RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2010-01167 

 COUNSEL: NONE 

 HEARING DESIRED: NO 

 

__________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

The promotion propriety actions to delay his promotion to captain 
and remove his name from the Calendar Year 2008B (CY08B) Captain 
Select List be removed from his records and his promotion to 
captain (O-3), with an effective date of 1 June 2009, be restored. 

 

__________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

He was acquitted of all charges used to delay/remove his promotion 
to captain. 

 

In support of his appeal, the applicant provides a personal 
statement and copies of the Record of Promotion Propriety Actions, 
his response to the delay of promotion action, and the Report of 
Result of Trial. 

 

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

 

__________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant is currently serving in the Regular Air Force in the 
grade of first lieutenant (O-2) with a date of rank of 1 June 
2007. He has a Total Active Federal Military Service Date and 
Total Active Federal Commissioned Service date of 1 June 2005. 
His projected date of separation is 31 December 2010. 

 

The applicant was selected for promotion by the CY08B Quarterly 
Captain Selection Process that closed out on 30 June 2008. His 
projected promotion date was 1 June 2009. 

 

On 30 September 2009, his commander recommended the applicant’s 
promotion be delayed until 1 November 2009 due to an ongoing 
investigation concerning charges against the applicant for 
attempting to wrongfully possess cocaine, in violation of Article 
80 of the Uniform Code of Military justice (UCMJ); dereliction in 
the performance of duty, in that, he willfully failed to report to 
proper authorities the wrongful use of marijuana by another 


service member, in violation of Article 92, UCMJ;, making an 
official statement to the Air Force Office of Special 
Investigations, with intent to deceive, in violation of Article 
107, UCMJ; and for wrongful use of cocaine on diverse occasions 
between on or about 1 July 2008 and on or about 11 December 2008, 
in violation of Article 112a, UCMJ. 

 

On 30 September 2009, his commander recommended the applicant’s 
name be removed from the promotion list. On 30 November 2009, the 
Secretary of the Air Force (SECAF) approved his removal from the 
CY08B Quarterly Captain Select List. 

 

A General Court-Martial Order, dated 11 March 2010, indicates the 
applicant was found not guilty of all charges and specifications. 

 

On 9 July 2010, the applicant was notified of his non-selection 
for promotion to the grade of captain by the CY10A Captain 
Promotion Process, and since this was his second non-selection for 
promotion, the law (Title 10, United States Code, Section 631) 
requires him to be involuntarily separated on 31 December 2010. 

 

__________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFPC/DPSOO recommends denial. DPSOO states Air Force Instruction 

36-2501 indicates commanders question promotion when the 
preponderance of evidence shows the officer is not mentally, 
physically, morally, or professionally qualified to perform the 
duties of the higher grade. Early identification of the officer 
and proper documentation are essential in taking a promotion 
propriety action. Air Force policy states that formal rules of 
evidence do not apply to a promotion propriety action. The 
applicant’s removal action was reviewed by base and Air Force 
legal offices and the action was found to be legally sufficient to 
warrant the action taken. DPSOO has no recommendation if the 
Board’s decision is to grant relief over their objections. 

 

The complete DPSOO evaluation is at Exhibit C. 

 

AFPC/JA recommends approval. JA states the applicant was found 
not guilty at a general court-martial of all of the cocaine 
related charges that supported the promotion propriety actions. 
Their office contacted the Staff Judge Advocate (SJA) at the base 
where the offenses were alleged to have taken place. The SJA 
reported the applicant’s court-martial acquittal was rendered on 
the merits and was not based on any technicality. Moreover, the 
SJA was not prepared to say the totality of evidence still 
supported the promotion propriety actions – even when measured by 
a preponderance of the evidence standard versus the beyond a 
reasonable doubt standard used at the court-martial. The SJA 
further indicated his command leadership supported the applicant’s 


request to obtain his promotion and remove the propriety actions 
from his record. 

 

JA indicates that in a case like this, they would normally 
recommend upholding the promotion removal even in the face of a 
court-martial acquittal, given the different standards of proof 
that apply to each. However, they can distinguish this case on 
the basis that the servicing SJA office no longer believes the 
evidence is sufficient to sustain the promotion propriety actions. 
In the absence of any evidence in the file to support those 
actions, they defer to the opinion of those in the applicant’s 
chain of command who are more familiar with the evidence. 

 

The complete JA evaluation is at Exhibit D. 

 

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APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS: 

 

If the promotion propriety actions were generated due to the 
accusations and the letter of support from his commander at the 
time; and, those accusations were later proven false, there is no 
logical reason why the propriety promotion actions should not be 
removed and his earlier promotion be restored. He places his 
faith in the Air Force at this point, and will accept whatever 
decision the Board chooses. 

 

The applicant’s rebuttal, with attachments, is at Exhibit F. 

 

__________________________________________________________________ 

 

THE BOARD CONCLUDES THAT: 

 

1. The applicant has exhausted all remedies provided by 
existing law or regulations. 

 

2. The application was timely filed. 

 

3. Sufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice. We concur 
with the AFPC/JA opinion that the applicant has provided 
sufficient evidence to expunge his promotion propriety action 
from his records based on the fact that he was found not guilty 
of all cocaine related charges that supported the promotion 
propriety actions. In this regard, we note the applicant has 
provided a letter of support from his commander, recommending 
that his promotion to captain be restored. Based on this 
command support and the fact the applicant was found not guilty 
of all charges, we believe it would be an injustice to not 
restore the applicant’s selection to the grade of captain by the 
CY08B Quarterly Captain Selection Process. Additionally, we 
believe it would be an injustice to the applicant to continue to 


suffer the effects of the negative documentation in his records 
pertaining to this issue. Therefore, we recommend the 
applicant’s records be corrected to the extent 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: 

 

a. His name was not removed from the list of officers 
selected by the CY08B Quarterly Captain Select List and the 
promotion propriety actions taken to delay his promotion be 
declared void and expunged from his records. 

 

b. He was promoted to the grade of captain effective and 
with a date of rank of 1 June 2009. 

 

c. Any nonselections for promotion to the grade of major 
in-the-primary zone prior to receiving a minimum of three 
Officer Performance Reports with at least 250 days of 
supervision, in the grade of captain, be set aside. 

 

________________________________________________________________ 

 

The following members of the Board considered AFBCMR Docket 
Number BC-2010-01167 in Executive Session on 2 December 2010, 
under the provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

All members voted to correct the records, as recommended. The 
following documentary evidence for AFBCMR Docket Number BC-2010-
01167 was considered: 

 

Exhibit A. DD Form 149, dtd 15 Mar 10, with atchs. 

Exhibit B. Applicant's Master Personnel Records. 

Exhibit C. Letter, AFPC/DPSOO, dtd 27 May 10. 

Exhibit D. Letter, AFPC/JA, dtd 7 Jun 10. 

Exhibit E. Letter, SAF/MRBR, dated 25 Jun 10. 

Exhibit F. Letter, Applicant, dtd 19 Jul 10, w/atchs. 

 

 

 

 

 

 Panel Chair