RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-00458 

 

 

 COUNSEL: 

 

 HEARING DESIRED: YES 

 

 

________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

1. His Nonjudicial punishment (NJP), imposed under the 
provisions of Article 15 of the Uniform Code of Military Justice 
(UCMJ), be set aside and all references thereto be removed from 
his records. 

 

2. The Secretary’s action directing his retirement in the grade 
of colonel (O-6) be set aside and his record be corrected to 
show he retired in the grade of brigadier general (O-7), 
effective 1 Feb 09. 

 

3. He be refunded the erroneously forfeited active duty pay 
resulting from imposition of the NJP and given any back pay 
resulting from the recomputation of his retired pay at the O-7 
grade. 

 

________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

1. The DoD Inspector General (DoD-IG) investigation was replete 
with factual and legal errors, inappropriate conclusions, 
prejudice, and pre-judgment of the case. The investigators were 
misled by a key witness who had an undisclosed personal and 
professional stake in the outcome of the investigation. Both 
were females who gave automatic credence to this key witness, 
also a female, who filed the initial complaint against the 
applicant. Neither had field experience with a Joint command or 
comprehended the sometimes subtle but important culture 
differences among the services. They failed to pursue any 
exculpatory information which would have confirmed the facts as 
related by the applicant. They failed to recognize crucial 
service culture differences, resulting in conclusions of fact 
and law that reflected an Army centric view of the actions and 
relationships between the applicant and members of his staff. 
These factors, plus the tendency of the of IG investigators in 
general, and these investigators in particular, to formulate 
their conclusions too early in the investigation and then 
investigate in such a way as to validate the initial 


conclusions, resulted in findings not borne out by the actual 
facts. 

2. The NJP was inappropriate. There was insufficient evidence, 
even under a preponderance standard, to conclude the applicant 
violated provisions of the Joint Ethics Regulation (JER) 
regarding conflict of interest or that he was derelict in the 
performance of his duties. The decision to punish him was made 
on the basis of incorrect conclusions of fact and the law 
governing both conflict of interest and dereliction of duty, and 
therefore constituted an error or injustice. 

 

3. The action of the Secretary of the Air Force, on the 
recommendation of the Officer Grade Determination (OGD) Board, 
to retire the applicant in the lower grade was based on 
erroneous conclusions of fact and the law and the improper and 
erroneous application of the Secretary’s authority to determine 
the appropriate retirement grade of a senior officer. The 
decision was based on the erroneous and unjust NJP and overrode 
the commander’s discretion to evaluate the evidence contained in 
the DoD-IG Report of Investigation (ROI) and take appropriate 
action thereon. 

 

In support of his request, the applicant provides a personal 
statement, a 33-page statement of counsel, and copies of e-mail 
correspondence related to his relationship with certain defense 
contractors during the matter under review, correspondence 
related to his candidacy for a position with the Department of 
Homeland Security, six supporting statements, and a newspaper 
article titled, “From the Pentagon to the Private Sector.” 

 

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

 

________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant’s military personnel records indicate that he 
served in the Regular Air Force in the grade of brigadier 
general, effective and with a date of rank of 1 Jan 04. 

 

The Department of Defense Inspector General (DoD-IG) initiated 
an investigation to address the following allegations pertaining 
to the applicant while he served primarily as the Director of 
Command, Control, Communications, and War fighting Integration, 
Headquarters, United States European Command (USEUCOM-J6): 

 

Allegation 1. The applicant took official action on behalf of a 
company with which he was negotiating employment in violation of 
Title 18, United States Code (USC), Section 208, Acts Affecting 
a Personal Financial Interest, and DoD 5500.7-R, Joint Ethics 
Regulation (JER). 

 

Finding: SUBSTANTIATED 

 


 

Allegation 2. The applicant extended official travel for 
primarily personal purposes and claimed unauthorized expenses on 
travel vouchers in violation of the Joint Federal Travel 
Regulations (JFTR). 

 

Finding: SUBSTANTIATED 

 

Allegation 3. The applicant misused his position by directing 
subordinates to perform personal services in violation of the 
JER Sections 2635.702, Use of Public Office for Private Gain, 
and 2635.705(b), Use of Subordinate’s Time. 

 

Finding: SUBSTANTIATED 

 

During the course of investigation, the investigators became 
aware of the following additional allegations pertaining to the 
applicant: 

 

Allegation 4. The applicant misused his Government cellular 
telephone and on-post quarters Government telephone for personal 
telephone calls in violation of JER Section 2-301, Use of 
Federal Government Resources, and Army Regulation 25-1, Army 
Knowledge Management and Information Technology. 

 

Finding: SUBSTANTIATED 

 

Allegation 5. The applicant failed to use his Government travel 
card for expenses arising from official Government travel in 
violation of DoD 7000.l14-R, DoD Financial Management Regulation 
(FMR), and Headquarters EUCOM Staff Memorandum Number 30-1, Travel Management. 

 

Finding: SUBSTANTIATED 

 

The applicant was given an opportunity to review the tentative 
results of the investigation and, on 30 Aug 07, he provided a 
five-page rebuttal contending that he never knowingly or 
intentionally violated Federal ethics laws or regulations in his 
33 years of service. He argued that: 1) he did not 
inappropriately grant or receive any benefit or favor from a 
government contractor, but was only performing his duties in 
exercising oversight of contractors providing services under his 
purview; 2) his numerous government trips were not for his 
personal benefit or that of a government contractor, but for 
proper military purposes and any variations between his actual 
travel and the itineraries of record were the result of innocent 
administrative, clerical, or technical mistakes, not from any 
intention to obtain additional travel money or leave time from 
the government; 3) he did not inappropriately direct 
subordinates to perform personal services, but believed his 
interaction with them was consistent with the customs and norms 
associated with the culture that exists at small overseas 
military installations; 4) his use of government telephones for 
personal phone calls was authorized and he paid each bill 


presented to him; and 5) his failure to use the government 
travel card on various occasions generally resulted from 
computer, scanner, or other technical failures and did not 
result in any significant personal benefit or cost to the 
government. 

 

After considering the applicant’s rebuttal, the IG determined 
the applicant did not provide new or material evidence that 
would cause a change to the tentative findings. DoD-IG 
published its findings and recommendations in an investigative 
report, dated 2 Nov 07, and recommended the Secretary of the Air 
Force consider appropriate corrective action in the matter, to 
include recoupment of the costs for unauthorized lodging, 
perdiem, and personal telephone calls, as well as reconciling 
the applicant’s leave account to accurately reflect leave taken 
during official travel. 

 

On 25 Apr 08, the applicant was notified by his commander of his 
intent to impose NJP under Article 15 of the UCMJ. The reasons 
for the action were as follows: 

 

1) He did, on or about 5 Mar 07, and on or about 15 Mar 07, 
without authority, fail to go at the time prescribed to his 
appointed place of duty in violation of Article 86 of the UCMJ. 

 

2) He was, on diverse occasions between on or about 1 May 06 
and on or about 31 May 07, derelict in the performance of his 
duties in that he, by culpable inefficiency, failed to fully 
account for personal phone calls on his government cell phone 
and reimburse the US Armed Forces for the cost of said personal 
phone calls, as it was his duty to do. 

 

3) He did, on diverse occasions between on or about 24 Jan 07 
and on or about 30 Apr 07, wrongfully and dishonorably 
participate personally and substantially in a Federal agency 
procurement or other particular matter that, to his knowledge, 
had or would have had a direct and predictable effect on the 
financial interest of a private corporation, a prospective 
employer with whom he was seeking employment, in violation of 
5 CFR 2635.604, which was conduct unbecoming an officer and a 
gentleman, in violation of Article 133 of the UCMJ. 

 

On 30 May 08, after consulting with legal counsel, the applicant 
acknowledged receipt of the action, waived his right to court-
martial, elected to submit a written presentation in his behalf, 
and requested a personal appearance before the commander. 

 

On 6 Jun 08, the commander determined the applicant committed 
the alleged offenses and imposed punishment consisting of a 
reprimand and forfeiture of $2,500.00 pay per month for two 
months. The applicant acknowledged receipt of the commander’s 
decision the same day. On 1 Jul 08, the action was found to be 
legally sufficient and final. 

 

 


On 1 Jul 08, the applicant was notified by his commander of his 
intent to initiate an officer grade determination (OGD) in 
conjunction with his request to retire. The action was based on 
the findings described in the aforementioned DoD-IG ROI. The 
notification letter indicated the entire DoD-IG ROI, which 
included substantiated allegations not otherwise part of the NJP 
action, would be considered by the Secretary of the Air Force, 
or designee, in deciding his retired grade. 

 

On 2 Jul 08, the applicant acknowledged receipt of the action 
and elected to submit a written reply. On 14 Jul 08, both the 
applicant and his defense counsel submitted written replies. 

 

On 18 Jul 08, the commander forwarded the OGD case file to the 
Secretary of the Air Force and recommended the applicant be 
retired in the grade of brigadier general. While he found the 
applicant’s misconduct unacceptable, he opined that his 
misconduct was not sufficiently egregious to outweigh his 
otherwise satisfactory service as a brigadier general. He 
indicated the applicant proved himself to be an extremely 
effective leader during the course of his primary duties and 
noted specific advances to EUCOM’s war fighting capabilities 
that were directly attributable to his leadership. 

 

On 7 Aug 08, HQ USAF/JA concurred that a board of general 
officers should be convened to consider the matter, recommending 
the applicant be retired in the lower grade of colonel. He 
indicated the investigation revealed a disturbing pattern of 
misconduct, abuse of authority, and deceptiveness that strongly 
suggested the applicant’s service in the grade of brigadier 
general was anything but satisfactory. While his performance of 
his primary duties as was impressive and if only isolated, minor 
indiscretions or mistakes were involved, his conduct would not 
necessarily adversely affect a determination of whether he 
served satisfactorily. However, the facts went well beyond 
isolated instances of misconduct or mistakes and indicated long-
term misconduct reflecting a consistent sense of personal 
entitlement at the expense of Air Force interests and included 
disingenuous excuses for such behavior. 

 

On 13 Nov 08, the OGD Board, comprised of a board of collateral 
general officers, determined the applicant did not serve 
satisfactorily in the grade of brigadier general and recommended 
to the Secretary of the Air Force that he be retired in the 
grade of colonel. 

 

On 12 Dec 08, the Secretary of the Air Force determined the 
applicant did not serve satisfactorily in the grade of brigadier 
general within the meaning of 10 USC 1370(a)(1); but found he 
did serve satisfactorily in the grade of colonel and directed he 
be retired in that grade. 

 

On 23 Dec 08, the applicant was ordered to be relieved from 
active duty and transferred to the retired reserve in the grade 


of colonel. On 31 Jan 09, he was so relieved and credited with 
33 years, 10 months, and 5 days of total active service. 

 

________________________________________________________________ 

 

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 injustice. The 
applicant contends the findings of the DoD-IG investigation, 
which formed the basis of the contested NJP and OGD, were 
erroneous; he was the innocent victim of a faulty investigation, 
borne from and influenced by the ulterior motives of a member of 
his former staff, and driven to erroneous conclusions through 
the ineptitude of investigators who were predisposed to 
substantiate the initial allegations against him. After a 
thorough review of the evidence of record and the applicant’s 
complete submission, we are not convinced he has been the victim 
of an error or injustice. Counsel argues the investigators were 
inappropriately influenced by a member of the applicant’s former 
staff, but other than these assertions, he provides no evidence 
whatsoever that would lead us to believe the investigation 
sprang from, or was influenced by, the alleged ulterior motives 
of this or any witness. Counsel argues the investigators lacked 
the requisite skills and experience to conduct a thorough and 
fair investigation of the allegations against the applicant; 
however, his efforts to impugn the qualifications of or methods 
used by these investigators are not supported by any evidence he 
submitted or by that contained in the records available to us. 
Counsel further argues that investigators failed to pursue any 
exculpatory information which would have confirmed the facts as 
related by the applicant; however, he provides no evidence the 
applicant was precluded from providing such evidence during the 
course of the investigation or that it was not given due 
consideration by reviewing authorities. In this respect, we 
note the applicant was interviewed extensively by investigators 
and was provided an opportunity to submit statements and 
evidence in support of his version of the events, which was 
included in the final version of the ROI. Counsel argues that 
investigators failed to recognize crucial service culture 
differences, resulting in conclusions of fact and law that 
reflected an Army centric view of the actions and relationships 
between the applicant and members of his staff. It is not clear 
to this Board what Counsel means by the term “Army centric” and 
what the specific service culture differences are which 
adversely impacted the outcome of the investigation. The 
applicant’s counsel has not presented evidence that defines this 
assertion or how the investigation was specifically adversely 
impacted. Counsel argues the findings of the investigation are 
not borne out by the facts, but are the result of a tendency of 


investigators to formulate conclusions too early in the process 
and then investigate in such a way as to validate the initial 
conclusions. In support of this argument, Counsel cites what he 
believes are various inconsistencies in the evidence of record. 
However, we do not find these arguments persuasive or the 
evidence sufficient to conclude the investigators were 
predisposed to a preconceived outcome to the investigation. 
Aside from these arguments, we note the applicant provides a 
variety of supporting statements and documentation that describe 
his technical prowess and exemplary duty performance. Among 
these are four supporting statements from flag officers, each of 
whom uniformly express incredulity at the prospect the applicant 
committed the alleged misconduct. These statements are noted; 
however, they are insufficient to overcome the results of the 
factual investigation. In this respect, we note these 
statements are all based on the authors’ observations of the 
applicant during a period well outside the scope of the 
investigation into the matter at hand. Counsel argues the 
applicant could not have been guilty of taking official action 
on behalf of a company with which he was negotiating employment 
because no evidence was presented that he made an application 
for or was offered any employment, except that which he sought 
with the federal government. In support of this argument the 
applicant provides copies of correspondence related to his 
candidacy for a position with the Department of Homeland 
Security and e-mail correspondence between the investigators and 
two witnesses regarding his interactions with certain private 
defense firms. However, we do not agree with counsel’s 
argument. In this respect, we note the IG ROI indicates that in 
accordance with Title 5, Code of Federal Regulations (CFR), 
Section 2635.603(b)(1), “negotiating employment” is not 
predicated on the submission of an application or a specific 
employment offer being rendered – or accepted. Rather, 5 CFR 
2635.603(b)(1) indicates that, amongst other things, directly or 
indirectly engaging in negotiations for employment with a view 
toward reaching an agreement regarding possible employment 
constitutes “negotiating employment.” Seeking employment 
includes more preliminary efforts which are not predicated on 
producing an application or resume. As such, in the face of 
what we believe is a comprehensive investigative report, we do 
not find this documentation, combined with Counsel’s additional 
arguments on the evidence of record, sufficient to conclude the 
DoD-IG investigation into the applicant’s misconduct was fatally 
flawed, the applicant was treated unfairly, or the ultimate 
findings and conclusions described in the DoD-IG ROI caused the 
applicant to be the victim of error or injustice. Therefore, 
having no basis to question the validity of the investigation or 
its ultimate findings and conclusions, we believe that it served 
as the legitimate basis for the subsequent NJP action. 
Notwithstanding Counsel’s assertions that the commander 
misapplied the law and the evidence with respect to the 
specifications for which the applicant was punished, we note the 
Article 15 was found legally sufficient and it appears the 
applicant was provided all of the rights to which he was 
entitled, including the right to refuse the Article 15 and 


 

4. 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 the evidence presented did not 
demonstrate the existence of material error or injustice; the 
application was denied without a personal appearance; and 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-2011-00458 in Executive Session on 24 Oct 11, under 
the provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 1 Jan 11, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 

 

 

 

 

 Panel Chair