RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-01936
            INDEX CODE:  115.02

            COUNSEL:

            HEARING DESIRED: NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be returned to aviation service as a  pilot  and/or  navigator  and
that his nonjudicial punishment action be removed from his record, or,
at the very least, he receive a rehearing.

_________________________________________________________________

APPLICANT CONTENDS THAT:

With regard to nonjudicial punishment (NJP) he received and the Flying
Evaluation Board (FEB) he underwent:

      1. The justification for the FEB was flawed.  He was erroneously
and unjustly disqualified from aviation service by  an  FEB  that  was
both procedurally and substantively defective.  The memorandum used to
notify an applicant of an impending FEB is  supposed  to  present  the
exact reasons why the applicant is meeting the FEB.  He  contends  the
reasons for the FEB were unclear to the point they hindered  him  from
building a sufficient defense, made it difficult for him to ensure his
right of due process, allowed irrelevant evidence to be  presented  to
the Board and negatively influenced the factual findings of the Board.
 Additionally, the legally  insufficient  memorandum  of  notification
allowed the Board to consider removing him from navigator  service  as
well as pilot service.  As a result, the  FEB  improperly  recommended
his disqualification from aviation service as a navigator.   The  fact
the Board was to consider his continued navigator service was not part
of the memorandum.  Another effect of the memorandum  of  notification
was  that  while  trying  to  build  a  defense   against   unspecific
allegations, the memorandum was unclear on the specific violations  of
aviation instructions he  allegedly  committed.   Again,  due  to  the
ambiguousness of the memorandum, evidence from previous incidents were
allowed but were unspecified in the memorandum thereby disallowing him
the opportunity to address the exact  allegations.   He  contends  the
memorandum of notification was legally insufficient as it put him at a
prejudicial disadvantage when building a defense.  A further result of
the memorandum was to confuse Board members as it allowed uncontrolled
development of improper and extraneous evidence leading to the Board’s
inconsistent and contrary findings.

      2. He was deprived of his  fundamental  right  to  counsel.   He
contends he asked for  an  Area  Defense  Counsel  (ADC)  due  to  the
seriousness of the FEB and his assigned  military  counsel’s  lack  of
familiarity with the  proceedings.   In  deed,  his  assigned  counsel
ultimately had to be ordered to represent him.  His request for an ADC
was turned down by a group of senior management consisting of the  FEB
Senior Board Member (SBM), the FEB Legal Advisor (LA) and the NY State
Staff Judge Advocate – some of which  were  in  his  counsel’s  rating
chain.

While the memorandum of notification was clear that he was entitled to
military counsel, Air Force Instruction (AFI)  11-402  states  he  may
request military counsel of his own choosing  realizing  the  military
counselor’s  commander  determines  availability.   Instead,  he   was
assigned military counsel who was not an ADC, nor was  he  a  military
defense counsel.  He was actually  the  Deputy  Staff  Judge  Advocate
(DSJA) for the 109th Airlift Wing and as such, presented  an  inherent
conflict of interest in representing his  best  interests  before  the
FEB. At a minimum, he should have been assigned counsel  from  another
unit within the NYANG, experienced, but perhaps one who did  not  have
to temper his overzealous representation in order to  not  damage  his
standing in the unit.

      3. Improper evidence was considered by  the  FEB.   The  minutes
from his previous Review and Certification Board (R&CB) were  provided
to the FEB and he feels there was no reason the  minutes  should  have
been included as evidence.  In fact, by including  the  R&CB  minutes,
the FEB Recorder was in effect sending the  FEB  a  signal  indicating
their responsibility was only to rubber stamp the R&CB  findings.   He
was not present at the  R&CB  hearing  and  therefore  feels  the  FEB
consulted  evidence  of  a  completely  irrelevant  nature  and  built
opinions tainted by the R&CB findings and not evidence surrounding his
case.  The R&CB minutes are irrelevant opinions of those  members  and
should not have been considered by the FEB.

      4. His rights were violated by the introduction to  the  FEB  of
the NJP administered to him.  He contends, as with the introduction of
the R&CB findings, that the FEB received an implicit message from  the
strong language of  the  reprimand  that  prejudiced  his  case.   The
inclusion of the NJB to the FEB should  not  have  been  entered  into
evidence as it undoubtedly implied to the  FEB  that  he  was  someone
deserving of harsh treatment and perhaps as a bad person.  He contends
the NJP itself violated  his  rights  as  the  administration  of  the
punishment was contrary to the requirements of New York State Military
Law which maintains no person subject to  said  code  may  compel  any
person to answer any question which  may  tend  to  be  incriminating.
Accordingly, no questioning of an accused may take place unless he  is
appropriately advised of his rights.  On 3 March 2003, he underwent an
interview described to him as “fact finding in nature”  and  that  any
information gathered would be used by the squadron commander to  piece
together the events of the evening in question, determine a course  of
action, and that the  information  gathered  could  not  be  used  for
judicial punishment.  He was  not  read  his  rights  prior  to  being
questioned about the events that formed the basis  for  his  NJP.   He
contends the NJP should be removed from his record and the FEB  should
be overturned because it relied  so  heavily  on  the  record  of  the
illegal NJP.  He deems it highly  improper  that  all  the  statements
gathered in anticipation of the NJP proceedings were lumped  into  one
exhibit for use by the FEB.

      5. The FEB members were exposed to unlawful  command  influence.
He contends the R&CB minutes and the highly charged statement  of  the
Chief of Staff (COS) were tantamount to impermissible unlawful command
influence  on  the  FEB.   To  further  exacerbate  unlawful   command
influence, the FEB convening authority paid a visit  to  the  FEB  and
imparted his point of view to the members on how they  should  conduct
themselves while carrying out their Board duties.  While there  is  no
verbatim transcript of what the convening authority said,  or  how  he
said it, he is left to speculate whether or not the FEB was improperly
influenced by the comments of the convening authority.   He  asks  the
AFBCMR to not condone the appearance of impropriety in this regard  as
the stakes are so high regarding his career.

      6. The FEB  was  unfair  in  that  a  critical  witness  on  the
notification memorandum was not called to testify.  Applicant contends
had he known the Board would not call the witness he would have  taken
action to secure his  testimony  himself.   He  contends  the  Board’s
failure to call this witness is in clear violation of AFI 11-402  that
maintains the Board should consider all available evidence.  He  notes
the witness did provide a cryptic statement of the critical facts from
his point of view but the Board paid little attention to it.  He urges
the AFBCMR to consider the statement of the witness  who  acknowledges
he returned to the base several hours before the planned show time and
also stated that aside from the argument with an enlisted  crewmember,
he acted and appeared normal.  He notes this witness was the  aircraft
commander on the scene at the time and an  instructor/evaluator  pilot
trained to specifically assess the training and performance  of  other
pilots.  He is also a medical professional  adept  at  evaluating  the
physiological aspects of another pilot’s ability to fly.  The  witness
described him as doing all the  usual  functions  at  base  operations
without difficulty or prompting.  The  witness  also  stated  all  his
briefings were normal, timely, and that he “showed  no  difficulties”.
Perhaps more importantly, the witness stated if  he  felt  anyone  was
impaired the aircraft would not have left  Florida.   He  states  this
witness’s testimony as the most important evidence in his  case.   The
fact he was listed on the notification memorandum as a witness but was
not called by the Board Recorder  undermined  the  legitimacy  of  the
FEB’s findings in that the Board  did  not  have  the  opportunity  to
consider the most meaningful evidence available.  It is  notable  that
the Board recorder didn’t even  point  out  the  availability  of  the
witness’s statement.  The Recorder also  tried  to  keep  out  of  the
record his favorable Officer Performance Reports (OPR’s).

      7. The FEB had great  difficulty  in  arriving  at  their  final
decision due to the deficient notification memorandum.  The memorandum
left the FEB to fend for themselves in terms  of  what  they  were  to
determine just as he was forced to defend against  vague  and  unclear
allegations.   The  Board’s  conclusion  he  demonstrated  a  lack  of
judgment in performing rated duties regarding the Greenland mission in
1999 must be wholly disregarded because  the  notification  memorandum
only alleged violations that occurred on 25 January 2003 and no  other
dates.  He notes the Board procedurally failed to add further  alleged
violations and as such, the Board should not have considered them.  He
contends he was only a passenger on  the  Greenland  mission  and  the
evidence presented did not establish he had any  crew  duty.   Another
allegation  the  FEB  considered  in  error   was   the   finding   he
intentionally  operated  a  C-130  aircraft  on  26 January  2003   by
consuming several alcoholic beverages within  12  hours  of  scheduled
takeoff.  The FEB considered this  allegation  under  the  purview  of
certain paragraphs of AFI 11-202 and AFI 11-2C-130.  The Board used  a
paragraph of AFI 11-202 that was  not  included  on  the  notification
memorandum in order to help justify their findings.  He notes the  FEB
again procedurally failed to add the paragraph used in their  findings
to the notification memorandum and as such, the FEB  should  not  have
considered the allegation.  The FEB’s findings that he violated a duty
to remove himself from flight crew duties is flawed in that there  was
no development or discussion of any such duty during the course of the
FEB.   There  was  however,  evidence  in  the  aircraft   commander’s
statement he  was  not  impaired.   Even  so,  the  FEB’s  finding  he
intentionally violated that duty by intentionally flying a C-130 falls
under AFI 11-402, paragraph 4.3.6 covering intentional  violations  of
aviation instructions or procedures and not under the FEB’s  reference
of paragraph 4.3.4, addressing lack of judgment.  Notwithstanding  the
FEB’s use of the same fact pattern  to  find  violations  of  separate
basis’ for the FEB,  there  is  no  proof  whatsoever  he  desired  or
intended to actually violate aviation instructions or procedures.   He
submits he may have intentionally drunk alcohol but his intent was not
focused on a violation of aviation instructions or procedures.

      8. The FEB was legally insufficient and generally  unfair.   The
FEB was forced to operate without the  roadmap  a  properly  conceived
notification memorandum would have given them.  The Recorder  left  it
to the FEB to figure out “the exact reasons” for the FEB and  the  FEB
was just as confused as he was about the proceedings.

In support of his  appeal,  the  applicant  has  provided  a  personal
statement, a copy of the FEB transcript and 27 additional attachments.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant began his military career in the West Virginia Air  National
Guard (WVANG) as an enlisted airman from 9 March 1990 to 28  September
1994 where he attained the grade of staff sergeant.   He  applied  for
navigator school, was accepted and, was appointed in the  WVANG  as  a
second lieutenant effective 29 September 1994.  He attended  navigator
training from  1  October  1994  to  30  May  1996.   He  successfully
completed the training and returned to WVANG where he  was  eventually
promoted to the grade of first lieutenant effective 4  February  1997.
On 26 August 1997, he joined the New York ANG (NYANG).   During  1998,
while on a mission to Pago Pago, he was involved in an  incident  with
an enlisted  crewmate  wherein  a  physical  altercation  took  place.
Alcohol was determined to be a factor and he was verbally counseled on
his behavior.  In 1999, while on a mission to Greenland, he was tasked
to perform Supervisor of Flying (SOF) duties.  He received a letter of
counseling (LOC) from his commander  while  on  that  mission  as  the
commander felt he did not seem fit for duty.  He attended a party  the
night before his SOF duty and violated crew  rest  requirements.   His
commander also noted smelling alcohol on  his  breath.   The  LOC  was
primarily issued as a wakeup call to the applicant as he  was  leaving
for pilot training shortly and his commander wanted him to realize the
importance of pilot training and the ramifications of any bad behavior
while in training.

On 5 October 2000, he was promoted to the Reserve  grade  of  captain.
He completed pilot training and was awarded a pilot rating on  13 July
2001.  He then began service with the NYANG as a C-130 co-pilot.

On 26 January 2003, while on a  mission  to  Eglin  AFB,  Florida,  he
willfully violated flying regulations  in  that  he  consumed  alcohol
inside  the  12-hour  allowable  window   and   violated   crew   rest
requirements.  On 13 March 2003,  a  Review  and  Certification  (R&C)
Board met to review his failure to maintain the professional standards
of a rated Air Force officer.  The Board  voted  unanimously  that  he
meet an FEB.  On 6 June 2003, he received NJP that consisted of a fine
of $200 and a reprimand.  He did not appeal the NJP.  On 26 through 28
August 2003, he underwent an FEB wherein the  following  findings  and
recommendations were made:

With respect to the specifications brought under Air Force Instruction
(AFI) 11-402:

      1. The Board found the applicant did not lack rated  proficiency
but did lack judgment in performing rated duties in that:

            a. In 1999, he reported for a Greenland  deployment  unfit
for duty with insufficient crew rest and smelling of alcohol.

            b. In January 2003,  he  intentionally  operated  a  C-130
aircraft in violation  of  several  flying  regulations  by  consuming
several alcoholic beverages within 12 hours of scheduled takeoff.

            c. He  did  not  inform  the  aircraft  commander  of  his
physiological condition that impaired his ability  to  safely  conduct
aircrew related duties and he made no attempt to remove  himself  from
the flight.

       2.  He  committed  an   intentional   violation   of   aviation
instructions or procedures in that:

            a. He consumed several alcoholic beverages near Eglin AFB,
FL, within 12 hours of scheduled takeoff on the  night  of  25 January
and early morning of 26 January 2003.

      3. He does not  exhibit  traits  of  character  and  personality
characteristics that make it undesirable  to  continue  using  him  in
flying duties.

The Board recommended that he be disqualified in the  rated  specialty
of pilot; that he be disqualified in the rated specialty of navigator;
and that he not be prohibited from wearing the  aviation  badge.   The
Board felt he could still be a valuable ANG and  Air  Force  asset  as
long as he was not in a rated specialty.

_________________________________________________________________

AIR FORCE EVALUATION:

ANG/DPFOC recommends denial.  DPFOC addresses his contentions  in  the
following order:

      1. Regarding the Notice of Reasons, the FEB follows a semiformal
non-adversarial procedure wherein it  discusses  all  the  information
relevant to an officer’s  rated  and  professional  qualifications  to
include his flight history.  He is entitled to a written  notification
of the time, place, and reason(s) for the FEB.  DPFOC  contends  while
the applicant  alleges  the  specific  process  as  being  unfair  and
confusing to both him and  the  FEB,  the  FEB  Recorder,  during  the
proceedings, explained the reasons for the FEB and specifically  asked
for any questions.  Neither the applicant nor his counsel  raised  any
questions then or at other subsequent opportunities.

             a. In addressing his  widespread  allegations  about  the
reasons  in  the  FEB  notification,  DPFOC  states  the  notification
memorandum was specific and exact in stating the reasons for the  FEB.
Besides he or his counsel not asking  pertinent  questions  about  the
reasons for the Board  before  or  during  the  FEB,  DPFOC  logically
concludes both of them knew and understood the reasons for the FEB and
they were both prepared to  participate  in  the  proceedings.   DPFOC
contends the Board member’s are required to consider relevant evidence
and that the transcript contained no record they improperly considered
any extraneous material.  What the applicant cites as  Board  members’
confusion appears to be normal efforts of  a  Board  to  write  proper
findings and present recommendations.

             b. Regarding his contention the memorandum of reasons for
the FEB focused on his pilot  qualifications  and  not  his  navigator
qualifications, DPFOC cites an NGB/JA advisory opinion wherein  NGB/JA
states the applicant is correct that the reasons for the  FEB  in  the
notification and at the Board, focus on his pilot  qualifications  and
do not mention his navigator status.  However,  NGB/JA  contends  this
appears to  be  a  minor  administrative  oversight,  probably  caused
because FEBs  normally  only  deal  with  members  holding  one  rated
qualification  or  caused  by  people  focused  on  the  January  2003
incidents.  But the rules he violated apply to “crewmembers” and “crew
duties” and “aircrew members”.  What the FEB found improper for him as
a  pilot  would  also  be  considered  improper   for   a   navigator.
Additionally, NGB/JA notes FEB’s recommendations focus on an officer’s
potential for rated or aviation service and in situations  with  dual-
rated officers, the FEB is required to consider both ratings and  make
recommendations on both ratings.  Therefore, he fails to show evidence
of error  or  injustice  regarding  the  FEB’s  consideration  of  his
navigator  rating  and   in   fact   highlights   the   FEB’s   proper
accomplishment of its duties.

      2. Regarding his right to counsel, DPFOC contends  there  is  no
right to specific type of counsel such as ADC and typically a by  name
request for counsel is considered  and  decided  by  the  Staff  Judge
Advocate (SJA) as to the availability of  the  counsel.   He  has  not
shown any instances where his counsel was deficient nor has  he  cited
any examples of why he should not have been represented by the  Deputy
Staff Judge Advocate.

             a. DPFOC explains several years ago, the Air Force  began
the ADC program at active duty bases in an attempt to provide  counsel
some independence from local JAGs and base commanders.   However,  the
ADC program has not been  adopted  by  the  NYANG  nor  several  other
services and components.  The lack of an ADC does  not  mean  military
counsel is automatically biased or has a conflict of interest.  He did
not ask for a specific military counsel, but for a  specific  type  of
counsel (ADC) not available in the NYANG.   He  could  have  requested
specific military counsel by name or civilian counsel at his  expense.
He did neither and DPFOC notes he never asked for his military counsel
to be replaced nor did he object to his representation.   His  counsel
made an effective defense  by  cross  examining  witnesses,  providing
documentary and testimonial evidence and made a good closing argument.
 An unfavorable outcome for the applicant is not evidence his  counsel
was deficient.

      3. Regarding his allegation that  the  FEB  considered  improper
evidence, DPFOC states the NJP  and  R&CB  evidence  were  proper  and
relevant to show the procedural standing of the  case.   According  to
AFI 11-402, the FEB should review in a fair and impartial  manner  all
information  relevant  to  an  officer’s   case   including   previous
statements, records, documents and reports of Faculty  Boards.   DPFOC
notes neither the applicant nor counsel objected to this  evidence  at
its presentation.  Further, there is no evidence  the  FEB  failed  to
fully and fairly consider all of the facts to reach their decision.

      4. Regarding his contention his NJP violated his rights  because
he was not properly advised of his rights prior to giving a statement,
DPFOC notes while he wrote two letters of concern regarding the NJP he
never  appealed  the  NJP.   However,   because   the   NJP   was   an
administrative action taken under NY Military Law and not the  Uniform
Code of Military Justice  (UCMJ),  he  had  no  right  to  refuse  the
punishment or demand trial by court martial.   The  fact  he  was  not
advised of his rights under Article 31 of the NY  Military  Law,  only
means the statement could not be used in an effort against  him  in  a
court  martial.   However,  his  statement  could  and  was  used  for
administrative purposes such as an FEB.   Regardless,  DPFOC  contends
even  without  the  statement,  there  were  numerous  other   witness
statements about his drinking and lack of crew rest to justify NJP and
an FEB.  He has not shown any injustice or material error relating  to
the administration of the NJP and the failure to  receive  his  rights
under New York Military Law.

      5. Regarding his allegation the R&CB, NJP, and a  visit  by  the
convening authority to the FEB  were  impermissible  unlawful  command
influence on his FEB, DPFOC contends there is no evidence of  unlawful
command influence and presents the following two key reasons  for  its
statement:

              a.  The  applicant  was  involved   in   alcohol-related
misconduct three times over a five-year period.  Other than a visit to
a doctor prior to the FEB, he presented no evidence of any attempt  to
rehabilitate himself.   His  misconduct  violated  some  of  the  most
important and basic rules of aviation and in so doing risked  his  and
the lives of many others.   DPFOC  is  of  the  opinion  that  command
influence would not be a factor in any FEB deciding this case  as  the
amount of evidence and the repeated misconduct  would  probably  cause
any aviation board to remove him from flying.

             b. An FEB makes findings and recommendations but  is  not
considered the final authority  on  the  recommendations.   An  entire
command chain reviews the findings and  recommendations  and  has  the
opportunity to concur or nonconcur.  Additionally, the  case  receives
comments and recommendations from the convening authority and receives
a legal review.  Finally, the Director of the Air National  Guard  has
the final decision authority.  In this case,  on  7  April  2004,  the
Director of the Air National Guard concurred with the  FEB’s  findings
and on 30 April 2004, the Air Force  published  an  order  permanently
disqualifying the applicant from aviation service but allowed  him  to
continue wearing the pilot badge.  DPFOC logically concludes there  is
no reason for anyone in  the  chain  of  command  to  do  anything  to
pressure an FEB for a decision either  way  as  the  entire  chain  of
command has the opportunity to concur or not  concur.   The  applicant
has not established material error or injustice  related  to  unlawful
command influence.

      6. Regarding  his  contention  of  a  missing  witness  and  the
importance of his testimony, DPFOC states he had  the  opportunity  to
present favorable evidence about his flying capabilities and potential
for future rated service.  He did so with testimonial and  documentary
evidence.  His decision not to call the witness in question appears to
be a strategic decision in a legal hearing.  Perhaps the  witness  was
unavailable, or the email testimony from the witness contained all the
favorable evidence he needed without allowing the FEB the  opportunity
for potentially damaging cross-examination.  Regardless, he  presented
the emailed testimony of the witness to the FEB and DPFOC notes he was
at least partly responsible for calling or not  calling  his  witness.
The applicant’s assumption that this witness could cause  the  FEB  to
make different findings given his own admission of  repeated  alcohol-
related and crew rest misconduct would be  wildly  optimistic.   DPFOC
indicates he has not met his burden of showing there was any  material
error or injustice in the lack of this witness’ live testimony.

      7. Regarding his contention the FEBs findings were  contrary  to
the notification of reasons, and the FEB should  not  have  considered
his previous incidents, DPFOC  states  the  applicant  appears  to  be
constructing a complex legal argument that he is innocent because of a
perceived technicality.

             a. While he is correct the notification  of  reasons  and
FEB findings cite different paragraphs, DPFOC  states  this  error  is
nothing more that a typographical error in  the  notification  letter.
The letter referenced AFI 11-202V3, paragraph 9.9.3.4 which  does  not
exist.  It appears the  letter  of  notification  meant  to  reference
paragraph 9.8.3.4 which prohibits aircrew members from  flying  within
12 hours of consuming  alcohol  or  while  impaired  by  its  effects.
However, the same letter of notification  does  cite  paragraph  3.3.2
which  prohibits  crew  members  from  performing  crew  duties  after
consuming alcohol within 12  hours  of  take-off  or  when  under  the
influence of alcohol.  Thus he  was  not  adversely  affected  by  the
typographical error  as  he  was  put  on  notice  the  FEB  would  be
considering the 12-hour rule under paragraph 3.3.2.

             b. His argument the FEB should not  have  considered  the
1999 incident on the Greenland mission is without merit  as  both  the
January 2003 and the 1999 incident were certainly similar and relevant
to one another.  The FEB was charged  with  looking  at  all  relevant
evidence.  While he states he  was  not  on  duty  that  day,  he  was
scheduled for duty the next day.  Regardless, this  appears  to  be  a
factual matter that should have been addressed at the FEB hearing.

             c. He argues that the FEB  findings  and  recommendations
are strained and difficult to understand.  Contrary to the applicant’s
argument, DPFOC states based on the evidence provided to the FEB,  the
findings and recommendations are both logical  and  supported  by  the
facts.  DPFOC states he has not met his burden of showing there is any
material error or injustice that requires correction.

      8. Regarding his contention of overall unfairness and order  for
rehearing, DPFOC states he has not shown the FEB was unfair.   Rather,
he does not understand the most  important  question  in  this  entire
process: whether or not he is safe  or  fit  to  fly.   Based  on  the
evidence provided, the R&CB, and the FEB,  the  Director  of  the  Air
National Guard found that he is not.  The FEB hearing process is a way
to build the record with the facts of the case.  It is the applicant’s
chance to present any  evidence  he  feels  relevant.   After  careful
consideration of the more than 400 pages of documentation and a  legal
review provided by NGB/JA, no material errors or injustices were found
in his case.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant’s counsel states DPFOC’s advisory is  highly  irregular  and
improper in that it begins the advisory opinion with misstatements  of
fact, gratuitous and self-serving  conclusions,  and  matters  not  of
record in this case.  Counsel argues the DPFOC  advisory’s  mentioning
of three separate incidences of misconduct, one in 1998, one in  1999,
and the incident that caused the FEB in 2003.  Counsel  questions  why
DPFOC would write their advisory and base so much of their opinion  on
three instances of misconduct when the FEB obviously  recognized  only
two incidences: 1999 and 2003.  He asks the Board to disregard DPFOC’s
mention of the 1998 incident as not relevant, material, meaningful, or
helpful in determining the issues the  applicant  has  raised  in  his
application.   Counsel  asks  the  Board  to  recognize   that   DPFOC
acknowledges  the  alleged  1999  incident  as  being  impossible  and
impracticable to fix now, yet offers the  incident  to  the  Board  as
though there were no discrepancies, seeking to  influence  the  Boards
decision with unreliable and  admittedly  disputed  information.   The
discrepancy of the 1999 incident being that no evidence was  developed
or offered to the FEB that the applicant was able to perform his  duty
on that deployment due to alcohol consumption.  In fact, he was only a
passenger on the plane at the time and his deployment duties  did  not
begin until the next day.  DPFOC seeks to  place  the  burden  on  the
applicant to correct the Recorder’s misleading evidence and  now  asks
the Board to ignore the full truth of the alleged incident.

The DPFOC characterization of the applicant’s landing on completion of
the mission as problematic is in direct contradiction to the  aircraft
commander’s description of  the  landing  wherein  he  stated  weather
conditions as the factor that would make the landing difficult for any
pilot.  Additionally, the  aircraft  commander  saw  no  influence  of
alcohol on the applicant’s flight performance that day.  Counsel  asks
the Board to discount DPFOC’s background information as unreliable and
an affront to the Board’s purpose.

Counsel reiterates the notification memorandum’s overbroad  statements
that compromised the applicant’s attempt to either have to guess which
of the many alleged bases he needed to defend against or unnecessarily
spend time and energy preparing to respond to all the  various  bases.
It is incomprehensible to counsel that DPFOC considers that there  was
no  extraneous  material  considered  by  the  FEB  when   applicant’s
strongest complaint is that the record  is  replete  with  extraneous,
immaterial, irrelevant, and highly prejudicial material.

While DPFOC admits to the applicant not  being  aware  the  FEB  would
consider removing his qualification  as  a  navigator,  they  seek  to
minimize this glaring error  by  calling  it  a  minor  administrative
oversight and then providing speculation as to why the error  occurred
in the first place.  The conclusion presented is that if  he  was  not
qualified to be a pilot then  he  would  not  be  qualified  to  be  a
navigator.   Counsel  contends  this  self-serving   and   speculative
conclusion is not support by facts or any other basis.

Counsel reiterates applicant’s complaint that he did not  receive  the
type of counsel he requested.  The  fact  that  the  NYANG  and  other
components have not evolved to the point they can provide  independent
defense services is not the  fault  of  the  applicant.   No  apparent
effort  was  made  to  secure  him  a  genuinely   conflict-free   and
experienced defense counsel.  He was assigned  military  counsel,  but
one that obviously carried at least the appearance of  a  conflict  of
interest.  Counsel states the assigned counsel initially asked  to  be
removed from the case but was denied based on having mostly  Navy  JAG
experience and never having heard of  the  Air  Force’s  FEB  process.
Additionally, the assigned military counsel had been privy to a lot of
the build-up of this case through the NJP process.  At the very least,
an attempt should have been made  to  provide  military  counsel  from
another NYANG base.

DPFOC repeatedly argues that because the applicant or  counsel  raised
no objections to many of the proceedings  that  the  proceedings  were
legally sound.  Applicant was not in a position to make objections  as
he was a layperson and sat next  to  a  counsel.   Counsel  notes  the
assigned military counsel made many comments to the applicant that  he
didn’t want to upset the Board by “lawyering it up” too  much  thereby
leaving the applicant with the feeling he was not being  independently
and zealously represented.

Counsel states the admission of  R&CB  minutes  and  the  tainted  NJP
documents to  the  FEB  belie  DPFOC’s  contention  the  material  was
relevant material, showing how the case came to an FEB and showing the
procedural standing of the case.  That DPFOC suggests the FEB made  an
independent decision thereafter defies reality.

Counsel notes that DPFOC admits the applicant’s rights were  violated,
as he did not receive a rights warning prior to the NJP  but  suggests
that the evidence against the applicant was such  it  would  not  have
mattered if he had received a warning.  The applicant had a  statutory
right to receive a rights warning before making any statement.  He did
not receive one.

Counsel states  it  was  improper  for  the  Wing  Commander  to  make
unrecorded comments to the FEB and claims there is no support for  the
DPFOC statement that the chain of command  would  have  no  reason  to
influence the Board as they had concur or nonconcur  opportunities  of
the FEB findings and recommendations.

Counsel states the DPFOC’s blame of the applicant for  not  calling  a
special  witness  on  the  reason  memorandum  as   he   had   partial
responsibility to do as being  disingenuous  and  mean-spirited.   The
Recorder listed the special  witness  as  a  government  witness  thus
leaving a clear impression he was to be called.

Finally, counsel contends the applicant was abused by the process  and
procedure of this FEB.  Counsel notes AFI 11-402 wherein it is  stated
a rehearing is appropriate if any (emphasis counsel) review for  legal
sufficiency of this FEB determines there was prejudicial error to  the
substantial rights of the applicant that the Board, at the very  least
order a rehearing.

Counsel’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 the applicant has been  the  victim
of either an error or an  injustice.   His  numerous  allegations  are
noted, however, we believe that the detailed comments provided by  the
Air National Guard adequately  addressed  his  allegations.   After  a
detailed review of the evidence of record, we agree with the  opinions
and recommendation  of  the  Air  National  Guard  office  of  primary
responsibility and adopt its rationale as the basis for our conclusion
that the applicant has not been the victim of an error  or  injustice.
Therefore, in the absence of evidence to  the  contrary,  we  find  no
compelling basis to recommend  granting  the  relief  sought  in  this
application.
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-
2004-01936 in Executive  Session  on  27  September  2005,  under  the
provisions of AFI 36-2603:

      Mr. Michael J. Novel, Panel Chair
      Mr. Gregory A. Parker, Member
      Mr. Patrick C. Daugherty, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 1 Jun 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ANG/DPFOC, dated 16 May 05, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 29 Jul 05.
    Exhibit E.  Letter, Counsel, dated 24 Aug 05.




                                   MICHAEL J. NOVEL
                                   Panel Chair