RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2010-00813 

 COUNSEL: 

 HEARING DESIRED: YES 

 

__________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

His records be corrected to give him Whistleblower protection; 
show his graduation from Air War College (AWC); his reinstatement 
to the New York Air National Guard (NYANG) or comparable posting; 
promotion to the grade of colonel (O-6) backdated to the first 
Judge Advocate colonel promotion selection date after his unjust 
AWC disenrollment; and he receive back pay, service credit, 
retirement award/recognition, and reimbursement of lost benefits 
to include dental insurance for his daughter’s braces, etc. 

 

__________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

His AWC disenrollment, his non-selection for promotion to colonel, 
and his selective non-retention by the NYANG were reprisal for him 
blowing the whistle on United States War crimes (and refusing to 
delete the text of the Genocide Convention for his AWC Policy 
Analysis on the Global War on Terrorism (GWOT). 

 

In support of his appeal, the applicant provides copies of his AWC 
Policy Analysis; documentation of his selective non-retention; 
articles concerning the GWOT; Title 10, United States Code (USC), 
Section 1034, Protected communications; prohibition of retaliatory 
personnel actions; correspondence to the Chief of Uniformed 
Personnel; correspondence concerning his AWC Policy Analysis; and 
correspondence concerning his request for Whistleblower 
protection. 

 

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

 

__________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant is a former member of the NYANG who was 
progressively promoted to the grade of lieutenant colonel (O-5). 
On 31 January 2008, the applicant was separated from the NYANG and 
transferred to the Retired Reserve. 

 


The remaining relevant facts extracted from the applicant service 
records are contained in the evaluations by the Air Force offices 
of primary responsibility at Exhibit C. 

 

__________________________________________________________________ 

 

AIR FORCE EVALUATIONS: 

 

NGB/A1PS recommends denial. A1PS states the applicant was not 
eligible for award of the Legion of Merit because he did not hold 
the minimum grade of colonel. In addition, his commander chose 
not to recommend the applicant for a retirement Meritorious 
Service Medal; therefore, he is not eligible for the MSM. 

 

NGB/A1POP states that in accordance with ANG Instruction 36-2504, 
paragraph 3.3.5 and Table 3.2, nominees for position vacancy 
promotions are required to complete a specific level of 
Professional Military Education (PME) for promotion to the grade 
of colonel. The required level is Senior Developmental Education, 
i.e., AWC, National War College, Industrial College of the Armed 
Forces, etc. Since the applicant did not complete the required 
PME, he did not meet the requirement for a position vacancy 
promotion. In addition, position vacancy promotion in the ANG has 
several requirements – the most important of these are designed to 
promote officers who have demonstrated high potential and 
exceptional abilities with the opportunity for accelerated 
promotion. Position vacancy promotions are not routinely offered 
to all officers. 

 

NGB-JA states that after reviewing the information provided, they 
see no legal issues to be resolved regarding the allegation of 
Whistleblower reprisal. The findings of the Inspector General, 
Department of Defense, indicate the applicant’s allegation does 
not meet the requirements of Title 10, USC, Section 1034 and 
Department of Defense Directive (DoDD) 7050.6, Military 
Whistleblower Protection. The applicant’s due process rights have 
been met in this matter. 

 

NGB/A1POE states that a review of the applicant’s AWC course 
enrollment information shows that he received both a grade of 
“unsatisfactory” and “satisfactory” during his enrollment. The 
information also contradicts his claim that he was denied 
graduation from AWC as the enrollment information shows the 
applicant requested cancellation of the course. As far as his 
request for reinstatement in the NYANG or a comparable posting, 
A1POE does not have the authority to force the State of New York 
or any other ANG unit to allow the applicant membership. He was 
not selected for retention and requested transfer to the Retired 
Reserves. He states he was singled out for non-retention; 
however, he was required to be considered for retention and, in 
fact, was not the only officer non-selected by the board. He was 
not involuntarily discharged as stated in his application as he 


elected to be transferred to the Retired Reserve. The applicant 
has not participated since his transfer to the Retired Reserve, so 
he is not eligible for service credit, back pay, or reimbursement 
of lost benefits. 

 

The NYANG Director of Personnel indicates that a flag and 
appropriate certificates were mailed to the applicant for his 
retirement; however, they have no record of confirmation. In 
addition, they have no record of the applicant’s participation in 
(or invitation to) a retirement ceremony. 

 

The complete A1PS evaluation, with attachments, is at Exhibit B. 

 

__________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

The NGB/A1PS’ evaluation of his promotion to colonel and award of 
the LOM as not being authorized, neglects the fact that the NYANG 
has a colonel Judge Advocate position to which Wing Staff Judge 
Advocates are promoted, in addition to the numerous ANG and Air 
Force Reserve colonel positions that are regularly awarded to 
deserving lieutenant colonels. In his case, promotion to colonel 
is warranted because, as shown by his Whistleblower AWC Policy 
Analysis, he is one of the few Judge Advocates with the 
professionalism, insight, candor, character, and devotion to duty 
to place service before self. He was a senior lieutenant colonel 
who, but for Whistleblower reprisal, would have graduated from 
AWC, been promoted to colonel, and continued to make exceptional 
contributions at the national level as shown by his work as one of 
the founding members of the United Nations Peace Operation and the 
Law Symposium now conducted annually in New York. 

 

The applicant’s complete rebuttal, with attachments, 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 an error or an 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 the 
applicant has not been the victim of an error or injustice. The 


applicant’s contends that he would have been able to graduate from 
AWC and be promoted to the grade of colonel, if it were not for 
Whistleblower reprisal. However, the evidence of record indicates 
the applicant disenrolled from AWC; therefore, not completing the 
required PME for promotion. In addition, he was not assigned to a 
colonel (O-6) position. 

 

4. The applicant alleges he has been the victim of reprisal and 
has not been afforded full protection under the Whistleblower 
Protection Act (10 USC 1034). We note he filed an IG complaint 
alleging he was reprised against for reporting United States War 
crimes in his AWC paper and refusing to remove text of Genocide 
Convention. The DoD/IG investigated these allegations and 
concluded they did not meet the requirements of Title 10 USC, 
Section 1034 and DoDD 7050.6. Notwithstanding this, based upon 
our own independent review, we have determined the applicant has 
not established he was reprised against for his AWC paper or his 
IG complaint. In reaching this determination, we note he has 
submitted no direct evidence of this reprisal motive. Therefore, 
based on the foregoing and in the absence of evidence to the 
contrary, we find no basis to recommend granting the relief sought 
in this application. 

 

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 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-2010-00813 in Executive Session on 2 November 2010, under the 
provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 


The following documentary evidence was considered in connection 
with AFBCMR Docket Number BC-2010-00813: 

 

Exhibit A. DD Form 149, dated 16 Feb 10, w/atchs. 

Exhibit B. Letter, NGB/A1PS, dated 9 Aug 10, w/atchs. 

Exhibit C. Letter, SAF/MRBR, dated 20 Aug 10. 

Exhibit D. Letter, applicant, dated 28 Sep 10, w/atchs. 

 

 

 

 

 

 Panel Chair