RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2007-02610
INDEX CODE: 111.01
XXXXXXX COUNSEL: NONE
HEARING DESIRED: YES
_________________________________________________________________
APPLICANT REQUESTS THAT:
1. The Letter of Reprimand (LOR), dated 31 October 2005 and the
Unfavorable Information File (UIF) be declared void and removed from
his records.
2. The Officer Performance Report (OPR) ending 29 December 2005 be
declared void and removed from his records.
_________________________________________________________________
APPLICANT CONTENDS THAT:
The alleged conduct upon which the LOR was based was erroneous and
addressed matters within his private rights and personal affairs that
were unrelated to any valid military concern. The LOR was thus
arbitrary and capricious, an abuse of discretion, and clearly unfair.
The sole basis for the referral report was the conduct alleged in the
erroneous LOR. In addition, the referral comments are vague, do not
address specific conduct, and do not comply with AFI-2406, Officer and
Enlisted Evaluation Systems, paragraph 3.9.
In support of his request, the applicant provided copies of the
Article 138 complaint and supporting documents, a summary of his
career achievements, promotion recommendations, the contested report
and awards and decorations information.
His complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant was commissioned a second lieutenant in the Regular Air
Force on 1 June 1983 and was progressively promoted to the grade of
colonel on 1 May 2005.
On 31 October 2005, the Commander, 70th Intelligence Wing (70th
IAW/CC) issued the applicant an LOR due to a close relationship he had
with a female Korean national which included trips to Hawaii, North
Carolina (NC) and South Korea while married to another woman. He also
failed to report in a timely matter, his close and continuing personal
association with two other Korean nationals as required by DoD 5105.21-
M-1, Department of Defense Sensitive Compartmented Information
Administrative Security Manual.
On 15 November 2005, the applicant submitted a letter to the 70th
IAW/CC responding to the LOR and the notification of intent to file
the LOR in his selection records.
On 30 January 2006, the 70th IAW/CC provided the applicant with a
referral OPR for the period of 3 June 2005 through 29 December 2005.
On 20 Oct 2006, the applicant submitted a letter to the 70th IAW/CC
requesting the commander redress his decision to issue an LOR,
establish a UIF and his subsequent decision to file the LOR in his
Officer Selection Record (OSR) and to refer his OPR.
On 20 November 2006 the 701th IAW/CC responded and stated there was
nothing in the applicant's package that would cause him to alter his
previous decision. Therefore, the applicants request for redress was
denied.
On 19 January 2007, the applicant submitted a letter to the 8th AF/CC
requesting he address his concerns.
On 4 April 2007 the 8th AF/CC indicated that after careful
consideration he found that the applicant's allegations did not
warrant relief.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPO recommends denial. DPO concurs with the 701AW/CC's decision
to deny the applicant's complaint under Article 138, UCMJ, dated 20
October 2006, and the NAF's decision that the applicant's allegations
do not warrant relief.
The complete DPO evaluation is at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant responded stating he is disappointed but not surprised
with the AF/DPO opinion. It merely recounts the steps in the process
without addressing the facts. Wide latitude is given to a commander
issuing an LOR. This does not obviate the fact that this
documentation, by regulation, must be 100 percent accurate. The
referral OPR, which does not comply with AFI 36-2406, is based on
erroneous assumptions in the LOR. The LOR is based upon a biased
Report of Investigation (ROI). The ROI presents unsubstantiated
conclusions based solely from a noncommissioned officer's notes,
compiled from memory. These notes contain glaring inaccuracies. For
example, one of the locations listed in the LOR is NC. The fact is his
wife has never been to NC. This alone should render the LOR void. He
passed three different polygraph tests on his recollection of the facts
in this case. At every turn there has been an official effort to
protect the questionable actions of the commander in this case without
regard to consideration of the facts. The portion of the LOR related
to reporting foreign contacts is absolutely preposterous. The Board
should be aware that his many attempts to obtain documentation in this
matter, through Privacy Act and Freedom of Information Act procedures,
were drawn out over a year until the commander retired, and then
referred to higher authority, without resolution. His career has been
ruined based upon assumptions which would not hold up in most basic
nonjudicial proceedings.
The applicant's complete response is at Exhibit D.
_________________________________________________________________
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, to include his response to the
advisory opinion 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
the applicant has not been the victim of an error or injustice.
Persuasive evidence has not been provided which would lead us to
believe that the administrative actions taken by his commander were
beyond his scope of authority, 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. We
do not find his assertions, in and by themselves, sufficiently
persuasive in this matter. Additionally, we are not persuaded by the
evidence provided in support of his appeal, that the contested report
is not a true and accurate assessment of his demonstrated potential
during the specified time period or that the comments contained in the
report were contrary to the provisions of the governing instruction.
Therefore, in the absence of persuasive 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 AFBCMR Docket Number BC-
2007-02610 in Executive Session on 18 December 2007, under the
provisions of AFI 36-2603:
Mr. Michael J. Novel, Panel Chair
Mr. Anthony P. Reardon, Member
Ms. Marcia Jane Bachman, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 18 July 2007, w/atchs.
Exhibit B. Letter, AFPC/DPO, dated 7 November 2007.
Exhibit C. Letter, SAF/MRBR, dated 9 November 2007.
Exhibit D. Letter, Applicant, dated 1 December 2007.
MICHAEL J. NOVEL
Panel Chair
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