RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-02505
            INDEX CODES:  111.02, 126.03,
                          131.09, 136.00

            COUNSEL:  JOHN A. WICKHAM

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

His Officer Performance Report (OPR) rendered for the period 14 Jul 98
through 29 Feb 00 be voided and removed from his records.

The Letter of Reprimand (LOR) dated 19 Dec 99 be  voided  and  removed
from his records.

The Propriety of Promotion Action initiated on 13 Mar 00  and  related
documents be set aside.

The removal of his name from the Fiscal Year  2000  (FY00)  Air  Force
Reserve Line Promotion Selection List on 17 Apr 02 be set aside.

His second deferral of promotion be set aside.

His transfer to the Retired  Reserve  on  1  Apr  03,  which  was  his
mandatory separation date (MSD), be set aside.

His promotion to the Reserve grade of lieutenant  colonel  retroactive
to 30 Jun 00  be  reinstated,  with  constructive  service  credit  in
participating status through 30 Jun 03 and back pay and allowances for
missed unit training assemblies (UTAs).

He be retired in the Reserve grade  of  lieutenant  colonel  effective
1 Jul 03.

His  appeal  be  processed  under  the  provisions  of  10  USC  1034,
Whistleblower Protection Act.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He acted in good faith in refusing to take part in the anthrax program
because he believed there was sufficient evidence showing the drug was
investigational or experimental and, therefore, required his voluntary
and informed consent in order to undergo the immunization regimen.

The  LOR  and  OPR  were  unlawful  reprisals  after  he  had  exposed
falsehoods made concerning the anthrax vaccine (AVIP), in violation of
10 USC 1034.

The removal of his name from the FY00 promotion list was  an  unlawful
promotion delay.

In support of his appeal, the applicant provided  a  counsel’s  brief,
copies of the LOR, OPR,  Propriety  of  Promotion  Action,  and  other
documents associated with the matter under review.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant's OPR profile since 1993 follows:

      PERIOD ENDING    EVALUATION

      13 Jul 93  Meets Standards (Non-EAD)
      13 Jul 94  Meets Standards (Non-EAD)
      13 Jul 95  Meets Standards (Non-EAD)
      13 Jul 96  Meets Standards (Non-EAD)
      13 Jul 97  Meets Standards (Non-EAD)
      13 Jul 98  Meets Standards (Non-EAD)
  *   29 Feb 00                  Does Not Meet Standards (Non-EAD)

* Contested Report.

Applicant was selected  for  promotion  to  the  grade  of  lieutenant
colonel by the Fiscal Year  2000  (FY00)  Reserve  of  the  Air  Force
Lieutenant Colonel Board, effective and with a date of rank  (DOR)  of
22 Jun 00.

On 19 Dec 99, the applicant received an LOR for engaging  in  acts  of
nature to cause discontent and undermine  military  discipline  within
his squadron.  Specifically, after the members of  the  squadron  were
notified of the  requirements  to  undergo  the  anthrax  immunization
series, he sought out and spoke to members of his squadron  advocating
they refuse to undergo the anthrax  protocol.   Further,  he  actively
encouraged other pilots to persuade additional  members  of  his  peer
group to defy official Air Force policy  and  refuse  to  undergo  the
anthrax immunization series.

On 13 Mar 00, the 349th AMW commander recommended the applicant’s name
be removed from the FY00 Lieutenant Colonel Promotion List.  The basis
for the recommendation was the  applicant’s  efforts  to  purposefully
undermine the credibility of the squadron leadership and  his  attempt
to disrupt the orderly operation of the unit and wing  by  encouraging
others to disregard the commander’s directives.

On  7  Jan  02,  the  Deputy  Secretary  of  Defense  recommended  the
applicant’s name be removed from the FY00 Lieutenant Colonel Promotion
List, indicating the applicant  had  refused  to  undergo  an  anthrax
immunization and had advised members of the squadron to  refuse  their
anthrax inoculations.  He further indicated the Secretary of Air Force
stated he  had  serious  reservations  about  the  applicant’s  future
potential to serve  in  the  higher  grade,  and  that  the  Secretary
recommended the applicant’s name be removed from the  promotion  list.
The President of the United States approved the removal recommendation
on 17 Apr 02.

On 2 Oct 02, the applicant was notified that he  was  not  recommended
for promotion to the grade of lieutenant colonel by a Reserve  of  the
Air Force Selection Board, which was his second deferral.

Applicant was relieved of his Reserve assignment and assigned  to  the
Retired Reserve awaiting pay at age 60, effective 1 Apr 03.

_________________________________________________________________

AIR FORCE EVALUATION:

ARPC/DPB recommended denial indicating the basic premise of evaluation
reports is that they are accurate and objective and the applicant  has
not provided evidence the contested report was inaccurate; he has  not
presented any evidence to establish the LOR was incorrect  or  unjust;
he has not provided information to contradict the  underlying  premise
for the propriety of promotion action; the Presidential removal of the
applicant was statutorily and administratively proper;  there  was  no
credible reason to set aside the second deferral for  the  applicant’s
promotion  to  the  grade  of  lieutenant  colonel;  the   applicant’s
automatic transfer to the Retired Reserve on his MSD was  appropriate;
and, his nonparticipation in UTAs  was  not  the  foundation  for  the
propriety of promotion action and subsequent removal of his name  from
the promotion list by the President.   The  nonparticipation  resulted
from his refusal to accept the anthrax immunizations.

A complete copy of the ARPC/DPB evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel provided a response indicating  the  advisory  opinion  simply
parroted various  language  within  Air  Force  Instructions  offering
little to address the applicant’s  specific  allegations  against  the
LOR, referral OPR, or to explain why his evidence should be  dismissed
as not credible.  With respect to the  promotion  delay  statute,  the
advisory opinion is not a legal opinion, nor offers  analysis  of  the
Rolader case, nor why its regulatory spin on the law makes no sense.

Counsel’s complete response is at Exhibit E.

By letter, dated 22 Dec 03, counsel provided a response and additional
documentary evidence for  the  Board’s  consideration  which  included
documentation pertaining to a preliminary injunction that ordered  the
Department of Defense to stop  inoculating  service-members  with  the
anthrax vaccine.

Counsel’s complete response, with attachments, is at Exhibit F.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

HQ USAF/JAA recommended denial noting the  applicant’s  contention  he
acted in good faith in refusing to take part in  the  anthrax  program
because he believed there was sufficient evidence showing the drug was
investigational or experimental and, therefore, required his voluntary
and informed consent in order to  undergo  the  immunization  regimen.
They also noted his complaints concerning this  matter  and  indicated
they were unfounded.  All  of  the  administrative  consequences  that
occurred were as a  direct  result  of  the  applicant’s  actions  and
decisions.  Throughout the process, the commander acted in  accordance
with established Department of Defense (DoD) guidelines and within the
bounds  of  his  discretion  as  a  commander.   The   commander   was
responsible for ensuring that all military personnel under his command
received the immunizations.  He did not have the  authority  to  allow
members to voluntarily refuse to get the shots because they  disagreed
with the program.

HQ USAF/JAA indicated the commander notified the applicant on  several
occasions that his refusal to begin taking the  vaccine  would  render
him  ineligible  to  perform  UTAs  and  would  result  in  his  being
administratively sent to the Standby Reserves.

HQ  USAF/JAA  stated  in  this  case,  the  commander  reproached  the
applicant  not  for  refusing  the  anthrax  shot,  but  for  inciting
disloyalty and mistrust within the squadron.  While the applicant  was
entitled to his own viewpoint concerning the efficacy of AVIP, he  was
not at liberty to actively persuade other squadron members  to  refuse
to participate.  Likewise, the resulting referral  OPR  was  a  direct
reflection of the applicant’s failure to meet  required  standards  in
leadership, professional qualities, judgment, and  decisions.   In  HQ
USAF/JAA’s view, the applicant has provided no  evidence  showing  the
referral  OPR  was  inaccurate.   The  OPR  accurately  reflected  the
applicant’s negative impact on  mission  readiness,  good  order,  and
discipline.

According to HQ USAF/JAA, the wing commander’s decision  to  recommend
the applicant’s removal from the lieutenant colonel promotion list was
justified and neither arbitrary or capricious.  As with  the  LOR  and
OPR, the promotion propriety  action  was  based  on  the  applicant’s
attempt to cause dissension within the  squadron.   His  actions  were
inconsistent with the standard of conduct and professionalism required
for a lieutenant colonel.  The standard for removing an officer’s name
from the promotion list  is  very  broad.   The  governing  Air  Force
Instruction (AFI 36-2504) instructs commanders to initiate a propriety
of promotion action when there is cause to believe the officer is  not
mentally, physically, morally, or professionally qualified to  perform
the duties of  the  higher  grade.   There  was  certainly  sufficient
evidence to substantiate the wing commander’s  recommendation.   Every
member of the applicant’s chain of command, to include  the  Secretary
of the Air Force and Deputy Secretary  of  Defense  concurred  in  the
removal  action.   Ultimately,  the  President  made  an   independent
determination the applicant’s conduct made him unfit  for  the  higher
grade.  There was no evidence indicating the applicant was singled out
due to his personal views on the anthrax program.

HQ USAF/JAA noted the applicant’s  assertion  he  is  entitled  to  be
retroactively promoted because the President did not sign the  removal
action within  18  months  from  the  time  he  was  notified  of  the
commander’s initiation of the propriety action.  They also  noted  his
reliance on Rolader v. United States  to  support  his  argument.   HQ
USAF/JAA indicated because the applicant’s promotion was processed  as
a removal rather than a delay, the 18-month deadline discussed  in  10
USC 14311 did not apply and the Rolader decision is not dispositive.

HQ USAF/JAA stated there was no grounds for the Board to set aside the
applicant’s second nonselection for promotion.  His  promotion  record
was considered by a properly convened selection board that  determined
the applicant was not qualified for promotion.

With respect to the applicant’s request to  set  aside  his  automatic
transfer to the Retired Reserve on 1 Apr 03, HQ USAF/JAA noted such an
action was statutorily mandatory  upon  his  second  nonselection  for
promotion and is not a basis for relief.

HQ USAF/JAA indicated the applicant’s argument he was  the  victim  of
reprisal for testifying before  Congress  is  baseless.   The  various
disciplinary and administrative actions that  were  taken  were  as  a
direct result of the applicant’s conduct and  his  impact  to  mission
readiness and good order and discipline.

HQ USAF/JAA noted the documentation provided  from  a  recent  Federal
District Court decision (Doe v. Rumsfeld) wherein the judge  issued  a
preliminary injunction against  inoculating  service  members  without
their  informed  consent  until  such   time   the   Food   and   Drug
Administration  (FDA)  made  a  written  declaration  concerning   the
effectiveness  of  the  vaccine  against  inhalation   anthrax.    The
applicant now argues  that  in  granting  the  injunction,  the  judge
accepted  the  plaintiff’s  assertion  the  anthrax  vaccine   is   an
investigational drug  and  the  commander’s  order  for  all  squadron
members to receive the vaccine was illegal.  According to HQ USAF/JAA,
the argument is  invalid,  as  the  same  judge  has  now  lifted  the
injunction after the FDA made  a  written  determination  the  anthrax
vaccine is safe and effective against all forms of anthrax.

In HQ USAF/JAA’s view, the applicant has  failed  to  demonstrate  the
existence of any error or present facts and  circumstances  supporting
an  injustice.   The  applicant  bears  the  responsibility   of   the
consequences of his actions.

A complete copy of the HQ USAF/JAA evaluation is at Exhibit G.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Counsel reviewed the HQ USAF/JAA evaluation and furnished  a  detailed
response and additional documentary evidence  which  are  attached  at
Exhibit I.

By letter, dated 23 Mar 04, counsel provided additional  documentation
for the Board’s  consideration,  which  included  a  recent  published
Federal Court case issued which counsel believes is  relevant  to  the
applicant’s argument that the disciplinary actions taken  against  him
were in retaliation for expressing his  First  Amendment  free  speech
rights against the anthrax vaccine.

Counsel’s complete response, with attachment, is at Exhibit J.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

HQ  USAF/JAA  reviewed  the  applicant’s  responses   and   additional
documentary evidence and recommended denial.  HQ  USAF/JAA  indicated,
in summary, that what the applicant refuses to acknowledge  or  accept
is that the removal action was not done simply because he  refused  to
take the anthrax shot.  The administration actions that were taken, to
include the LOR, referral OPR, and promotion removal  action  resulted
directly from the applicant’s attempts to dissuade  other  members  of
the squadron from participating in the AVIP, undermining the authority
of his commander, and his repeated efforts to cause dissension  within
the unit.  That, in and of itself, was sufficient to warrant  each  of
the  administrative  actions  that  were  taken.   Regardless  of  his
personal views on the anthrax program, the applicant had absolutely no
right, constitutional or otherwise, to make statements disloyal to his
commander and to commit misconduct that was detrimental to the  unit’s
mission.  Such behavior is incompatible with that expected of  an  Air
Force officer and warranted  his  promotion  removal.   In  USAF/JAA’s
view, the applicant has failed to carry  his  burden  of  proving  the
existence of an error or injustice.

A complete copy of the HQ USAF/JAA evaluation is at Exhibit K.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Counsel reviewed the HQ  USAF/JAA  evaluation  and  furnished  another
detailed response which is attached at Exhibit M.

_________________________________________________________________

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.   The  applicant's  complete
submission was thoroughly  reviewed  and  his  contentions  were  duly
noted.  However, we do not find the  applicant’s  assertions  and  the
documentation  presented  in  support  of  his   appeal   sufficiently
persuasive to override the rationale provided by the Air Force offices
of primary responsibility (OPRs).  In our view, the issues  raised  by
the applicant  were  more  than  adequately  addressed  by  the  OPRs.
Therefore, in the absence of sufficient evidence to the  contrary,  we
agree with the recommendation of OPRs and adopt their rationale as the
basis for our decision that the applicant has failed  to  sustain  his
burden of establishing that he has suffered  either  an  error  or  an
injustice.  Accordingly, we find  no  compelling  basis  to  recommend
granting the relief sought in this application.

4.   The  applicant’s  request  his  appeal  be  processed  under  the
provisions of 10 USC 1034, Whistleblower Protection  Act,  was  noted.
However, no evidence has been presented which would lead us to believe
that the applicant  filed  a  complaint  alleging  reprisal  with  the
Department of Defense (DoD) Inspector  General,  or  that  he  did  so
within  the  specified  time  limit.   Accordingly,  his  appeal   was
processed under the provisions of 10 USC 1552.

5.  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 AFBCMR Docket Number BC-
2003-02505 in Executive Session on 14 Jul 04, under the provisions  of
AFI 36-2603:

      Ms. Olga M. Crerar, Panel Chair
      Mr. Michael J. Novel, Member
      Mr. Robert S. Boyd, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 21 Jul 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ARPC/DPB, dated 5 Sep 03, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 26 Sep 03.
    Exhibit E.  Letter, counsel, dated 17 Nov 03.
    Exhibit F.  Letter, counsel, dated 22 Dec 03, w/atch.
    Exhibit G.  Letter, HQ USAF/JAA, dated 14 Jan 04.
    Exhibit H.  Letter, AFBCMR, dated 20 Jan 04.
    Exhibit I.  Letter, counsel, dated 17 Feb 04, w/atchs.
    Exhibit J.  Letter, counsel, dated 23 Mar 04, w/atch.
    Exhibit K.  Letter, HQ USAF/JAA, dated 15 May 04.
    Exhibit L.  Letter, AFBCMR, dated 21 May 04.
    Exhibit M.  Letter, counsel, dated 11 Jun 04.




                                   OLGA M. CRERAR
                                   Panel Chair