RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2008-02883
            INDEX CODE:  137.04

            COUNSEL:

            HEARING DESIRED: NO



_________________________________________________________________

APPLICANT REQUESTS THAT:

1. The Revocation of Flying Order be expunged from his  records  along  with
any and or all negative matters pertaining to the order.

2. The referral Officer Performance Report (OPR) be removed from his  record
and replaced with a positive one.

3. He be awarded any promotions and or awards which  he  would  have  earned
had he not received the Revocation of Flying Order.

4. He be awarded any and all military active duty pay and entitlement,  to
include flight and incentive pay, from Sep 2000.

5. He be awarded service credit not credited toward  retirement  beginning
Sep 2000 until his active duty retirement date which would have  been  Sep
2006.

6. He be reinstated into the Birmingham ANG unit and assigned to an Active
Guard/Reserve (AGR) position.

7. He be sent  directly  to  the  appropriate  Flight  Training  Unit  and
properly trained as an Aircraft Commander and Instructor Pilot.

8. Any and or all ANG and Army records damaged by the Revocation of Flying
Order action be corrected.

9. An inquiry be made with the AFR unit he transferred to as to why he was
forced into the Individual ready Reserve (IRR) and not offered  assistance
or a position while he cleared his record.

10. In accordance with Air Force Instruction 11-402, his previous Aviation
Service Code (ASC) with the original effective date be restored and flight
pay started.



_________________________________________________________________

APPLICANT CONTENDS THAT:

Several promises were made to him over the course of a three-year  period  –
1998 through 2000 -  by  officers  from  the  National  Guard  Bureau  (NGB)
heavily recruiting minority pilots during that  timeframe.   Not  only  were
the  many  promises  not  kept,  the  resulting   confusion   led   to   the
administrative instrument that allowed him to fly for  the  military  –  his
aeronautical order – being revoked.

In 1998, he was flying for the United States Army (USA).  He  was  a  member
of the Organization of Black Airline Pilots (OBAP) and was  attending  their
1998 conference when he met two officers from the Air National  Guard  (ANG)
who were actively recruiting minority pilots for rated service in  the  ANG.
They relayed to him that the National Guard Bureau (NGB) had  sent  them  to
brief the conference attendees on the benefits of  rated  service  with  the
ANG and that since the ANG had so few minority pilots, that now was  a  good
time for minority pilots to fly for the ANG.

He was a warrant officer in the Army with over 16 years of service  and,  as
a result, they promised him a direct appointment in the ANG in the grade  of
captain.

He wanted to serve in the Birmingham, AL area but had applied several  times
to the ANG unit there and had never been invited for an interview.  The  ANG
officers told him to interview with  the  ANG  unit  in  Wisconsin  (WIANG);
serve for a year or so there, and they would help him get an interview  with
the Birmingham unit.

While a member of the WIANG, he would be given an Active Guard Reserve  slot
(Title 32, active duty).  That appealed to him because of him  16  years  of
service.  The WIANG did hire him as a pilot, but soon  after  reporting  for
duty he was told that because the USAF did not recognize  warrant  officers,
he could not be appointed in the grade of captain.  He would have to  attend
officer training school prior  to  any  flight  training  and  he  would  be
appointed in the grade of second lieutenant (2Lt).  Consequently,  he  asked
to be returned to the IRR so he could return to flying with the  Army.   His
request was granted.

Upon returning to the Army, he applied  for  a  direct  appointment  to  the
grade of 2Lt for the purpose of flying jet aircraft  for  an  Army  unit  in
Georgia.  His request was approved.  At about that same time, the  same  ANG
minority recruiter contacted him and offered  him  a  pilot  interview  with
officials  from  the  Birmingham,  AL  unit.    He   accepted   the   offer,
interviewed, and was selected for  a  rated  position  with  the  Birmingham
unit.  Because of his USA background  flying  fixed-wing  aircraft  and  his
commercial airline experience, he would only have to attend a  short  fixed-
wing qualification course.  In fact, he told them  he  would  only  consider
returning to the  ANG  if  he  could  attend  the  fixed-wing  qualification
course.  He was told the abbreviated course was the T-1 course and he  would
be approved to attend.

He joined the Alabama ANG (ALANG) and was eventually offered  both  the  T-1
and the T-37 courses.  He reminded the NGB contact that he  agreed  to  take
the T-37 course which was considered shorter and  easier  to  fly.   He  was
signed up to the T-1 course and the orders only reflected  the  full  course
because it was a shortfall created by another UPT applicant who  was  unable
to attend and there was no time to amend the orders.   After  beginning  the
training, there was some  confusion  of  which  course  to  actually  waive.
While he was promised the T-1 portion would  be  waived,  the  NGB  actually
waived the T-37 portion.  He began to get stressed  and  asked  that  he  be
removed from training for a couple of days.  His intention was not  to  quit
training, but simply  take  a  couple  of  days  off  and  await  the  NGB’s
decision. Eventually,  after  many  phone  calls  between  he  and  the  NGB
contact, the NGB received word from the applicant’s course instructor  that,
based on his training at that point that  waiving  either  course  would  be
alright.  The remainder of the T-37 course was then waived and he  was  told
by the NGB that a training slot for T-1  was  available  in  December  2000.
The applicant agreed but told NGB he preferred the T-1 course be  waived  as
he had already begun the T-37 course and that remained desirable as  it  was
the shorter of the two courses.  Not to mention the fact that waiving the T-
1 was what they had agreed upon prior to  the  applicant  leaving  for  T-37
training.

He was told by his orderly room that the T-37 course had been waived and  he
needed to out-process and return to Birmingham.  He  did  so,  and  returned
also to his job with the civilian airline.

On 4 Oct 2000, he received  a  call  from  the  NGB  and  his  commander  at
Birmingham stating they had made an error in issuing the T-37 waiver  orders
and asked if he could return to  T-37  training  on  9 Oct.   He  agreed  to
return, but at a later date, as he had just  returned  to  flying  with  the
airline and did not believe it to be fair to them to ask for  another  leave
of absence so soon after returning.  He  reminded  them  that  he  would  be
returning to training in December and asked if there were some way he  could
resume his training in T-37 training then.   They  told  him  that  was  not
possible as his current training slot (that had been waived) would be  lost.
 He told them he needed time to speak with his employer.   Later  that  same
evening his  commander  called  and  asked  what  he  planned  to  do  about
returning to the course.  His commander informed him  the  NGB  had  made  a
terrible mistake by  removing  him  from  the  T-37  course.   He  told  his
commander it would be difficult to return to training in Oklahoma as he  was
on a four-day trip with his airline and that  to  leave  the  next  day  for
Oklahoma would put his job in jeopardy.  He asked his commander, if it  were
an absolute necessity for him to return to training, for two weeks in  order
to give his employer proper notification.  His commander  told  him  he  was
under considerable pressure to get the applicant to return to  training  and
that the fault lay with the NGB and not the applicant.

The commander told him that should he not be able to return  to  the  course
the next day, he should write a letter explaining why he  could  not  return
and fax it to him that evening so he would have something to present to  the
NGB in his defense.  The commander assured him he would  suffer  no  adverse
action and that he would be allowed to attend the training he was  scheduled
for in December.  The  applicant  notes  his  commander  instructed  him  on
exactly what he was to write in the letter.  As he was so new to the ANG  he
had no idea at the time his commander was helping him write  a  letter  that
would be eventually used against him showing he was unavailable or  unsuited
for further rated  duties  and  leading  directly  to  the  removal  of  his
aeronautical rating and flying wings.  Finally that evening,  the  commander
indicated there would be a  temporary  grounding  while  the  paperwork  was
being processed but that he would be able to attend  the  December  training
as scheduled, or he could  use  this  opportunity  to  return  to  the  Army
Reserve.  Notwithstanding the above instructions, the applicant included  in
his letter a statement indicating that  should  a  Flying  Evaluation  board
(FEB) be convened to punish him, that he would contest it.

He continued participating with his unit in Birmingham,  though  temporarily
grounded, and became concerned after several months of waiting for  the  NGB
to make adjustments to his training.  He approached his  commander  and  was
told the NGB was dragging  their  feet  and  making  it  difficult  for  the
commander to obtain a new training date for him.  The  commander  asked  him
whether he wanted to continue waiting for a slot or  if  he  would  like  to
return to the Army Reserve and continue his career with them.   He  was  led
to believe his commander was  protecting  him  from  the  NGB.   After  some
thought, and noting his frustration with the NGB, he  agreed  to  return  to
the Army Reserve and put this (ANG) experience behind  him  for  good.    He
was told all he needed to do was transfer back to the IRR and an  Air  Force
Reserve unit in Montgomery, AL that had offered him a position,  could  pick
him up from there.  He received an honorable discharge certificate from  the
ANG, was assured his record was clear, and was told he could  fly  with  the
Air Force Reserve (AFR).

He was interviewed and accepted for a fixed-wing  pilot  position  with  the
AFR and performed unit training assemblies  (UTAs)  with  them  for  several
months while waiting for a UPT training slot  to  become  available.   After
the unit received a training slot for him, it was  discovered  he  had  been
permanently grounded and was not eligible  to  attend  UPT.   His  commander
asked him whether or not he knew about the grounding  and  he  responded  he
did not.  Had he known, he would never have left  the  Birmingham  ANG  unit
until after he had cleared his record.  His  commander  apparently  did  not
believe his explanation that he knew nothing of  his  grounding  and  forced
him to return to the IRR.  His commander denied the applicant’s  request  to
remain a member of the unit  informing  him  he  could  reapply  for  flight
training if he was ever returned to flight status.

He tried to get information regarding his grounding from  the  ANG  and  NGB
but was unable to do so.  During this time, he received a negative OPR  from
his AFR unit.  He has never received a copy of the OPR  but  understands  it
is now a part  of  his  permanent  record.   On  finally  reaching  his  NGB
contact, he was told to work through the Birmingham unit to  find  out  what
had happened.  Several calls and emails later, he  received  word  from  his
former ANG commander that he had done nothing to prevent him from  attending
flight training with the AFR and to his knowledge, the  NGB  had  not  taken
any such action either.  He was totally confused and was  eventually  forced
to obtain information from his ANG record using the Freedom  of  Information
Act (FOIA).

The results from his FOIA request shocked him as  he  finally  learned  that
his flying order had been  revoked  by  actions  taken  by  his  former  ANG
commander and his NGB contact.  The revocation was based on the  applicant’s
statement indicating he was unavailable for training.  From that  point  on,
no one from his former ANG unit would talk to him nor would anyone from  the
NGB.

He felt, as there was no one who could or would  help  him,  that  he  would
continue his flying career with the airlines and try  to  forget  about  the
horrible experiences he had endured  with  the  Air  Force.   A  few  months
later, however, as he thought about all the time  he  had  invested  in  the
military and the retirement opportunity he had lost, that it was foolish  of
him not to try and find a military position somewhere that did  not  require
flying.  Through friends still serving  with  the  Army,  he  learned  of  a
vacancy for an Executive Officer with the Missouri Army National Guard.   He
applied and was scheduled for  an  interview.   A  few  days  prior  to  the
interview, the commander called and told him he would not be able to  accept
him into the unit as he had called the applicant’s command at  the  AFR  and
had been told not to accept the applicant as the Air Force had  revoked  his
flying order.

Certain individuals from the Air Force took his military flying career  away
from him and he wants it back.  He cites Air Force Instruction (AFI)  11-402
wherein is stated, “Once a rating is awarded  by  the  Aeronautical  Ratings
Board (ARB), it cannot be revoked unless as a  result  of  an  FEB  action.”
While his rating was awarded by an ARB, he is not aware of  any  FEB  action
that ever took place with regard to the revocation action against  him.   He
notes the NGB’s response to an earlier inquiry of his that an  FEB  was  not
required in his case as being directly contradicted by the  statement  above
from AFI 11-402.

In the statement to his former ANG commander, dated 4 Oct 00, he  stated  he
would be able to return to T-37 training if he were  given  enough  time  to
properly notify his employer and make sure his mother would  be  taken  care
of.  He never stated he was unavailable  for  continued  rated  service  and
wanted to quit the Air Force.  He never attempted to Drop on  Request  (DOR)
nor did he request voluntary disqualification.  Had he attempted  either  of
those  methods  to  leave  training,  he  should  have  been  counseled   in
accordance with AFI 11-402, Attachment 4.  He was never informed his  Flying
Order would be permanently revoked, in fact, he was told by his  former  ANG
commander that his record would not be damaged  in  any  way  should  he  be
unable to return to Oklahoma for continuation of  T-37  training  with  only
one day’s notice.

He  cites  AFI  11-402  under  the  paragraph  titled  Failure  to  Maintain
Professional Standards and notes his unit nor did the  NGB  properly  follow
the  procedures  laid  out  in  section  3.7.1.6  in  order  to  revoke  his
Aeronautical Order (AO).  He would never have done anything  to  damage  his
flying career.  He was led to believe he would be improving his  quality  of
life and military career opportunities by leaving the Army and  joining  the
ANG.  In actuality, he lost everything.

In support of his appeal, the applicant provides a personal statement,  with
25 attachments, including excerpts from cited regulations, portions  of  his
Army and ANG records, and aeronautical documents, among other information.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant served over  14  years  with  the  US  Army  (USA)  before  being
commissioned by the Wisconsin Air National Guard (WIANG).  He  served  with
the WIANG for one year before leaving that unit and joining the ALANG.   He
served with the ALANG for nine months and seven days.

_________________________________________________________________

AIR FORCE EVALUATIONS:

HQ AFRC/A1E addresses the applicant’s question regarding why the AFR forced
him hack to the IRR.  A1E stated he was reassigned from his AFR  assignment
to the IRR based on his being  disqualified  from  aviation  service.   His
reassignment was processed in accordance with AFI 36-2115.

A1E’s complete evaluation, with attachments, is at Exhibit B.

HQ ARPC/DPB addresses the applicant’s request to have the referral  OPR  he
received from the AFR be removed and replaced with  a  positive  OPR.   DPB
notes that while they cannot direct the AFR unit to write a positive OPR to
replace the referral OPR rendered for the period 28 Dec 01 through  27  Dec
02, they do recommend the referral OPR be removed from his Master Personnel
Records (MPR).  DPB states the OPR was never referred to the applicant.  He
did not have the opportunity to provide comment to or rebut the referral at
the time it was rendered.  Based on the fact the AFR admits  the  applicant
never acknowledged receipt of the OPR it should never have been  placed  in
his Officer Selection Record (OSR) or in his MPR.

DPB’s complete evaluation, with attachment, is at Exhibit C.

_________________________________________________________________
NGB/A1PS  recommends  denial  with  regard  to  the  applicant’s  remaining
requests for  relief.   While  A1PF  concedes  there  may  have  been  some
miscommunication between the applicant and his units of assignment, the NGB
has found, after review, there is nothing in the record that  supports  his
claim he was unfairly treated.

A1PS does note several pieces of information missing from the documentation
provided by the applicant that would allow them to  provide  a  more  clear
assessment.

A1PS’s complete evaluation, with attachment, is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Applicant provides a personal statement, with 10  attachments,  wherein  he
notes the NGB advisory’s comments that he did not provide certain documents
necessary for the NGB to make an accurate assessment  of  his  contentions.
He also addresses the AFRC evaluation’s comment  that  the  reason  he  was
forced back to the IRR from the AFR unit in Montgomery was because  his  AO
had been revoked.  He reiterates his argument that his AO  was  revoked  in
error.  The applicant also notes the ARPC recommendation his  referral  OPR
be removed from his record.

Applicant’s complete response is at Exhibit F.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

NGB/A1PF, after reviewing the documentation provided by  the  applicant  in
response to the earlier NGB  evaluation,  continues  to  recommend  denial.
A1PF states, based on the facts provided by the applicant, his former unit,
personnel records, and the Air Education and Training Command  (AETC),  the
applicant received an order to return to his unit while enrolled in a fixed
wing qualification (FWQ) program at Vance AFB, OK.   Subsequently,  it  was
determined the order had been issued in  error.   When  the  applicant  was
ordered to return to training, he stated he was unable  to  comply  due  to
time constraints and the fact he had already returned to his  airline  job.
The applicant then failed to follow-up with  his  unit  to  reschedule  his
training at a later date and failed to attend duty at the unit  until  such
time as he requested a transfer to the IRR on 11 Feb 01.

A1PF’s complete evaluation is at Exhibit G.

_________________________________________________________________




APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant reiterates his statement he  was  not  unwilling  to  return  to
training just that, under the circumstances, he was unable to.   He  never
said he refused to return to training  and  restates  his  contention  his
commander at the Birmingham unit never ordered  him  to  return.   Had  he
known he would have lost  his  Aeronautical  Order  as  a  result  of  not
returning to training immediately, he  would  have  instantly  voiced  his
opposition.  He was told he did not have to make all of the units’ regular
drill periods but that he  could  make  them  up  during  the  week.   His
commander told him he understood his reason for wanting to transfer out of
the unit and wished him well.  His commander never told him  he  had  been
permanently grounded when he left to fly with the Air Force  Reserve.   He
contends those airmen declining a course must be counseled and that he was
never counseled he would lose his AO if  he  didn’t  return  to  the  T-37
training.

_________________________________________________________________

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  an  error  or  injustice  with  regard  to  the  applicant’s
outstanding requests  for  relief.   We  took  notice  of  the  applicant’s
complete submission in judging the merits of the case; however, with regard
to his request to expunge the Revocation of Flying order  and  restore  his
Aeronautical Order, we agree with the 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.  His  remaining  requests
for relief – with the exception of his request to be  reinstated  into  the
Birmingham AL, ANG unit – are all predicated upon the  restoration  of  his
Aeronautical Order.  Reinstatement to an ANG unit does not lie  within  the
purview of the AFBCMR and we therefore do not have the authority  to  grant
the relief requested.   Therefore,  in  the  absence  of  evidence  to  the
contrary, we find no compelling basis  to  recommend  granting  the  relief
sought in this application.

4.  Sufficient relevant evidence has  been  presented  to  demonstrate  the
existence of error or injustice warranting at least partial  relief.   With
regard to the applicant’s request his referral OPR closing  27  Dec  02  be
removed from his record, we agree with the opinion  and  recommendation  of
the Air Force office of primary responsibility and believe the  OPR  should
be removed.  We further agree with the  office  of  primary  responsibility
however, that  no  action  be  taken  to  order  or  direct  the  rendering
organization to write a positive OPR.  Therefore,  we  recommend  that  the
records be corrected as indicated below.

______________________________________________________________

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  707b,   Officer
Performance Report, rendered for the period  28  December  2001  through  27
December 2002, be, and  hereby  is,  declared  void  and  removed  from  his
records.

______________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-2008-
02883 in Executive Session on 28 October 2009, under the provisions of  AFI
36-2603:




All members voted to correct the records, as recommended.  The  following
documentary evidence with regard to AFBCMR  Docket  Number  BC-2008-02883
was considered:

    Exhibit A.  DD Form 149, dated 16 Jul 08, w/atchs.
    Exhibit B.  Letter, AFRC/A1E, dated 26 Aug 08, w/atchs.
    Exhibit C.  Letter, ARPC/DPB, dated 29 Aug 08, w/atch.
    Exhibit D.  Letter, NGB/A1PS, dated 26 Jan 09, w/atch.
    Exhibit E.  Letter, SAF/MRBR, dated 24 Apr 09.
    Exhibit F.  Letter, Applicant, dated 18 May 09, w/atchs.
    Exhibit G.  Letter, NGB/A1PF, dated 9 Jun 09.
    Exhibit H.  Letter, AFBCMR, dated 21 Jul 09.
    Exhibit I.  Letter, Applicant, dated 18 Oct 09.





                                   Panel Chair