RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2008-00966
            INDEX CODE:  111.01
      XXXXXXX    COUNSEL:  MR.  DREW HURLEY
            HEARING DESIRED:  YES

________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His four Letters of Reprimand (LOR) be removed from his records.

2.  His Unfavorable Information File (UIF) be removed from his records.

3.  His AF IMT 707A, Officer Performance Report (MAJ-COL) rendered  for  the
period 3 December 2003 through 2 December 2004 be removed from his  records.


4.  The Military Protective Order (MPO) be removed from his records.

5.  The denial of participation for pay  and  points  be  removed  from  his
records.

6.  The grounding by his superiors be terminated.

7.  Documents referring to his promotion removal action be removed from  his
records.

8.  The retirement package he submitted in May 2007 be withdrawn.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The negative events in his records are derived from an  LOR  for  an  absent
without leave (AWOL) charge that never occurred per  the  Secretary  of  the
Air  Force  (SAF)  Inspector  General   (IG)   investigation.    A   serious
investigation was not conducted to determine if  the  events  occurred.   He
was not afforded an  opportunity  to  defend  himself  against  the  various
allegations and wrongful actions.  There  is  a  preponderance  of  evidence
that abuse of authority and failure to exercise due diligence to  conduct  a
proper investigation compounded the situation and inflicted an injustice.

In support of his request, applicant provided a personal  statement,  copies
of his LOR’s, AF Forms  938,  Request  and  Authorization  for  Active  Duty
Training/Active Duty Tour; reports and  various  other  documents  extracted
from his military personnel records.

His complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Information extracted from  the  Military  Personnel  Data  System  (MILPDS)
indicates that the applicant is currently serving in the Air Force  Reserves
in the grade of major having assumed that grade effective and  with  a  date
of rank (DOR) of 29 May 2007.

On 3-4 October 2003,  he  piloted  a  trip  for  American  Airlines  without
permission to engage in off duty employment or be absent from  his  assigned
duty location.

On 30 January 2004, he was issued an LOR for being absent without leave.

During the fall of 2004, the applicant submitted three  travel  vouchers  to
his supervisors claiming he arrived at the airport  one  day  prior  to  his
authorized travel day and stayed at the airport overnight before  travelling
to his temporary duty location.

In March 2005, despite being ordered not to assume the rank of  Lt  Col,  he
obtained a military identification card with the rank of Lt Col.

On 11 February 2006, he was given two additional  LORs  for  travel  voucher
fraud and a third for violating the wing commander’s order for assuming  the
rank of Lt Col.

On 26 October 2006, he was retroactively promoted to Lt Col.

On 13 Jun 2008, the Secretary of the Air Force disapproved  his  request  to
withdraw his application for transfer to the Retired Reserve and  determined
he did not serve satisfactorily in  the  grade  of  Lt  Col  but  did  serve
satisfactorily in the grade of major.

The remaining relevant facts pertaining to this application, extracted  from
the applicant’s military records, are contained in the  letter  prepared  by
AFRC/JA at Exhibit C.

_________________________________________________________________

AIR FORCE EVALUATION:

AFRC/JA recommends partial relief by removing the OPR.  JA states  there  is
sufficient material evidence in the record to support a finding that he  may
have suffered a material injustice as  a  result  of  administrative  action
taken by his chain of command with respect to the  referral  OPR.   In  this
instance, the chain of command completely failed to  follow  the  procedures
for referral of an OPR.  Furthermore, it is  not  entirely  clear  that  the
comments were appropriate for the rating  period  in  question.   JA  states
procedural errors occurred in some instances in which the  514th  leadership
took action against the applicant but with exception  of  the  referral  OPR
were  not  prejudicial  to  the  point  of  being  a   material   injustice.
Additionally, nothing has been presented that would  negate  the  underlying
misconduct engaged in by the applicant.  All personnel actions in this  case
have been administrative  rather  than  judicial  in  nature,  and  are  not
governed by the strict military rules of evidence or other procedural  rules
applicable to  judicial  actions.   In  the  context  of  an  administrative
discharge action, these errors can be considered in determining  the  weight
to give these actions, but they do not necessarily affect the  admissibility
of these actions in the record.  AFI 51-602, Board of Officers, states  that
"the general rule is that all matters that are relevant and material  to  an
issue or inquiry are admissible."  The AFI provides that "in  resolving  all
other evidential matters, the legal advisor  must  consider  the  fact  that
administrative proceedings are not bound by the  formal  rules  of  evidence
prescribed for trial by court-martial."  Accordingly, there  is  no  per  se
rule  that  these  actions  should  be  deleted  from  his  records  due  to
procedural irregularities, or that they must be excluded from  consideration
in his request to retire in lieu of an administrative discharge.  The  Board
should deny his request to waive  the  three  year  application  limitations
with respect to the issues surrounding the LOR dated 30 January 2004.   With
respect to his other requests, the Board should  deny  the  application  for
relief on its merits.  He has not provided evidence of an error in his  case
sufficient to justify the requested relief.

The complete JA evaluation is at Exhibit C.

AFRC/A1E recommends denial.   A1E  states  based  on  the  AFRC/JA  advisory
opinion along with  AFRC/J1  review,  there  is  no  basis  to  support  the
requested change to the applicant’s records.

The complete A1E evaluation, with attachments, is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded thru counsel stating JA is incorrect in  stating  in
its footnote that it was not substantiated that there was a policy in  place
to permit Reserve pilots during  a  break  in  training  to  fly  for  their
civilian airlines.  To the contrary, the AF/IG report  referred  to  in  his
application clearly states there was such a policy in  place  and  the  only
person in the chain of command not aware of it was  the  prime  offender  in
the ruination of his  career.   AFRC  continues  to  ignore  the  IG  report
wherein it was established he could and in fact was able  to  fly  with  his
civilian employer.  AFRC fails to note he was not  advised  by  Colonel  “C”
that he could rebut the matters.   When  he  later  learned  the  Letter  of
Reprimand (LOR) was not a "desk drawer" he tried  to  submit  rebuttals  and
was told he was out of time.  The alleged misconduct was solely  a  baseless
construct of Colonel “C” as was later found by the  IG.   The  referral  OPR
was found by the IG to have been an abuse of discretion.  To date there  has
been no showing from any investigation that there was  anything  wrong  with
any of his travel vouchers.  In fact, the Air Force  has  subsequently  paid
him on those vouchers.  Hence, the two  pay  voucher  LORs  issued  have  no
basis in fact or law.  While the report did note many procedural abuses,  it
specifically  noted  that  Colonel   “C”’s   actions   were   punitive   and
irrationally motivated.  The IG report provides while there  was  no  proven
abuse of authority  the  issuing  officer  and  his  commander  both,  after
learning the facts, stated they would  have  acted  differently,  i.e.,  not
issued the LOR.  The LOR was wrongly issued in the sense it was based  on  a
lack of information which the commander could have, but failed to obtain.

The complete response is attached at Exhibit F.

_________________________________________________________________

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.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of an error or  injustice  warranting  partial  relief.   In  this
respect, noting the opinion of AFRC/JA that the  contested  OPR  appears  to
contain inappropriate comments and he was not afforded  proper  due  process
during the referral process, we agree with the recommendation that  the  OPR
should be declared void and removed from his records.

4.  Notwithstanding the above, we found insufficient  relevant  evidence  to
demonstrate the existence of an error or injustice regarding  his  remaining
requests.  The applicant believes that the negative events  in  his  records
should be removed because of  the  determination  of  an  IG  investigation.
Although the IG investigation failed to substantiate  findings  of  reprisal
with respect to applicant’s complaint, the IG opined that  there  was  abuse
of command authority with respect to the  LOR  dated  30 January  2004,  the
UIF, MPO and his removal from the flying schedule.  We  agree  with  AFRC/JA
that what the IG believes to be abuses of authority in  this  case  are,  in
our opinion, procedural irregularities and  we  are  not  persuaded  by  the
applicant's  assertions  that  they  rise  to  the  level  of  an  error  or
injustice.   Contrary  to  the  applicant’s  characterization  of   the   IG
findings, we note that the IG report does not appear to exonerate  him  from
the allegations of misconduct;  rather,  the  IG  concluded  the  Air  Force
failed to follow its own guidance on how to properly complete the  paperwork
documenting the misconduct or in taking other  administrative  actions.   It
seems apparent that his commander had what  he  believed  to  be  sufficient
evidence of misconduct to initiate the administrative  actions  taken.   The
initial LOR and UIF were based upon the fact that the  applicant  failed  to
receive appropriate authority to fly for  his  civilian  employer  during  a
break in training.  While the applicant argues that there was  a  policy  in
place to permit pilots to fly with their civilian employer  during  a  break
in training, we find no documentation supporting his contention that he  had
the proper authority from his supervisor to  be  absent  from  his  assigned
duty location or that he had permission to engage  in  off  duty  employment
during the time period.  Regarding the LORs issued for travel voucher  fraud
and violating the wing commander’s order not to assume the rank of  Lt  Col,
persuasive evidence has not been provided which would  lead  us  to  believe
that the administrative actions taken by his commander regarding these  LORs
were inappropriate, beyond his  scope  of  authority,  that  he  abused  his
discretionary authority, or that the  actions  taken  were  precipitated  by
anything  other  than  the  applicant's  own  conduct.   We  also  find  the
applicant has failed to sustain his burden of proof that  he  has  been  the
victim of an error or an injustice with regards  to  his  removal  from  the
flying schedule.

Regarding  his  request  for  withdrawal   of   his   voluntary   retirement
application, the request was a voluntarily action on his  part  and  we  are
not persuaded by the evidence of record that his records should  be  changed
to reflect otherwise.  We note that on 15 May 2008, SAFPC concluded  it  was
not in the best interest of the Air Force  to  allow  him  to  withdraw  his
request for transfer  to  the  Retired  Reserve.   We  concur  with  SAFPC’s
decision to deny his request and the  applicant  has  provided  no  evidence
which would persuade us that their determination was  in  error  or  unjust.
We are also not persuaded by the applicant's assertions that the  underlying
basis for issuing the MPO was inappropriate.  Based  on  the  administrative
discharge action he was issued a denial of participation for pay and  points
in  accordance  with  AFM  36-8001,  Reserve  Personnel  Participation   and
Training Procedures.  Once the applicant was issued  a  “no-pay  no  points”
order with the recommendation for discharge, the MPO was  rescinded.   As  a
result of the administrative  actions  taken,  his  commander  appropriately
initiated a promotion propriety action which was subsequently  withdrawn  in
October 2006.  In view of the  above,  we  recommend  that  his  records  be
corrected only to the extent indicated below.

_________________________________________________________________



THE BOARD RECOMMENDS THAT:

Pertinent military records of the Department of the Air  Force  relating  to
APPLICANT, be corrected to show that the AF Form 707A, Field  Grade  Officer
Performance Report (OPR), rendered for the period 3 December 2003 through  2
December 2004, be removed from his records.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number  BC-2008-
00966 in Executive Session on 14 August 2008 and 26 August 2008,  under  the
provisions of AFI 36-2603:

                 Ms.  B. J. White-Olson, Panel Chair
                 Ms.  Janet I. Hassan, Member
                 Ms.  Teri G. Spoutz, Member

All members voted to correct the  records  as  recommended.   The  following
documentary evidence pertaining to AFBCMR Docket  Number  BC-2008-00966  was
considered:

    Exhibit A.  DD Form 149, dated 3 March 2008, w/atchs.
    Exhibit B.  IG Report - Withdrawn.
    Exhibit C.  Letter, AFRC/JA, dated 6 June 2008.
    Exhibit D.  Letter, AFRC/A1E, dated 17 June 2008.
    Exhibit E.  Letter, SAF/MRBR, dated 20 June 2008.
    Exhibit F.  Letter, Applicant, dated 18 July 2008.




                                   B.J. WHITE-OLSON
                                   Panel Chair


AFBCMR BC-2008-00966






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 XXXXXXX, XXXXXXX, be corrected to show that the AF Form 707A,
Field Grade Officer Performance Report (OPR), rendered for the period 3
December 2003 through 2  December 2004, be, and hereby is, declared void
and removed from his records.









                                                           JOE G. LINEBERGER
                                                           Director
                                                           Air Force Review
      Board Agency