RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-03023
            INDEX CODE:  131.05, 131.09

            COUNSEL:  NONE

            HEARING DESIRED: YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His date of rank (DOR) to major be changed from 1 October  2002  to  1
October 1996 and, that he be promoted to Lieutenant Colonel (Lt  Col),
effective 1 October 2003.  If the Board will  not  favorably  consider
his request for promotion to Lt Col then he would ask that his DOR  to
major be changed to 1 October 1996 enabling him to meet time in  grade
requirements and qualify him to meet a  Special  Selection  Board  for
promotion to Lt Col.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The leadership of the 186th Air Refueling Wing (ARW), Mississippi  Air
National Guard (MSANG), abused their rank and position for  their  own
personal gain and to  the  detriment  of  many  of  their  subordinate
officers.   Applicant  contends  the  officer  promotion  system   was
manipulated in order to effectively convince him that his career as an
Air Force officer was  over.   Their  actions  against  the  applicant
directly resulted in him losing over three years pay with the loss  of
associated participation points, stalled his career  advancement,  and
delayed his promotions which directly affect his retirement  pay.   He
was on track to assume future leadership roles in his squadron  before
he was illegally coerced to accept an early retirement.   He  was  not
planning on retiring from the MSANG at that time nor was he willing to
voluntarily resign.  As he felt his immediate commanders had no one in
authority over them who was willing to help him, he  felt  he  had  no
choice but to accept their offer of a voluntary early retirement.

An  Inspector  General  (IG)  investigation  concluded  in  2003  that
applicant’s career had been negatively affected by the actions of  Col
“W” who had, in violation of  Air  Force  Instruction  (AFI)  36-2406,
OFFICER  AND  ENLISTED  EVALUATION  SYSTEMS,   ordered   two   officer
performance reports (OPR’s) on the applicant for  the  same  reporting
period.  The IG report substantiated the allegation that the commander
had abused his authority by manipulating the Officer Evaluation System
(OES) to coerce the applicant to resign.

Applicant contends that had this IG investigation been  conducted  six
years earlier, he is convinced he  would  still  be  flying  with  the
MSANG.  Further, he contends that he would have been promoted to major
in 1996 and to Lt Col sometime in 2001  or  2002.   He  notes  the  IG
investigation forced those involved to resign,  but  not  until  after
they had all ensured promotions to colonel.  He did nothing wrong, yet
he was the one who paid the price by being denied fair opportunity for
promotion, loss of pay, and future retirement benefits.

In support of his  appeal,  the  applicant  has  provided  a  personal
statement, copies of the IG  investigation  case  S6226P,  letters  of
support from his former  squadron  commander  and  his  former  flight
commander, and copies of his OPR’s from December 1989  through  August
2002.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant was a member of the MSANG  from  December  1989  through
January 1997 and he has been a member of the Air Force Reserve (AFRES)
since August 2000.  He served as a pilot with the MSANG until  he  was
involuntarily separated and  accepted  early  retirement  through  the
Reserve Transition Assistance  Program  (RTAP)  effective  24  January
1997.  He was retired as a captain with over 15 years of service.   On
2 August 2000 he joined the Air Force Reserve  as  a  pilot.   He  was
promoted to the Reserve grade of major  on  1  October  2003.   He  is
currently serving in the grade of major.

_________________________________________________________________

AIR FORCE EVALUATION:

ANG/DPP recommends  partial  relief.   They  recommend  the  applicant
receive back pay, allowances, and retirement points for the period  22
January 1997 to 2 August 2000.  His request to backdate his  promotion
to major and promote him to  Lt  Col  is  simply  too  speculative  to
consider granting.  DPP notes conflicting accounts of his  performance
included in the IG ROI and states his promotion to major could not  be
assumed with any degree of certainty and that he would be promoted  to
Lt Col would be even more uncertain.  While his OPR’s and letter’s  of
support from his former commanders reflect favorably on the applicant,
the IG report does not.  DPP relies on the National Guard Bureau (NGB)
IG’s Technical review of the Command Directed Investigation (CDI) from
the MS Adjutant General dated 20 March 1997.

DPP’s complete evaluation, with attachments, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant disagrees with the advisory  opinion  and  concludes  it  is
flawed because it relies on the AF IG’s investigation of Col  “W”  and
the legality of two OPR’s (written for the same reporting period), one
of which the applicant was supposed to choose.  The IG’s investigation
was not obligated to determine the validity of Col “W’s” claims of the
applicant’s  performance  but  whether  or  not  Col  “W”  abused  his
authority by ordering  that  the  two  OPR’s  be  written.   Applicant
disputes the advisories’ claim that to grant him a promotion was  “too
speculative” citing conflicting information on his performance  during
his tenure  in  the  unit.   Applicant  counters  that  he  built  his
application package in accordance  with  Air  Force  instructions  and
included requisite statements from his rater and additional rater that
should dispel any conclusion that it is “too speculative” to  consider
that he would have been promoted.

Applicant provides documentation from Dilley v. Alexander, the  United
States Court of Appeals, District of  Columbia  Circuit,  wherein  his
claim is addressed.

Applicant states there is nothing in his record that would indicate he
would not have been promoted to major on time and that he  would  have
been promoted to Lt Col had Col “W” acted appropriately and  evaluated
his performance in accordance with prescribed instructions.   Even  in
the “bad” OPR (one of the two), there are  no  statements  that  would
even qualify the OPR as a referral.  Applicant contends the real truth
is that there never was a basis in fact for  any  of  the  allegations
included in the “bad” OPR.  While Col “W” may have felt the  applicant
did not meet his  standards  of  character,  judgment,  or  integrity,
applicant claims the only standard he was obligated to meet  was  that
of the Air Force.

Through the  illegal  actions  of  Col  “W”,  applicant  never  met  a
promotion Board from 1996 through 2002.  He states he should have  met
a promotion Board in 1996.  Applicant contends he spent more time as a
captain than anyone else in  his  unit  and  that  all  captains  were
promoted to major prior to their mandatory promotion date.   It  is  a
stretch of the imagination to believe he would not have been  promoted
before October 2002.  He  states  he  was  targeted  with  involuntary
termination as a result of his voicing concerns over safety issues  to
squadron and group leadership that were ignored.

After his dismissal from the MSANG, a Command Directed  Inquiry  (CDI)
also  investigated  and  found  that  charges  for  falsification   of
documents,  making  false   official   statements   to   congressional
inquiries, cheating on skill-level upgrade and  professional  military
education class tests, and condoning racial discrimination were indeed
substantiated.  Col “W” was dismissed from the MSANG as a result.  The
bottom line concerning applicant’s dismissal from the MSANG  was  that
it was an act of reprisal for him informing an  outside  agency  about
what was going on within his unit.

He asks the Board to consider that testimony from Col “W”  as  suspect
as  he  was  ultimately  dismissed  for  making  false  statements  to
investigators.  He asks that the Board consider the documented  record
of his performance included in his application instead.  He  questions
the advisory opinion’s judgment  that  it  was  “too  speculative”  to
consider he would have been  promoted  by  unit  vacancy  in  1996  by
considering that an airman who had performed admirably, been  extolled
in OPR’s, and been decorated  had  suddenly,  without  any  documented
negative information in his personnel file turned so bad, so fast.  He
notes he was promoted to major at the earliest  opportunity  after  he
joined the AFRES and believed the promotion was due in large  part  to
his accomplishments while at his former MSANG unit.

As part of his effort to  force  the  applicant  to  resign,  Col  “W”
threatened him with a checkride, which he welcomed, and passed with  a
grade of Q1.  He was also threatened with a  Flight  Evaluation  Board
(FEB).  He  believes  any  negative  statement  regarding  his  flying
performance to be a serious charge and takes offense that the advisory
opinion would even consider the charge without  any  further  research
into its validity.  He cannot  stand  by  and  have  his  professional
reputation tarnished by baseless allegations and,  as  a  result,  has
provided his entire flight record to the Board and notes the  FEB  was
never convened as threatened.  He notes his  flying  record  with  the
AFRES has remained spotless.

He states that in the event there is disagreement among the  Board  he
proposes a compromise that includes adjusting his DOR to  major  to  1
October 1996 that will enable him to meet time in  grade  requirements
for eligibility to meet Lt Col Special Selection Boards (SSB's).

Applicant’s response, with attachments, 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.  Sufficient relevant evidence has been presented to demonstrate the
existence of error  or  injustice.   In  this  respect,  we  note  the
following:

      a.  After reviewing the evidence submitted by the applicant  and
noting the findings of the  Air  Force/IG,  the  Mississippi  Adjutant
General’s  Command  Directed  Investigation  and  the  National  Guard
Bureau/IG, it is apparent that the applicant’s  commander  abused  his
authority and the applicant’s resignation of his  military  commission
was  the  result  of  coercion  and  not  voluntary.  Based  on  these
investigations, had the applicant not been separated,  he  would  have
continued to serve in the Air National Guard (ANG).  Since he was  not
allowed to serve, we believe that his record should  reflect  that  he
received the minimum credit for satisfactory years of service for  his
retirement/retention years 1996 through 2000.

      b.  Based on the circumstances of this case, we believe that his
request for an earlier promotion date to the grade of  major  warrants
favorable consideration.  While it can not be  conclusively  determine
if he would been promoted to the Reserve grade of major, based on  the
commander’s abuse of authority and a review of his overall record,  we
believe that he would  have  been  selected  for  a  position  vacancy
promotion in 1996.  In addition, we note  that  he  was  selected  and
promoted to the grade of major once he returned to the Air Force.   In
view of the above determination  and  in  an  effort  to  provide  the
applicant with appropriate relief, we recommend that  his  records  be
corrected to show that he was promoted to the Reserve grade  of  major
effective and with date of rank on 1 October 1996.
 
      c.  Under most circumstances, this Board believes the  promotion
selection process should address the decision regarding an applicant’s
prospects for promotion.   However,  there  are  instances  where  the
magnitude of the injustice is such that it can only be rectified by  a
Secretarial directed promotion.  We believe this is such a  case.   In
this respect, we believe that had the applicant been promoted to major
in 1996, he would have  to  have  been  considered  for  promotion  to
lieutenant colonel by the FY03 and FY04 Air Force Reserve Line and Non-
line Mandatory Lieutenant Colonel  Promotion  Selection  Board’s.   As
redress, the AFBCMR normally would have placed the applicant’s  record
before a Special Selection Board (SSB) for the  FY04  selection  board
and have the SSB compare his record with his contemporaries.  However,
recommending his consideration by an SSB  would  not  be  a  practical
approach since the applicant’s record would  not  be  competitive  for
promotion.  In this regard, we note that from 1996 to 2000, his record
will have only one performance report in the grade of major.  Based on
the above and in view of the damage caused by his commander’s abuse of
authority, we believe he should be promoted to the  Reserve  grade  of
lieutenant colonel by the FY03 Line and Non-line Mandatory  Lieutenant
Colonel Promotion Selection Board.  In arriving at our decision we are
keenly aware that the courts have held that correction boards have  an
abiding moral sanction to determine, insofar  as  possible,  the  true
nature of an alleged injustice and take steps to  grant  thorough  and
fitting relief.

4.  The applicant's case is adequately documented and it has not  been
shown  that  a  personal  appearance  with  or  without  counsel  will
materially  add  to  our  understanding  of  the  issue(s)   involved.
Therefore, the request for a hearing is not favorably considered.


THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT be corrected to show that:

            a.  He  was  promoted  to  the  Reserve  grade  of  major,
effective and with a date of rank of 1 October 1996.

            b. On 24 January 1997, he was not assigned to the  Retired
Reserve, rather, on that date  he  was  appointed  in  the  Air  Force
Reserve in the grade of major.

            c. During  the  retention/retirement  (R/R)  years  ending
9 November 1996 through 9 November 2000, he was awarded 15 paid active
duty points, 48 paid inactive duty points, and  15  membership  points
and the R/R years ending 9 November 1996 through 9 November  2000  are
years of satisfactory Federal service.

            d. He was considered and selected  for  promotion  to  the
Reserve grade of lieutenant colonel by the FY04 Air Force Reserve Line
and Non-Line Lieutenant Colonel Promotion  Selection  Board  and  upon
appointment by the President, and,  when  promoted,  he  be  given  an
appropriate effective and date of rank.

_____________________________________________________________   _

The following members of the  Board  considered  this  application  in
Executive Session on 15 July 2004, under the  provisions  of  AFI  36-
2603:

      Mr. David W. Mulgrew, Panel Chair
      Mr. James E. Short, Member
      Mr. Gary G. Sauner, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 3 Sep 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ANG/DPP, dated 5 Mar 04, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 28 May 04.
    Exhibit E.  Letter, Applicant, dated 26 Jun 04, w/atchs.




                                   DAVID W. MULGREW
                                   Panel Chair







AFBCMR BC-2003-03023



MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat 116), it is
directed that:

      The pertinent military records of the Department of the Air
Force relating to APPLICANT be corrected to show that:

            a.  He  was  promoted  to  the  Reserve  grade  of  major,
effective and with a date of rank of 1 October 1996.

            b. On 24 January 1997, he was not assigned to the  Retired
Reserve, rather, on that date  he  was  appointed  in  the  Air  Force
Reserve in the grade of major.

            c. During the retention/retirement (R/R) years ending
9 November 1996 through 9 November 2000, he was awarded 15 paid active
duty points, 48 paid inactive duty points, and 15 membership points
and the R/R years ending 9 November 1996 through 9 November 2000 are
years of satisfactory Federal service.

            d. He was considered and selected  for  promotion  to  the
Reserve grade of lieutenant colonel by the FY04 Air Force Reserve Line
and Non-Line Lieutenant Colonel Promotion  Selection  Board  and  upon
appointment by the President, and,  when  promoted,  he  be  given  an
appropriate effective and date of rank.





     JOE G. LINEBERGER

     Director

     Air Force Review Boards Agency