RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER: BC-2007-00682
            INDEX CODE:  111.00

            COUNSEL:  NONE
            HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  5 SEPTEMBER 2008

_________________________________________________________________

APPLICANT REQUESTS THAT:

The AF Form 475, Education/Training Report, dated 4 Oct 00, prepared on  him
while attending Squadron Office School (SOS), and all associated  documents,
be removed from his records.

_________________________________________________________________

APPLICANT CONTENDS THAT:

In a three-page  statement,  with  attachments,  applicant  states  why  the
training report should be removed from his record.  He  specifically  states
the negative impact that it has had on his career  resulting  in  punishment
disproportionate to his mistake.  He made an error in judgment, he  did  not
commit a crime, and keeping the referral training report as written  in  his
records results in a greater long-term impact then what might have  occurred
with a letter of reprimand, Article 15, or other Uniform  Code  of  Military
Justice (UCMJ) actions.

A summary of his comments follows:

        a.  The training report is dated over six years ago.  He  asks  that
the Board waive the time limitation and base its decision on the merits  and
facts of the case, and provided a copy of a HQ  AFPC/JA  letter  to  support
his claim.   He also submits a letter from the Chief of  Staff  of  the  Air
Force, suggesting that he can file a case  with  the  Air  Force  Board  for
Correction of Military Records (AFBCMR).

        b.  The training report has negatively impacted  his  selection  for
in-residence military schools.  He was advised by  his  superiors  that  his
opportunity for promotion and command  will  be  severely  limited  by  this
single training report despite an otherwise impeccable record  of  12  years
of service to the Air Force.

        c.  Upon departure for SOS he was given the squadron  “SOS  Laptop.”
He was told there was information on the  laptop  for  template  use,  which
would be  helpful  in  generating  ideas  for  briefings  and  papers.   All
indications to him were that this was what everyone did when attending  SOS.
 He had no intention to use contraband/forbidden material.

         d.   He  had  immediate  misgivings  about  the  laptop  when   the
Commandant of SOS, made it clear on the first day  that  possession  of  any
material from previous  SOS  classes  was  a  violation  of  Air  University
Instructions.  He prepared a briefing using the previously loaded  template.
 Keeping in mind his squadron’s guidance that  “template  use”  was  OK,  he
copied a single KC-10  picture  (computer  graphic  image)  from  the  other
student’s presentation.  This picture was widely available on  the  internet
so he did not believe it would violate SOS regulations.  At no time  did  he
use any intellectual content from the laptop.

        e.  A fellow student turned him into his SOS  Flight  Commander  for
having possession of previous class material.

Additional information can be found in the  applicant’s  memorandum  to  the
Board.

In support of his request, applicant provided his  personal  statement,  six
reference letters, a memorandum from HQ AFPC/JA, a letter from the Chief  of
Staff of the Air Force, his SOS Training Report with  associated  documents,
Performance Reports, Training Reports  and  Promotion  Recommendation  Forms
since removal from SOS.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant is currently serving on extended  active  duty  in  the  grade  of
major effective and with a date of rank of 1 January 2005.


Applicant’s OPR profile is as follows:

           PERIOD ENDING           EVALUATION OF POTENTIAL

                 27 May 06               Meets Standards (MS)
                 27 May 05              (MS)
                 12 Jan 05              (MS)
                 12 Jan 04                               (MS)
                  9 Apr 03              (MS)
                 26 Nov 02    Training Report (TR)
                    9 Apr 02            (MS)
                       24 Sep 01             (MS)
                       9 Apr 01              (MS)
                  * 4 Oct 00            (TR) Referral
                  9 Apr 00              (MS)
                 21 Sep 99              (TR)
                  9 Apr 99              (TR)
                 15 Jul 97              (MS)
                 15 Jul 96              (MS)
                 31 Aug 95              (MS)



* Contested Report

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPEP recommends the applicant’s request to void his        4  October
2000 Training Report (TR) along with all the  attachments  be  denied.   The
applicant did not file an  appeal  under  the  provisions  of  AFI  36-2401,
Correcting Officer and Enlisted Evaluation Reports.

DPPPEP pointed out the contested TR was  rendered  on  the  applicant  as  a
result  of  unacceptable  on-duty  behavior  and  that   these   facts   are
appropriately reflected in the contested TR.  The  fact  is,  the  applicant
was expected to maintain standards of conduct and  responsibility  at  least
as stringent as the rest of the officer  corps.   The  applicant  stated  he
“had immediate misgivings about this laptop when the Commandant of SOS  made
it clear on the first day that possession of any material from previous  SOS
classes was a violation of Air University Instructions.  I should  have  put
the computer in storage and  not  used  it.”   He  knew  he  had  contraband
information, he knew it was wrong, and he made the  choice  to  utilize  the
information on the laptop.  DPPPEP understands the  applicant’s  desire  for
the board to direct voidance of the contested TR because  of  the  promotion
and school selection disadvantage.  However,  to  remove  the  TR  from  his
record would be unfair to all the other commissioned officers  who  did  not
possess and  use  SOS  material  from  a  previous  class,  and  effectively
performed their duties.  Removal of the  contested  report  would  make  the
applicant’s record inaccurate.

AFI 36-2406, paragraph 1.3., states, in  part,  “…evaluators  must  document
misconduct which reflects a disregard of the law, whether civil law  or  the
UCMJ.  His evaluators rendered a factual TR, mentioning the specific  charge
of possessing and using SOS material from a  previous  class  that  occurred
during the reporting period of the contested TR.  The TR is  not  inaccurate
or unjust simply because the applicant believes  it  may  negatively  impact
his  career  or  promotion  opportunities.   Although  the  applicant   made
restitution, it appears his evaluators felt  the  matter  to  be  a  serious
breech of military bearing  and  discipline  for  which  they  had  to  take
immediate and responsive action.

The  applicant  provided  a  plethora  of  memorandums   of   support   from
individuals  outside  the  rating  chain  of  the   contested   TR.    These
memorandums refer to the potential negative impact this TR may have  on  his
career, claiming its presence is an injustice to  the  applicant.   They  do
not refute the fact the applicant was at SOS with a unit  provided  computer
loaded  with  contraband  information  from  previous  classes   in   direct
violation of Air University Instructions.  The primary claim  in  this  case
is that the TR creates an injustice to  the  applicant.   An  injustice  has
often been defined as something  that  will  shock  the  conscience  by  its
presence.  In this case, the presence of the TR in applicant’s  record  does
not  constitute  an  injustice,  it  truthfully  reports  the  events  which
occurred at SOS.  A report is not erroneous or unjust because the  applicant
believes it may impact future promotion or career  opportunities.   Per  AFI
36-2401,  paragraph  A.1.5.1.,  the  applicant  must  prove  the  report  is
erroneous or unjust based on  its  content,  not  its  potential  impact  on
career opportunities.  In fact, the presence of this TR did not  impact  his
promotion to major, as he was selected for promotion to major with  this  TR
in his record.

Per General Moseley’s letter dated 27 Nov 06,  as  Chief  of  Staff  of  the
United States Air Force, he believes the school selection process worked  as
intended.  As Gen Moseley says, only about one-third  of  officers  selected
for  promotion  to  major  have  an  opportunity  to  attend   developmental
education in residence.  While applicant was not selected as a  primary  for
school attendance, he was selected as an alternate.  If  a  vacancy  arises,
he may be offered an opportunity to attend in residence.

The DPPPEP complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant  submits  a  six-page  letter  in  response  to  the  advisory
opinion.  In his response he provides a summary of his Air Force career.

The applicant reviewed the evaluation and disagrees with the AFPC  advisory.
 The description of the incident ignores certain important facts  and,  more
importantly, fails to put the incident – an admitted mistake –  into  proper
perspective  and  context.   He  provides  the  following   information   to
supplement the record and to more fully explain  the  situation  surrounding
the TR that the AFPC advisory writer omitted.   As  noted  in  his  original
application to the Board, forensic evidence  showed  that  while  files  had
been loaded on his squadron’s laptop for up to  seven  years  prior  to  his
enrollment at SOS, it also proved that he did not load any of the  material,
and that the  only  file  that  he  accessed  was  a  three-page  PowerPoint
presentation filled  with  pictures  of  KC-10s.   Although  erroneous,  his
mindset going into SOS was that senior leaders from his  squadron  gave  him
guidance that if  the  material  was  used  for  template  purposes  it  was
approved.  The important fact about the PowerPoint presentation he  accessed
was that when he opened up the program, the old file – with the  photographs
of the KC-10 – appeared immediately.  He did  not  open  a  particular  file
within the software.  He did not search for the work that  any  one  of  his
predecessors  had  created.   This  file  opened  automatically   with   the
software, as it was the last PowerPoint file used  by  a  previous  squadron
member.  He did not believe it was a violation of  SOS  regulations  to  use
the image because he could have  easily  obtained  this  photograph  in  the
public domain.

The advisory writer states that as  an  alternate  to  attend  developmental
education,  he  will   have   the   opportunity   to   attend   in-residence
developmental education.  The advisory also pointed  out  what  Gen  Moseley
wrote in his letter, that the school selection  worked  as  intended.   Both
points are technically correct.   However,  he  has  spoken  to  other  AFPC
officers that have informed him that he was specifically  not  selected  for
school because of the TR and that there is virtually no chance that he  will
be selected to attend the school from the alternate list.  As  long  as  the
TR remains in his record, it will hinder his career and his opportunity  for
advancement.

The letters of support  are  from  individuals  outside  the  rating  chain;
however, these senior DoD officers  are  highly  experienced  and  respected
individuals with knowledge of his day to day performance in the  Air  Force.
Both agree that the TR will hold him back  in  his  career  and  hinder  his
advancement.

The AFBCMR sits, in essence, as a court of equity, with enormous  discretion
and authority to weigh his admitted transgression against his many years  of
exemplary service.

He made an honest error at SOS.  He admitted it immediately  and  cooperated
fully with the investigators.  He believes that without  that  one  blemish,
his record has been beyond reproach.  He asks  the  Board  to  consider  his
background, the overall quality of his service, his post TR activities,  and
his many other accomplishments in service to his nation.

Applicant'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 not timely filed; however, it is in the interest  of
justice to excuse the failure to timely file.

3.  The Board finds no impropriety in  the  referral  training  report  (TR)
rendered on the applicant for the  period  5  September  through  4  October
2000.  However, we note the applicant has  support  from  the  very  highest
levels of his management chain for removal  of  the  report.   These  senior
officers  base  their  support  on  the  applicant’s  superior   record   of
performance and their unanimous view that the impact of the training  report
far outweighs the transgression.  Several of the  officers  also  point  out
that  the  computer  forensic  analysis  clearly  indicates  the  only  file
accessed on the laptop was a three-page PowerPoint file containing  pictures
of KC-10s, which at the time were widely available on the internet  and  had
no real bearing on the applicant’s performance in the training  course.   In
view of these facts, we believe it would be appropriate for us to  recommend
granting the requested relief on the basis of clemency.    Consideration  of
this Board is not limited to whether or not an error or  injustice  actually
occurred, but can also be based on matters of equity  and  clemency.   Under
our broader mandate, which permits consideration  of  other  factors;  e.g.,
applicant’s   background,   the   overall   quality    of    service,    and
accomplishments, we are persuaded that corrective action is  appropriate  in
this instance.  Therefore, having no basis  to  question  the  integrity  of
these senior level officials, the Board recommends  the  contested  training
report  and  all  associated  documents  be  voided  and  removed  from  the
applicant’s record.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT, be corrected to show that the  Education/Training  Report,  AF
Form 475, rendered for the period  5 September 2000 through 4  October  2000
be declared void and removed from his records.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number  BC-2007-
00682 in Executive Session on 15 May 2007, under the provisions of  AFI  36-
2603:

      Mr. Michael V. Barbino, Panel Chair
      Mr. Don H. Kendrick, Member
      Mr. John B. Hennessey, Member



All members voted to correct the records,  as  recommended.   The  following
documentary evidence pertaining to  Docket  Number        BC-2007-00682  was
considered:

     Exhibit A.  DD Form 149, dated 22 Feb 07, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPPPEP, dated 9 Apr 07.
     Exhibit D.  Letter, SAF/MRBR, dated 13 Apr 07.
     Exhibit E.  Letter, Applicant, dated 20 Apr 07.




                                   MICHAEL V. BARBINO
                                   Panel Chair

AFBCMR BC-2007-00682




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  the  Education/Training
Report, AF Form 475, rendered for the period 5  September  2000  through  4
October 2000, be, and  hereby  is,  declared  void  and  removed  from  his
records.






            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency