RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-03353 

COUNSEL: NONE 

 HEARING DESIRED: YES 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

1. Reserve Order A-231, dated 12 May 2009, be amended to delete 
the phrase: “Authority: AFI 36-3209, Misconduct or Moral or 
Professional Dereliction, Other Serious or Recurring Misconduct.” 

 

2. Void and remove from his record the associated Letter of 
Reprimand (LOR), dated 11 September 2006; the Referral Officer 
Performance Report (OPR), closing 23 March 2007; other associated 
correspondence; and any other negative matters related to the 
cause of his discharge. 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

His discharge was improper because the Discharge Board panel 
members were not properly advised on the appropriate law and they 
were excluded from review of exculpatory evidence. Statements 
made in associated documentation (i.e., LOR and referral OPR) are 
incorrect and not supported by evidence. 

 

In support of his appeal, the applicant provides a personal 
statement; and, copies of his DD Form 293, Application for the 
Review of Discharge from the Armed Forces of the United States; a 
transcript of the AFDRB hearing; witness statements; OPR history; 
character statements; performance history; award history; and 
discharge order. 

 

A copy of the applicant’s complete submission, with attachments, 
is at Exhibit A. 

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant is a former member of the United States Air Force 
Reserve who was commissioned on 26 November 1990. He had 
enlisted on 3 May 1988 and entered the Judge Advocate Corps as a 
direct appointee. He was progressively promoted to the grade of 
lieutenant colonel (O-5). The applicant also served as a Title 5 
civilian attorney-advisor at Kirtland Air Force Base (AFB), New 
Mexico. 

 


On 26 March 2007, the applicant was notified that discharge 
action was being initiated against him under Air Force 
Instruction (AFI) 36-3209, Separation and Retirement Procedures 
for Air National Guard and Air Force Reserve Members, Chapter 2, 
paragraph 2.29.4: Misconduct or Moral or Professional Dereliction 
(Serious or Recurring Misconduct). Specifically, it was alleged 
the applicant violated: 1) 5 Code of Federal Regulations (CFR) 
2635.702 by using his public office for private gain; 2) Title 
18, United States Code (USC), Section 208 by rendering advice to 
the United States Air Force regarding a contract in which he had 
a financial interest; and 3) Rule 8.4(b) of the USAF Rules of 
Professional Conduct when he rendered advice on a contract in 
which he had a personal financial interest. The notification 
memorandum from the Air Force Reserve Command (AFRC) indicated 
the type of separation recommended was a general (under honorable 
conditions) discharge. 

 

On 2-4 October 2007, a Board of Inquiry (BOI) was held. After a 
closed session deliberation, the board found the government’s 
allegations were substantiated and recommended the applicant be 
discharged with an honorable characterization of service. The 
AFRC commander concurred with the BOI and recommended the 
Secretary of the Air Force (SECAF) discharge the applicant with 
an honorable service characterization. On 4 March 2009, the 
Office of the Judge Advocate General (AF/JAA), found the case to 
be legally sufficient, addressing the legal arguments asserted by 
the applicant’s attorney regarding the misconduct and finding no 
merit. The Secretary of the Air Force Personnel Council (SAFPC) 
considered the applicant’s case and found that his multiple 
violations relating to post-government employment cast too much 
doubt on his suitability to serve as a Reserve officer in the 
United States Air Force. On 1 May 2009, the SECAF’s delegated 
authority (SAF/MRB), approved the applicant’s honorable discharge 
pursuant to AFI 36-3209. 

 

The remaining relevant facts, extracted from the applicant’s 
military service records, are contained in the evaluation by the 
Air Force office of primary responsibility at Exhibit B. 

 

_________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFRC/JA recommends denial. JA states that during the BOI the 
Government argued that the applicant’s actions were wrongful 
because he used his public office for private gain and provided 
advice to the Air Force with regards to a contract in which he 
had financial interest. The applicant, through both civilian and 
military attorneys, argued that his conversations did not violate 
any statues or regulations, that the conversations were meant for 
the benefit of the Air Force, and the proposed contract in this 
case was consistent with other contracts the Air Force had in the 
past. the applicant argues “the panel members were not properly 
advised on the appropriate law” with regards to 5 CFR 2635.702 


and 18 USC, Section 208. This is not true. During the board 
hearing, the legal advisor opined that the members would require 
a special instruction regarding interpretation of law. However, 
when he asked prior to instructing the members if either side had 
any objection to the instruction, he ultimately presented, both 
sides answered in the negative. Neither of the applicant’s 
defense attorneys requested a special instruction for 5 CFR 
2635.702 or 18 USC Section 208. Therefore, the board was not 
precluded from reviewing anything; and, any issues regarding 
instructions should be considered waived and; therefore, not form 
the basis for granting relief. 

 

The applicant also argues the board “precluded from review of 
exculpatory evidence.” At the board, the applicant’s attorney 
sought to introduce an affidavit from Ms. G. The affidavit was 
not allowed into evidence because the legal advisor sustained an 
objection on the grounds that Ms. G had not been shown to be 
unavailable as a witness. In his submission, the applicant 
argued that his exclusion by the legal advisor was “arbitrary and 
capricious given his admission of similar statements from 
witnesses who, like Ms. G, did not appear at the hearing.” 
However, when given the opportunity to do so by the legal 
advisor, the applicant affirmatively declined to call Ms. G as a 
witness. Now, although hearsay is admissible in board hearings, 
the legal advisor has a duty to ensure safeguards for the truth. 
In this case, the legal advisor’s requirements that the witness 
either be produced or be declared unavailable amounted to such 
safeguards. In addition, the applicant himself admitted that 
“the affidavit is consistent with other specific and general 
testimony provided by both the Government and applicant’s 
witnesses. Thus it was cumulative. For these reasons, it was 
not an error for the legal advisor to exclude the affidavit, and 
its exclusion should not be used to grant relief to the applicant 
now. 

 

JA indicates they agree with the AF/JAA BOI proceedings review in 
that there appears to be no errors or irregularities in this case 
that might prejudice any of the applicant’s substantive rights 
and that the case file is legally sufficient to support his 
honorable discharge for serious or recurring misconduct pursuant 
to AFI 36-3209, paragraph 2.29.4. Their office also agrees with 
the Deputy Director of SAFPC, who states in his memorandum to 
SAF/MRB that “the case file portrays an officer who used his 
official position and “insider status” in a plan to enable him to 
collect even more pay as a contractor for the same job he did as 
a civil servant at Kirtland AFB. SAFPC found the respondent used 
every angle to use his government position and title to induce 
the government to reward him by awarding him a lucrative contract 
to perform duties that he was performing as a civilian attorney. 
Although SAFPC considered the applicant’s outstanding duty 
performance as a Reserve Judge Advocate, with over 17 years of 
satisfactory service, they found that his multiple violations 
relating to post-government employment cast too much doubt on his 


suitability to serve as a Reserve officer in the United States 
Air Force. 

 

The complete JA evaluation is at Exhibit B. 

 

_________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

AFRC’s suggestion that any argument the discharge board was 
precluded from reviewing interpretive legal material should be 
waived because there was no “objection” raised at the hearing is 
both factually in error and procedurally baseless. The legal 
advisor’s simplistic interpretation of the law and subsequent 
instruction to the panel failed to recognize case law, relevant 
statutory interpretation, and other matters potentially 
informative to the panel and the outcome of the board. The legal 
advisor fashioned an expedient method to dispose of otherwise 
complex legal subject matter. In addition, AFRC fails to 
acknowledge that “objections” and arguments were raised during 
pre-hearing proceedings between his attorneys and the legal 
advisor in an effort to advocate for the most relevant and 
instructional legal authorities. AFRC’s suggestion that the lack 
of a formal “objection” somehow waives an argument in an 
administrative forum questions AFRC/JA’s understanding of 
administrative procedure. Absent specific legal authority cited 
by AFRC concerning the waiver of administrative rights, arguments 
made by him or his attorneys at the discharge board or in the 
AFBCMR appeal process cannot be waived without a violation of due 
process. 

 

AFRC contends that Ms. G’s affidavit was not allowed into 
evidence because the legal advisor found that Ms. G could have 
been made available for testimony. AFRC appears to manipulate 
portions of the record discussing Ms. G’s availability in their 
argument by stating that he or his attorneys “affirmatively 
declined to call Ms. G as a witness.” Calling Ms. G as a witness 
was an impossibility because she was suffering from a medical 
condition at the time of the hearing and could not be contacted. 
This information was also made available to the legal advisor. 
Conversely, the legal advisor, in his duty to safeguard the truth 
of the proceedings and the veracity of the discharge board, 
provided no supporting opinion as to why the affidavit did not 
objectively contribute to the truth of the matter. The decision 
to exclude the affidavit appears subjective, baseless, and 
arbitrary without some indication from the legal advisor why it 
was excluded. A review of the affidavit from Ms. G indicates 
there is highly relevant and exculpatory testimony from Ms. G 
that cannot be duplicated by other testimony or evidence, but 
remains consistent with the overall theory of his case. 
Therefore, the affidavit is not cumulative. 

 

Although the relevant ethics law applicable to the discharge 
board is complex and difficult legal subject matter and the 


potential for error was high, the purpose of a request for relief 
from the AFBCMR is not wholly premised on that error. It is 
premised also on a genuine concern that the personnel records 
surrounding his discharge impair his professional reputation and 
career choices. By extension, the records also impair the 
support and welfare of his family. He is hopeful that the AFBCMR 
will determine his discharge, loss of retirement, and damage to 
his professional reputation thus far is sufficient punishment for 
any misconduct; and, as a result allow his personnel record to be 
expunged pursuant to the relief requested. 

 

The applicant’s complete rebuttal 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 error or injustice. We took notice 
of the applicant's complete submission in judging the merits of 
the case; however, we agree with the opinion and recommendation 
of the Air Force office of primary responsibility and adopt its 
rationale as the basis for our conclusion that the applicant has 
not been the victim of an error or injustice. Therefore, in the 
absence of evidence to the contrary, we find no basis to 
recommend granting the relief sought in this application. 

 

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 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-2011-03353 in Executive Session on 7 June 2012, under 
the provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

The following documentary evidence was considered in connection 
with AFBCMR Docket Number BC-2011-03353: 

 

Exhibit A. DD Forms 149, dated 2 Sep 11, w/atchs. 

Exhibit B. Letter, AFRC/JA, dated 22 Nov 11. 

Exhibit C. Letter, SAF/MRBR, dated 16 Dec 11. 

Exhibit D. Letter, Applicant, dated 6 Jan 12. 

 

 

 

 

Panel Chair