members, Colonel P----, Colonel  B----,  and  Colonel  M----.   Despite  his
retention  recommendation,  he  was  selected  for  non-retention  and  that
decision was approved by Major General M----,  the  ----  Adjutant  General.
On 16 May 00, with his  commander’s  support,  he  asked  General  M----  to
reconsider his decision.  His commander indicated that  he  was  shocked  to
learn of the decision to non-retain the applicant because pilot manning  was
below 100% and was projected to dip below 80%.  He  further  indicated  that
the loss of one of his most seasoned pilots would  negatively  impact  pilot
manning and his continued ability to maintain an acceptable level of  combat
readiness.  Following the recommendation of  Brigadier  General  S----,  the
Assistant Adjutant General for Air, General M----  denied  his  request  for
reconsideration stating that he was assured that the SRRB carried out  their
duties based on mission needs and without bias or prejudice.

The applicant filed  a  complaint  with  the  Air  Force  Inspector  General
(SAF/IGS) alleging  that  the  Colonel  P----  and  Colonel  B----  reprised
against him and that they abused their authority as board members, and  that
General S---- engaged in reprisal against him and wrongfully influenced  the
SRRB.  The IG investigation uncovered illegal conduct by the two members  of
the SRRB and concluded that their actions deprived him of his right to  fair
and impartial consideration when they voted to non-retain him due  to  their
personal bias against him.  After learning of the impropriety, the  Adjutant
General informed him of his regret that the incident occurred  and  directed
him to the AFBCMR to seek redress.  The  investigating  officer  (IO)  noted
that the applicant was the only officer ever recommended  for  non-retention
who had been recommended for retention by his commander.  He concluded  that
the documents available to the board did not show a valid  force  management
reason to non-retain the  applicant.   All  but  two  witnesses  interviewed
testified that no valid force management reason existed to  non-retain  him,
to include the third SRRB member, Colonel M----.   Colonel  P----  testified
that he recommended him for non-retention  for  "force  management"  reasons
because he was not an exemplary officer due to some alleged  involvement  in
incidents involving alcohol.  The IO noted  that  no  information  on  these
alleged incidents were included in the  applicant's  personnel  records  and
that this rationale for non-retention is not the standard set forth  in  the
applicable regulation.  Colonel P---- testified that  Colonel  P----  was  a
new commander and that he did not have  the  unit  experience  or  know  his
people very well.  However, the IO noted that  Colonel  P----  had  been  in
command for over 2 years and as wing commander, he was in the best  position
to assess the applicant's performance and  potential.   Colonel  B----  told
the investigating officer that  he  recommended  non-retention  because  the
wing lacked a succession plan.  However, Colonel P----  testified  that  the
wing had a very elaborate plan of what the wing was going  to  do  regarding
succession.  The IO further noted that any  alleged  lack  of  a  succession
plan may be evidence of a  management  problem,  but  in  itself  is  not  a
sufficient force management reason to non-retain personnel.   Colonel  B----
implied that the major reason that the applicant  was  identified  for  non-
retention was that he was a senior lieutenant colonel  who  was  holding  up
younger  officers.   However,  his  testimony  was  not  supported  by   the
documentary evidence contained in the Force  Management  briefing.   He  was
unable to explain why the applicant was singled out for non-retention  apart
from other officers  who  were  also  recommended  for  retention  by  their
commanders when at least nine others were more senior.

In 1994 and 1995, the applicant was involved in two very contentious  events
involving IG and Commander Directed  Investigations  (CDIs)  both  of  which
involved his direct testimony and making  serious  allegations  against  the
senior leadership and former leadership  of  the  ---  Fighter  Wing.   Both
investigations involved General (then Colonel) S----, the  latter  of  which
resulted  in  his  removal  from  consideration  by  the  Brigadier  General
Promotion Board.

The IO concluded that reprisal  was  not  conducted  against  the  applicant
because "the greater weight of credible evidence" showed that  the  officers
did not know about the protected communications he made.  There are  several
problems with this conclusion.   The  applicant's  involvement  in  the  two
investigations  was  common  knowledge  amongst  members  of  the  wing  and
contrary to the IO's opinion; actual knowledge of the communication  is  not
required.  Given the small size of the ---- ANG and the  contentiousness  of
the investigations, it is  clear  that  at  a  minimum,  they  suspected  or
believed that he was involved in making protected communications.

If the Board reinstates the applicant in the grade  of  lieutenant  colonel,
he will have a mandatory separation date of  14  Sep  02.   In  contrast,  a
colonel is allowed to remain on active duty until he  reaches  30  years  of
service.  Accordingly the only way for him to remain in military service  is
for him to do so as a colonel.  If the SRRB had not violated his right to  a
fair and impartial hearing, he would have  been  selectively  retained.   As
the only fully qualified applicant for vice wing commander,  it  is  evident
that Colonel P---- would have appointed him to the position and  recommended
him  for  promotion  to  colonel  as  affirmed  by  Colonel   Peter's   high
professional opinion of him as an outstanding officer.  The  testimonies  of
General  S----  and  Colonel  B----  verifies  his  intent  to  promote  the
applicant to vice wing commander.

In  support  of  his  request,  applicant  provided  his  counsel's   brief,
documents associated with his separation from the ANG, documents  associated
with the SRRB  decision  and  his  request  for  reconsideration,  documents
associated with his SAF/IG  investigation,  letters  he  received  from  the
Adjutant General's office, a letter from ---FW/CC, documentation  associated
with his recommendation for the Legion of Merit  medal,  and  his  ANG/USAFR
Point Credit Summary.  His complete  submission,  with  attachments,  is  at
Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant was appointed a second lieutenant, Reserve of the Air Force on  15
Jan 74.  He was progressively promoted to the grade of  lieutenant  colonel,
having assumed that grade effective and with a date of rank of  15  Aug  95.
On 1 Jan 01, he was separated from the ANG and his name was  placed  on  the
USAF Reserve  Retired  list  effective  2  Jan  01.   At  the  time  of  his
separation, he had 26 years, 1 month, and 18 days  of  satisfactory  Federal
military service

The remaining relevant facts pertaining to this application, extracted  from
the applicant’s military records, are contained in the letters  prepared  by
the appropriate offices of the Air Force at Exhibits C and D.

Pursuant to the Board's request, the Inspector  General  of  the  Air  Force
provided a copy of a Report of Investigation Pertaining  to  the  applicant.
The report is appended at Exhibit G.

_________________________________________________________________


AIR FORCE EVALUATION:

NGB/JA reviewed applicant's request and recommends approval of  his  request
for reinstatement in  the  ANG  and  that  he  receives  all  back  pay  and
allowances.  JA  states  that  the  Board  may  recommend  to  the  ---  TAG
reinstatement of the applicant to the --- ANG but may grant his request  for
reinstatement into a comparable Federal position.  JA recommends  denial  of
his request for promotion to colonel.  JA states that the IO's  findings  on
the SRRB are compelling  proof  of  a  material  error  or  injustice.   The
applicant has shown convincingly, through the  investigative  report  of  an
uninterested third party, that the SRRB abused its authority and  failed  to
provide  the  applicant  a  fair  and  impartial  hearing.   The  report  of
investigation reveals that the board had no force  management  justification
for its recommendation to not retain the applicant.   Even  clearer  is  the
board's improper reliance on Colonel P----'s  negative  opinions  concerning
the applicant's officer ship.  Equally troubling is the  discussion  by  the
SRRB of his role  in  the  IG  investigations  and  unsubstantiated  alcohol
abuse.

With regards to the applicant's promotion request,  JA  states  that  it  is
inappropriate for the AFBCMR to  grant  the  applicant  such  a  speculative
remedy.  While he argues that he was the only 0-5 in a position to fill  the
vice commander slot,  it  is  their  opinion  still  far  too  uncertain  to
establish that but for the non-retention he would have been promoted.

The JA evaluation is at Exhibit C.

ANG/DPFP reviewed applicant's request and states that they concur  with  the
JA opinion concerning the limitations of the Board concerning its  authority
to order reinstatement into the ANG.  DPFP suggests that  relief  is  beyond
the authority of the AFBCMR and recommends the case be  returned  without  a
determination.

The AFBCMR can change his Federal record.  If the State does reinstate  him,
the records can be changed to show that the applicant  remained  a  part  of
the ANG until reinstatement.  If the  State  does  not  reinstate  him,  the
records can be changed to show he remained a part of the ANG  until  he  was
placed into a position with the Air Force Reserves.   Reinstatement  into  a
comparable Federal Reserve status, which restores his  pay,  back  pay,  and
retirement entitlements.

Based on the limited  information,  it  is  uncertain  whether  or  not  the
applicant would have been promoted,  had  it  not  been  for  non-retention.
Denial of that portion of his request is recommended.
The DPFP evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel responded and states that the JA advisory is  incorrect  in  stating
that the letters encouraging the  applicant  to  seek  redress  through  the
AFBCMR and endorsing his efforts were signed  by  Brigadier  General  S----,
the Assistant Adjutant General.  In fact, they were signed by Major  General
M----, the Adjutant General.  The  Board  has  recommended  promotion  in  a
variety of circumstances where an officer's record could  not  be  corrected
in such a fashion as to afford him or her a fair chance  to  compete  for  a
future selection board.  Additionally, it has, on  at  least  one  occasion,
recommended promotion because of  the  magnitude  of  the  injustice.   Both
advisory opinions focus upon the uncertainty of whether he would  have  been
promoted.  Because of the improper actions of the SRRB,  Colonel  P----  was
never  given  a  chance  to  promote  him  and  he  was  never  afforded  an
opportunity to meet a promotion board.  The results  of  the  promotion  are
uncertain since no promotion process was allowed to  go  forward.   That  is
why he is seeking relief from the AFBCMR.  General S---- and  Colonel  B----
were both aware of Colonel P----' intent  to  promote  the  applicant.   The
fact that he informed senior officials at  the  State  headquarters  of  his
plan to promote him indicates that he was intent upon doing so.  Colonel P--
--' letter to the Adjutant General in support of his  appeal  addresses  the
possibility that he would be promoted to vice wing commander.

As vice wing commander, the applicant would have met a  federal  recognition
promotion board comprised of --- ANG officers.  A letter from  Headquarters,
--- ANG reveals that  from  1996  through  2001,  colonel  promotion  boards
promoted all nine candidates recommended  by  the  unit  commanders--a  100%
promotion rate.

If promotion is not granted, then consideration by Special  Selection  Board
is requested.  In order for this to be fair  and  equitable,  he  should  be
given the same advantages he would have had if he had  not  been  forced  to
retire.  A promotion recommendation  to  colonel  would  have  followed  his
appointment as vice wing commander.  His military records should be  changed
to indicate a duty title of vice wing commander prior to the SSB.

Counsel's complete submission, is at 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.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of error or injustice.  In this respect, we note the following:

      a.  After reviewing  the  evidence  submitted  by  the  applicant  and
noting  the  findings  of  the  Inspector  General’s  investigation,  it  is
apparent that  the  Selective  Retention  Review  Board  (SRRB)  abused  its
authority and failed to provide the applicant a fair and impartial  hearing.
 In addition, in our opinion, the actions of the SRRB constituted  reprisal.
 Based on  the  evidence  of  record,  had  the  applicant  received  proper
consideration by the SRRB, he would have  been  recommended  for  retention.
As noted by  the  Air  Force  advisories,  the  AFBCMR  does  not  have  the
authority to reinstate a member to the ANG.  Since the applicant desires  to
continue his career in the Air Force, we  therefore  recommend  that  he  be
placed into a position in the Air Force Reserve in which  he  is  qualified.
Since he was not allowed to serve, we believe that his  record  should  also
reflect that he received credit for a satisfactory year of service  for  his
retirement/retention years ending in 2001 and 2002.

      b.   Under  most  circumstances,  this  Board  believes  the  decision
regarding an applicant’s prospects for promotion should be addressed by  the
promotion  selection  process.   However,  there  are  instances  where  the
magnitude of the injustice is such that  it  can  only  be  rectified  by  a
Secretarially directed promotion.  We believe this is such a case.  In  this
respect, we believe that had the applicant  been  retained,  he  would  have
been selected for the vice wing commander’s position and considered  by  the
Spring 2001 Federal  Recognition  Review  Board.   As  redress,  the  AFBCMR
normally  would  have  placed  the  applicant’s  record  before  a   Special
Selection Board  (SSB)  and  have  the  SSB  compare  his  record  with  his
contemporaries.  However, we have been informed that an SSB has  never  been
conducted for a colonel federal recognition board and that  records  meeting
a federal recognition board are not retained.  Therefore, in  this  instance
recommending his consideration by an SSB would not be practical.   Based  on
the above, we are faced with the dilemma of determining whether or  not  the
applicant would have been selected for promotion to the  grade  of  colonel.
Based on the above findings,  his  commander’s  support  for  promotion  and
noting the high rate of selection, we  conclude  that  he  would  have  been
selected and therefore we recommend that  he  be  promoted  to  the  Reserve
grade of colonel and receive the appropriate promotion  effective  date  and
promotion service date as  if  selected  by  the  2001  Federal  Recognition
Review Board.  In arriving at our decision, we are  keenly  aware  that  the
courts have held that correction boards have an abiding  moral  sanction  to
determine, insofar as possible, the true nature of an alleged injustice  and
take steps to grant thorough and fitting relief.

      c.  In regard to applicant's request  for  reinstatement  in  the  Air
National Guard, this  Board  lacks  the  authority  to  grant  that  relief.
However, we recommend instead that  he  be  transferred  to  the  Air  Force
Reserves and be provided the opportunity to serve there if he desires.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT be corrected to show that:

      a.  He was not honorably discharged from the Air  National  Guard  and
transferred to the Air Force Reserve Retired List  on  1 January  2001,  but
was continued in his  assignment  as  an  active  member  of  the  ----  Air
National Guard.

      b.  He was considered and selected  for  federal  recognition  by  the
March 2001 Colonel Federal Recognition Board.

      c.  Upon Senate confirmation, he was promoted to the Reserve grade  of
colonel and  given  the  appropriate  promotion  effective  date  (PED)  and
promotion service date (PSD.

      d.  He was credited with an additional 55 paid active duty points  and
28 paid inactive duty points during the retirement/retention year 15  August
2001 to 14 August 2002; and, that the period 15 August  2001  to  14  August
2002 is a year of satisfactory Federal service for retirement.

      e.  Competent authority approved his application for a  Ready  Reserve
Assignment in the grade of colonel, and  he  was  discharged  from  the  Air
National Guard, transferred to the Air Force Reserve and on 15 August  2002,
he was assigned to such  a  position  for  which  he  is  qualified  on  the
earliest practicable date.

_________________________________________________________________

The following members of the Board  considered  Docket  Number  01-03128  in
Executive Session on 1 Aug 02, under the provisions of AFI 36-2603:

      Mr. John L. Robuck, Panel Chair
      Mr. Albert F. Lowas, Jr., Member
      Mr. William Anderson, Member

All members voted to correct the records,  as  recommended.   The  following
documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 31 Oct 01, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, NGB-JA, dated 20 Mar 02.
     Exhibit D.  Letter, ANG/DPFP, dated 19 Apr 02.
     Exhibit E.  Letter, SAF/MRBR, dated 10 May 02.
     Exhibit F.  Letter, Applicant's Counsel, dated 28 May 02
     Exhibit G.  Report of Investigation - WITHDRAWN




                                  JOHN L. ROBUCK
                                  Panel Chair

AFBCMR 01-03128




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air Force
Board for Correction of Military Records and under the authority of Section
1552, Title 10, United States Code (70A Stat 116), it is directed that:

      The pertinent military records of the Department of the Air Force
relating to APPLICANT, be corrected to show that:

            a.  He was not honorably discharged from the Air National Guard
and transferred to the Air Force Reserve Retired List on 1 January 2001,
but was continued in his assignment as an active member of the ---- Air
National Guard.

            b.  He was considered and selected for federal recognition by
the March 2001 Colonel Federal Recognition Board.

            c.  Upon Senate confirmation, he be promoted to the Reserve
grade of colonel and given the appropriate promotion effective date (PED)
and promotion service date (PSD.

            d.  He was credited with an additional 55 paid active duty
points and 28 paid inactive duty points during the retirement/retention
year 15 August 2001 to 14 August 2002; and, that the period 15 August 2001
to 14 August 2002 is a year of satisfactory Federal service for retirement.

            e.  Competent authority approved his application for a Ready
Reserve Assignment in the grade of colonel, and he be discharged from the
Air National Guard, transferred to the Air Force Reserve and on 15 August
2002, he was assigned to such a position for which he is qualified on the
earliest practicable date.






  JOE G. LINEBERGER

  Director

  Air Force Review Boards Agency