RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 02-00070
INDEX NUMBER: 105.00
XXXXXXXXXXXX COUNSEL: None
XXX-XX-XXXX HEARING DESIRED: Yes
_________________________________________________________________
APPLICANT REQUESTS THAT:
His dismissal from service by sentence of court-martial be reversed
and he be allowed to retire from the Air Force in a lower grade.
It appears that the applicant wants the referral Officer Performance
Report (OPR) rendered on him closing 5 Sep 95 voided and removed from
his records.
_________________________________________________________________
APPLICANT CONTENDS THAT:
The sentence was unjust in that it took away his property (retirement
and medical benefits) and ability to be employed. The record of his
court-martial reflected that his additional rater endorsed the
referral OPR the same day that the rater signed it in violation of
Air Force Regulations 36-10 that requires that a ratee be given ten
days to appeal. He was never informed of the referral OPR and not
given a chance to appeal it.
By not being allowed to appeal his OPR, he was denied his rights to
free speech and to petition the Government as stated in the first
amendment to the constitution. Further, he had over 20 years of
superb service.
In many cases similar to his, officers are allowed to retire at the
lower grade. Although he submitted an application, he was not
allowed to retire.
The applicant’s complete submission, with attachments, is at Exhibit
A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant entered active duty on 11 Jul 75. A resume of the
applicant’s last ten OPRs follows:
Closeout Date Overall Rating
4 May 89 Meets Standards
29 Jun 90 Training Report
25 May 91 Meets Standards
25 May 92 Meets Standards
25 May 93 Meets Standards
10 Jan 94 Meets Standards
10 Jan 95 Meets Standards
*5 Sep 95 Does Not Meet Standards
31 May 96 Does Not Meet Standards
14 Sep 96 Does Not Meet Standards
* Contested Report
The applicant, while serving in the grade of lieutenant colonel, was
tried by General Court-Martial from 10 through 13 Apr 96 for
violation of Article 133 for wrongfully, dishonorably, and without
authority, fabricating an OPR on himself and with intent to deceive,
tendered it in an attempt to have it placed in official channels to
replace a less favorable report for the same period. The applicant
was found guilty and sentenced to dismissal from service.
Additional facts pertaining to this application are found in the
evaluations prepared by the appropriate offices of the Air Force
found at Exhibits C, D, and E.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPPPE recommends denial of the applicant’s request to void his
OPR closing 5 Sep 95. They are not sure why the applicant states
that he was not given ten days to appeal the report since the
applicant’s indorsement to the referral memorandum clearly reflects
that the report was referred to him on 3 Oct 95 and the additional
rater completed his indorsement on 13 Oct 95. The applicant was
afforded 10 calendar days to provide comments to the rater as
directed by AFR 36-10, paragraph 3-12D. Therefore the proper
referral procedures were followed.
The complete evaluation is at Exhibit C.
AFLSA/JAJM recommends denial of the applicant’s request to reverse
his dismissal by sentence of court-martial.
The fabrication of a Field Grade Officer Performance Report and the
attempt to place it in official channels is a serious offense. As
such, a general court-martial was an appropriate forum. His court-
martial was properly conducted and he was afforded all the rights
accorded by law. The sentence was well within the legal limits and
the dismissal was an appropriate punishment for the offenses
committed. The findings of guilty and the sentence of dismissal were
affirmed upon appellate review.
The evidence presented by the applicant is insufficient to warrant
setting aside the dismissal, and does not demonstrate an equitable
basis for relief. The applicant has not provided any evidence of a
clear error or injustice related to the sentence. Therefore, there
is no reason required by law to grant the relief requested.
The complete evaluation is at Exhibit D.
AFPC/DPPRRP addresses processing of the applicant’s request for
retirement. They recommend denial of his request to be granted
retirement. No injustices or irregularities occurred in the
processing of this case. Applicant’s request for retirement was
considered and denied by the Secretary of the Air Force.
The complete evaluation is at Exhibit E.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Copies of the Air Force evaluations were forwarded to the applicant
on 30 Aug 02 for review and comment within 30 days. To date, a
response has not been received.
_________________________________________________________________
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 error or injustice. We took notice of the
applicant's complete submission in judging the merits of the case;
however, we agree with the opinions and recommendations of the Air
Force offices of primary responsibility and adopt their rationale as
the basis for our conclusion that the applicant has not been the
victim of an error or injustice. The Board notes the recommendation
by AFPC/DPPPE that the indorsement to the referral memorandum, the AF
Form 77, and the commander’s additional comments be certified as true
copies. However, it has been subsequently determined that this
recommendation was in error and that the subject documents are part
of the applicant’s officer selection record. Therefore, in the
absence of evidence to the contrary, we find no compelling basis 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 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 Docket Number 02-00070
in Executive Session on 30 January 2003, under the provisions of AFI
36-2603:
Mr. Edward C. Koenig, III, Panel Chair
Ms. Martha M. Maust, Member
Mr. John E. Pettit, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 3 Jan 03, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Memorandum, AFPC/DPPPE, undated.
Exhibit D. Memorandum, AFLSA/JAJM, dated 17 May 02.
Exhibit E. Memorandum, AFPC/DPPRRP, dated 23 Aug 02,
w/atchs.
Exhibit F. Letter, SAF/MRBR, dated 30 Aug 03.
EDWARD C. KOENIG, III
Panel Chair
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