RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-01871
            INDEX NUMBER:  131.00
      XXXXXXXXXXXX     COUNSEL:  None

      XXX-XX-XXXX      HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be advanced to the grade of major general on the Air Force  retired
roles.

He be appropriately compensated  (an  estimated  $92,522.00)  for  the
coerced termination of his active duty career two years prior  to  his
mandatory retirement date of 1 Apr 05 as a brigadier general (BG).

_________________________________________________________________

APPLICANT CONTENDS THAT:

The Inspector General (IG) investigation of him  was  conducted  in  a
wholly unprofessional and impermissibly  “prosecutorial”  manner,  and
arrived at “conclusions” which were not only untrue,  but  which  were
clearly not supported by any objective analysis of the evidence.

Two of the members of a three-person ethics panel appointed to conduct
an ethics review on him had already prejudged the case and/or  had  an
obvious interest in supporting the IG’s conclusions.

    a.  One of the two members was the direct supervisor of the  legal
advisor to the IGS investigator.  The legal advisor frequently updated
his supervisor during the course of the investigation and provided him
with the “IG perspective.”

    b.  Another member of the panel was the second-level supervisor of
the fiscal expert upon whom the applicant relied  in  connection  with
the issue that led to his being accused of wrongdoing.

His promotion to BG was  illegally  delayed  for  an  additional  five
months and a serious subversion of lawful civilian authority over  the
military occurred due to SAF/GC’s and AFSLMO’s refusal to deliver  the
Secretary of the Air Force’s (SecAF’s) 20 Jan  01  memoranda  ordering
his promotion.

It was coercively conveyed to him that unless he immediately submitted
a retirement request effective 1 Apr 02, he would not  be  allowed  to
pin on his promotion despite SecAF’s 20 Jan 01 order and that the  new
SecAF would initiate vacation action, although there was no legitimate
basis nor any relevant legal precedent for such vacation action.

SAF/IGS  failed  to  comply  with  notice  and  comment   requirements
pertaining to the provision of adverse information to  the  6  Aug  01
TJAG/DJAG Promotion Board.

He was improperly denied attendance to CAPSTONE.

There are unavoidable questions as to whether there is a  conflict  of
interest on the part of the principal proponent of the actions against
him.

The applicant indicates that prior to the above referenced actions, he
was extremely competitive for promotion to major general (MG).

In support of his appeal, applicant provides a seven-page  brief  with
23 exhibits.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant, while serving on active duty  as  a  Brigadier  General
selectee, became the subject of an  investigation  by  the  Air  Force
Inspector  General  after  an  anonymous  complaint  filed  with   the
Department of Defense Hotline was referred to them for  investigation.
It  was  alleged   that   a   contracting   squadron   commander   had
misappropriated funds by obligating operation  and  maintenance  funds
after midnight on 30 Sep 99, when the funds had  expired.   It  became
apparent during the investigation that the funds  had  been  obligated
based on a legal opinion that was provided by the applicant.   The  IG
investigation substantiated two allegations against the applicant:

    a.  That he did, with intent to deceive, make official  statements
that the major command staff judge advocate and an office  within  the
Air Force Legal Services Agency had stated their  belief  that  it  is
legal to obligate fiscal year  (FY)  1999  fall-out  money  after  the
beginning of FY 00, or words to that effect.

    b.  That the applicant committed an act of Abuse (not the elements
of Fraud and Waste) by pressuring members of  an  Air  Force  Wing  to
obligate FY 99 fallout funds after the start of a new fiscal  year  in
violation of law and policy.

As a result of the IG findings, in Oct 00, the  applicant  received  a
Letter  of  Admonishment  (LOA)  from  his  major   command   (MAJCOM)
commander.  The MAJCOM Commander also wrote  a  letter  to  the  SecAF
recommending that the applicant be allowed to assume the grade of  BG.
In Dec 00, the applicant received a Cautionary Letter from the  Deputy
Air Force Judge Advocate General for not giving  sufficient  attention
to standards set out in the Air Force Rules  of  Professional  Conduct
for Air Force Attorneys.  Based on a copy provided by  the  applicant,
the SecAF signed a memorandum on     20 Jan 01 terminating  the  delay
of his promotion to BG.  The SecAF also notified the MAJCOM  Commander
in a memorandum dated   20 Jan 01 that the applicant could assume  the
rank of BG with a date of  rank  of  1  Apr  00.   The  applicant  was
promoted to BG by Special Order AAG-055, dated 26 Jun 01, with a  date
of rank of   1 Apr 00.  On 26 Jul 01, the applicant was notified  that
a copy of the Senior  Officer  Unfavorable  Information  File  (SOUIF)
Summary, which was created based on the LOA and Cautionary  Letter  he
had received, would be  provided  to  the  TJAG/Deputy  JAG  Promotion
Board, which was convening on 6 Aug 01.  The  applicant  responded  to
the notification on 3 Aug 01 by requesting that the information not be
included in his records because the matters it  referred  to  occurred
before he was confirmed for promotion to BG.  However,  the  applicant
provided comments to be furnished to the board if  the  decision  were
made to provide the SOUIF to them.  The applicant was not selected for
promotion to major general by the 6 Aug 01 TJAG/ Deputy JAG  promotion
board.  The applicant retired effective 1 Apr 03.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ USAF/JAA recommends  denial  of  the  applicant’s  requests.   They
provide background on the events that the applicant contends made  him
the victim of an error or injustice.  They also provide  responses  to
each of the allegations made by the applicant.

According to  HQ  USAF/JAA,  the  applicant  provides  no  substantive
evidence supporting his allegation regarding how the IG  investigation
was conducted.  They believe that a reading of the IGS  investigation,
particularly  the  interview  of  the  applicant,  will   dispel   the
applicant’s allegation.  Regarding the composition and actions of  the
ethics panel, they again indicate that the  applicant  has  failed  to
provide any/or sufficient evidence to  support  his  allegations  and,
consequently,  has  failed  to  demonstrate  any  probable  error   or
injustice.

HQ USAF/JAA indicates that the applicant has  failed  to  provide  any
evidence supporting his  allegation  that  his  promotion  to  BG  was
illegally delayed.  They also state that any error or  injustice  that
may have occurred was rendered harmless by the  applicant’s  promotion
to BG with a DOR of 1 Apr 00.   They  also  state  that  even  if  the
applicant’s assertion that he was coerced into retirement is  correct,
he was promoted to BG effective 1 Apr 00 and served three years  as  a
BG and voluntarily submitted his retirement on 28 Mar 02.   Any  error
or injustice that  might  have  occurred  was  rendered  harmless  and
requires no corrective action.

In response to the applicant’s  contention  that  SAF/IGS  and  AFGOMO
flagrantly ignored procedures that required providing him  opportunity
to  comment  before  determination  was  made   to   provide   adverse
information  to  a  promotion  board,  HQ  USAF/JAA  states  that  the
applicant was provided the Senior Officer Unfavorable Information File
(SOUIF) on 26 Jul 01.  In his response on 3 Aug 01, the applicant  did
not request additional time to  respond.   The  SOUIF  was  eventually
presented to the TJAG/Deputy TJAG board, which convened on 6  Aug  01.
Additionally, the applicant does not claim that the SOUIF is incorrect
or that the timing of the notification prejudiced him in any way.

HQ USAF/JAA states that the applicant did  not  provide  any  evidence
that he requested, pursued, or that AFGOMO took any  actions  to  deny
him the opportunity to attend CAPSTONE.

Finally, they state that the  applicant  has  failed  to  provide  any
evidence concerning the alleged misconduct of one of the principals in
the actions taken against him.  Regardless of any potential  merit  of
the applicant’s unsubstantiated allegations,  no  error  or  injustice
occurred requiring corrective action to the applicant’s record.

The complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the Air Force evaluation, the applicant states that
the evaluation badly distorts events and  patently  misstates  several
issues, which he gives an example of.   The  evaluation’s  implication
that he received disciplinary  action  for  making  a  false  official
statement and committing an act of fraud, waste, and abuse  is  untrue
and misleading.  In support of his view, the applicant quotes passages
from both the Letter of Admonishment and  Cautionary  Letter  that  he
received.  The applicant opines  that  by  focusing  so  much  of  its
content on  defending  the  IG  investigation  and  subsequent  ethics
inquiry, the evaluation ignores the clear essence of his  application,
specifically, the improper actions that occurred after the SecAF  (who
had fully considered both  reports)  unconditionally  and  immediately
ordered his promotion on  20  Jan  01.   In  lieu  of  any  meaningful
analysis, the evaluation simply summarily concludes that each  of  the
several government improprieties  should  be  construed  as  “harmless
error.”  By doing so it ignores the obvious fact that  the  cumulative
effect of those individual actions was to deprive him of the chance to
serve a full five-year term as a BG, as authorized by law, and to deny
him the opportunity to fairly compete for promotion to major general.

The applicant’s complete response is at Exhibit E.

_________________________________________________________________

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 are not persuaded that he has been the victim of an  error
or injustice warranting the relief he seeks from this Board.

4. The applicant takes issue with the manner that the IG investigation
of him was conducted as well as the  conclusions  reached.   Realizing
the importance of this issue  to  the  applicant’s  overall  case,  we
thoroughly reviewed the complete  IG  ROI  and  consideration  of  the
applicant’s view that conflicts of interest existed due to the  rating
chain of the IG’s legal advisor and of  the  fiscal  expert  that  the
applicant had relied on in the  original  incident.  Our  review  also
included his memorandum to the Secretary of the  Air  Force  regarding
the weaknesses of the IGS process in general and his case in specific.
 After  our  comprehensive  review,  we  were  not  led  to  the  same
conclusions as the applicant.

5. We believe that the ROI, which  examined  several  allegations  but
substantiated only two, reached conclusions that were not unreasonable
given the extensive  amount  of  documented  testimony  taken  by  the
investigators from participants and witnesses.  The applicant  asserts
that  the  ROI’s  conclusions  were  later  shown  to  be   erroneous,
apparently on the basis of  statements  made  by  the  AMC  commander.
Although the ROI provided the primary basis for the actions eventually
taken against the applicant, it  appears  that  it  was  only  one  of
several factors used in determining those actions.  We note  that  the
AMC Commander, both  in  the  Letter  of  Admonishment  given  to  the
applicant and in his subsequent recommendation to the SECAF  regarding
the applicant’s promotion, emphasizes that along with the ROI, he also
considered legal advice from counsel and the applicant’s  comments  in
deciding on the appropriate command action.

6.  Although the applicant contends that the ethics  review  conducted
was due mainly to the advocacy of one individual, he has not  provided
sufficient evidence to prove this allegation or that such advocacy, if
any, was done  with  malice.   Likewise,  he  has  also  not  provided
evidence to support his view that two of the members had prejudged the
case.  We note that while the applicant finds fault  with  the  ethics
review, it appears that he does find some favor with  wording  in  the
Letter of Caution that resulted, i.e., that his advice, though flawed,
was made “in good faith and without intent to deceive.”

7.  One of the most serious allegations made by the applicant is  that
after the SECAF  ordered  his  immediate  promotion  in  a  series  of
memoranda, all dated 20 Jan 01, senior Air Force officials  wrongfully
suppressed and illegally withheld these memoranda from their  intended
recipients.  While the period  of  time  between  the  date  of  these
memoranda and the order promoting the applicant, 26  Jun  01,  appears
protracted, we  do  not  find  evidence  to  support  the  applicant’s
assertions.

8.  The applicant  further  contends  that  after  he  was  eventually
promoted, key elements within the  Air  Force,  SAF/GC,  SAF/IGS,  and
AFGOMO, continued to engage in improper conduct.  He alleges that  the
procedures required in AFI 90-301, regarding providing a “SOUIF” t the
pending promotion board, were “flagrantly ignored” and  that  a  final
determination was made to  provide  his  adverse  information  to  the
promotion board before his comments  were  reviewed  by  SAF/GC.   The
applicant appears to base  this  allegation  on  the  short  timeframe
available for this to take place between the  suspense  date  for  his
submission and the date of the Board, a little over two days and on  a
weekend.  Again,  the  applicant  offers  no  concrete  proof  of  his
allegations.  We note that he himself  opines,  “it  is  theoretically
possible” that his response was subsequently staffed  as  required  by
AFI 90-301.  It is equally feasible for us to assume that the suspense
given to him to provide his comments was done with the full  knowledge
of and intent to comply with AFI 90-301.  The applicant also  contends
that he was wrongfully  not  scheduled  for  attendance  to  CAPSTONE.
Again, other than  his  assertion,  the  applicant  has  not  provided
evidence to support this allegation.  Given the circumstances  of  his
case, we do not find  it  unreasonable  that  the  applicant  was  not
afforded an opportunity to attend CAPSTONE before his retirement.

9.  Finally,  the  applicant  asserts  that  he  was  “coerced”   into
submitting a request  for  retirement  or  the  SECAF  would  initiate
vacation action against him.  Again, we cannot draw such a  conclusion
from the evidence he has provided.  The hard evidence in the  file  on
this matter appears to indicate that the  decision  to  retire  was  a
voluntary action  on  the  applicant’s  part.   While  the  e-mail  he
provides appears to indicate that there was some discussion by  senior
officials regarding his continued  Air  Force  career,  we  note  that
actions were taken to allow him to remain a sufficient length of  time
to retire in the grade of brigadier general.  We  do  not  find  these
actions indicative of unfair adverse action or “coercion.”

10.  After our comprehensive review of the applicant’s case, we do not
find a sufficient basis to recommend granting  the  relief  requested.
The applicant has failed to provide sufficient evidence to support the
serious allegations he makes regarding his promotion and the ending of
his Air Force career.

_______________________________________________________________

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  BC-2003-
01871 in Executive Session on 26 February 2004, under  the  provisions
of AFI 36-2603:

      Mr. John L. Robuck, Panel Chair
      Ms. Kathleen F. Graham, Member
      Mr. J. Dean Yount, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 29 May 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, HQ USAF/JAA, dated 11 Jul 03.
    Exhibit D.  Letter, SAF/MRBR, dated 25 Jul 03.
    Exhibit E.  Letter, Applicant, dated 19 Aug 03.




                                   JOHN L. ROBUCK
                                   Panel Chair