RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-03338
            INDEX NUMBER:  111.00;107.00
      XXXXXXX    COUNSEL:  None

            HEARING DESIRED:  Yes


MANDATORY CASE COMPLETION DATE:  30 Apr 07


_________________________________________________________________

APPLICANT REQUESTS THAT:

The final line of Block VII,  Reviewer’s  Comments,  in  the  Enlisted
Performance Report (EPR) rendered on him for the period 2 May 04 to 12
Sep 04 be removed.

A Senior Rater Indorsement be included on the EPR closing 12 Sep 04.

He be awarded the Meritorious Service Medal  (MSM),  Fourth  Oak  Leaf
Cluster (4OLC) as an end of tour (EOT) award for the period 15 Jun  02
to 31 Mar 05.

He be made eligible and reinstated to the Central Command Chief Master
Sergeant Candidate List.

He be provided a written decision from the Secretary of the Air  Force
(SecAF) and Air Force Chief of Staff regarding the official conclusion
of his application for redress under  Article  138,  Uniform  Code  of
Military Justice (UCMJ).

He be reconsidered for the 45th Space Wing Command Chief position.

He receive consideration by special selection board (SSB) for the 2005
Command Chief Master Sergeant (CMSgt) Candidate Board.

It appears the applicant wants the EPR rendered on him for the  period
13 Sep 04 through 9 Jan 06 declared void and removed from his records.

Delete all duty history pertaining to his assignment at AF/DPXI.

Examiner’s  Note:   In  his  application  the  applicant  lists  seven
requests.  However, in some instances he had combined several requests
into one.  In the list above, each request is treated singularly.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The applicant submits his appeal  in  312  pages  divided  into  seven
sections, which he uses to discuss the reprisal  actions  he  believes
were taken against him or actions he took  to  seek  relief  from  the
alleged reprisal actions.  A summary of the content  of  each  section
follows:

        a.  Letter of Reprimand (LOR) for Using the Chain of  Command.
In this section the applicant discusses the LOR he received  from  his
commander, dated 13 Sep 04, which he contends was reprisal  for  using
his chain of command.   He  further  contends  the  LOR  was  used  as
justification to  remove  him  from  his  duty  position  of  Military
Personnel Flight Chief.  He states his commander also  recommended  he
be removed from the Air Force Central Command CMSgt Candidate listing.
 The applicant includes a copy of the LOR, his rebuttal  thereto,  and
the response of his Area Defense Counsel (ADC).

          b.  Application   for   Redress,    Grievance    Proceedings
Documentation for Complaints of Wrong Under Article 138 (UCMJ).   Here
the applicant discusses the application for redress  pursuant  to  the
provisions in AFI 51-904, Complaints  of  Wrongs  Under  Article  138,
UCMJ, he submitted on 28 Sep 04.  The applicant states that after  his
commander advised he was denying his redress application and would not
provide any documentation in writing to allow him to  proceed  to  the
next step, he forwarded with an e-mail the LOR, his  rebuttal  letter,
the letter prepared by his  ADC,  and  a  copy  of  an  email  showing
improper solicitation by the Wing Command CMSgt to the  Commander,  HQ
PACAF.   The  applicant  provides  copies  of  the  emails  and  other
correspondence related to his complaint.  He notes that  he  concluded
his e-mail correspondence  on  1  Nov  04  with  a  follow-up  to  the
Commander, HQ PACAF, and the PACAF Command Chief  Master  Sergeant  to
express his disappointment with how his situation was  being  handled,
as well as  his  concern  for  the  apathy  expressed  by  his  entire
leadership “through their  blatant  unresponsiveness  regarding  full,
fair, equitable and proper investigation and handling” of his case.

        c.  Presidential Inquiry Case  Documentation.   The  applicant
indicates he submitted a Presidential Inquiry request via e-mail on 30
Sep 04, which included all the attachments listed in sections a and  b
of his appeal to  this  Board  along  with  a  signed  narrative  that
substantiated and covered the sequence of events  regarding  the  many
reprisal  acts  against  him.   The  file  also  contained  additional
evidence of his official application to compete for job  vacancies  as
the 45th Space Wing’s Command Chief Master Sergeant and Air  Education
and Training Command’s Field Activities offices [sic].  The  applicant
states that the LOR given him by his squadron commander prevented  his
equitable  consideration  for  the  two  positions.    The   applicant
discusses in detail the sequence of events regarding his  Presidential
Inquiry and provides 16 attachments.

         d.  Official  DoD  Inspector  General  (IG)  Complaint.   The
applicant states he followed  up  the  Presidential  Inquiry  with  an
official DoD IG, and Fraud, Waste, and Abuse complaint  by  submitting
it directly via the  e-mail  hotline.   The  applicant  discusses  the
documentation submitted with this complaint.  The applicant submits 30
attachments in this section and discusses how all of  the  actions  he
submitted were handled and notes that after  almost  eight  months  of
documentation  and  evidence  gathering  of  nearly   300   pages   of
documentation and pertinent evidence, with no apparent  signs  of  any
witnesses being questioned or interviewed, the personnel actions facts
he  presented  were   deemed   unworthy   of   further,   higher-level
investigation.  He was presented with a recommendation to have matters
considered by the AFBCMR.

        e.  Evaluation Reprisal Action Documentation.   The  applicant
discusses the events leading to the  contested  EPR  rendered  on  him
closing 12 Sep 04.  The applicant notes that although there were other
individuals that should have had a performance report  rendered  based
on the circumstances under which he received a report, he was the only
one singled out to receive a performance report.  The applicant states
that he took exception to the report as noted in his requested changes
above.  The applicant notes that he had a report closing  out  only  a
few months earlier where he  had  received  glowing  comments  with  a
senior rater indorsement and recommendation for assignment as  a  wing
command CMSgt in his next  assignment.   The  applicant  discusses  in
detail why the EPR being prepared on him at the time he submitted this
appeal should not become a matter of official record.  He  states  the
report covered a short tenure in a career  area  not  associated  with
anything he had done in his previous  23  years  of  service  and  the
report adds to the many unjust attempts at  ending  his  career  under
less than  favorable  conditions.   Examiner’s  Note:   The  next  OPR
prepared on the applicant to become a matter of  record  was  rendered
for the period 13 Sep 04 through 9 Jan 06.

        f.  Commander Directed/Initiated Reassignment Reprisal  Action
Documentation.  The applicant discusses the commander initiated action
to reassign him  prior  to  his  normal  Date  Estimated  Return  from
Overseas (DEROS).  The applicant provides 28  attachments  related  to
his involuntary reassignment.

        g.  No recommendation for MSM EOT Decoration Reprisal  Action.
The applicant discusses the fact he was not  recommended  for  an  EOT
award upon his reassignment from Kadena.  He states this  was  further
reprisal against him.  He indicates that a review of  his  EPRs  would
highlight the many contributions and achievements  he  made  and  that
they clearly warrant  an  award  of  an  MSM  (4OLC).   The  applicant
contrasts the accomplishments that led to his prior awards of the MSM.
  The applicant provides a total of five  attachments,  which  include
copies  of  his  previous  decorations  and  the  Recommendation   for
Decoration (DECOR6) provided for him to be submitted for an award.

        Addendum—Exhibit F, Commander Directed/Initiated  Reassignment
Reprisal Action.  The applicant provides additional  evidence  related
to his involuntary reassignment  action  consisting  of  a  five  page
statement with six attachments.  The applicant notes he  was  informed
he was not assigned against a valid position but had  been  reassigned
as an overage in a must move category that would not count against the
organization’s manning.  The applicant notes that on 21  Dec  05,  the
Chief’s  Group  advertised  three  3S000  Personnel  Resource  Manager
positions he was qualified to fill.   In  an  effort  to  be  assigned
against a valid position, he volunteer for  a  position  in  AF/XO  by
email.  However, immediately following his  volunteer  statement,  the
position was removed from the listing.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is serving on active duty in the  grade  of  CMSgt.   He
entered active duty in the Air Force on 22 Jul  82.   He  has  a  Date
Assigned Station of 15 Apr 05 and is assigned at the Pentagon  as  the
Superintendent, Systems Planning and Integration Division.   A  review
of his last 10 EPRs shows overall ratings of “5.”   However,  the  EPR
closing 12 Sep 04 is indorsed by the Senior Rater’s Deputy  while  the
previous report closing 1 May 04 was indorsed  by  the  Senior  Rater.
The EPR rendered after the contested report, closing 9 Jan 06 also has
a Senior Rater’s indorsement.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPR recommends denial of the applicant’s request for  award  of
the MSM, 4th  Oak  Leaf  Cluster.   Upon  a  thorough  search  of  the
applicant’s record, they cannot find any evidence he  was  recommended
for the requested decoration by his reporting official  with  approval
by the approval authority.  It is the recommending official’s decision
to determine whether a decoration recommendation will be submitted  in
accordance with AFI 36-2803, paragraph 1.7.1.  DPPPR notes that  since
the applicant is active duty, his request for award of  the  MSM,  4th
Oak Leaf Cluster should be sent to the recommending  official  through
official channels for approval or disapproval.

The complete evaluation is at Exhibit C.

AFPC/DPPP recommends denial of the applicant’s request  to  amend  the
EPR closing 12 Sep 04 by removing the final evaluator’s  last  comment
and to add a Senior Rater’s indorsement.  There  is  no  evidence  the
report was written in reprisal.   The  applicant  did  not  provide  a
report of investigation from the IG substantiating reprisal  and  that
the report was written unfairly.  The also note the applicant did  not
provide evidence as to why the report written  after  the  12  Sep  04
report should not be accomplished and filed in his record.  Examiner’s
Note:  Although the advisory references a report closing  12  Sep  05,
the next report filed in the applicant’s records closed 9 Jan 06.

The complete evaluation is at Exhibit D.

AF/DPE recommends denial of the applicant’s request to  be  reinstated
on the Command Chief (CCM) Candidate list.  DPE notes  that  based  on
the actions that led to the applicant receiving a letter of  reprimand
on  13  Sep  04,  the  wing  commander  recommended  removal  of   the
applicant’s name from the list, which was subsequent approved  by  the
PACAF commander.

DPE recommends denial of the applicant’s request  to  be  reconsidered
for the 45th Space Wing Command Chief position.  Under current  rules,
all command chief vacancies are advertised for candidates and  current
command chiefs completing their current tour of duty.  Since the  45th
Space Wing commander has already hired a CCM, there is no  avenue  for
reconsideration.  DPE also notes there are currently no provisions for
supplemental  consideration  in  the  CCM  screening  process  as  the
applicant has requested.

DPE also recommends denial of the applicant’s request  to  delete  his
current duty history as Superintendent, Plans and Resources,  AF/DPX1,
from his record and the personnel data system.  They note  that  after
the applicant was removed from his previous position, they were tasked
to reassign the applicant to a position that did  not  put  him  in  a
direct supervisory capacity.  AF/DPX1 was  identified  as  a  possible
option and after being contacted agreed to accept the applicant.

The complete evaluation is at Exhibit E.

AFPC/JA recommends denial of the applicant’s appeal as it  relates  to
the letter of reprimand he received and the Article 138 complaint.

After reviewing the circumstances related to the letter  of  reprimand
received by the applicant, they conclude the  commander’s  action  was
not an arbitrary or capricious action and that the applicant’s serious
misconduct, at the very least, deserved an LOR.

JA notes that a military member who believes he has  been  wronged  by
his commander may apply to that commander for redress, and if  redress
is denied, he may complain to any superior commissioned officer.  That
officer will then forward the  complaint  to  the  officer  exercising
general court-martial (GCM) jurisdiction over the commander who denied
redress.  The GCM commander will investigate the  complaint  and  take
measures for redressing the complaint, if appropriate.  The  applicant
states that his commander would not provide him any  documentation  in
writing, which  precluded  him  from  getting  the  complaint  to  GCM
authority  for  review.   The  applicant  then  sought  oversight  and
attention from the PACAF commander.  There is no evidence the GCM ever
acted on  the  applicant’s  case  or  even  received  the  applicant’s
complaint.  Both of the appropriate  level  Judge  Advocates  indicate
that no record of the complaint is in  their  files.   JA  notes  that
there is no reason for the Board to take action  on  the  Article  138
complaint because the AFBCMR has the power to  correct  any  error  or
injustice that may have  as  its  source  a  wrong  committed  by  the
applicant’s commander.

The complete evaluation is at Exhibit F.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded to the Air Force evaluations  in  a  six  page
statement with attachments.

Regarding the LOR he received and is contesting, the  applicant  asks,
rhetorically,  if  he  had  committed  the  serious   infractions   of
disrespecting a superior commissioned officer and disobeyed  a  direct
order, why wouldn’t nonjudicial punishment be offered and  imposed  to
correct/modify the egregious conduct.  Applicant again asks  could  it
be because his chain knew he’d challenge any offer for UCMJ Article 15
punishment and demand the issue be adjudicated before a military court
or is because the  offenses  he  was  charged  with  did  not  happen.
Applicant notes that as a result of the fictitious LOR he received, he
transitioned the attack on him into official UCMJ  channels  with  the
Article  138  redress  complaint  he  filed.   Applicant  opines   the
statement by AFPC/JA that neither HQ 5AF/JA nor HQ USAF/JAA  have  any
records of the 138 complaint he filed reflects a  direct  and  blatant
contradiction and violation of the spirit and intent  of  Article  138
proceedings as well as AFI 51-904, which clearly states on  the  cover
page “compliance with this publication is mandatory.”   The  applicant
summarizes  the  procedures  required  for  processing   Article   138
complaints and indicates “it is extremely disturbing”  for  him  as  a
profession of arms member serving in the senior most enlisted rank  to
learn that the armed forces would put such  a  structured  and  formal
process in place to police abuses of authority  as  exercised  in  his
case only to  have  “senior  commissioned  leader  authority”  figures
within his chain of command speculate and  assume  they  could  merely
brush off and disregard armed forces regulations,  mandates,  and  the
law by choosing to exercise avoidance after being “openly exposed  for
obvious reprisal and authority abuse infractions.

The applicant addresses his “inappropriate removal” from  the  Command
Chief Candidate list and illegal overseas Date of Expected Return from
Overseas (DEROS) curtailment and out of  cycle  reassignment  movement
from Kadena back to the CONUS.  The applicant opines that  if  he  had
not received the LOR, he would have been a  prime  candidate  for  the
Command Chief job at the 45th Space Wing.  The  applicant  notes  that
the Air Force OPR states the Air Force currently  has  no  avenue  for
reconsideration.  The applicant opines that given the reprisal  events
he has noted, he recommends such  a  mechanism  be  put  in  place  to
address lapses in  leadership.   The  applicant  also  opines  that  a
mechanism is needed to provide for special selection and  supplemental
consideration for reinstatement outside of the normal/standard  annual
operating procedures for improperly removed Command  Chief  candidates
and applicants.  The applicant notes he has volunteered to compete  as
a candidate for the 2006 Command Chief  screening  board,  but  he  is
still waiting on a decision on a senior rater recommendation given the
fact that performance-based documentation and decisions from the  unit
he experienced the reprisal are still a current and  present  part  of
his permanent performance record.

In  regards  to  the  curtailment  of  his  overseas  assignment,  the
applicant states  that  the  reasons  for  his  curtailment  were  not
elaborated on in the Air Force evaluations and  no  dialogue  provided
substantiating that the actions taken against him  were  for  “cause.”
Applicant notes that no response at all was provided to  his  Addendum
I, which provided evidence regarding his permanent reassignment  to  a
non-existent HQ  Air  Force  position.   The  applicant  recounts  the
actions he has taken to  rectify  the  wrongdoings  against  him.   It
appears the applicant is concerned that he continues to be assigned to
a “pseudo” non-existent billet  that  is  not  commensurate  with  his
grade, time, and experience in  service  and  has  not  been  able  to
ascertain why he was sent to the National Capital Region.

In support of his response to the  Air  Force  evaluations,  applicant
provides  a  copy  of  the  cover  page  of  AFI  51-904,  copies   of
documentation related to the CY06 Command Chief Screening Board, and a
copy of his EPR closing 9 Jan 06.

The applicant’s complete response, with attachments, is at Exhibit H.

_________________________________________________________________

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 regarding the relief  requested  by
the applicant.  However, a majority of  the  Board  believes  that  the
Letter of Reprimand (LOR) he was issued on 13 Sep 04 should be declared
void and removed from his records.  The Board majority  does  not  find
that the wording of the LOR or the available evidence of record make it
clear the  applicant  was  actually  given  an  order,  which  he  then
violated.  Although it  appears  the  LOR  was  never  placed  into  an
official UIF and is not a part of the applicant’s records, the majority
believes action should be taken to insure that any reference to or  any
unofficial copies of  the  LOR  are  removed.   To  leave  the  LOR  in
existence would constitute an injustice.

4.  In making the recommendation regarding the LOR above, the  majority
is aware the applicant may construe this as a basis  for  granting  the
relief he has requested since he asserts in his application all of  the
adverse actions taken against him started with this document.  However,
the complete Board is in agreement that the adverse actions suffered by
the applicant were not solely predicated on the incident  that  led  to
the LOR or the LOR itself.  In reaching this determination,  the  Board
notes the findings of the DoD IG and concurs with  their  determination
that the applicant was not reprised against.  From our  review  of  the
complete evidence of  record,  it  appears  the  applicant’s  chain  of
command had lost confidence in his ability to continue and serve in the
highly visible and responsible position he was assigned.

5.  The applicant asserts that one of the key acts  of  reprisal  taken
against  him  was  the  curtailment  of  his  overseas  assignment  and
subsequent reassignment to the Continental  United  States.   We  note,
with some irony, that in the documentation he  provided  the  applicant
states he informed his commander that it would be in the best  interest
of the squadron if he (applicant) were to seek  an  assignment  so  the
commander could get a chief into  the  squadron  he  could  effectively
communicate with.  Unfortunately, this statement as well as other parts
of the applicant’s appeal give  an  impression  to  this  Board  of  an
individual who may have been confrontational  or  uncompromising  to  a
fault when dealing with his  superiors.   At  any  rate,  we  note  the
curtailment of the applicant’s  assignment  processed  through  several
echelons before  final  approval  by  the  PACAF  commander,  whom  the
applicant previously worked for with glowing results, after  review  of
the  supporting  justification.   The  applicant  has   not   submitted
sufficient evidence to prove his assertion  that  the  action  was  not
justified.

5.  Although we do not find that the applicant  was  reprised  against,
we, nevertheless, carefully reviewed each of the requested  corrections
he has made.  Regarding the EPR closing 12 Sep 04,  the  applicant  has
not provided compelling evidence that this EPR is in error  and  should
be corrected.  The reference to adequate performance of duty appears to
be supported by the justification given for his removal from his duties
and assignment.  Additionally, the option to  provide  a  senior  rater
endorsement rests with the senior rater and it has not been shown  that
his decision to defer endorsing the applicant’s  report  was  arbitrary
and capricious.   We  would  also  apply  the  same  rationale  to  the
applicant’s request for award of the Meritorious Service  Medal  as  an
end-of-tour award.  In fact, it would be incongruous to present him  an
EOT award under the circumstances under  which  his  tour  ended.   The
applicant further requests he  be  reconsidered  for  a  command  chief
position he states he was competitive for,  he  be  reinstated  to  the
Central Command Chief Candidate list,  and  also  receive  supplemental
consideration for the CY05 Command Chief Screening Board.  Again, based
on our belief that his chain of command  had  lost  confidence  in  his
abilities, it logically follows they would not positively  indorse  him
to  potentially  fill  a  position  of   greater   responsibility   and
visibility.  At the time of this application, the  applicant  requested
we void an EPR not yet completed and a matter of record.  We have since
obtained a copy of the report, which closed 9 Jan 06.  Upon our  review
of this report we do not find a basis to grant his request.   It  would
appear the applicant wants to erase from history any references to  his
reassignment and relief from prior duties.   However,  we  believe  the
important consideration is  to  insure  that  any  report  rendered  is
accurate and fair.  As such, other than the circumstances  under  which
the report was rendered, the  applicant  has  not  identified  specific
errors or problems with the EPR.  If he still  wants  to  contest  this
report, we  recommend  he  pursue  the  normal  administrative  process
through the Evaluation Reports Appeal Board (ERAB) with specific errors
or problems identified.  We also do not  find  a  basis  to  grant  the
applicant’s request to delete all duty history regarding his assignment
to HQ AF/DPXI.

6.  Finally, we do not find a basis to grant the applicant’s request to
be provided a written request from  the  Secretary  of  the  Air  Force
(SecAF) and Air Force Chief of  Staff  regarding  his  application  for
redress under Article 138, Uniform Code of Military Justice.   Firstly,
the Chief of Staff of the Air Force is not tasked to respond to Article
138 complaints by the  governing  directive.   Secondly,  there  is  no
evidence to support that the Article 138 was processed up to the  SecAF
level thereby requiring a response.  It is not totally  clear  to  this
Board  where,  if  at  all,  the  Article  138   process   went   awry.
Nevertheless, we believe the applicant’s allegations have received full
and fair inquiry through  the  IG  process  and  have  been  thoroughly
reviewed by this Board.   Therefore,  a  majority  of  the  Board  only
recommends the applicant’s records be corrected to the extent reflected
in paragraph one above.

7.  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 RECOMMENDS THAT:

The pertinent military records of  the  Department  of  the  Air  Force
relating to  APPLICANT,  be  corrected  to  show  that  the  Letter  of
Reprimand (LOR) issued to him dated 13 September 2004 be declared  void
and removed from his records.

_______________________________________________________________

The following members of the Board considered Docket  Number  BC-2005--
03338 in Executive Session on 13 July 2006, under the provisions of AFI
36-2603:

      Mr. Richard A. Peterson, Panel Chair
      Ms. Josephine L. Davis, Member
      Ms. Jan Mulligan, Member

A majority of the members voted to correct the records, as recommended.
 Mr. Peterson voted to deny  the  application  in  its  entirety.   The
following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 24 Oct 05, w/atchs;
                 Addendum I submission, undated.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memo, AFPC/DPPPR, dated 12 Jan 06.
     Exhibit D.  Memo, AFPC/DPPP, dated 23 Jan 06.
     Exhibit E.  Memo, AFPC/DPE, dated 4 May 06.
     Exhibit F.  Memo, AFPC/JA, dated 5 Jun 06.
     Exhibit G.  Letter, SAF/MRBR, dated 9 Jun 06.
     Exhibit H.  Addendum II Advisory Response, Applicant,
                 undated.




                                   RICHARD A. PETERSON
                                   Panel Chair



AFBCMR BC-2005--03338




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 XXXXXXX, XXXXXXX, be corrected to show that the
Letter of Reprimand (LOR) issued to him dated 13 September 2004 be
declared void and removed from his records.






            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency