RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-03705
                       INDEX CODE:  110.00, 111.00,
      XXXXXXX          COUNSEL:  DAVID PRICE, Esq
                       HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  8 JUNE 2008

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  He be reinstated as a major in the Air Force.

2.  His Officer Performance Report (OPR) dated 26 May 03 – thru 25 May
04 be removed from his records.

3.  All documentation contained in his permanent record that refers to
the unsubstantiated allegation of adultery be removed.

4.  He receive restoration of all pay, allowances, entitlements,
rights and privileges affected by the Letter of Reprimand (LOR), the
adverse OPR and the resignation.

5.  As an alternative, he requests his DD  Form  214,  Certificate  of
Release or Discharge from Active Duty, be  corrected  to  reflect  the
type  of  separation  as  “Separation”  vice  “Resignation”  and   his
commission be reinstated with an assignment as an officer in  the  Air
Force Reserves.

_________________________________________________________________

APPLICANT CONTENDS THAT:

On 25 Aug 03, all Electronic Systems Center (ESC) personnel were asked
to bring in laptops for updates  and  system  checks.   The  applicant
informed his supervisor he was unable to locate the hard drive for his
laptop.  On 6 Oct 03, a master sergeant was  appointed  to  conduct  a
report  of  survey  (ROS)  concerning  the  missing  hard  drive.   On
approximately 10 Oct 03,  the  applicant  replaced  the  missing  hard
drive. On 20 Oct 03, the applicant submitted answers to ROS  questions
and took full responsibility for  the  loss  of  the  hard  drive  and
explained the hard drive was accidentally thrown out by his  wife.  On
27 Oct 03, the director of ESC notified the applicant he  intended  to
initiate an investigation into alleged offenses disclosed by witnesses
interviewed during the ROS investigation. On 3 Mar 04,  the  applicant
received notice of his next duty assignment to Japan with a  reporting
date of 30 May 04.  On 31 Mar 04, he was placed on administrative hold
by his command. On 20 Apr 04, he was notified his assignment to  Japan
had been cancelled. On 7 May 04, the commander, ESC issued  a  LOR  to
the applicant. On 19 May 04, he submitted his reply to the LOR.  On 21
May 04, his wife submitted a statement taking responsibility  for  the
loss of the hard drive. On 21 May 04,  he  submitted  his  request  to
separate from service. On 28 May, the commander, ESC responded to  the
rebuttal to the LOR and decided to let the LOR stand as issued. On  21
Jun 04, the applicant made the decision to withdraw  his  request  for
separation.  On 29 Jun 04, the commander, ESC disapproved his  request
to withdraw his separation.  On 7 Jul 04, the  applicant  submitted  a
second AF Form 780 requesting withdrawal of  his  separation,  stating
harassment and hardship as the reason for the request. On 7 Jul 04, he
was officially notified his  separation  had  been  approved  with  an
effective date of  31  Jul  04.  In  Jul  04,  the  applicant  sent  a
memorandum and email to the Office of the Inspector  General.   On  31
Jul 04, the applicant was separated from the USAF. The applicant fully
admits that he lost the hard drive  as  well  as  loaded  unauthorized
software on the laptop to assist him with email while deployed.  As an
honorable Air Force officer, he took full responsibility and made full
restitution.  The applicant was not trying to cover-up  anything,  but
due to his hectic TDY schedule and family issues he did not report  it
in a timely manner.  He was not worried because he knew that it  would
turn up or he would pay to replace the hard drive.  In  addition,  the
master sergeant was "barely" qualified by instruction to conduct a ROS
and, as an officer in the Air Force, he  deserved  to  have  a  higher
ranking officer conduct the report.  The master sergeant  was  new  to
the command because of misconduct he had committed at his last command
and thus was relieved as an  investigator  and  transferred.   By  all
accounts, he handled the ROS in an unprofessional manner, screaming at
the applicant, using unofficial statements in  his  final  report  and
including allegations unrelated to the  focus  of  the  survey.   This
unprofessional handling lead to the administrative actions  that  were
taken against him, all of which were unsubstantiated,  unfounded,  and
based on one  person’s  personal  interpretations.   Additionally,  he
contends he was unaware at the time of  his  resignation  he  had  the
option to maintain his commission and remain an Air Force  officer  in
the Reserves.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant was commissioned in the  Air  Force  on  8  Jun  95  and
resigned from the Air Force as a captain on 31 Jul 04.  He joined  the
USAF Reserves and currently holds the grade of major with an effective
date and date of rank of 31 May 06.

The applicant was considered and selected for promotion to  the  grade
of major by the CY04B (8 Dec  03)  (P0403B)  Major  Central  Selection
Board.

On 7 May 04, the applicant received a LOR  for  wrongfully  installing
unauthorized software on his government computer, wrongful  possession
of an unauthorized  government  cellular  phone,  frequent  use  of  a
government cellular phone for personal purposes;  told  a  subordinate
"you know I have a woman on the  side  right:"  indicated  he  used  a
government cellular phone to contact a particular female, because  his
wife could not "trace the bill.".

On 19 May 04, the  applicant  acknowledged  receipt  of  the  LOR  and
provided rebuttal comments.

On 28 May 06, the commander responded with his final decision  to  let
the LOR stand as issued.

On 21 May 04, he voluntarily submitted a request for separation to  be
effective 31 Jul 04.

On 21 Jun 04, he submitted an AF Form 780, Office Separation  Actions,
requesting to withdraw his request for separation to be  effective  31
Jul 04 based on the following: "Need more time and opportunity to make
transition to civilian life."  The commander  recommended  disapproval
of his request to withdraw his request for separation.

On 7 Jul 04, he submitted another AF Form 780 requesting withdrawal of
his request for separation based on "Hardship due to mishandling of my
separation and harassment."  His immediate commander did  not  make  a
recommendation on the application.

According to email traffic on file in his  master  personnel  records,
the  question  was  brought  up  as  to  whether  an  individual   can
subsequently request an administrative change to an  AF  Form  780  to
reflect he or she  requested  "I  request  release  from  active  duty
instead of "I hereby tender  my  resignation"  as  the  applicant  had
requested.  The following response was provided "Sir, it doesn't  have
to go through the whole chain again, because this is a personal option
and a right an officer has.  It is up to the officer alone to  request
a USAFR commission.

On 21 Jul 04, he requested his resignation to remain in effect with an
effective date of discharge of 31 Jul 04.

He was discharged under the  provisions  of  AFI  36-3207,  Separating
Commissioned Officers for completion of required active duty.

_________________________________________________________________



AIR FORCE EVALUATION:

HQ  AFPC/DPPPEP  recommends  denial.   DPPPEP  states  the   applicant
wrongfully installed unauthorized software on  his  government  issued
laptop, and wrongfully possessed an unauthorized  government  cellular
phone.  This impropriety was reflected in his OPR.  DPPPEP understands
the applicant’s desire  for  the  board  to  direct  voidance  of  the
contested OPR and LOR because of the promotion advantage.  However, to
remove the OPR and LOR from his record would  be  unfair  to  all  the
other officers who did not wrongfully install unauthorized software on
a government issued laptop, and wrongfully possessed  an  unauthorized
government cellular phone, and  effectively  performed  their  duties.
DPPPEP therefore concludes the removal of the contested  report  would
make the applicant’s record inaccurate.  In addition,  to  effectively
challenge an OPR, it is necessary to hear from all the members of  the
rating   chain.    The   applicant   has   failed   to   provide   any
information/support from the rating chain on the contested  OPR.   The
applicant filed eight Inspector General (IG) complaints, none resulted
in investigations.  DPPPEP believes the  report  was  accomplished  in
direct  accordance  with  applicable  regulations.    DPPPEP   further
concludes his evaluators rendered a factual OPR, mentioning  both  his
outstanding duty performance,  as  well  as  the  specific  charge  of
substantiated wrongful installation  of  unauthorized  software  on  a
government issued laptop, and wrongfully  possessing  an  unauthorized
government cellular phone that occurred during the reporting period of
the contested OPR.    The applicant is attempting  to  illustrate  the
contested  report  is  inconsistent  with  the  previous  performance,
awards, and decorations.    The OPR was designed to provide  a  rating
for a specific period of time based on the  performance  noted  during
that period, not based on previous performance.  The  complete  DPPPEP
evaluation is at Exhibit C.

AFPC/DPPPO states the application was submitted in a timely manner and
the applicant was selected for promotion to major by the CY04B (8  Dec
03) (P0403B)  Major  Central  Selection  Board.   The  complete  DPPPO
evaluation is at Exhibit D.

HQ  AFPC/DPPRS  recommends  denial.   DPPRS   states   the   applicant
voluntarily submitted a request for separation to be effective 31  Jul
04.  On 21 Jun 04, he submitted an AF  Form  780,  Officer  Separation
Actions, requesting to withdraw  his  request  for  separation  to  be
effective 31 Jul 04  based  on  the  following  “Need  more  time  and
opportunity to make transition to civilian life.”   The  commander  of
Electronic Systems Center recommended disapproval of  his  request  to
withdraw his request for  separation.   On  7  Jul  04,  he  submitted
another  AF  Form  780  requesting  withdrawal  of  his  request   for
separation based on hardship due to mishandling of his separation  and
harassment.  His immediate supervisor/commander reviewed the  AF  Form
780,  but  the  wing  or  equivalent  commander   did   not   make   a
recommendation on the  application.   On  21  Jul  04,  the  applicant
requested his resignation to remain in effect with an  effective  date
of discharge of 31 Jul 04.  Based on the documentation on file in  the
master personnel  records,  the  discharge  was  consistent  with  the
procedural and substantive requirements of the  discharge  regulation.
The discharge was within the discretion of  the  discharge  authority.
The applicant voluntarily requested to resign his  commission  and  be
discharged from active duty upon completion of required  active  duty.
The complete DPPRS evaluation is at Exhibit E.

HQ AFPC/DPSO recommends denial.  DPSO states the use  of  the  LOR  by
commanders and supervisors is an exercise of supervisory authority and
responsibility.  An individual has three duty  days  upon  receipt  to
submit rebuttal documents for consideration by the initiator.  In this
case,  due  to  the   applicant’s   security   termination   and   ROS
Investigation, the three days were extended.  LORs are  mandatory  for
file in the Unfavorable Information Files (UIF) for officer personnel,
which was established on 4 Jun 04. In  the  applicant’s  rebuttal,  he
agreed to the unauthorized software installation; however, states that
he did not purposely destroy the  laptop’s  hard  drive  and  did  not
dispute the unauthorized possession of two government cellular phones.
 DPSO concludes there was no error or injustice by the  Air  Force  in
this case.  The complete DPSO evaluation is at Exhibit F.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant's counsel responded stating  the  LOR  contained  false  and
unsubstantiated allegations.  The  person  conducting  the  report  of
survey did not perform his duties in accordance with AF Manual 23-220,
Reports of Survey for Air Force Property which requires a  ROS  to  be
completed to determine how, when and why the government  property  was
lost or destroyed.  The provision does not authorize the inclusion  of
personal unsubstantiated opinions and allegations that  are  unrelated
to the lost or damaged government property. The ROS was  to  focus  on
the issue at hand which was the lost hard drive.  However,  boundaries
were  repeatedly  overstepped  by  asking  about  issues   that   were
irrelevant and unrelated to the missing hard drive.  Additionally  the
applicant was not permitted to reply to the ROS per the applicable  AF
Instructions and the government has failed to address the  issue.   To
include unsubstantiated allegations of adultery  in  an  official  LOR
based solely on one person's "feelings" or  "interpretations"  without
any measure of proof is improper at best.  The allegations  of  misuse
of  government  cell  phones  are  also  without  any  indication   of
substantiating review of cell phone records to document  such  alleged
improper use.  In addition, the command had no clear documentation  of
what assets they owned, or who possessed it. The documented harassment
is important when considering  his  request  to  be  reinstated.   The
adverse OPR was based on the  false  and  unsubstantiated  allegations
contained within the LOR, also for reasons of harassment and denial of
due process.  The applicant requests  he  be  reinstated  into  active
duty.  He believes the local command appears to have made up the rules
and regulations as they went, ignoring requirements in  applicable  AF
regulations and denying the applicant his rights.   In  addition,  the
advisory opinions are simply conclusory in nature and pay no attention
to the actual facts of this case.  Finally, the  applicant  offers  to
take any Polygraph test and answer any questions set  forth  regarding
this petition.

The 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.   We  took
        careful notice  of  the  applicant's  complete  submission  in
        judging the merits of the case;  however  we  agree  with  the
        opinions and recommendations  of  the  Air  Force  offices  of
        primary responsibilities and  adopt  their  rationale  as  the
        basis for our conclusion that  the  applicant  has  failed  to
        sustain his burden of proof that he has  been  the  victim  of
        either an error or injustice.  In this respect, we do not find
        plausible evidence nor are we persuaded by his assertions that
        the  administrative  actions  taken  by  his  commander   were
        inappropriate, that he abused his discretionary  authority  in
        taking  those  actions,  or  that  the  actions   taken   were
        precipitated  by  anything  other  than  the  applicant's  own
        conduct.  Further, we are not persuaded by the evidence before
        us that the contested  report  is  not  a  true  and  accurate
        assessment of his behavior and demonstrated  potential  during
        the specified time period or that the  comments  contained  in
        the report were in error or contrary to the provisions of  the
        governing instruction.  The applicant was separated  from  the
        Air Force as result of his voluntary request for  resignation.
        In view of our aforementioned findings, we find  no  plausible
        reason why action should be taken to effect his  reinstatement
        into the Air force or that his discharge documents  should  be
        changed to indicate  any  other  reason  for  his  separation.
        Therefore, in  the  absence  of  persuasive  evidence  to  the
        contrary, we find no compelling basis  to  recommend  granting
        any of 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;   the
application  was  denied  without  a  personal  appearance;  and   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-
2006-03705  in  Executive  Session  on  28  August  2007,  under   the
provisions of AFI 36-2603:


                 Mr. James W. Russell III, Panel Chair
                 Mr. Elwood C. Lewis III, Member
                 Mr. Mark J.  Novitski, Member

The following documentary evidence pertaining to AFBCMR  Docket  Number  BC-
2007-03705 was considered:

    Exhibit A.  DD Form 149, dated 10 Dec 06, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPEP, dated 20 Feb 07.
    Exhibit D.  Letter, AFPC/DPPPO, dated 14 Mar 07.
    Exhibit E.  Letter, AFPC/DPPRS, dated 21 Mar 07.
    Exhibit F.  Letter, AFPC/DPSO, dated 29 Jun 07.
    Exhibit G.  Letter, SAF/MRBR, dated 6 Apr 07.
    Exhibit H.  Letter, Applicant, dated 27 Aug 07, w/atchs.





                                        JAMES W. RUSSELL III
                                        Panel Chair