RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER: BC-2007-01323
            INDEX CODE:  111.01, 126.04
            COUNSEL:  NONE
            HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE: Nov 04, 2008

_________________________________________________________________

APPLICANT REQUESTS THAT:

His referral Officer Performance Report (OPR) ending 20 May  06,  Letter  of
Reprimand, and Unfavorable  Information  File  (UIF)  be  removed  in  their
entirety and that all references be expunged from his records.
_________________________________________________________________

APPLICANT CONTENDS THAT:

He only recently discovered the referral OPR  had  been  inserted  into  his
records without notice.

The BCMR is his only recourse, as he has been involuntarily  transferred  to
the Non-Participating Ready Reserve.

The referral OPR was drafted  ostensibly  due  to  his  adverse  information
security report on a civilian contractor who publicly bragged about  getting
away with violating a local law.  The applicant further stated  he  did  not
know at the time that the contractor had been barred  from  area  Air  Force
bases after a felony menacing conviction (later reversed).

The officer who conducted the Inspector General (IG)  inquiry,  which  found
he abused his authority by making the mandatory report, was untrained.   The
applicant further states there appeared to be  no  effective  legal  review.
Both the IG and judge advocate (JAG) refuse to  address  the  issue  or  his
demand that they cite legal authority for finding that a service member  may
be punished for conscientiously following legal orders.

The referral OPR is unjust because it and the  cited  reprimand  punish  him
for following lawful orders in the  form  of  a  valid  DoD  regulation  and
specific Security Forces direction.

His punishment also refutes the foundation  principle  of  military  service
which requires obedience to lawful direction.

His chain of command at the time essentially ignored the  IG  findings  when
he proved his action was lawfully directed by the  Security  Forces  element
within his organization.

His previous OPR (including Chief of Staff praise) was signed  nearly  three
months after  the  IG’s  perplexing  finding  on  the  retaliatory  civilian
complaint.  It is further proof that he was judged to be  an  honorable  and
valuable officer despite the ignored findings.

His “new” additional rater  (all  supervisors  changed  after  the  finding)
never  responded  to  the  “rebuttal  to  draft  OPR”  or   any   subsequent
communication.  The applicant further stated he was not  notified  that  the
referral OPR had been signed (delaying his appeal).  Neither was  the  legal
authority to punish him cited.  The legal review has never been  challenged.
 This pattern indicates that the  additional  rater  recognizes  the  unjust
nature of his actions.

After the close-out of his OPR and long after he  was  barred  from  reserve
status, his Top Secret with special access clearance was renewed to  include
four “compartments.”   His  former  chain  of  command  never  notified  the
Security Forces of adverse action as required  if  they  could  substantiate
his alleged abuse of authority.  They never  acted  to  bar  his  access  to
their secure building or its vaults.  The applicant states he kept  Security
Forces  informed  and  this  critical  omission  violates   the   same   DoD
information security regulation he was required to follow in  reporting  his
observations.  He still has normal  access  to  sensitive  information  even
now.

He is asking to have  the  items  removed  from  his  record  otherwise  the
prohibition against  resuming  his  reserve  career  will  remain  in  place
despite correcting the unjust OPR.

The applicant lastly stated the UIF  has  created  a  formal  administrative
prohibition against any service at all.  Its consequences are  even  broader
and affecting our Service’s ability to best perform the mission.

In support of his request, the applicant provided a  copy  of  the  referral
OPR, rebuttal to the draft OPR, his previous OPR,  a  legal  review  by  his
defense counsel, an e-mail containing the Security Forces order,  a  resume,
and an e-mail regarding his security clearance.

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

STATEMENT OF FACTS:


On 12 Dec 05, the applicant received an LOR and a  Cease  and  Desist  Order
for abusing his authority by deliberately mischaracterizing  concerns  about
the suitability of  a  contract  employee  to  hold  a  government  security
clearance.  Additionally, he was reassigned from his command for failure  to
meet Air Force standards.

On 18 Sep 06, the applicant acknowledged receipt  of  his  pending  referral
OPR, specifically, AF Form 707A, Field  Grade  Officer  Performance  Report,
which closed-out 20  May  06,  and  contained  ratings  of  “Does  Not  Meet
Standards” in Section  V,  items  3  and  5;  and  comments  in  Section  VI
pertaining to an LOR.  He was given 30 days to respond to the referral OPR.

On 17 Oct 06, the applicant provided a response to the referral OPR.

A resume of the applicant’s performance reports follows:

      CLOSEOUT DATE               OVERALL RATING

        13 Nov 97                 Meets Standards
        13 Nov 98                 Meets Standards
        13 Nov 99                 Meets Standards
        13 Nov 00                 Meets Standards
        13 Nov 01                 Meets Standards
        13 Nov 02                 Meets Standards
        13 Nov 03                 Meets Standards
        13 Nov 04                 Meets Standards
        20 May 05                 Meets Standards
       *20 May 06                 Referral Report

*Contested report

Additional relevant facts are contained in the ARPC/DPB advisory at  Exhibit
C.
 _________________________________________________________________

AIR FORCE EVALUATION:

ARPC/DPB recommends denial of  the  applicant’s  request.   DPB  states  the
applicant has provided no evidence to substantiate that the “Does  Not  Meet
Standards” markings on his AF Form 707A are in error.  He  has  provided  no
evidence to substantiate he did not receive an LOR during the rating  period
or did not receive two feedbacks as noted on the OPR.

The applicant has not provided a copy of the LOR or a  copy  of  the  “Cease
and Desist Order” in his application.   We  must  rely  on  the  applicant’s
chain of command and their sound judgment that the events and  circumstances
warranted these actions.  AFI 36-2406,  Officer  and  Enlisted  Evaluations,
states, “The vast majority of Air Force personnel serve their entire  career
with honor and distinction, therefore, failure to document misconduct  which
reflects departure from the core values of the Air Force is a disservice  to
all personnel…”

The previous OPR has no bearing on the referral report.   The  referral  OPR
addressed the performance of  the  applicant from 21 May 05 through  20  May
06.  The previous OPR addressed the applicant’s performance from 14  Nov  04
through 20 May 05.  They are two separate years and have no bearing on  each
other.

The referral OPR has not been seen by a promotion board, as it was filed  in
his selection folder 1 Feb  07,  following  the  appropriate  administrative
process required to  file  a  referral  OPR.   He  was  considered  and  not
selected by the FY06 (Oct 05) and FY07  (Oct  06)  USAFR  Colonel  Promotion
Selection Board, without the referral OPR.

Neither the LOR, the “Cease and  Desist  Order”  nor  the  UIF  are  in  the
applicant’s officer selection record (OSR).  Therefore, we cannot remove  or
recommend removal of the documents from the OSR that do not exist.

The “Security Force No Adverse Information” has no bearing on  the  referral
OPR.  However, contrary to the applicant’s belief, once he was  assigned  to
a non-participating status (5 Sep 05),  he  no  longer  held  an  Air  Force
security clearance.  Only individuals in participating  assignments  have  a
security clearance, once  reassigned  to  a  non-participating  status,  the
clearance no longer exists.  While the data concerning his  clearance  prior
to  reassignment  is  readily  available  to  security  forces,  the  actual
clearance no longer applies.

Nothing in the AFBCMR package submitted substantiates amendment  or  removal
of the OPR.

The ARPC/DPB complete evaluation, with attachment is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant contends that ARPC does not  address  his  fundamental  point:
the actions he appealed violate federal law in several  ways.   The  subject
LOR, UIF, and referral OPR are, therefore, both illegal and  detrimental  to
good order and discipline.  The lack  of  a  response  to  that  fundamental
illegality is telling.  He believes it indicates that there is  no  rebuttal
to the facts of his case.  Additionally, his appeal  should  be  granted  on
the basis that he has proven the illegality of the adverse actions  and  the
ARPC response appears to concede that fact through omission.

In nearly every case, his administrative and  UCMJ  appeals  were  deflected
with denials of due process.  That fact is illustrated by the  lack  of  any
response to the referral OPR rebuttal.  The referral OPR was  filed  in  his
permanent records despite four related Air  Force  legal  reviews  detailing
the illegality of such actions plus our Service’s  fundamental  training  on
the legality of orders.  The  ARPC  response  continues  that  pattern  with
irrelevant material and so, he believes, supports his appeal.

The applicant alleges the individual who initiated  his  termination  (using
the illegal reprimand) and that  individual’s  commander,  and  staff  judge
advocate general were all relieved  of  their  duties  for  abuse  of  their
authority.  Their abuses focused on using illegal  administrative  maneuvers
to deny active duty retirements to reservists  whose  recent  service  would
have qualified them for that benefit.

In a supplemental rebuttal, the applicant  contends  the  Chief  of  Staff’s
orders were countermanded a number of times verbally, all  resources  needed
to comply with his superior orders were withheld, and  the  team  formed  to
carry out his orders was dismissed or  reassigned.   The  Cease  and  Desist
Order documents two additional written orders countermanding  that  superior
officer.  As a result, the Chief’s  orders  were  not  carried  out  in  any
manner by anyone.

The ARPC response could be interpreted as implying that he somehow  violated
an unspecified legal order of some  kind  which  then  drew  the  Cease  and
Desist Order; that the  directed  tasks  had  been  transferred  to  another
function and carried out.  Such  a  contention  is  absolutely  false.   The
Cease and Desist Order was delivered four days after another  major  command
formally requested his service to work on the Chief’s near-space  initiative
and so was clearly intended  to  block  that  new  threat  to  space  system
budgets.

The applicant asks that the Board compare the completed tour request by  the
Air Force Academy’s Aeronautics Department and transmitted to Space  Command
to the date of the 12 Dec 05 Cease and Desist Order.   He  states  there  is
no coincidence.

The LOR is simply “piling on” so as to preempt any future  transfer  of  his
near space expertise to a competing Air Force function.  The  fact  that  it
is also dated four days after the formal request for his service is also  no
coincidence.

The issue, the Chief of Staff’s orders, explains the motivation  behind  the
illogical reprimand  for  following  Security  Forces  direction.   It  also
explains why his alleged abuse occurred in Feb but  the  reprimand  was  not
issued until Dec; following orders was not seen as a problem until the  need
arose to dismantle the near space team.  The insupportable  contention  that
an officer  can  abuse  his  authority  by  following  DoD  regulations  and
specific orders (the LOR’s false allegation) is  only  the  excuse  used  to
eliminate a threat to controversial budget requests.  He was simply  in  the
wrong place at the wrong  time  in  that  bureaucratic  competition  between
major commands.

The OPR, LOR, and UIF he appeals are illegal violations of the UCMJ  and  so
must be rescinded.  There is no other legal or ethical option  as  evidenced
by the fact that the  ARPC  response  completely  ignored  this  fundamental
point.  That refusal to prove the legality of the LOR,  etc.,  is  also  the
pattern seen in the refusal to comply with UCMJ Article 138.

He  states  he  would  not  have   retained   his   Top   Secrets/SCI   (and
compartments), or continue to teach ethics to new Air Force  members  if  he
was perceived as dishonest or abusive.

The applicant's complete response, with attachments, is at Exhibit E.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing  law  or
regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of error or injustice.   Regarding  the  contested  OPR,  we  took
notice of the applicant's complete submission in judging the merits  of  the
case; however, we agree with the  opinion  and  recommendation  of  the  Air
Force 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 regarding the contested OPR he seeks to have removed  from  his
records.  Additionally, the applicant has not provided  sufficient  evidence
for us to conclude that the Letter of Reprimand he  was  issued  constituted
an abuse of his commander’s authority or that the actions of  his  commander
were arbitrary or capricious.  The applicant argues that  he  was  compelled
to take the actions he  took  as  a  result  of  his  responsibility,  under
applicable laws and regulations, regarding  security  risks  and  violations
and that the adverse actions taken against him  are  illegal.   However,  we
note that as a result of  the  applicant’s  actions,  an  Inspector  General
investigation was conducted that subsequently  substantiated  the  applicant
was motivated solely by a  desire  to  discredit  a  contract  employee  for
personal reasons.  We note that the  applicant’s  commander  relied  on  the
investigation as the basis for the Letter of  Reprimand  and  the  contested
OPR.  In his submission, the applicant seeks  to  bring  into  question  the
qualifications of the investigating officer.  However, we do  not  find  his
unsupported assertions persuasive.  Therefore, in the  absence  of  evidence
to the contrary, we find no  compelling  basis  to  recommend  granting  the
relief sought in this application.

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

_________________________________________________________________

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  Docket  Number  BC-2007-01323
in Executive  Session  on  21  August  and  14  September  2007,  under  the
provisions of AFI 36-2603:

      Mr. Laurence M. Groner, Panel Chair
      Mr. Steven A. Cantrell, Member
      Ms. Mary C. Puckett, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, w/atchs, dated 25 Apr 07.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, ARPC/DPB, w/atch, dated 16 May 07.
    Exhibit D.  Letter, SAF/MRBR, dated 18 May 07.
    Exhibit E.  Applicant’s Rebuttals, w/atchs, dated 7 Jun 07,
                13 Jun 07, 25 Jul 07.



                                   LAURENCE M. GRONER
                                   Panel Chair