RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-03559
            INDEX CODE:  115.00

            COUNSEL:  FRANK J. SPINNER

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His AF Form 8, Certificate of Aircrew Qualification, dated  17 Nov 02,
be amended in Section II, Qualification  (Flight  Phase),  to  reflect
Instructor/Mission (INSTR/MSN)  Check,  rather  than  Special  Purpose
Operational Training (SPOT).

His AF Form 8, dated 28 Mar 03, be declared void and removed from  his
records.

A statement be included in the  Air  Force  Board  for  Correction  of
Military Records’ (AFBCMR) Decision Memorandum indicating  he  remains
eligible for future assignments to T—38 Instructor Pilot (IP)  billets
and  to  other  Major  Weapons   Systems   that   require   concurrent
qualification in the T-38 aircraft.

_________________________________________________________________

APPLICANT CONTENDS THAT:

There is no documentation explaining why he was denied full credit for
the 17 Nov 02 checkride, and there is no valid rationale for  him  not
to have received full  credit.   Denying  him  credit  was  an  action
apparently designed to wrongfully generate an  extraneous  requirement
for an additional checkride.

Gross technical and substantive  breaches  of  Air  Force  regulations
occurred through the administration  of  the  superfluous  28  Mar  03
checkride, and during a subsequent Flying Evaluation Board (FEB)  that
convened as a result of that flight.   Therefore,  any  actions  taken
against  him  as  a  result  of  the   FEB   were   illegitimate   and
unsubstantiated.  Only through repeated violations of the Air  Force’s
own  regulations  has  erroneous  information  regarding  his   flying
performance been concocted and allowed to become part of his  records.
The errors should not be allowed to remain in place as  an  Air  Force
policy action.

In support of his appeal, the applicant provides  a  counsel’s  brief,
supportive statements, extracts from his  flying  records,  and  other
documents associated with the matter under review.

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

_________________________________________________________________

STATEMENT OF FACTS:

Information extracted from the Personnel Data System  (PDS)  indicates
the applicant is currently serving on active  duty  in  the  grade  of
captain, with a date of rank of 31 May 99.  His Total  Active  Federal
Military Service Date (TAFMSD) is 31 May 95.

Available documentation indicates the applicant was a T-38  instructor
assigned to the 50th Flying Training Squadron (50 FTS) at Columbus Air
Force Base (AFB).  He had completed T-38A Pilot Instructor Training at
Randolph AFB in Mar 01.  Returning to Columbus AFB, he  completed  the
requisite local Mission Qualification Training (MQT)  before  assuming
IP duties.

On   12   Apr   02,   the   applicant   was    given    a    no-notice
Instrument/Qualification  Evaluation  for  which  he  received  a  Q-2
rating, which indicated he remained qualified, but there were  one  or
more area(s) or subarea(s) where  additional  training  was  required.
Additional training was recommended and completed.  After a series  of
events which raised  doubts  as  to  the  applicant's  airmanship  and
judgment, the applicant was placed in a second MQT program in  Aug  02
before being returned to normal IP duties.

On 17 Nov 02, he was given a quality of force  SPOT  evaluation.   The
applicant received a Q-1 on this evaluation with two Q-minus subareas.


The T-38A fleet at Columbus began  undergoing  avionics  modifications
midyear  2002,  converting  the  T-38A  to  a  C-mode1.   The  50  FTS
instructors converting  to  the  new  avionics  completed  a  command-
approved, locally administered, transition course to qualify  them  in
the T-38C.  This T-38C  evaluation  was  an  Initial  Pilot/Instrument
Qualification flown by the  examinee  in  the  front  cockpit  of  the
aircraft.  The applicant completed this training and check ride  (Q-1)
in Jan 03.

On 28 Mar  03,  during  a  T-38  Mission  Evaluation  checkride  (rear
cockpit), he received a Q-3 rating (Unsatisfactory),  resulting  in  a
decision by the 50 FTS/CC  to  recommend  a  Flying  Evaluation  Board
(FEB).

The FEB was held from 9 Jun 03 to 12 Jun 03.   The  board  entered  34
allegations and  determined  the  applicant  demonstrated  substandard
proficiency and/or lack of judgment  in  30  specific  findings.   The
board recommended the applicant be disqualified from aviation  service
and not be reinstated to duties as a T-38  IP.   The  Commander,  14th
Flying Training Wing (14 FTW/CC),  concurred  with  the  findings  and
recommendations of the FEB.  The Commander, 19th Air Force (19 AF/CC),
did not concur but instead recommended that the applicant  be  allowed
to remain qualified for aviation service and returned to his  previous
platform, the B-1.  The  Commander,  Air  Education  Training  Command
(AETC/CC), concurred with the 19 AF/CC.

_________________________________________________________________

AIR FORCE EVALUATION:

AETC/A3F recommends denial indicating the AF Form 8, dated  17 Nov 02,
was conducted in accordance with the governing instruction and met all
legal and operational  requirements  to  merit  a  SPOT  T-38A  check.
According to AETC/A3F, a SPOT evaluation is not  intended  to  satisfy
the requirements of a periodic  or  Initial  Instructor  (INIT  INSTR)
evaluation.   SPOT  evaluations  have  no   specific   requisites   or
requirements,  unless  specified  in  the   major   command   (MAJCOM)
supplements.  An evaluation begun as a SPOT evaluation  may  become  a
required periodic evaluation if all required flight phase requirements
are completed during the SPOT evaluation and the examinee subsequently
completes all ground phase requirements for the evaluation within  the
periods described in the governing instruction.

AETC/A3F stated the AF Form 8,  dated  28  Mar  03,  was  legally  and
operationally conducted to meet the periodic  MSN  check  requirements
within the eligibility period.  Subsequent to the  noted  SPOT  check,
the applicant completed a command approved, local transition  training
program to the T-38C aircraft as required during the  base  conversion
to the C-model aircraft.  An AF Form 8, dated 28 Jan 03 satisfied  the
initial Instrument/Qualification (INST/QUAL) check  and  ground  phase
examination checks, but  did  not  fulfill  the  Mission  (MSN)  check
requirements.

According to AETC/A3F, the "trigger" (condition initiating FEB action)
for the applicant occurred on the 28 Mar 03 low-level checkride.  This
event prompted the squadron commander to recommend FEB proceedings  to
the wing commander.  In accordance with the governing instruction,  an
FEB can be convened at anytime under any of the following  conditions:
Extended Aviation Service  Suspension  or  Disqualification,  Lack  of
Proficiency, Failure to Meet Training  Standards,  Lack  of  Judgment,
Aircrew  Requirements,  Violation   of   Aviation   Instructions   and
Procedures, and Habits, Traits, Characteristics.  The board entered 34
charges addressing "lack of proficiency" and "lack of  judgment".   It
determined  the  applicant  did  demonstrate  substandard  proficiency
and/or judgment in 30 specific findings.  The 28  Mar  03  AF  Form  8
process  normally  requires  an  additional  boldface  and   Emergency
Procedures Evaluation (EPE) examination and additional flight training
to resolve the Q-3 to a Q-l.  In this case, the commander deemed there
was adequate justification to convene an FEB in lieu of completing the
AF Form 8 process as  described  in  the  governing  instruction.   In
addition, the reviewing and approving authority on the 28  Mar  03  AF
Form 8 stated they did not feel additional training  would  result  in
the proficiency required to consistently perform IP duties.

AETC/A3F noted the applicant’s request that specific documentation  be
added to his record showing he  remains  qualified  and  eligible  for
future T-38 duty, and for  other  Major  Weapons  Systems  assignments
requiring concurrent qualification in the T-38.  They  indicated  that
to their knowledge this  type  of  document  does  not  exist  in  any
officer's permanent personnel selection folder.  Officers eligible for
reassignment are normally recommended by their  supervisors/commanders
in performance reports, or  letter(s)  of  recommendation  as  may  be
required for special mission or aircraft duty assignments.

AETC/A3F stated that if the Board’s decision  is  to  provide  relief,
they recommend changing the 17 Nov 02 AF Form  8  to  show  it  was  a
periodic Instructor/Mission Check, and expunging from the  applicant’s
records of the 28 Mar 03 AF Form 8.

A complete copy of the AETC/A3F evaluation, with  attachments,  is  at
Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel  reviewed  the  advisory  opinion  and  furnished  a  response
indicating that nothing in the advisory opinion refuted  the  evidence
submitted by the applicant, particularly the expert opinion.  It  also
ignored the FEB board membership’s noncompliance  with  the  governing
instruction’s panel qualification requirements, and  the  conflict  of
interest amongst  the  board  members,  which  prevented  a  fair  and
impartial hearing.  He  further  believes  the  advisory  ignored  the
disappearance and apparent destruction of the audio  visual  recording
of that flight prior to the board.

According to counsel, the evidence  shows  the  applicant’s  checkride
began as a required periodic INSTR/MSN checkride and changed to a SPOT
check  ride  to  wrongfully  deny  him  credit  after  he  passed  the
evaluation.  He believes the advisory fails to articulate why  the  28
Mar 03 MSN  checkride  was  required  if  the  17 Nov  02  check  ride
fulfilled the annual requirement for a MSN checkride.  It also  failed
to address the expert observation that only in extremely  rare  cases,
if ever, would an FEB be undertaken solely on the basis  of  a  failed
MSN checkride.

As an important  clarification,  counsel  indicated  that  during  the
applicant’s assignment, when the squadron transitioned from the T-38 A-
model  aircraft  to  the  C-model,  pilots  whose  periodic  INSTR/MSN
checkrides were current in the T-38  A-model  were  only  required  to
complete   the    C-model    transition    course    and    Instrument
Flying/Qualification checkride to be fully certified as IPs in the new
aircraft.  In his view, the  advisory  opinion  incorrectly  tries  to
imply the applicant was required to complete a new INSTR/MSN checkride
as well as the Instrument Flying/Qualification  checkride  in  the  C-
model before being qualified as an instructor in the new aircraft.  He
believes the wrongful denial of the required retraining  and  re-check
after the 28 Mar 03 checkride, the destruction of the videotape of the
flight, and the noncompliance of the  FEB  regulation  are  more  than
adequate justification to void the 28 Mar 03 AF Form 8.

In summary, counsel indicates the advisory opinion appears to all  but
concede that the applicant’s first two  requests  for  relief  possess
merit.  With respect to  the  last  request,  the  advisory  does  not
dispute it would be appropriate to provide the relief.

Counsel’s complete response is at Exhibit E.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

After reviewing the  counsel’s  rebuttal  response  to  their  initial
advisory opinion, AETC/A3F indicated the applicant and counsel offered
no new or compelling evidence relative to this appeal.  In their view,
the events leading to the FEB were properly applied in accordance with
the governing instructions, and documented in the applicant’s records.
 Therefore,  their  position  remains  unchanged  from  their  initial
advisory opinion.

A complete copy of the AETC/A3F evaluation is at Exhibit F.

By electronic mail (e-mail), AFPC/DPAOT3 indicated that after a review
of the applicant’s history file, they found a  substantial  entry  was
made on 29 Mar 04  which  read,  “Member  was  FEB’ed  from  T-38C  IP
service.   He  is  still  qualified  for  aviation  service.   AETC/CC
recommends reassignment back to the B-1 IAW needs of the  Air  Force.”
Based on that entry, AFPC/DPAOT3  does  not  feel  any  new/additional
entry is required in the applicant’s records.

A complete copy of the AFPC/DPAOT3 message is at Exhibit G.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel reviewed  the  additional  advisory  opinion  and  provided  a
response indicating that despite assertions to the contrary, both  the
original  and  new  advisory  are  essentially  nonresponsive  to  the
evidence in this case.  They simply argue  against  the  evidence  and
continue to ignore the core justifications for granting the  requested
relief. Counsel  also  stated  that  there  appears  to  be  confusion
regarding the request the applicant’s records be documented to reflect
he remains eligible for  future  T-38  IP  assignments  and  to  other
assignments that require concurrent qualification in the T-38.  He  is
not and has not requested any change to  any  documentation  regarding
the applicant’s master personnel records at AFPC.  He is asking that a
statement be included in the Board’s decision memorandum.  If for some
reason the Board elects to deny the requested relief, he concurs  with
the e-mail  indicating  that  no  new/additional  entry  is  required.
Additionally,  he  has  provided  important  documentation  from   the
applicant’s current assignment at  Dyess  AFB  where  he  served  with
distinction as a B-1 pilot.  This evidence, considered along with  the
evidence  of  apparent   impropriety   at   Columbus   AFB,   strongly
corroborates that the applicant’s performance was being misrepresented
at that assignment.

Counsel’s complete response, with attachments, is at Exhibit I.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the
existence of error or injustice pertaining to the applicant’s  request
that the 28 Mar 03 AF Form 8 be declared void  and  removed  from  his
records.   A  review  of  the  available  evidence  reveals  that   an
individual who receives a Q-3 rating is  normally  allowed  additional
training and re-evaluation to improve  the  rating.   However,  rather
than affording the applicant such an opportunity, a decision was  made
to convene an FEB, the reason of which was not clear to a majority  of
the Board.  Although the  FEB  recommended  he  be  disqualified  from
aviation service, the 19 AF/CC recommended he  be  allowed  to  remain
qualified   and   the   decision   authority   concurred   with    the
recommendation.   Also,  it  appears  the  videotape  of  his   failed
checkride was inexplicably  destroyed.   Additionally,  the  applicant
seems to be performing well in his current assignment as  an  aviator.
In view of the above, a majority  of  the  Board  believes  sufficient
doubt has been  raised  regarding  the  fairness  of  the  AF  Form  8
reflecting a Q-3 rating, which should be  resolved  in  favor  of  the
applicant.  Accordingly, the Board majority recommends  the  28 Mar 03
AF Form 8 be declared void and removed from his records.

4.  Insufficient relevant evidence has been presented  to  demonstrate
the existence of error or injustice regarding the applicant’s requests
to amend the 17 Nov 02 AF Form 8 to reflect  an  INSTR/MSN  checkride,
and to have a statement included in the  Board’s  decision  memorandum
indicating he remains eligible  for  future  assignments  to  T-38  IP
billet  and  other  major   weapons   systems   requiring   concurrent
qualification in the T-38 aircraft.

      a.  Concerning his request to amend the 17 Nov 02 AF Form 8, the
applicant's  complete  submission  was  thoroughly  reviewed  and  his
contentions were duly noted.  However, we do not find the  applicant’s
assertions and the documentation presented in support  of  his  appeal
sufficiently persuasive to override  the  rationale  provided  by  the
office of primary responsibility (OPR).  No evidence has been provided
which shows to our satisfaction the SPOT evaluation  conducted  on  17
Nov  02  was  inappropriate,  or  was  administered  in  violation  of
applicable directives.  In view of the foregoing, and in  the  absence
of  sufficient  evidence  to  the  contrary,   we   agree   with   the
recommendation of the OPR and adopt its rationale as the basis for our
decision that the applicant  has  failed  to  sustain  his  burden  of
establishing  he  has  suffered  either  an  error  or  an  injustice.
Accordingly, we find no compelling basis  to  recommend  granting  the
applicant’s request to amend the 17 Nov 02 AF Form 8.

      b.  Regarding the applicant’s request for inclusion of the above
statement in the Board’s decision memorandum, we note the Secretary of
the Air Force acting through a Board of  civilians,  may  correct  any
military record when he considers it necessary to correct an error  or
remove an injustice.  In this case, the applicant makes no request for
a specific correction of his military record.  Therefore, in our view,
the inclusion of such a statement where there is no  correction  of  a
military  record  would  not   be   appropriate.    Accordingly,   the
applicant’s request 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  AF  Form  8,
Certificate of Aircrew Qualification, dated 28  Mar  03,  be  declared
void and removed from his records.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 30 Jan 08, under the provisions of AFI 36-2603:

      Mr. Thomas S. Markiewicz, Chair
      Mr. Kurt R. LaFrance, Member
      Mrs. Lea Gallogly, Member

By majority vote, the Board voted to  grant  the  applicant’s  request
that the 28 Mar 03 AF Form 8 be declared void  and  removed  from  his
records.  Mr. LaFrance voted to  deny  the  request  and  submitted  a
minority report.  The Board unanimously voted to  deny  the  remaining
portions of his appeal.  The following documentary evidence pertaining
to AFBCMR Docket Number BC-2006-03559 was considered:

     Exhibit A.  DD Form 149, dated 14 Nov 06, w/atchs.
     Exhibit B.  Applicant's Available Master Personnel Records.
     Exhibit C.  Letter, AETC/A3F, dated 20 Dec 06, w/atchs.
     Exhibit D.  Letter, SAF/MRBR, dated 12 Jan 07.
     Exhibit E.  Letter, counsel, dated 12 Feb 07.
     Exhibit F.  Letter, AETC/A3F, dated 5 Oct 07.
     Exhibit G.  Electronic Mail, AFPC/DPAOT3, dated 10 Oct 07.
     Exhibit H.  Letter, SAF/MRBR, dated 12 Oct 07.
     Exhibit I.  Letter, counsel, dated 12 Nov 07, w/atchs.
     Exhibit J.  Minority Report, dated 19 Mar 08.




                                   THOMAS S. MARKIEWICZ
                                   Chair



AFBCMR BC-2006-03559




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 , be corrected to show that the AF Form 8,
Certificate of Aircrew Qualification, dated 28 March 2003, be, and
hereby is, declared void and removed from his records.







    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency