RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2008-02518
            INDEX CODE:  110.00/131.00/107.00
            COUNSEL:  DAVID P. SHELDON
            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His record be corrected as indicated below:

      a.  The Letter of Reprimand (LOR) issued to him on 23 Apr 84 be
expunged from his record.

      b.  His Meritorious Service Medal (MSM) be reinstated.

      c.  He be promoted to Colonel (0-6).

_________________________________________________________________

APPLICANT CONTENDS THAT:

Applicant’s counsel submitted a 17-page brief, with attachments.  He  states
when the applicant first joined the Air Force he  was  labeled  a  “Negroid”
and had to battle a host  of  negative  racial  stereotypes  throughout  his
career.  He became the first African-American  to  command  the  prestigious
Security Police Squadron at the U.S. Air Force Academy.  He felt  there  was
not enough minority participation or representation in the decision  process
at the Academy.

Applicant filed  both  a  Social  Actions  complaint  and  an  IG  complaint
following his  LOR  and  spent  years  corresponding  on  the  matter.   His
previous request to restore his MSM did not include  a  copy  of  the  Equal
Opportunity and Treatment (EOT) report which has now been provided.

He has a Bachelor’s of Science degree in Biology.  He  was  commissioned  as
an officer in Jul 64 and initially trained as  a  Security  Policy  officer.
He later trained and served as both a Missile Launch Officer and  a  Missile
Operations Officer.  After 10 years, he  returned  to  the  Security  Policy
career field.  He spent the next nine years  as  a  Commander  and  Security
Police Staff Officer.

His receipt of an LOR ruined his  chances  for  promotion  to  the  rank  of
Colonel (0-6) and ended his career.  The reprimand was unjust and should  be
removed from his record as it negatively impacted his  chance  at  promotion
to Colonel.

Regarding the IG  investigation,  contrary  to  regulation  procedures,  the
witnesses were not sworn in, neither  was  the  applicant  informed  of  his
rights.   Therefore,  the  report  could  not  legally,   procedurally,   or
logically provide the  necessary  evidentiary  support  for  the  subsequent
reprimand.  The EOT inquiry officer noted “The IG  investigation  of  fraud,
waste and  abuse  was  conducted  in  an  unprofessional  manner.”   The  IG
investigating officer was due to  meet  the  same  promotion  board  as  the
applicant and was, therefore, not able to be sufficiently  disinterested  in
the outcome of the  investigation.   The  investigation  officer  was  later
promoted and made the Academy’s IG.  The majority of the IG report  findings
were based on the sworn  testimony  of  an  extremely  junior  servicemember
known to lie.

Applicant disagreed with the negative comments contained in the LOR and  the
stated version of events contained in the IG  investigation.   Although  his
actions may have seemed serious; he did not engage  in  any  sort  of  gross
misconduct.  The LOR made it seem that the applicant  was  running  a  “mini
Las Vegas” when nothing could have been further from the truth.  Card  games
were a way for troops to pass the time when they had to be present  but  not
on active patrol or duty.  Applicant played a few  hands  on  occasion,  but
never  participated,  condoned,  or  knew  of  any  card  gambling  of   any
significant dollar amount.  He authorized a football  pool  after  realizing
that many Academy organizations – including  the  Chief  of  Staff’s  former
organization - participated  in  similar  efforts  to  increase  morale  and
camaraderie.  Both instances are mislabeled as gambling and worthy  more  of
a verbal counseling  that  would  have  allowed  the  applicant  to  quickly
correct the situation.  Both the Chief of Staff  and  investigating  officer
overacted to the  applicant’s  request  for  a  piece  of  Plexiglas  and  a
borrowed stapler for use at home.  Applicant uttered a single curse word  as
an adjective, not a verb, to one of his subordinates.  No  one  ever  stated
the applicant used profanity when speaking to his troops.

The EOT investigation found  that  at  least  two  other  Lt  Colonels  with
blemished records were rewarded  decorations  upon  retirement.   Curiously,
the applicant’s award was revoked after he requested a  social  actions  and
IG investigation.

Applicant is a proud  retired  officer  with  a  long  career  of  faithful,
quality service.  He has a book forthcoming about his experiences and  hopes
to add a positive decision to its contents.

In support of the application, applicant’s counsel submits a  17-page  brief
with 22 Exhibits.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant honorably retired on 30 Sep 84.  He served 22 years and  4  months
on active duty.

In 27 Oct 84, the Board voted to deny the applicant’s request for the  award
of the MSM because his submission did not contain  substantive  evidence  to
convince the Board that the approval authority’s action to revoke the  award
of  the  MSM  (1OLC)  was  a  violation  of  regulation,  was  an  abuse  of
discretionary authority, or was improper or based on erroneous  information.
 A copy of the Board’s decision is at Exhibit B.

The remaining relevant facts pertaining to this application, extracted  from
the applicant’s military records, are contained in the letters  prepared  by
the appropriate office of the Air Force at Exhibits C, D and E.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPSI  recommends  denial.   DPSI  states  the  use  of  the  LOR  by
commanders and supervisors is  an  exercise  of  supervisory  authority  and
responsibility.   The  authority  for  using  administrative  reprimands  is
inherent in  nature  and  is  derived  from  responsibility  of  commanders,
supervisors, and other superiors to correct and train subordinates.

The complete DPSI evaluation is at Exhibit C.

HQ AFPC/DPSOO recommends denial.  DPSOO states there  is  no  evidence  that
the LOR was seen  by  the  selection  board.   Additionally,  the  applicant
applied for retirement on 17 Jan 84, prior to receiving the  LOR,  and  that
the  voluntary  retirement  was  reflected  on  his  selection  brief.    No
additional  relevant  evidence  has  been  presented  to   demonstrate   the
existence of a probably error or injustice at the time of  the  board.   The
results of the original CY84 board were based on a complete  review  of  the
applicant’s entire selection record, assessing whole person factors such  as
job performance, professional qualities, depth and  breadth  of  experience,
leadership, and education.   Although  the  officer  may  be  qualified  for
promotion, he may not  be  the  best  qualified  of  all  eligible  officers
competing for the limited number of promotion vacancies in the  judgment  of
a  selection  board  vested  with  discretionary  authority  to  make   such
selections.  Furthermore, to grant a direct promotion  would  be  unfair  to
all other officers who have extremely competitive records but  did  not  get
promoted.

DPSOO states the case should be dismissed as  untimely  and  without  merit.
In addition, the  applicant  has  not  provided  evidence  of  an  error  or
injustice; therefore, grounds for direct promotion do not exist.

The complete DPSOO evaluation is at Exhibit D.

HQ AFPC/JA recommends denial.  JA notes the application is untimely and  can
be dismissed on that basis.  JA states applicant’s counsel  has  offered  no
proof whatsoever to support his allegations.  He has failed to  explain  how
the supposed racial climate at the Academy or the Chief of Staff’s power  in
any way provides justification for applicant’s delay in filing  the  present
application; nor has  he  established  relevancy  to  the  behavior  by  the
applicant that led to the LOR or to prove that the legality of the  LOR  was
in any way diminished by these unproven allegations.  In  fact,  the  report
issued in response to an EOT inquiry requested by  the  applicant  following
imposition of the 1984 LOR specifically determined that  the  actions  taken
by the Chief of Staff regarding the applicant were not based on race.

JA notes counsel is relying on a current Air Force Instruction to  establish
the proper standards for  an  inquiry  conducted  in  1984.   The  governing
regulation in effect  at  that  time  provided  authority  for  a  commander
directed inquiry which is much less formal than an  investigation.   Because
the inquiry is not part of the file  and  is  now  unavailable  due  to  the
passage of time, we are unable to  discern  its  exact  nature.   The  Staff
Judge Advocate noted that the  only  negative  from  the  failure  to  swear
witnesses or advise them of their rights was the inability to  use  evidence
obtained in a prosecution or Article 15 under the UCMJ.  He recognized  that
sufficient evidence was nevertheless obtained to prove  that  the  applicant
committed the offenses cited in the LOR.  Moreover, he determined  that  the
applicant was not truthful with the inquiry officer.  JA states  applicant’s
counsel has not submitted any evidence that would discredit  the  underlying
factual evidence that supported the misconduct alluded to in  the  LOR.   In
fact, he acknowledges wrongdoings on the part of his  client,  prompting  an
argument that an LOR was too harsh an  action  to  take  in  response.   The
seriousness  of  the  misconduct  within  the  squadron  committed  by   its
commander was appropriate for administration by an LOR.  The  revocation  of
the  applicant’s  MSM  by  the  Academy  Superintendent  reveals  that   the
command’s censure of the applicant for his misconduct  was  not  limited  to
the Chief of Staff, as the senior Academy official  obviously  concurred  in
the determination of wrongdoing found by the inquiry  and  concurred  in  by
the Staff Judge advocate, along with the  actions  taken  by  the  Chief  of
Staff.

Regarding  the  applicant’s  request  for  direct  promotion,  JA  states  a
congressionally mandated promotion system where selection is made on a  best
qualified  basis,  having  an  excellent  record  is  simply   not   enough.
Counsel’s belief that the applicant would have been promoted absent the  LOR
is total speculation as only a duly appointed selection board can  determine
who is among the best qualified for promotion.

The complete JA evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant was due to PCS from the Academy  in  June  84.   In  Dec  83,  his
career advisor requested he extend his  tour  because  he  looked  good  for
promotion to Colonel.  He was later told that his  extension  request  would
not be approved because he had been  at  the  Academy  too  long.   He  then
requested his extension be approved until after the Colonel promotion  board
met.  His career advisor suggested  that  if  he  requested  retirement  his
outstanding performance report would be on  top  when  the  promotion  board
reviewed his records; however, he received a Letter of Reprimand  which  was
included in records.

The evaluations do not address the merits of the case and instead  refer  to
standard arguments that “the LOR and the action it  was  based  upon.”   The
advisory opinions fail to address the substantial evidence presented in  the
application.

Counsel’s complete response 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 not timely filed; however, it is in the interest  of
justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of  error  or  injustice.   We  took  notice  of  the  applicant's
complete submission in judging the merits of the  case;  however,  we  agree
with the opinions and recommendations of the Air Force  offices  of  primary
responsibility 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.

_________________________________________________________________

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 14 January 2009, under the provisions of AFI 36-2603:

      Mr. Gregory A. Parker, Panel Chair
      Ms. Mary Jane Mitchell, Member
      Ms. Debra M. Czajkowski, Member

The following  documentary  evidence  was  considered  under  AFBCMR  Docket
Number BC-2008-02518:

      Exhibit A.  DD Form 149, dated 30 Jun 08, w/atchs.
      Exhibit B.  Applicant’s Master Personnel Records.
      Exhibit C   Letter, HQ AFPC/DPSI, undated.
      Exhibit D.  Letter, HQ AFPC/DPSOO, dated 22 Sep 08.
      Exhibit E.  Letter, HQ AFPC/JA, dated 14 Oct 08
      Exhibit F.  Letter, SAF/MRBR, dated 24 Oct 08.
      Exhibit G.  Letter, Counsel, dated 2 Dec 08.




                                  GREGORY A. PARKER
                                  Panel Chair