RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-01073
            INDEX CODE:  134.02

            COUNSEL:  NONE

            HEARING DESIRED: NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

The Air Force Inspector General (AF/IG) Report of Investigation (ROI),
S55942B, be removed from his record.

_________________________________________________________________

APPLICANT CONTENDS THAT:

      a.  The AF/IG Investigating Officer (IO) reached the  conclusion
that he had knowingly made a false statement to a government  official
while carrying out his official duties, by incorrectly assuming he had
been in competition with another officer for the Chief of Staff  (COS)
position in the South Carolina Air National Guard (SC ANG).

      b.  The original IO began  his  investigation  under  the  false
impression that he was in direct competition with two  other  officers
for general officer positions in the SC ANG which, therefore, led  him
to an erroneous conclusion.

      c.  The memorandum in question, dated 9 February  1998,  was  an
informal reiteration of an informal discussion held  between  him  and
the SC Adjutant General (AG) - at the AG’s  request,  and  that  broad
comments were made on the memorandum as he intended it to  be  nothing
more than an informal source of information for the AG.

      d.  The AF/JAA’s contention that he was at least  negligent  for
not checking his facts before presenting information to the AG is only
true if the memorandum were considered an official document.

      e.  While the AF/JAA  review  cites  the  statute  he  allegedly
violated in a footnote, it does not set out the matters that  need  to
be proven in order to find a violation of the statute.

Applicant states, in part, that he advised the South Carolina Adjutant
General (SC AG) of an attempt by another officer  in  the  SC  ANG  to
subvert the AG’s express wishes by having himself (the other  officer)
assigned to the COS position in the SC ANG; he was asked by the AG  to
document, by memorandum, the conversation between the  two,  which  he
did; the memorandum “found its way  to  others”  and  he  subsequently
became the focus of an AF/IG investigation that eventually found  that
he had knowingly made a false statement with the intent to deceive the
AG about the career of another officer; the ROI is an erroneous report
based on a number of false assumptions.

In support of his appeal, the applicant has provided a:

           1.  Personal statement to the Board.
           2.  Summary of the case to the Board.
           3.  Summary labeled “Interest of Justice.”
           4.  Discussion of the case.
           5.  Reply to the AF/IG ROI by applicant’s appointed counsel
to the SC AG at  the  AG’s  request,  an  official  statement  by  the
applicant, an affidavit from the previous wing commander, and a letter
appointing counsel to the applicant.
           6.  Legal review of the AF/IG ROI performed by the Virginia
AG’s Office of the Judge Advocate finding the AF/IG  ROI  not  legally
sufficient.
           7.  Memo from the SC AG to Colonel L----, assigning him  to
the Assistant  Adjutant  General  for  Air  (AAG-Air)  and  subsequent
promotion request to Brigadier General (BG).
           8.  Memo from the  SC  AG’s  Office  of  the  SC  Inspector
General (SC IG) closing the case  locally  with  a  finding  that  the
applicant did not violate Articles  89,  107,  133,  and  134  of  the
Uniform Code of Military Justice (UCMJ).
            9.  Letter  from  the  SC  AG  to  SECAF  in  support   of
applicant’s promotion.
          10.  Letter from the SC AG to SECAF explaining  the  reasons
behind his actions of giving the  applicant  a  Letter  of  Admonition
(LOA).
          11.  Memorandum from SC AG to SECAF further  explaining  his
reasoning behind giving the applicant an LOA.
          12.  Memorandum from SC AG to  SECAF  reaffirming  the  AG’s
support for Applicant’s promotion.
          13.  Letter from Congressman Spence to SECAF asking for  his
personal review of the applicant’s case.
          14.  Letter from Senator Strom Thurmond to the Secretary  of
Defense (SECDEF) asking for his personal  review  of  the  applicant’s
case.
          15.  A  copy  of  an  Adverse  Information  Summary  on  the
applicant.
          16.  The applicant’s resume, a letter from Senator  Thurmond
to the Deputy SECDEF asking for his personal and timely review of  the
applicant’s case, a memorandum of support from the SC AG to the AFBCMR
regarding the applicant’s case, and a copy of a memo from SECAF to the
applicant notifying him of his removal from the CY00A GOFRB  promotion
list.

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

_________________________________________________________________



STATEMENT OF FACTS:

The applicant is currently a member of the SC ANG assigned as the AAG-
Air and serving in the grade of colonel.

In March 1998, the applicant was the focus of a SC  Inspector  General
(IG) investigation alleging that the applicant had  knowingly  made  a
false statement with the intent to deceive the AG about the career  of
another officer, had improperly solicited campaign contributions  from
certain SC ANG  members,  and  had  told  an  inappropriate,  sexually
offensive, joke in front of SC ANG members.  On 2 June 1998, the SC IG
found that none of the allegations were substantiated  and  he  closed
the case.

On 1 September 1998, applicant was assigned to the  AAG-Air  position.
In November 1998, the applicant met  the  CY98B  ANG  General  Officer
Federal Recognition Board (GOFRB) and was selected  for  promotion  to
Brigadier General (BG).  The AF/IG undertook its own investigation  of
the allegations against the applicant.  As a  result  of  the  ongoing
AF/IG investigation, the applicant’s name was withheld from the  CY98B
promotion list pending AF/IG findings.  The AF/IG’s subsequent  report
of investigation (ROI), completed 30 April 1999, found only one of the
three allegations  to  be  substantiated.   The  allegation  that  the
applicant, in a  memorandum  dated  9 February  1998  to  the  SC  AG,
knowingly made a false statement with the intent to deceive the SC  AG
about the career of another officer.

On advice from NGB/GO to provide  some  remedial  action  against  the
applicant (which would close the case against the applicant and  allow
his promotion package to move forward without delay), the AG wrote the
applicant a letter of admonition (LOA).

Meanwhile, the SECAF advised the  Chief,  NGB  (CNGB)  to  remove  the
applicant’s name from the CY98B promotion  list  with  the  intent  to
reboard the applicant with the  adverse  information  and  applicant’s
comments included so the Senate Armed Services Committee  would  know,
should the applicant be selected, a Board that had all the  facts  was
recommending the applicant.  The applicant’s name was removed from the
CY98B promotion list and he then prepared to meet the CY00A ANG  GOFRB
in May 2000.

On 2 June 1999, AF/JAG found the  AF/IG  ROI  legally  sufficient  and
recommended the case be closed.  On 8 September 1999, the SC AG  asked
the Virginia AG to perform an independent legal review  of  the  AF/IG
ROI.  This review was completed on 21 September  1999  and  found  the
AF/IG ROI to be legally insufficient.

In April 2000, the applicant received a package from  SAF/IG  advising
him of the adverse information process.  It contained  a  copy  of  an
Adverse Information Summary  (AIS)  that  was  included  in  a  Senior
Officer Unfavorable Information File (SOUIF) that was to be  submitted
to the CY00A ANG GOFRB.  Applicant prepared statements addressing  the
AIS that included a memorandum from the AG confirming he wrote the LOA
with the understanding it would enable the promotion process  to  move
forward unencumbered.  (The AG made  specific  mention  in  referenced
memorandum that he would not have written the LOA if he had  known  it
would be used against the applicant.)  Applicant  met  the  CY00A  ANG
GOFRB and was selected for promotion to BG.  Based on the  SOUIF,  the
SECAF, with the promotion recommendation from the CY00A  board,  began
action to remove the applicant’s name from  the  list  of  recommended
officers.  The AG, on 23 October 2000, wrote to SECAF explaining  that
he did not believe the applicant misrepresented anything  to  him,  he
was not in competition with another officer for any position, and  the
removal action taken by the SECAF was  based  on  faulty  information.
After  further  review,  SECAF  endorsed  the   applicant’s   proposed
promotion in October 2001 and recommended he be promoted to BG.  On 22
November 2002, the Deputy SECDEF, in a memorandum  to  SECAF,  advised
that notwithstanding the  fact  that  the  NGB  and  other  Air  Force
leadership endorsed the promotion, the Deputy SECDEF did  not  because
of the adverse information enclosed in  the  IG  report.   The  Deputy
SECDEF directed  the  applicant’s  name  be  removed  from  the  CY00A
promotion list.

_________________________________________________________________

AIR FORCE EVALUATION:

ANG/DP reviewed this application, determined that they  did  not  have
jurisdiction  over  senior  officer  matters,  in  particular  general
officers, and forwarded it to NGB/GO.  NGB/GO provides  a  summary  of
the events from November 1998 through 12  December  2002  and  concurs
with the Deputy  SECDEF’s  direction  that  the  applicant’s  name  be
removed from the CY00A GOFRB promotion recommendation list.

The ANG/DP and NGB/GO evaluations, with attachments, are at Exhibit C.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

AF/JAA recommends denial.  JAA notes that upon the retirement  of  the
then Chief of Staff (COS) of the SC ANG, BG R----, the applicant, then
the SC Executive Support Staff Officer (ESSO), was asked by the SC  AG
to provide his suggestions for SC  general  officer  management.   The
applicant provided a memorandum, dated 9 Feb 98, wherein  he  assessed
the qualifications of two officers.  This assessment of Colonel  L----
and Colonel P---- included  comments  on  the  two  officers’  command
experience and on their fitness to assume SC ANG leadership positions.
 It was this memorandum that was the basis of the complaint eventually
filed by BG L----, then the AAG-Air.   JAA  states  that  had  the  AG
implemented the applicant’s suggestions, the applicant would have been
“double-slotted” with BG L---- as the AAG-Air essentially forcing  the
incumbent to either retire or accept a demotion to colonel in order to
remain in the ANG.  (BG L---- had signed a letter agreeing  that  upon
senate confirmation of his promotion to BG he would be  limited  to  a
two-year tour as AAG-Air).  SC state law at the time required that the
Chief of Staff (COS) position be occupied by  a  rated  officer  only.
(There apparently was SC National  Guard  (NG)  sponsored  legislation
being considered that would  remove  this  requirement  and  free  the
applicant to compete for the COS position.)  Had the legislation  been
passed, the AAG-Air incumbent, BG L----,  would  either  have  had  to
retire or accept a position at the lower grade of Colonel.

JAA contends the applicant, in order to forestall any  possibility  of
Colonel P----, then 169th FW commander, being promoted into  the  AAG-
Air position, wrote in his memorandum to the AG  that  “Col  P----…has
commanded a flight for a year.”  In fact, Col P---- had  held  command
positions for five and a half years.  JAA cites, as a  result  of  the
applicant’s misconduct, the AG issued  the  applicant  an  LOA  on  24
November 1999, wherein he (the AG) stated that he did not believe  the
applicant intended  to  deceive  him,  but  that  he  (applicant)  was
”negligent in promoting…[his] qualifications over those  of  a  fellow
officer.”

It is clear to JAA the applicant does not and did not agree  with  the
consistent interpretation of the objective evidence  provided  by  his
own hand - the memorandum in question as  well  as  the  testimony  of
others, which eventually substantiated his  misconduct.   JAA  further
argues the applicant,  as  the  ESSO,  was  bound  to  know  that  his
suggestions and advice could potentially affect the careers  of  other
officers and his own.  JAA’s review  of  the  memorandum  in  question
believes it clearly shows the applicant’s intent was to  ensure  that,
then Colonel L----, assigned as the AAG-Air, was not assigned  as  the
COS--a position the applicant aspired to himself.

JAA’s evaluation, with attachment, is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states the AF/JAA evaluation dated 21 August 2003, indicates
the original investigating officer (IO) began his investigation  under
the false impression that the applicant was in direct competition with
two other officers for general officer positions in the South Carolina
Air National Guard and therefore led him to an  erroneous  conclusion.
The memorandum  in  question,  dated  9  Feb  1998,  was  an  informal
reiteration of an informal discussion held between the  applicant  and
the SC Adjutant General (AG) - at the AG’s  request.   Broad  comments
were made on the memorandum as the applicant intended it to be nothing
more than an informal source of information for the AG.  He notes  the
memorandum was written on unofficial paper, in  an  informal  personal
manner, and was signed with his first and last name  only.   He  notes
the AG has written several letters to the Secretary of the  Air  Force
(SECAF) stating the above facts in support of the applicant.

The applicant addresses the letter of admonishment (LOA)  he  received
from the AG on 24 November 1999 by expressing surprise that JAA quoted
from an admonition contained in the LOA when the AG had  already  made
clear the LOA was written on the suggestion of NGB/GO and only for the
purpose of closing the matter and allowing the  applicant’s  promotion
to move forward.

The applicant contends JAA  relies  on  the  assumption  that  the  AG
requested the informal memo in order to affect GO management in the SC
ANG.  He states this is a false assumption as the AG had already  made
his decision on GO management and the memo was written as a result  of
his accuser, Colonel L----, trying to change the GO management program
that the AG had set in place.  He  explains  the  term  “…not  in  the
leadership track,” regarding the two affected officers (Colonels L----
& P----), by stating they were originally not included in the AG’s  GO
management plan.  Two other SC ANG officers were being considered  for
GO positions when they  unexpectedly  retired  for  personal  reasons.
Obviously,  this  action  required  all  eligible   officers   to   be
reconsidered and the GO management plan reworked.  Colonels L----  and
P---- were then included in the  GO  management  plan.   Consequently,
Colonel L---- was assigned as the Assistant Adjutant General  for  Air
(AAG-Air) and was promoted to Brigadier General (BG).   Colonel  P----
was considered a junior colonel and not eligible for GO consideration.
 At the applicant’s recommendation, Colonel P---- was assigned to  the
wing commander position, effectively placing him in line for future GO
consideration.

Applicant argues against the JAA deduction that the statement  in  the
memo in question  regarding  applicant’s  comment  on  Colonel P----’s
command experience as damaging to his  career  as  Colonel  P----  was
considered to be in direct competition with the applicant for the AAG-
Air position.  As Colonel L---- was placed in the AAG-Air position, in
concert with the GO management plan, and the applicant was  slated  to
move to the COS position (should  the  law  be  changed  to  allow  an
unrated officer to hold the position), he states there was  never  any
direct competition between himself and Colonel P----.   He  points  to
the AG’s memorandum to SECAF  dated  23  October  2000,  that  clearly
states the applicant was never in competition with Col P---- and  that
Colonel P---- was not being considered for any other position  at  the
time.

A report of investigation (ROI) provided by an Army Inspector  General
(IG) found the memo in question to be without merit.  Eventually, BG L-
--- retired, the applicant was moved to the AAG-Air position  (the  AG
changed his mind about trying to change  the  legislation  that  would
have enabled the applicant to be assigned to the  COS  position),  and
Colonel P---- was moved into the COS position.

The result of the AF/IG ROI was the applicant did not make  any  false
statements about Col L----’ command time.  Additionally, he points out
the then-wing commander, Colonel M, signed an affidavit that Colonel P-
---’s command time was discussed by others as being less than a  year.
Additionally, to address the JAA contention the applicant did know Col
P---- for enough time to be  aware  of  his  command  experience,  the
applicant states even though they worked at the same unit,  Col  P----
was a Traditional Guardsman and therefore not at the unit  full  time.
He also states that while he was aware of Colonel  P----’s  assignment
to the Operations Support Flight  commander  position,  a  short  time
later he was assigned to the SC HQ and no longer working at the unit.

The applicant explains the meeting with the AG and the subsequent memo
that followed occurred as  a  result  of  Colonel  L----’  attempt  to
circumvent the AG’s plan to have Colonel L---- serve as  the  AAG-Air.
Col P---- was not the subject of the meeting, or the memo,  except  to
demonstrate the sequence of events for him as well  as  others  should
Colonel L---- be placed in the COS position.

Notwithstanding the continued JAA assumption  that  the  memo  was  an
official recommendation to the AG concerning  GO  accessions  and  the
applicant was in direct competition with the officers mentioned in the
memo, the applicant reiterates that the memo was  an  informal,  quick
reiteration of an informal discussion and was  not  meant  to  include
facts about anyone.  The JAA contention  that  the  applicant  was  at
least  negligent  for  not  checking  his  facts   before   presenting
information to the AG is only true if  the  memo  were  considered  an
official document.

JAA states just because the applicant does not agree  with  the  AF/IG
ROI, it does not make the ROI invalid.  Applicant counters that  while
the ROI found that he did violate  a  state  statute,  two  subsequent
legal reviews found it did not meet the legal standard for proof.   He
contends JAA ignores military case law that holds  one  cannot  assume
there is familiar  knowledge  between  individuals  outside  a  common
squadron.  Applicant contends he was not in the same  gaining  command
as Colonel P----.

The applicant finds it curious that JAA seems more interested  in  the
speculative aspects of his case rather than the legal rules  involved.
He argues two prior legal reviews focus solely on the legal aspects of
the case and can find no wrongdoing.  Additionally, he feels  that  to
develop unfavorable information on an individual  in  the  absence  of
real proof is unjust.

He was recommended for  promotion  by  the  SC  AG,  selected  by  two
Brigadier General Federal Recognition Boards, recommended by the  NGB,
and the  SECAF  on  two  occasions  and  still  cannot  receive  final
confirmation because of an IG finding that  is  based  on  error.   He
contends  that  AF/IG  made  a  basic  error  at  the  outset  of  the
investigation that led the IO to an  erroneous  conclusion  preventing
his  promotion.   He  respectfully  requests  the  Board  correct  the
erroneous finding and remedy the injustice.

In  further  support  of  his  appeal,  he  provides   the   following
attachments:

Attachment one is a legal review  dated  30  September  2003,  of  the
AF/JAA (hereafter JAA), advisory dated 21 August  2003,  conducted  by
169FW/JA (hereafter JA).  The initial finding  by  JA,  with  all  due
respect, is the JAA memorandum does not recite sufficient evidence  to
establish key elements of the  alleged  misconduct.   JA  argues  that
while JAA displays the statute the applicant allegedly violated, in  a
footnote, it does not set out matters that need to be proven in  order
to find a violation of the statute.  The  JAA  memorandum  relies,  in
part, upon testimony that the applicant “had known of”  Colonel  P----
for 23 years to establish knowledge.  This type  of  speculation  does
not suffice as evidence of knowledge and being in the same unit is not
sufficient to impart knowledge.  The JAA review does not point to  any
evidence but to negligence and self-interest  only.   The  JAA  report
concludes that, instead of knowing, applicant was  negligent  for  not
checking Colonel P----’s file.  However, failure  to  check  a  record
does not and cannot equate to  knowing  a  fact  is  false.   The  JAA
opinion does not note that Col P----  had  just  been  appointed  wing
commander of the 169th and was not  in  a  position  to  threaten  the
applicant.  The memo in question was written surrounding Colonel L----
and the sentence concerning Colonel P----’s command was not the  point
of the memo.  It stretches  reason  to  conclude  that  the  applicant
intended to deceive the AG  and  adequately  protect  himself  from  a
threat by another officer.  Particularly when the IO with  respect  to
the  subject  of  the  memorandum,  Colonel  L----,  found  no   false
statements.

Attachment two is from the SC AG, Major General S----.  He provides  a
review  of  the  JAA  memorandum  and  expresses  concerns  about  the
erroneous assumptions and mischaracterizations contained therein.   He
argues that JAA has not given the appearance of considering  the  AG’s
efforts to set the record straight.  He states  he  had  formulated  a
plan to provide for GO succession in the SC  ANG  prior  to  any  memo
received by him from the applicant.  Two senior officers  had  retired
suddenly which forced him to  reconsider  his  position  regarding  GO
succession.   Consequently,  he  considered  the  applicant  the  best
candidate for the COS position and concurrently fulfilled a request by
then Colonel L---- to be the AAG-Air.  He advised  Colonel  L----  his
tenure as AAG-Air would be limited to two years in  order  to  promote
other deserving officers.  Colonel L---- concurred.  In January  1998,
Colonel L---- requested he be placed in the COS  position.   MG  S----
met with the applicant to  discuss  this  change  of  plan  sought  by
Colonel L----.  MG S----  subsequently  asked  the  applicant  for  an
informal bullet memo of their conversation that he never considered  a
personal account of applicant’s feelings.  Additionally, he states the
memo was never considered as suggestions  for  GO  management  nor  an
official recommendation.  MG S---- states he knew both officers in the
memo as he had appointed both officers.  He states  that  he  did  not
need an assessment and the information provided by the  applicant  was
used to attempt to change a plan and not create one.

He states, with respect to the JAA assumption that Colonel P---- posed
a threat to dislodge the applicant from the AAG-Air position,  Colonel
P---- was never considered for the AAG-Air  position.   He  states  by
simple time in grade, the applicant and Colonel P---- would  not  have
been in competition for a promotion slot.

He does not feel the applicant knowingly misrepresented anything.  The
applicant never attempted to deceive, and he  does  not  feel  he  was
deceived in any way.  Additionally, Colonel P----  was  not  adversely
affected as he had been appointed wing commander prior to the memo and
has been the COS since late 1998, both with concurrence and support of
the applicant.

With respect to the letter of admonishment, he was advised  by  NGB/GO
that if he gave the LOA to the applicant it would enable his promotion
package  to  proceed  unencumbered.   He  regrets   the   errors   and
assumptions   generated    by    the    personal    memo    and    the
mischaracterizations  that  have  resulted  in  the  denial   of   the
applicant’s promotion to brigadier general.  He  feels  the  applicant
has continued to be a great asset to the SC ANG  and  deserves  to  be
promoted.  He hopes the Board will correct this great injustice.

His complete response, with attachments, is at Exhibit F.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

At the Board's request JAA reviewed the applicant’s responses (Exhibit
F).  JAA notes the majority of  the  applicant’s  response,  including
memorandums from the SC AG and the 169th Staff  JA,  concerns  matters
extensively investigated by SAF/IGS as  addressed  in  JAA’s  previous
advisories.  However, JAA provides comments on two appropriate  areas.
First, to the application of criminal law, and its burden of proof, to
an  administrative  investigation,   and   second,   the   applicant’s
substantiated misconduct as evidenced by the administrative punishment
imposed by the SC AG.

While the applicant and counsel argue the elements of the offense were
not proven beyond a reasonable doubt by the SAF/IGS investigation, JAA
argues that administrative investigations, not criminal in nature,  do
not require findings  to  meet  criminal  burden  of  proof  beyond  a
reasonable doubt.  Allegations in  administrative  investigations  are
investigated to the extent they give focus to the inquiry and are  not
intended to constitute a criminal indictment.  Further,  the  purposes
of  IG  investigations  are  to  provide  commanders  with  sufficient
information to decide the severity of the offense and the  appropriate
action to take.  In this case, the  SC  AG  decided  to  administer  a
letter of admonishment (LOA) to  the  applicant  for  providing  false
information to the AG.  JAA addresses the AG’s issuance of the LOA  as
the best evidence the AG felt the applicant’s  actions  to  have  been
deficient.  Additionally, the AG has submitted nothing to indicate  he
felt the LOA was not deserved but only  that  he  never  intended  his
action to have the consequences that it later had.

JAA states the governing SC code  provision  is  nearly  identical  to
Article 107, False Official Statement, of the Uniform Code of Military
Justice (UCMJ).  The explanatory notes to Article 107  highlight  that
official documents and statements include all documents and statements
made in the line of duty.  JAA believes it is  clear  the  applicant’s
response concerning suggestions of general officer (GO) management  to
the SC AG meets that standard.  That it was not on  letterhead  or  in
some  official  memorandum  is  simply  irrelevant.    Two   elements,
requiring the document or statement to be false in certain particulars
and the applicant’s knowledge  of  its  falsity  when  he  signed  the
document, were demonstrated by  circumstantial  evidence.   While  the
applicant and counsel focus  the  discussion  of  evidence  to  direct
evidence only, JAA states neither criminal nor  administrative  forums
are  so  constrained.   These  two  elements  were  fulfilled   by   a
preponderance of the evidence.

The final element requires the document or statement to be  made  with
the intent to deceive.  Again, the circumstantial evidence,  including
the  applicant’s  self-interest  in  the  outcome,   establishes   the
applicant knew better what the command experience and records  of  the
officers under discussion disclose.  JAA points out the action the  SC
AG took, before the ultimate consequence of this incident  was  known,
was an action taken requiring only a preponderance of the evidence  to
support.

JAA  reaffirms  their  previous  advisory  opinions   concluding   the
applicant has failed to demonstrate  the  existence  of  error  or  to
present facts and circumstances supporting an injustice.

JAA’s complete evaluation, with attachments, is at Exhibit G.

_________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Counsel  comments  on  two  areas:  the  burden   of   proof   in   an
administrative investigation and the letter of admonition (LOA)  given
to the applicant by the SC AG.  Counsel charges JAA of  introducing  a
new and false issue: Namely, that applicant’s counsel, in the previous
review (Exhibit F), presents the argument that  the  elements  of  the
offense were not proven beyond a reasonable  doubt.   Counsel  submits
that the mention of reasonable doubt in the referenced response  never
occurred.

JAA argues that knowledge is "demonstrated by circumstantial evidence"
and that applicant and counsel attempted to limit  the  discussion  to
direct evidence.  Counsel states that there is a  lack  of  sufficient
evidence to find knowledge and intent to deceive.  There is no  direct
evidence, and that circumstantial evidence is insufficient as a matter
of law.

Regarding the comment the applicant had known of Colonel P---- for  23
years to support a finding of knowledge, Counsel indicates the problem
with this conclusion is not that it fails to meet a  reasonable  doubt
standard, but that it rests on speculation.  Factual  findings  cannot
rest on speculation under any recognized burden  of  proof,  including
the applicable preponderance of evidence standard.

In addressing the idea the  applicant  was  negligent  by  failing  to
review the record(s) of the officers he was making comments on to  the
AG, Counsel points out that negligence would disprove  both  knowledge
of the falsity of the statement and intent to deceive.  Negligence  is
an inadvertent or careless act or failure to act.  The IO’s conclusion
rested on a finding of  actual  knowledge  and  intent.   Pointing  to
supposed negligence cannot support these elements.

Counsel and applicant  agree  that  in  an  administrative  forum  the
“allegations and administrative  investigations  are  framed  to  give
focus to the inquiry.”  However, a violation of standard must still be
found.

With respect to JAA's statement that the AG  issued  the  LOA  to  the
applicant “for providing false information to him,” Counsel  indicates
that the comment ignores the AG’s repeated statements to the contrary.
 The AG stated in his 30 September 2003 memorandum to the  Board  that
he has always known the IG conclusion to be wrong.  The  AG  does  not
feel the applicant knowingly misrepresented anything to him in  the  9
February memorandum.  The LOA he issued the applicant was not  due  to
misconduct but on the advice of NGB/GO  only.   The  AG  has  strongly
recommended the Board correct the injustice resulting from the  flawed
IG report.

Applicant’s complete response is at Exhibit H.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted al 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  a  probable  error  or  an  injustice.   Applicant’s
contends that:


      a.  The AF/IG IO reached the conclusion that  he  had  knowingly
made a false statement to a government official while carrying out his
official duties, by incorrectly assuming he had  been  in  competition
with another officer for the COS position in the SC ANG.


      b.  The memorandum in question, dated 9 February  1998,  was  an
informal reiteration of an informal discussion held  between  him  and
the SC AG - at the AG’s request; that broad comments were made on  the
memorandum as he intended it to  be  nothing  more  than  an  informal
source of information for the AG.


      c.  The AF/JAA contention that he was at least negligent for not
checking his facts before presenting information to  the  AG  is  only
true if the memorandum were considered an official document.


      d.  While the AF/JAA  review  cites  the  statute  he  allegedly
violated in a footnote [S.C Ann. Section 25-1-3000], it does  not  set
out the matters that need to be proven in order to find a violation of
the statute.


4.  The above contentions by the applicant are duly  noted.   However,
because of the reasons set forth  hereinafter,  we  do  not  find  the
applicant’s contentions sufficiently persuasive to conclude  that  the
findings of the AF/IG IO were inconsistent with the  total  weight  of
the evidence in this case.  In this respect, we  note  that,  after  a
thorough  investigation,  the  AF/IG  found  a  preponderance  of  the
evidence, based  upon  the  findings  of  fact  and  sworn  testimony,
indicated the allegation that the applicant made false  statements  to
government officials while carrying out his  professional  duties  was
substantiated.  AF/JAA found the IG  ROI’s  findings  and  conclusions
were supported by a preponderance  of  the  evidence  and,  therefore,
legally sufficient to close out the inquiry  in  accordance  with  the
applicable AFI.  In finding the  IG  ROI  legally  sufficient,  AF/JAA
stated, among other things, that:

      a.  Because applicant was not on federal active duty subject  to
the Uniform Code of Military Justice (UCMJ) the IO turned  to  the  SC
Code of Military Justice for guidance on  false  official  statements.
Section 25-1-3000 of that code is a verbatim mirror of Article 107  of
the UCMJ for false official statements.  As such, the  IO  applied  to
each of the three alleged false statements an Article 107 four-element
analysis:  (1) Did applicant make an official statement? (2)  Was  the
statement false in certain particulars? (3) Did he know the  statement
was false at the time he made it? And (4) Did he  make  the  statement
with the intent to deceive?  Since one  of  the  allegations  was  not
substantiated and one  did  not  meet  the  Article  107  four-element
analysis, the inquiry tended to  focus  primarily  on  the  statements
applicant made concerning Colonel “P."

      b.  The IO correctly found that the memo from the  applicant  to
The Adjutant  General  (TAG)  of  9  February  1998  was  an  official
statement.  Although it has the appearance of a private  communication
between applicant and the TAG, applicant made the memo in the line  of
duty and provided it to his supervisor,  the  TAG.   Thus,  it  is  an
official statement.

      c.  Regarding  the  second  element  of  the  analysis,  the  IO
concluded the memo was false in  certain  particulars.   Specifically,
applicant’s statement that “L---- has never commanded  anything.   Not
even a flight …” was false in that BG L---- had been the 157th Fighter
Squadron D-Flight commander in 1983/1984.  The IO also concluded  that
applicant’s statement that “P---- has commanded a flight for  a  year”
was false.  At the time the statement was made, Colonel P---- was  the
incumbent  169  FW/CC.   In  addition,  he  had  in  past  assignments
commanded two different flights (a flying  squadron  flight  for  more
than three years and the Operational Support Flight for more than  two
years) for a total of five and a  half  years.   The  IO  acknowledged
applicant’s statement could be viewed as technically  correct  because
it did not explicitly exclude other command experience; but when taken
in context, the statement directly implied, and  hence  conveyed,  the
message that Colonel P---- has commanded a flight for only a year.

      d.  The United States Court of Military Appeals has  held  that,
with regard to Article 107 offenses,  “the  determination  of  falsity
must be made with reference to the specific  language  alleged  to  be
false and the context in which it was made.”   Considered  in  context
with the remainder of the paragraph, in fact the entire letter, it  is
clear that applicant intended  to  minimize  Colonel  P----'s  command
experience by conveying the message that Colonel P---- had commanded a
flight for only a year.  In fact, the TAG, who was unaware of  Colonel
P----’s actual command experience, testified that he  interpreted  the
statement to mean Colonel P---- had only been in that position  for  a
year and did not have that much experience.

      e.  On the third element of a false official statement analysis,
the IO concluded applicant did not know his representation of BG L----
’s command experience was false.  Although as the ESSO he  had  access
to BG L----’s career records, applicant denied reviewing those records
before writing the memo.  He further testified that he was  not  aware
of BG L----’s stint as a fighter squadron flight commander.  In  light
of the fact that BG L----’s assignment as a  flight  commander  lasted
only five months and occurred 15 years earlier, a preponderance of the
evidence supports the IO’s determination that applicant did  not  know
that his characterization of BG L----’s command experience was  false.
Accordingly, the IO did not further analyze the statement about BG L---
-.

      f.  Conversely, the IO concluded that applicant did know that he
had  misrepresented  Colonel  P----’s  command  experience.    Factors
considered by the IO  in  this  regard  include:   (1)  Applicant  and
Colonel P---- had known  each  other  for  well  over  20  years,  (2)
Applicant and Colonel P---- had been assigned together periodically in
the same wing for several of those years, (3) Colonel P---- had been a
flight commander for over five and one-half of those  years,  and  (4)
Applicant had been the ESSO, a position causing him to  be  intimately
familiar with  the  jobs/positions  of  most  state  Guard  personnel,
especially  the  senior  officers.   Based  on  these   factors,   the
preponderance of the evidence supports  the  IO’s  determination  that
applicant knew he was misrepresenting Colonel P----’s career.

      g.  Finally, on  the  fourth  element,  the  IO  concluded  that
applicant intended to deceive the TAG when he indicated that Colonel P-
--- had been  a  flight  commander  for  a  year.   The  falsity  here
pertained to a material matter that affected  the  TAG’s  decision  on
what officer ascended to senior leadership positions within the SCANG,
i.e., the extent of  the  officer’s  command  experience.   Similarly,
applicant had a distinct motive to  portray  Colonel  P----’s  command
experience in an unfavorable light.  Applicant wanted to  command  the
SCANG as the COS.  He could only do so if BG L---- and  Colonel  P----
were not assigned to those positions.

5.  Responding to applicant’s and counsel’s argument that the elements
of the offense were not  proven  beyond  a  reasonable  doubt,  AF/JAA
states  that  SAF/IG's  investigations,  like   other   administrative
investigations, are not  criminal  in  nature  nor  are  the  findings
required to meet a criminal burden of proof  --  beyond  a  reasonable
doubt standard.  The allegations in administrative investigations  are
framed to give  focus  to  the  inquiry,  not  constitute  a  criminal
indictment.   The  purpose  of  an  IG  investigation  is  to  provide
commanders  with  sufficient  information  upon  which  to   take   an
appropriate action.  It is for commanders to decide  the  severity  of
the offense and the appropriate command action.

6.  Having carefully reviewed all the evidence in this case, including
the letter the applicant wrote to the TAG  of  February  9,  1998,  we
believe the applicant has failed to sustain his burden of establishing
he has been the victim of either an error or an  injustice  warranting
favorable action on his request.  We do not dispute that the applicant
was not in competition with Colonel P---- at the time the  letter  was
written.  Nor do we dispute the statements from the TAG to the  effect
that he never agreed with the findings of the AF/IG, and that, had  he
been aware of the consequences of his decision to issue the  applicant
an LOA, he would not have done so.  A reasonable interpretation of the
applicant’s letter to the TAG, however,  clearly  shows  he  perceived
Colonel P---- as a threat to his ambitions for reasons  that  are  not
entirely  clear  from  the  evidence  before  us.   More  importantly,
however, the  letter  of  9  February  1998  in,  and  by  itself,  is
convincing evidence that the  applicant  deliberately  or  negligently
minimized Colonel P----’s command experience by conveying the  message
that he (Colonel P----) had commanded a flight for only  a  year.   In
fact, the TAG, (who now says he was fully  aware  of  Colonel  P----’s
qualifications) testified to the AF/IG  IO  that  he  interpreted  the
statement to mean Colonel P---- “had only been in that position for  a
year and did not  have  that  much  experience.”   This  officer  also
testified that he did not know that much about the careers of Colonels
L---- and P---- except for what he  had  been  told  by  his  previous
Deputy Adjutant General, which was, for the most part, negative.  When
advised to take action to close the complaint  against  the  applicant
and allow  his  promotion  package  to  proceed  forward  through  the
confirmation process without any adverse information, the TAG chose to
admonish the applicant for negligence.  The letter of admonishment and
the  substantiated  finding  by  the  AF/IG  did,  indeed,  cause   an
unintended consequence.  Nonetheless, absent substantial evidence that
the adverse actions were contrary to the total weight of the  evidence
or constituted an abuse of discretionary authority, the removal of the
AF/IG ROI, which ultimately led to the establishment of a SOUIF, would
be grossly unfair to other  officers  who  have  had  to  compete  for
confirmation under similar circumstances.  Accordingly,

_________________________________________________________________

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 AFBCMR Docket Number BC-
2003-01073  in  Executive  Session  on  5  November  2003,  under  the
provisions of AFI 36-2603:

      Ms. Brenda L. Romine, Panel Chair
      Mr. James W. Russell, III, Member
      Ms. Leslie E. Abbott, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 23 Mar 03, w/atchs.
    Exhibit B.  Memo, Applicant, dated 9 Feb 1998.
    Exhibit C.  Letter, ANG/DP, dated 29 Jul 03, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 8 Aug 03.
    Exhibit E.  Letter, USAF/JAA, dated 21 Aug 03, w/atch.
    Exhibit F.  Letter, Applicant, dated 30 Sep 03, w/atchs.
    Exhibit G.  Letter, USAF/JAA, dated 20 Oct 03.
    Exhibit H.  Letter, 169FW/JA, dated 21 Oct 03.


                                   BRENDA L. ROMINE
                                   Panel Chair