ADDENDUM TO
                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-03405
            INDEX CODE: 126.03
      XXXXXXX    COUNSEL: NONE
            HEARING DESIRED: YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  He be reassigned to  the  XXX  Fighter  Wing  for  F-16  requalification
training, 4-Ship Flight Lead Upgrade Training, and Instructor Pilot  Upgrade
Training, followed by an assignment to another F-16, F-15, or F-22  unit  in
the Guard or Reserves proximate to his home of record.

2.  His disqualification from aviation service be removed from his records.

3.  Corrections be made to the Office of Special Investigations Report.

4.  The record of his Letter of Reprimand (LOR) and Unfavorable  Information
File (UIF) be removed.

5.  His records be corrected to show that he was never  recommended  for  or
reassigned to the Nonaffiliated Reserve Section (NARS).

6.  Information pertaining to his Suspension of Access be removed  from  his
records.

7.  He be credited with service from 1 July  2003  until  the  date  of  his
reinstatement, and awarded pay and allowances with back pay and  allowances,
to include flight pay, as if he had served, drilled,  and  performed  flying
duty consistent with his history  of  drilling  and  flying  prior  to  that
period.

8.  He be promoted to the grade of major.

9.  All  erroneous  investigative  material  associated  with  his  case  be
destroyed.

10.  He be reimbursed for attorney fees and costs incident to this case.

11.  An Air Force Form 77, be placed in  his  records  covering  the  period
from 1 July 2003 until his reinstatement.


12.  He be granted any such  other  relief  as  the  Board  deems  just  and
appropriate.

_________________________________________________________________

RESUME OF CASE:

On 7 January 2009, the Board  considered  the  applicant’s  above  requests.
Although the Board found sufficient evidence to warrant  removing  the  OPR,
closing 19 April 2004, from his records, they found no  basis  to  recommend
favorable consideration of the remainder of his requests.  A  complete  copy
of the Record of Proceedings, with attachments, is at Exhibit M.

In a 20  March  2010  letter  to  AFOSI/JA,  the  applicant  requested  they
reconsider their 23 July 2008 legal review of his request for correction  of
his military records,  noting  that  an  apparent  misunderstanding  between
their office and his civilian legal counsel resulted  in  relevant  material
not being considered in their review.  He also provided a recently  obtained
new witness declaration from an individual who was  interviewed  during  the
original OSI investigation (Exhibit N).

In a 12 April  2010  letter  to  the  AFBCMR,  AFOSI/JA  states  that  after
extensively  reviewing  the  Report  of  Inquiry  (ROI)  and  all   of   the
applicant’s  supporting  documentation  provided  with  his  20 March   2010
letter, they have determined the ROI is  replete  with  material  errors  of
fact, such that any information contained within cannot be  relied  upon  as
accurate; that no evidence of misconduct in the original  ROI  remains;  and
that any adverse action taken against the applicant as a result of  the  ROI
is factually baseless.  There are so many material differences  between  the
sworn witness affidavits and  the  narrative  information  recorded  by  the
investigator in the ROI  that  lead  to  the  conclusions  that  either  the
investigator did not take contemporaneous notes of his interviews and had  a
faulty memory of his conversations with virtually all witnesses or  that  he
recorded  information  the  witnesses   did   not   state.    Further,   the
uncontroverted negative results of the four drug tests, two  of  which  were
hair tests covering 75-day periods, exonerate the applicant.  Not  only  are
the “facts” ascertained by the ROI inaccurate and incomplete, the manner  in
which they have been presented  is  also  in  question  as  it  appears  the
investigation was written with significant bias  toward  substantiating  the
allegations, rather than attempting  to  find  the  facts  and  verify  them
through independent corroboration whenever possible as required by  AFOSIMAN
71-122, paragraph 1.1.1.

A redacted copy of the AFOSI/JA letter, with attachments, is at Exhibit O.

In a letter, dated 19 April 2010, the applicant requests reconsideration  of
his application in view of the recent AFOSI/JA findings.

The applicant’s complete submission is at Exhibit P.

_________________________________________________________________

AIR FORCE EVALUATION:

The AFRBA Legal Advisor concurs with the conclusion of AFOSI/JA  that  there
was no basis for the  discipline  and  adverse  actions  taken  against  the
applicant  and  recommends  that  he  be  granted  full  and  fair   relief,
recognizing that he can never be made completely whole.  Assuming the  Board
agrees,  the  professional  AFBCMR  staff  will  work  the  details  of  the
corrective action in view of the significant complexities of  the  applicant
resuming his flying career.

Although the applicant was previously given some relief concerning a  biased
performance  report,  he  was  denied  most  of  the  relief  he   requested
concerning  an  LOR  and  other  adverse  actions  due  to  a   failure   to
substantiate his allegations of  serious  investigative  misconduct.   While
these claims when first presented were in all honesty hard to  believe,  due
to the applicant’s persistence, a Freedom of Information Act (FOIA)  request
and  an  AFOSI  attorney’s  tenacity  and  professionalism,   he   has   now
substantiated these claims and even more egregious conduct on  the  part  of
Air Force members.   It  is  beyond  reasonable  dispute  that  the  adverse
actions taken against the applicant and the chain of  command’s  failure  to
take prompt action to remove them earlier constitute both an  error  and  an
injustice.   The  Courts  have  consistently  ruled  that  once  the   Board
concludes there has been a clear injustice, a failure to correct the  record
would violate its statutory duty.

The complete evaluation is at Exhibit Q.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

A complete copy of the AFRBA Legal Advisor’s evaluation and a redacted  copy
of the AFOSI/JA legal review were forwarded to the applicant  on  1  Jun  08
for review and comment  within  30  days.   Although  there  appears  to  be
material redacted that could be quite relevant to  his  application,  or  to
any more  comprehensive  corrective  actions  taken  by  the  Air  Force  in
general, given the conclusive evidence that remains un-redacted as  well  as
the AFRBA Legal Advisor’s favorable recommendation,  he  waives  the  30-day
period in which to respond, in the interest of expediting  the  adjudication
of his request (Exhibit R).

_________________________________________________________________



THE BOARD CONCLUDES THAT:

1.  After thoroughly  reviewing  the  evidence  of  record  and  noting  the
comments of the AFOSI/JA and the AFRBA Legal  Advisor,  we  find  sufficient
relevant evidence has been presented to demonstrate the existence  of  error
or injustice.  This Board  previously  determined  the  evidence  of  record
supported  the  commander's  decision  to  initiate  administrative  actions
against the  applicant;  however,  AFOSI/JA  has  extensively  reviewed  the
Report  of  Inquiry  (ROI)  based  on  documentation   provided   with   the
applicant’s letter of 20 March 2010, which includes a recently obtained  new
witness declaration from  an  individual  who  was  interviewed  during  the
original OSI investigation, and have determined  the  ROI  is  replete  with
material errors of fact, such that any information contained  within  cannot
be relied upon as accurate.  Moreover, AFOSI/JA opines  there  are  so  many
material differences between the sworn witness affidavits and the  narrative
information recorded by the investigator in the ROI that  it  leads  to  the
conclusion that either the investigator did not take  contemporaneous  notes
of his interviews  and  had  a  faulty  memory  of  his  conversations  with
virtually all witnesses or that he recorded information  the  witnesses  did
not state.  In view of this, the AFOSI Commander ordered  action  that  will
document,  in  their  investigative  system   of   records,   the   original
investigation lacked factual merit and therefore cannot be  relied  upon  as
accurate.  In addition,  all  entries  associated  with  his  name  and  the
contested AFOSI investigation has been  removed  from  the  Defense  Central
Index of Investigations.  We note that no  record  was  created  within  the
National Crime Information Center database.  In  addition,  the  appropriate
office of the Inspector General has  been  contacted  for  investigation  to
determine  whether  disciplinary  action  against   the   investigator   and
officials within the applicant’s  chain  of  command  is  appropriate.   The
AFRBA Legal Advisor concurs with AFOSI/JA’s conclusion there  was  no  basis
for the adverse actions taken against the applicant and recommends full  and
fair relief.  We agree.  In view of the  above  and  since  no  evidence  of
misconduct remains in the original ROI, we  find  that  any  adverse  action
taken against the applicant as a result of the  ROI  is  factually  baseless
and should be removed from his records.

2.    Except in confirmed instances of  the  most  egregious  errors  in  an
applicant’s promotion record, the  Board  typically  believes  the  decision
regarding the prospects for promotion should be addressed by  the  promotion
selection process.  However, there are instances whereby  the  magnitude  of
the injustice is such that  it  can  only  be  rectified  by  a  Secretarial
directed promotion.  We believe this is such  a  case.   The  applicant  has
established by  the  preponderance  of  the  evidence  that  he  cannot  get
meaningful consideration at a Special Selection Board due to  the  state  of
his record.  In view of this, we believe the  only  viable  option  at  this
point in time is to recommend his promotion to the grade  of  major  by  the
Fiscal Year 2007 Reserve Major Board.  Further, because of the  long  period
of time since the applicant’s separation and in  order  to  provide  him  an
opportunity to establish a competitive record for  promotion  consideration,
we believe that, should he be considered and nonselected  for  promotion  to
the grade of lieutenant colonel prior to obtaining at least three OPRs  with
at least 250 days supervision in the grade  of  major,  his  nonselection(s)
should be set aside.

3.    Therefore,  in  view  of  the  above,  we  recommend  his  records  be
corrected to the extent indicated below.  In arriving at  our  decision,  we
are keenly aware that the courts have held that correction  boards  have  an
abiding moral sanction to determine, insofar as possible,  the  true  nature
of an alleged injustice  and  take  steps  to  grant  thorough  and  fitting
relief.

4.  The applicant’s request for reimbursement of  attorney  fees  and  costs
incident to this case is not within the purview of this Board.

5.  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 issue(s) involved.  Therefore, the  request  for  a
hearing is not favorably considered.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT, be corrected to show that:

      He was awarded an additional 12  paid  inactive  duty  training  (IDT)
points, 14 active duty training  (ADT)  points,  and  48  Additional  Flying
Training Periods (AFTPs)/Additional  Ground  Training  Periods  (AGTPs)  for
retention/retirement year 1 March 2003 through 29 February  2004,  resulting
in 110 total points; and, that the period 1 March 2003  through  29 February
2004, is a year of satisfactory Federal service.

       The  Letter  of  Reprimand  (LOR),  dated  28  November   2003,   and
Unfavorable Information File (UIF) be declared void  and  removed  from  his
records.

      He was awarded 48 paid IDT points, 14 ADT points, and  48  AFTPs/AGTPs
for  retention/retirement  year  1  March  2004  through  28 February  2005,
resulting in 110 total points; and, that the period  1  March  2004  through
28 February 2005, is a year of satisfactory Federal service.

      He was awarded 48 paid IDT points, 14 ADT points, and  48  AFTPs/AGTPs
for  retention/retirement  year  1  March  2005  through  28 February  2006,
resulting in 110 total points; and, that the period  1  March  2005  through
28 February 2006, is a year of satisfactory Federal service.

      On 17 March 2005, he was not reassigned to the  Nonaffiliated  Reserve
Section (NARS), but on that date he remained assigned to the XXXXXX.

      His May 2005 disqualification from aviation service  be  removed  from
his records.

      He was awarded 48 paid IDT points, 14 ADT points, and  48  AFTPs/AGTPs
for  retention/retirement  year  1  March  2006  through  28 February  2007,
resulting in 110 total points; and, that the period  1  March  2006  through
28 February 2007, is a year of satisfactory Federal service.

      He was awarded 48 paid IDT points, 14 ADT points, and 48 AFTPs/  AGTPs
for  retention/retirement  year  1  March  2007  through  28 February  2008,
resulting in 110 total points; and, that the period  1  March  2007  through
29 February 2008, is a year of satisfactory Federal service.

      On 17 March 2007, he was not assigned  to  the  Inactive  Status  List
Reserve Section (ISLRS), but on that date he remained assigned to  the  93rd
Fighter Squadron, Homestead ARB, Florida.

      He was awarded 48 paid IDT points, 14 ADT points, and 48 AFTPs/  AGTPs
for  retention/retirement  year  1  March  2008  through  28 February  2009,
resulting in 110 total points; and, that the period  1  March  2008  through
28 February 2009, is a year of satisfactory Federal service.

      He was awarded 48 paid IDT points, 14 ADT points, and 48 AFTPs/  AGTPs
for  retention/retirement  year  1  March  2009  through  28 February  2010,
resulting in 110 total points; and, that the period  1  March  2009  through
28 February 2010, is a year of satisfactory Federal service.

      He was considered and selected for promotion to the  grade  of  major,
Air Force Reserve, and subject to Secretary of  Defense  approval,  will  be
appointed to that grade and given a date of  rank  and  promotion  effective
date of 10 December 2006.

      Provided he is morally and physically qualified, he be  reassigned  to
either an Air National Guard (ANG) or Air Force Reserve (AFRes) unit for  F-
16 requalification training followed by an assignment to  an  F-16  or  F-15
unit in either the ANG or AFRes.

It is further recommended that any nonselections for promotion to the  grade
of lieutenant colonel prior to receiving three Officer  Performance  Reports
with at least 250 days supervision, in the grade of  Major,  be  and  hereby
are, set aside.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number  BC-2007-
03405 in Executive Session on 10 June 2010, under the provisions of AFI  36-
2603:

            Mr. Anthony P. Reardon, Panel Chair
            Mr. Jeffrey C. Allen, Member
            Mr. Noble K. Eden, Member

All members voted to correct the records,  as  recommended.   The  following
documentary evidence was considered:

     Exhibit M.  Record of Proceedings, dated 9 Feb 09, w/atchs.
     Exhibit N.  Letter, Applicant, dated 20 Mar 10, w/atchs.
     Exhibit O.  Letter, AFOSI/JA, dated 12 Apr 10.
     Exhibit P.  Letter, Applicant, 19 Apr 10.
     Exhibit Q.  Letter, AFRBA Legal Advisor, dated 1 Jun 10.
     Exhibit R.  Electronic Mail, dated 1 Jun 10.






                                   ANTHONY P. REARDON
                                   Panel Chair


AFBCMR BC-2007-03405




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, be corrected to show that:

      He was awarded an additional 12 paid Inactive Duty Training (IDT)
points, 14 Active Duty Training (ADT) points, and 48 Additional Flying
Training Periods (AFTPs)/Additional Ground Training Periods (AGTPs) for
retention/retirement year 1 March 2003 through 29 February 2004, resulting
in 110 total points; and, that the period 1 March 2003 through 29 February
2004, is a year of satisfactory Federal service.

      The Letter of Reprimand (LOR), dated 28 November 2003, and
Unfavorable Information File (UIF) be, and hereby are, declared void and
removed from his records.

      He was awarded 48 paid IDT points, 14 ADT points, and 48 AFTPs/AGTPs
for retention/retirement year 1 March 2004 through 28 February 2005,
resulting in 110 total points; and, that the period 1 March 2004 through
28 February 2005, is a year of satisfactory Federal service.

      He was awarded 48 paid IDT points, 14 ADT points, and 48 AFTPs/AGTPs
for retention/retirement year 1 March 2005 through 28 February 2006,
resulting in 110 total points; and, that the period 1 March 2005 through
28 February 2006, is a year of satisfactory Federal service.

      On 17 March 2005, he was not reassigned to the Nonaffiliated Reserve
Section (NARS), but on that date, he remained assigned to the XXXXX.

      His May 2005 disqualification from aviation service be, and hereby
is, declared void and removed from his records.

      He was awarded 48 paid IDT points, 14 ADT points, and 48 AFTPs/AGTPs
for retention/retirement year 1 March 2006 through 28 February 2007,
resulting in 110 total points; and, that the period 1 March 2006 through
28 February 2007, is a year of satisfactory Federal service.

      He was awarded 48 paid IDT points, 14 ADT points, and 48 AFTPs/ AGTPs
for retention/retirement year 1 March 2007 through 28 February 2008,
resulting in 110 total points; and, that the period 1 March 2007 through
29 February 2008, is a year of satisfactory Federal service.

      On 17 March 2007, he was not assigned to the Inactive Status List
Reserve Section (ISLRS), but on that date he remained assigned to the
XXXXXX.

      He was awarded 48 paid IDT points, 14 ADT points, and 48 AFTPs/ AGTPs
for retention/retirement year 1 March 2008 through 28 February 2009,
resulting in 110 total points; and, that the period 1 March 2008 through
28 February 2009, is a year of satisfactory Federal service.

      He was awarded 48 paid IDT points, 14 ADT points, and 48 AFTPs/ AGTPs
for retention/retirement year 1 March 2009 through 28 February 2010,
resulting in 110 total points; and, that the period 1 March 2009 through
28 February 2010, is a year of satisfactory Federal service.

            He was considered and selected for promotion to the grade of
major, Air Force Reserve, and subject to Secretary of Defense approval,
will be appointed to that grade and given a date of rank and promotion
effective date of 10 December 2006.

      Provided he is morally and physically qualified, he be reassigned to
either an Air National Guard (ANG) or Air Force Reserve (AFRes) unit for F-
16 requalification training followed by an assignment to an F-16 or F-15
unit in either the ANG or AFRes.

      It is further directed that any nonselections for promotion to the
grade of lieutenant colonel prior to receiving three Officer Performance
Reports with at least 250 days supervision, in the grade of Major, be and
hereby are, set aside.








            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency