RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBERS:  BC-2002-02127
      INDEX CODE 131.02  126.04  111.01  111.05
            COUNSEL:  None

            HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

The 8 Jul 00 Article 15 and the referral  Officer  Performance  Report
(OPR) for the period 10 Mar 00 through 9 Mar  01  be  voided  and  the
promotion propriety action which removed him from the major  promotion
list be reversed.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The accusations, investigation and judging were conducted by the  same
person, Col G, who had a previous bias towards  him  involving  a  job
reference. Col G coerced the rater to downgrade the OPR. He has  since
learned Col G has been investigated for conduct unbecoming, threats of
bodily harm and abuse of power. He never  intentionally  violated  any
directive.  He did not submit false information; the data was  correct
based on the information he had at the time. There was  no  intent  to
deceive;  the  mission  underwent  many  last   minute   changes   and
contingencies occurred throughout. He acted in good faith and believed
he followed the proper procedures.

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

_________________________________________________________________

STATEMENT OF FACTS:

The  following  information  was  extracted  from  official  documents
provided by the applicant at Exhibit A, his available military records
and the promotion propriety  package  (PPP)  at  Exhibit  B,  and  the
AFLSA/JAJM advisory at Exhibit C:

During the period in question, the applicant, a Reserve captain  (date
of rank 4 Aug XX), was a C-130 aircraft commander assigned to the  XXX
Airlift Squadron (XXX AS) at XXXXXX ARB, GA.

The rater of the referral OPR was the XXX  AS  flight  commander,  the
additional rater was the squadron commander, and the reviewer was  the
XXth Airlift Wing (XX AW) commander.  Col G, who  issued  the  Article
15, was appointed the commander of the XXth Operations  Group  (XX OG)
on 10 Apr 00.

The applicant was selected for promotion  by  the  Fiscal  Year  2001B
(FY01B) Reserve of the Air Force Major Board.

According to the PPP, the applicant was the aircraft commander on a XX
AW C-130 mission  to  Europe  in  Apr  00.  The  applicant  apparently
submitted  a  form  claiming  to  have  diplomatic/embassy  or  Denton
Operations  (a  humanitarian  organization  backed  by  the  US  State
Department and based out of XXXXXX AFB)  cargo  destined  for  XXXXXX,
Scotland. He also used a special diplomatic (Dip)  clearance  reserved
for use by the US Navy to fly to NAS XXXX (XXXXXX), Norway.

According to emails and other documents  contained  in  the  PPP,  the
applicant contacted XXXXXX AFB about moving humanitarian cargo  listed
on their log for XXXXXX, Hungary. The US Embassy in XXXXXX was not the
consignee, but was the point of contact involved in insuring that  the
consignee, a private organization  located  in  XXXXXX,  received  the
cargo. The cargo, approved for shipment on DOD opportune airlift,  was
located at XXXXXX AFB, CO, and was scheduled to be moved to XXXXXX AFB
where members of the XX AW (the applicant) were scheduled to  pick  up
and deliver the cargo to XXXXXX and then on to Hungary.  However,  the
cargo was not delivered to XXXXXX AFB over the weekend as  planned  in
time for the aircrew to pick it up for delivery to XXXXXX. When the XX
AW aircrew departed from XXXXXX  ARB,  GA  on  10 Apr  00,  they  were
unaware that the cargo had not been delivered to XXXXXX  AFB  in  time
for pickup. The aircrew did contact XXXXXX after they left XXXXXX  and
learned the cargo had not arrived at XXXXXX AFB as scheduled.

The sequence of events appear to be that during the week of 3 Apr  00,
the applicant requested a Dip clearance to  XXXXXX  to  carry  embassy
cargo on a State Department mission (see above).  He left  XXXXXX  ARB
on 7 Apr 00  for  the  weekend  with  the  understanding  that  a  Dip
clearance was in place for  XXXXXX,  Scotland  but  that  no  approval
existed for NAS XXXX, Norway.  Upon returning to XXXXXX ARB on 10  Apr
00, neither the applicant nor the crew contacted AFRC/CP or  AFRC/DOOM
(AF Reserve mission schedulers). AFRC/DOOM attempted several times  to
advise the crew via the XXX AS that their Dip clearance to XXXXXX  was
disapproved and they were to stop at RAF XXXXXX, England.  Before  the
crew departed XXXXXX,  they  were  aware  that  the  XXXXXX  and  XXXX
clearances were disapproved and that they were to stop at RAF  XXXXXX,
England instead. The crew overflew XXXXXX AFB  because  by  this  time
they knew that the cargo previously scheduled to be there  for  pickup
had not been delivered. The applicant continued on to the first  stop,
arriving at XXXXXX, New Foundland, Canada, on 10 Apr 00 with an  empty
aircraft.  He and the crew were advised at  XXXXXX  to  go  to  XXXXXX
rather than XXXXXX because a Dip clearance could not be  obtained  for
that  location.  The  applicant  faxed  a  Dip  clearance  request  to
TACC/XONR (XXXX AFB) for clearance to stop at  XXXXXX.  The  applicant
contacted TACC on 11 Apr 00 and got the Dip clearance to XXXXXX  based
on the Dip clearance request faxed on 10 Apr 00. No contact  was  made
with AFRC/CP and the empty aircraft landed at XXXXXX on 11 Apr 00.

On 12 Apr 00, the applicant called the Traffic Management Office (TMO)
at NAS XXXX, Norway and coordinated with the NCO in charge for  a  Dip
clearance used for US Navy aircraft from RAF XXXXXX to  NAS  XXXX  for
cargo he had already been told the previous week was not  verified  or
approved by AFRC/DOOM. He called USAFE/AMOCC (Air Mobility  Operations
Control Center, XXXXXX)  to  coordinate  stopping  at  NAS  XXXX.  The
applicant arrived at NAS XXXX, Norway on  12  Apr  00  with  an  empty
aircraft. On 13 Apr 00, the crew flew from Norway with a light  pallet
of household goods (opportune cargo) to  RAF  XXXXXX,  England,  where
they picked up pallets, a full load of baggage  and  some  passengers,
and then flew to XXXXXX AB, Germany.  AFRC/DOOM emailed Col  G  on  14
Apr 00, asking why the crew went to XXXXXX and XXXX when not  approved
to do so.

Following an investigation, Col G offered  the  applicant  nonjudicial
punishment on 6 May  00  for  submitting  an  official  document,  AMC
Diplomatic Clearance Request, on 10 Apr 00 with intent to  deceive  in
that he did not support  the  US  State  Department  and  he  was  not
carrying Embassy cargo  and  for  dereliction  of  duty  by  willfully
failing to follow the Foreign Clearance Guide (FCG) on 12 Apr 00.

On 2 Jun 00, the XX  AW  commander  notified  the  applicant  that  he
recommended his promotion to major be delayed until 4 Feb 02 based  on
the Article 15, which was being processed.  On  that  same  date,  the
wing commander advised the applicant’s area defense counsel (ADC) that
his 1 Jun 00 request to withdraw the authority of Col  G,  the  XX  OG
commander, from offering the nonjudicial punishment was denied.

In  response  to  the  Article  15,  the  applicant  made  a  personal
appearance and submitted a written presentation, including a statement
from his ADC. However, on 8 Jul 00 Col G found him guilty and issued a
Letter of  Reprimand  (LOR).  The  LOR  indicated  the  applicant  had
submitted false documentation to the AMC Diplomatic Clearance section,
stating his aircraft was carrying Embassy cargo  and  on  an  official
State Department mission to the United Kingdom,  and  disregarded  the
command directive of the Air Force Reserve Command Current  Operations
Section (AFRCCOS). The LOR added that he further ignored  the  Foreign
Clearance Guide by requesting a diplomatic  clearance  from  a  source
unable to  give  a  lawful  clearance  in  direct  conflict  with  the
directives previously issued by the AFRCCOS.

The applicant appealed the Article 15 but his request was denied on 28
Sep 00.

On 28 Nov 00, the XX AW commander advised the applicant  that  he  was
recommending his name be removed from the FY01B  promotion  list.  The
commander cited the recent incident as well as an earlier incident  in
[17-19 May] 1996 in which the applicant compromised flight  discipline
and safety by  endangering  aero-medical  evacuation  crewmembers  and
failing to accomplish required actions during a mission.

The  applicant  presented  materials  for  consideration  and  made  a
personal appearance; however, on 5 Jan 01 the XX AW commander strongly
recommended to the 22nd Air Force (22 AF) commander that the applicant
be removed from the promotion list.  In his letter to the 22  AF,  the
XX AW commander also referred to the 1996  incident,  indicating  that
incident was handled in a low-key manner with a temporary downgrade to
copilot and a  public  apology.  The  XX  AW  commander  believed  the
applicant had been given his second chance but had  not  reformed  his
willful disregard of regulations or accepted  responsibility  for  his
actions.

After reviewing the applicant’s submission and the PPP, on  6  Mar  01
the 22 AF  commander  declined  to  overturn  the  XX  AW  commander’s
recommendation for removal. The PPP was found legally sufficient on 17
and 30 Mar 01. On 23 Apr 01, the vice commander of AFRC forwarded  the
PPP to the President through HQ USAF/RE.

On 20 Jul 01, the new XX OG commander decided not to file the  Article
15 in the applicant’s HQ USAF Officer Selection Record (OSR).

On 29 Aug 01, the OPR closing 9 Mar 01 was referred to the  applicant.
The applicant was marked as not meeting “Professional  Qualities”  and
“Judgment  and  Decisions”  performance  factors  in  Section  V.  The
applicant provided rebuttal comments. However,  the  additional  rater
concurred with the rater, indicating that as  an  aircraft  commander,
the  applicant’s  questionable  interpretation  of  HQ  AFRC   mission
authorization led to an investigation, UCMJ action  and  embarrassment
to the squadron.

On 24 Oct 02, the President approved the applicant’s removal from  the
FY01B promotion list. On 26 Nov 01, the AFRC vice  commander  directed
the XX AW commander to advise the applicant  that  the  President  had
approved the removal action.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM notes that unless it is shown that a  commander’s  findings
were either arbitrary or capricious, they  should  not  be  disturbed.
When evidence of an error or injustice is missing,  it  is  clear  the
BCMR  process   is   not   intended   to   simply   second-guess   the
appropriateness of the judgments of field commanders. Both Col  G  and
the OPR reviewer carefully considered the evidence before making their
decisions.  The applicant’s ADC brought up the issue of  bias  to  the
reviewer before Col G made his decision and  imposed  punishment.   In
response, the reviewer chose three experienced officers to review  the
Article 15 and supporting documentation. All agreed the Article 15 was
appropriate. AFLSA/JAJM provides copies of memos for the  record  from
both the reviewer and Col G. The basis of the applicant’s request  for
relief is insufficient to warrant setting aside the Article 15 action.
Therefore, denial is recommended.

A complete copy of the evaluation, with attachments, is at Exhibit C.

HQ AFRC/DPM advises that the  Article  15  was  never  placed  in  the
applicant’s  record.  The  promotion  propriety  package  recommending
removal of the applicant’s name  from  the  FY01  promotion  list  was
approved by the President on 24 Oct  02.  The  package  was  forwarded
through channels  to  the  President  with  attachments  that  clearly
established that the action was  substantiated.  HQ  AFRC/DPM  asserts
that  based  on  these  facts  they  cannot  recommend  reversing  the
promotion removal action or the referral OPR.

A complete copy of the evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Col G was biased against him because he did not recommend  him  for  a
civilian  job  at  his  place  of  employment.  After  discarding  the
evidence, his testimony and  that  of  his  crew  and  witnesses,  his
“acting” group commander reprimanded him by  Article  15  proceedings,
officially reprimanded him, downgraded him to the position of copilot,
and a career-stopping OPR for one  iXXXXted  mission.  He  phoned  the
number in the FCG to verify that his aircraft could file a flight plan
using  the  diplomatic  clearance  number  listed  in  the  guide.  He
submitted as evidence an email from the point  of  contact  in  Norway
substantiating his assertion. He faxed  a  request  for  a  diplomatic
clearance for XXXXXX, Scotland, after HQ Air  Force  Reserve  approved
his mission.  At the time the request  was  faxed  to  Scott  AFB,  he
believed they were going to  carry  State  Department  sanctioned  and
approved Denton Amendment cargo. Several days afterwards, the  mission
changed to remove the Denton cargo from his  manifest.  Clearly  there
were breakdowns in communication and misunderstandings of command  and
control during the conception and execution of this  mission.  As  for
the charges against him, he  provided  the  irrefutable  documentation
confirming his innocence.  Thus far, this case has not  been  reviewed
on the evidence and the facts but  rather  on  the  proceedings  being
legal and the paperwork being properly signed.

A complete copy of  applicant’s  response,  with  attachments,  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.    Insufficient relevant evidence has been presented to demonstrate
the existence of error or injustice to warrant voiding  the  promotion
removal action, the Article 15 or the referral OPR. After  a  thorough
review of the evidence of record and the  applicant’s  submission,  we
are not persuaded he was the victim  of  bias  or  command  influence.
Contrary to his assertions, the  applicant’s  documentation  does  not
confirm his innocence.  Rather,  the  available  evidence  appears  to
indicate he was determined to manipulate the mission to suit  his  own
particular agenda. The wing commander pointed out that pilots with far
less experience than the applicant would have known  better  and  that
these incidents were not a violation of some obscure regulation but of
guidance central to international aviation. Further, this was not some
accidental event but instead required the applicant to perform several
specific, premeditated acts over a period of  several  days.  Finally,
three experienced officers who reviewed the Article 15 and  supporting
documents to ensure fairness agreed  the  nonjudicial  punishment  was
appropriate. We therefore agree with the recommendations  of  the  Air
Force and adopt the rationale expressed as the basis for our  decision
that the applicant has failed to sustain his burden of having suffered
either an error or an injustice. In  view  of  the  above  and  absent
persuasive evidence to the contrary, we find no  compelling  basis  to
recommend granting the relief sought.

_________________________________________________________________

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  this  application  in
Executive Session on 20 March 2003 under the  provisions  of  AFI  36-
2603:

                             Mr. Joseph G. Diamond, Panel Chair
                             Mr. Mike Novel, Member
                             Ms. Jean A. Reynolds, Member

The following documentary evidence relating to AFBCMR Docket Number BC-
2002-02127 was considered:

   Exhibit A.  DD Form 149, dated 10 Jun 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 22 Oct 02, w/atchs.
   Exhibit D.  Letter, HQ AFRC/DPM, dated 5 Dec 02.
   Exhibit E.  Letter, SAF/MRBR, dated 3 Jan 03.
   Exhibit F.  Letter, Applicant, dated 15 Jan 03, w/atchs.



                                   JOSEPH G. DIAMOND
                                   Panel Chair