RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2007-02293
                                       INDEX CODE:  128.05
      XXXXXXXXXXXXXXXXXX                COUNSEL: NONE

                                             HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS:

All documents referencing his 12 October 2005 Letter of Reprimand  (LOR)  be
removed from his Air Force military  personnel  records  (MPR)  and  Officer
Selection Record (OSR); reinstatement of  his  promotion  to  the  grade  of
major with back pay; reinstatement of the Joint  Service  Achievement  Medal
(JSAM); and award of the Defense Meritorious Service Medal (DMSM).

_________________________________________________________________

APPLICANT CONTENDS THAT:

His commander failed to provide proper notification of his decision to  file
the LOR or provide enough time to submit a response. The information in  his
record upon which the Secretary of the Air Force (SecAF) based his  decision
to remove his name from the promotion list to  major  was  inaccurate.   The
decision to impose an  LOR  and;  thereafter,  file  it  in  an  Unfavorable
Information File (UIF) and his OSR was an overreaction and  disproportionate
to  the  offenses  involved.   If  personnel  records  were   accurate,   no
derogatory information would have been present and there would have been  no
justification to revoke his promotion.

In support of his application, the applicant submits personal statements;  a
command letter of support; an Air Force  Office  of  Special  Investigations
(AFOSI) letter denying his Freedom of Information Act request;  AF  IMT  77,
Letter of Evaluation (removal of performance report for the  period  31  May
2003 through 30  May  2004);  excerpt  of  Air  Force  Instruction  36-2608,
Chapter 9, Filing Other Items in Selection Folder;  LOR,  dated  12  October
2005; notification to file LOR in OSR; applicant’s acknowledgments  of  both
LOR and intent to file;  applicant’s response  to  notification  filing  his
LOR in his OSR; and approval authority’s determination to file  the  LOR  in
the OSR.

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

_________________________________________________________________

STATEMENT OF FACTS:

According to the military personnel data system, the applicant is  currently
serving on active duty in the grade of captain with a date  of  rank  of  29
May 2000.  He was selected for promotion  to  the  grade  of  major  by  the
Calendar Year 2004A Major Central Selection Board (CSB) which convened on  1
November 2004; however, was removed from the promotion list by the SecAF  on
25 May 2007.  He has  a  Total  Active  Federal  Military  Service  Date  of
10 August 1988 and a Total  Active  Federal  Commissioned  Service  Date  of
25 June 1996.  The applicant has  a  projected  date  of  separation  of  31
August 2008.

An AFOSI Report of Investigation (ROI), dated 15  November  2004,  indicates
an inquiry was initiated on 16 February  2004  against  the  applicant  when
special  agents  were  notified  the  applicant  was  exhibiting  suspicious
behavior and was  involved  with  foreign  contacts  and  performed  foreign
travel that he  was  not  reporting  to  military  officials.   The  inquiry
determined the  subject  did  not  divulge  classified  information  to  any
foreign nationals or  unauthorized  personnel,  nor  did  he  knowingly  not
report contact with foreign nationals in accordance with the  United  States
Military  Training  Mission  (USMTM)  policy  and   military   instructions.
However, the report indicates the applicant did commit multiple offenses  of
unauthorized travel to Kuwait in which contact with  foreign  nationals  was
made and not reported to security officials in accordance with USMTM  policy
and  military  instructions.   In  addition,  the  inquiry  discovered   the
applicant possibly committed several criminal  infractions  not  within  the
purview of the inquiry.  The possible  criminal  acts  included  failure  to
obey a lawful order or regulation, adultery, and tax evasion.

On 1 March 2004,  the  applicant  received  a  Letter  of  Admonishment  for
violation of a force protection policy and obstructing several common  sense
Operations Security (OPSEC) rules.   On  22 April  2004,  the  Chief,  Joint
Advisory Division, USMTM, revoked his driving privileges for a period of  30
days.  On 3 May 2004, the Chief, USMTM, suspended the applicant’s access  to
classified information due to the applicant’s misstatements to the Chief  of
Staff regarding the number of days  leave  he  took,  discrepancies  on  his
travel  vouchers,  issues  regarding  his  travel  to  Kuwait,  and   issues
regarding his financial dealings in Kuwait and  Saudi  Arabia  with  foreign
nationals.  On 8 May 2004, an order, dated  6 December  2003,  awarding  him
the JSAM w/one Oak  Leaf  Cluster,  was  revoked.   On  28  July  2004,  the
applicant’s  security  clearance  was  suspended.   As  a  result   of   the
applicant’s suspended security clearance, recoupment action of his  Critical
Skills Retention Bonus (CSRB) was initiated.

On 26 March 2005, his rater notified the applicant  that  he  was  referring
his OPR for the period 31 May 2003 through 30 May 2004. After  acknowledging
receipt, the applicant submitted a statement in his own behalf  on  28  July
2005.

On 12 October 2005, the applicant received a Letter of Reprimand (LOR) for:

      a. Leaving his vehicle unattended at  Riyadh  Airport,  Saudi  Arabia,
with a personal letter in plain view showing his  name,  rank,  and  mailing
address, along with his Eskan Village entrance/exit badge on the  floorboard
of the vehicle.


      b. Violation of USCENTCOM General Order 1  by  knowingly  transferring
alcoholic beverages to Kuwaiti nationals.


      c. Failing  to  report  to  the  appropriate  officials  that  he  was
contacted by a Kuwaiti national and offered a bribe to enter into  contracts
with the Kuwaiti national’s company, as it was his duty to do.


      d. Falsely reporting his military identification card as  stolen  when
he knew it had not been stolen.


On 19 October 2005, the applicant acknowledged receipt of the  LOR  and  his
intention to submit a statement in his own behalf.  On 9 December 2005,  the
LOR was revised by rescinding item “c” above.  Subsequently, an  Unfavorable
Information File (UIF) was established as a result of the  applicant’s  LOR.
On 22 February 2006, his commander notified the applicant of his  intent  to
file the LOR in the  applicant’s  OSR.   Also,  on  22  February  2006,  the
Commander, Aeronautical Systems Center (ASC), notified that  applicant  that
he was recommending his name be removed  from  the  promotion  list  to  the
grade of major.  After  acknowledging  receipt  of  the  notifications,  the
applicant submitted statements in his  own  behalf.   As  a  result  of  the
applicant’s submission in response to the LOR, the LOR was  further  revised
by rescinding item  “a”  above  on  4  May  2006.   On  5  May  2006,  after
considering the applicant’s submission, his commander  directed  a  copy  of
the applicant’s LOR be filed in his OSR.

On 19 June  2006,  the  Evaluation  Reports  appeal  Board  (ERAB)  approved
removal of the applicant’s referral OPR from his records.  On 11 July  2006,
the applicant requested the Chief, USMTM, overturn  the  suspension  of  his
Critical Skills Retention Bonus (CSRB).  On 25 July 2006, the Chief,  USMTM,
denied the applicant’s request.  As a  result  of  his  referral  OPR  being
removed, on 22 August 2006, the  applicant  was  notified  that  ASC/CC  was
resubmitting a recommendation for removal of his name from the  CY04A  Major
CSB promotion list.  On 25 May 2007, the SecAF approved  the  recommendation
and directed the applicant’s name be  removed  from  the  list  of  officers
selected for promotion by the CY04A Major CSB.

On 7 February 2008, the Board considered and denied the applicant’s  request
to reinstate his CSRB back to the date of recoupment and for it  to  be  tax
exempt.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPSI recommends denial of the applicant’s request  to  remove  his  LOR
from his records and OSR.  DPSI indicates that after reviewing the  evidence
of record, they have validated  the  LOR  was  processed  and  the  UIF  was
established in accordance with Air Force  Instruction  36-2907,  Unfavorable
Information File (UIF) Program.

The DPSI evaluation is at Exhibit C.

AFPC/DPSOO recommends denial of  the  applicant’s  requests.   DPSOO  states
that promotion is not a reward for past service.  It  is  advancement  to  a
position of greater responsibility based on  the  requirements  of  the  Air
Force and the officer’s future potential.  If an officer  is  not  mentally,
physically, morally, or professionally qualified to perform  duties  in  the
next higher grade, it is in the best interest  of  the  Air  Force  for  the
proper authority to initiate action to delay promotion, to find  an  officer
not qualified for promotion, or to  remove  the  officer  from  a  promotion
list.   In  this  case,  the   applicant   was   provided   all   supporting
documentation, provided legal counsel, and given sufficient  opportunity  to
respond to the removal action taken by the commander.  The LOR  in  question
was a part of the removal action and would have been provided to SecAF  even
if it had not been filed in his OSR.  Therefore, the applicant’s  basis  for
having his promotion reinstated  is  without  merit.   The  removal  package
received numerous legal reviews prior to SecAF directing the removal and  it
was found to be legally sufficient.

The DPSOO evaluation is at Exhibit D.

AFPC/JA recommends denial of the applicant’s request  for  reinstatement  of
his promotion to the grade of major effective 1 June  2006  with  back  pay;
and, his request to remove all evidence of the  UIF/LOR  from  his  MPR  and
OSR.  They agree with the Air Force advisory opinions provided by DPSOO  and
DPSI.  JA indicates the statements and evidence upon which  the  applicant’s
LOR is based were all properly obtained  and  utilized.   More  importantly,
the allegations that constitute the LOR were admitted to by  the  applicant.
He merely disagrees with the severity of the actions that were  taken  based
on these incidents of misconduct, and believes that imposing a  LOR/UIF  and
removing  him  from  the  promotion  list  for   such   “relatively   minor”
allegations constitutes  an  “injustice.”   It  is  JA’s  opinion  that  the
misconduct documented in his LOR was serious – going to the very essence  of
an officer’s integrity.  Concomitantly, the actions  taken  in  response  to
this behavior were fully appropriate.

JA states that while the applicant contends he was  never  notified  of  the
intent to  file  the  LOR  in  his  OSR  and  thus  was  never  offered  the
opportunity to submit matters in response, the case file contains a copy  of
the 22 February 2006 “Notification of Intent to File Letter of Reprimand  in
Appropriate Selection Record (AFI 36-2608),” signed by ASC/CC,  attached  to
which  is  an  acknowledgment,  dated  27  February  2006,  signed  by   the
applicant.  This would seem to directly refute his assertion  he  was  never
afforded a rebuttal  opportunity.   Moreover,  as  noted  by  DPSOO  in  its
advisory, regardless of whether the  LOR  was  filed  in  the  OSR,  it  was
properly part and parcel of the evidence supporting the applicant’s  removal
from the promotion list, a completely  separate  action  for  which  he  was
given an opportunity to respond.  The evidence of record fully supports  the
LOR, its filing in the UIF and OSR, and the removal of  his  name  from  the
promotion list to major.  The  applicant  has  failed  to  provide  relevant
evidence to prove any error or injustice in respect to these actions.

The JA evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He was advised on 22 February 2006 that his promotion was being removed  for
three offenses.   Based  on  his  responses,  one  of  the  allegations  was
stricken from his LOR and he was told  that  his  promotion  was  not  being
removed.  He was surprised when  he  heard  that  his  promotion  was  being
denied.  He was not given the  opportunity  to  respond  to  either  of  the
promotion removal packages that were  submitted  on  21  July  2006  and  22
August 2006.  There are no notification letters signed by him  acknowledging
that these packages were being submitted.  The  final  removal  package  was
submitted to SecAF  on  22  August  2006,  30  months  after  the  incidents
transpired, 22 months after the promotion board convened,  10  months  after
the UIF was established, 6 months after the  notification  was  issued,  and
almost 3 months after he was officially authorized to pin-on major.   Bottom
line – the paperwork was submitted after  his  promotion  date  without  his
knowledge.

His response to the LOR was delayed beyond the required 3 days upon  receipt
due to his attempts to obtain all the required information  (in  particular,
trying  to  obtain  a  copy  of  the  OSI  report);  however,  requests  for
extensions were  requested  and  approved.   The  OSI  report  never  became
available so he and his Area Defense Counsel had  to  respond  with  limited
information.

During  the  OSI  investigation,  he  was  unlawfully  denied  an  attorney,
unlawfully  subjected  to  a  polygraph,  and   unlawfully   detained.    An
authorized preliminary report was written in order to appease  a  commanding
officer so he could  write  a  referral  OPR.   The  preliminary  report  is
against any investigative  protocol  since  it  skews  the  outcome  of  the
investigation – especially when  written  six  months  before  the  case  is
closed.  Furthermore, the OSI conducted  the  investigation  without  proper
approval and coordination.  The author  of  the  Air  Force  legal  advisory
opinion did not review  all  of  the  pertinent  documents,  specifically  a
complete copy of the classified  OSI  report  or  the  affidavits  from  the
witnesses.  Without reviewing all the pertinent documents,  JA  is  speaking
on issues they know nothing about.  He has attempted to  obtain  a  complete
copy of the OSI report under the Freedom of Information  Act;  however,  his
requests have not produced any results.

He contends that an injustice  has  occurred  after  having  experienced  an
interrogation by the OSI based on false statements for allegedly  committing
treason, espionage, adultery,  bribery,  transporting  weapons,  aiding  the
enemy, transporting and possessing war  trophies,  failure  to  pay  spousal
support, falsifying leave documents, lying to the  unit’s  Chief  of  Staff,
violating Force Protection Policies,  amongst  many  other  alleged  crimes.
Based on the polygraph and other tangible evidence,  he  was  found  totally
and completely innocent of  every  allegation.   It  is  an  injustice  when
military  members  who  intentionally  mislead  the  OSI   were   not   held
accountable for their false statements.  An injustice occurred when the  OSI
did not have proper authority  to  invade  his  life  with  phone  taps  and
surveillance  measures  (these  activities  are  hidden  in  the  classified
version of the OSI report).  Clearly, the Air Force legal  advisor  supports
a maverick style system which allows false allegations to justify  a  search
for any wrong doings.  If a wrong  doing  is  not  admitted  and  discovered
later; then, the individual is guilty of withholding  information,  perjury,
and failure to cooperate with a federal investigation.

He apologizes to the Board members for the tone of  his  rebuttal;  however,
he hopes they can empathize with the magnitude  of  his  situation.   He  is
still requesting a formal hearing before the Board.

The applicant’s rebuttal is at Exhibit G.

_________________________________________________________________

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 an error or an injustice.  We took notice  of  the  applicant's
complete submission in judging the merits of the case; however,  we  do  not
find his uncorroborated  assertions,  in  and  by  themselves,  sufficiently
persuasive to override the rationale provided by the Air  Force  offices  of
primary responsibility (OPRs).  Accordingly, we agree with the opinions  and
recommendations of the Air Force OPRs  and  adopt  their  rationale  as  the
basis for our conclusion that the applicant has not been the  victim  of  an
error or injustice.  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 this application in  Executive
Session on 29 May 2008, under the provisions of AFI 36-2603:

      Mr. Wayne R. Gracie, Panel Chair
      Mr. Vance E. Lineberger, Member
      Mr. Garry G. Sauner, Member


The following documentary evidence was considered in connection with  AFBCMR
Docket Number BC-2007-02293:

      Exhibit A.  DD Form 149, dated 16 Jul 07, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFPC/DPSI, dated 11 Dec 07.
      Exhibit D.  Letter, AFPC/DPSOO, dated 17 Jan 08.
      Exhibit E.  Letter, AFPC/JA, dated 12 Feb 08.
      Exhibit F.  Letter, SAF/MRBR, dated 22 Feb 08.
      Exhibit G.  Applicant’s Rebuttal, dated 21 Mar 08.




                                  WAYNE R. GRACIE
                                                   Panel Chair