RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2012-02042	
	
		COUNSEL:  	

			HEARING DESIRED:  YES 


________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to reflect the following:

1.  He was selected for promotion to the grade of Lieutenant 
Colonel (O-5) by the V0510B Lieutenant Colonel Promotion Board 
that convened on 14 Jun 10.

2.  He was not discharged on 1 Mar 11, but instead continued to 
serve with the Air Force Reserve through the present time.  As 
an alternative, he be reinstated to duty in the Air Force 
Reserve preferably in a pilot position or as an Air Force 
Academy (USAFA) Air Liaison Officer (ALO), and be allowed to 
continue to serve on duty for a time sufficient to enable him to 
earn a retirement from the Air Force Reserve, and to compete 
without prejudice to be promoted to Lt Col.  

3.  An addendum be added to the Accident Investigation Board 
(AIB) Report, Safety Investigation Board (SIB) Report, and the 
459 AW/CC-directed Report of Investigation (ROI) and all 
documents regarding the incident, indicating that he was 
completely exonerated by the Oct 97 Flight Evaluation Board 
(FEB).  

________________________________________________________________

APPLICANT CONTENDS THAT:

1.  Even though he was ultimately exonerated of any wrong-doing 
associated with a Dec 96 Class A Flight Mishap which resulted in 
the death of a fellow service member and an unauthorized low-
level flight, the circumstances have repeatedly been used 
against him to unfairly deprive him of his rightful return to 
flying status in 2005 and a Definitely Promote (DP) 
recommendation in 2009.  

2.  AFRC/CC unfairly denied his request to return to flying 
status in 2005, citing his involvement in the aforementioned low 
altitude fly-over as the reason for his denial, even though a 
2005 FEB found he was qualified for flying duty.  In doing so, 
AFRC/CC wrongfully and punitively took it upon himself to 
determine the applicant’s career and fate with no basis in fact.  

3.  This situation was again unfairly used against him when his 
senior rater unjustly rendered a Promotion Recommendation Form 
(PRF) reflecting a recommendation of “Promote” (P), instead of 
“Definitely Promote” (DP) as originally proposed by his 
supervisor.  He believes the senior rater, a graduate of the Air 
Force Safety and Accident Board President School, allowed the 
circumstances surrounding the 1996 unauthorized low-level flight 
and Class A mishap to influence his promotion recommendation, 
even though he was exonerated of any responsibility.  As a 
result, he was unfairly non-selected for promotion, thereby 
prematurely ending his career after 17 years of service.

In support of his request, the applicant provides an expanded 
statement and copies of a 23 Dec 10 Memo For the Record 
concerning his 2010 PRF, and 18 exhibits containing excerpts 
each of the documents cited in his expanded statement. 

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

________________________________________________________________

STATEMENT OF FACTS:

The applicant initially entered active duty on 29 May 85 after 
graduating from USAFA.  

On 13 Sep 96, he separated from the Regular Air Force and 
entered the AF Reserve.  

On 3 Dec 96, while performing duties as a C-17 aircraft 
commander in a pilot not flying (PNF) role, the applicant was 
involved in a Class A Mishap in which a Navy SEAL lost his life.  
During the same mission, while the applicant was in the PNF 
role, the aircraft was flown well below the minimum authorized 
level of 500 feet during a low-level pass over the designated 
drop zone.  

The AIB looking into the incident issued a final report which 
concluded the applicant’s error was the cause of the accident. 
In addition, an SIB concluded the cause of the incident was an 
error by the applicant for failing to verify the cabin 
differential pressure gauge indicated zero as required by the 
Operation Stop Checklist.  The 459 AW/CC reviewed the available 
reports and an ROI which he had ordered, and recommended the 
applicant be tried by court-martial for failure to follow 
mandatory C-17A Flight Manual instructions, but stated the 
applicant should not be held accountable for the unauthorized 
fly-over that occurred as part of the mission.  

On 8 Oct 97, an FEB (FEB #1) convened to review the case.  The 
applicant was represented by legal counsel.  The FEB #1 
determined the applicant did not intentionally violate flying 
regulations, did not violate relevant checklists, and 
recommended he retain his aviation badge and be continued in the 
aviation service.

In Dec 97, the applicant separated from the Reserves.

On 1 Oct 98, the applicant was promoted to the rank of major.  

On 22 Apr 05, a second FEB (FEB #2) convened, as required by AFI 
11-402, Aviation and Parachutist Service, Aeronautical Ratings 
and Aviation Badges, because the applicant was applying for a 
flying billet within the Reserves and he had not flown in the 
Air Force in over five years.  FEB #2 recommended the 
reinstatement of the applicant to the Air Force Reserves and 
revalidation of his flying status.  However, the AFRC/CC 
disapproved the recommendation of FEB #2, explaining in his 
23 Mar 06 letter to the applicant that the AFRC/CC had relied 
exclusively on the ROI for his decision and based it entirely 
upon the applicant’s involvement in the unauthorized flyover.  

On 20 Apr 07, the applicant joined USAFA as a Reservist serving 
as an ALO in South Carolina.  

In 2010, after receiving a “Promote” PRF for the VO510B Lt Col 
Selection Board from the USAFA Admission Department, he was not 
selected for Lt Col for a second time and was required to 
separate. 

On 1 Mar 11, the applicant separated from the Air Force Reserve, 
was furnished an Honorable discharge, and was credited with 
16 years of satisfactory service. 

The remaining relevant facts pertaining to this application are 
described in the letter prepared by the Air Force office of 
primary responsibility which is included at Exhibit C.   

________________________________________________________________

AIR FORCE EVALUATION:

AFRC/JA recommends denial, indicating there is no evidence of an 
injustice.  The applicant believes he has been treated unfairly 
and not promoted due to an aircraft mishap which occurred on 
3 Dec 96.  This application can be dismissed under the equitable 
doctrine of laches, which denies relief to one who has 
unreasonably and inexcusably delayed in asserting a claim.  In 
the applicant’s case, he waited 15 years to file and took no 
action on the claim before that.  It is clear from the 
application the applicant was aware of the contents of the 
documents he now wishes changed.  The FEB #1, which he states 
exonerates him, is 15 years old.  He should have made his 
request for the addendums at that time.  The applicant’s 
unreasonable delay has also caused prejudice to the Air Force.  
To date, efforts to locate a copy of the ROI in Air Force 
possession has been unsuccessful.  All indications are that the 
ROI has most likely been destroyed.  Therefore, even if ordered 
to do so, there is no way for the AF to provide an addendum to a 
document which cannot be located.  In short, the AFRC/JA asserts 
that the applicant’s unreasonable delay regarding a matter now 
dating back 15 years has greatly complicated its ability to 
determine the merits of the applicant’s position.  

It appears that at the heart of the applicant’s concern is the 
issue of several different command investigations reaching 
different conclusions regarding his culpability for the mishap.  
This is understandable—since the conclusions are at opposite 
ends of the spectrum.  The AIB, SIB Report and the 459 AW/CC ROI 
each found the applicant responsible for the mishap.  However, 
the FEB #1 and FEB #2 found him not responsible and recommended 
his return to flying status.  Different individuals can come to 
different conclusions.  Each of these reviews was conducted 
under different authorities.  The bottom line is that three 
independent reviewers (AIB, Safety Investigation, 459 AW/CC 
Review) outside of the applicant’s unit, determined his actions, 
or lack thereof, led to the mishap.  The FEB #1 and FEB #2 
appear to rely heavily on witness testimony to reach their 
conclusions.  Whatever the decision, it was within their 
discretion.  

Two points regarding the AFRC/CC’s disapproval of the 
applicant’s return to flying status.  First, AFRC/JA is unable 
to locate a copy of the ROI referred to in the AFRC/CC’s letter.  
This makes it difficult to comment.  Second, the recommendation 
of the FEB #2 is just that, a recommendation.  It is within the 
discretion of the AFRC/CC to determine who flies.  The portion 
of the ROI provided by the applicant clearly shows a conclusion 
that the applicant was responsible for the mishap even if not 
the flyover.  This makes his determination reasonable and not 
arbitrary or capricious.  

The decision to place an addendum on the requested documents is 
for the owners of the documents to decide.  There is no legal 
impediment to placing an addendum on the documents.  However, if 
an addendum is added it should not use the term “exonerated” as 
requested by the applicant.  That would be an inaccurate 
statement.  Recommend attaching a copy of the results of the 
FEBs to the requested documents if the decision is made to grant 
the request. 

The applicant seems to believe AFRC/CC’s denial of his return to 
flying status resulted in his failure to be promoted to Lt Col.  
However, he was promoted to major AFTER the mishap.  In 1998, 
when he was green lighted to fly, the applicant chose to pursue 
a career with a civilian airline.  The position with USAFA was a 
second chance for the applicant and his Air Force career.  
Unfortunately, he did not take advantage of the opportunity as 
evidenced by the fact he went before the Lt Col selection board 
without completing ACSC—a known deal breaker.  Based upon the 
documentation provided by the applicant, his last Air Force 
command reviewed his performance and determined it did not 
warrant a definitely promote.  There is no evidence this 
decision was arbitrary of capricious.  

A complete copy of the AFRC/JA evaluation is at Exhibit C.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He provides an expanded statement in which he restates his 
original requests, responds to several statements in the AFRC/JA 
evaluation, and resubmits supporting documentation:

	1.  In response to AFRC/JA’s comment that the applicant 
waited 15 years to file “and took no action on the claim before 
that,” the applicant states that he definitely did not wait 
15 years to file the AFBCMR application without having 
aggressively taken previous actions to remedy the injustices 
stated in his case.  He outlines his actions of contacting the 
AFRC/CC for an explanation of AFRC/CC’s decision to deny the 
applicant’s request to return to the AF Reserve to fly; his 
actions in initiating two separate Congressional Inquiries to 
look into his situation; and, his actions in response to having 
received a “Promote” recommendation on his PRF to Lt Col.  

	2.  In response to AFRC/JA’s assertion that “The portion of 
the ROI provided by the applicant clearly shows a conclusion 
that the applicant was responsible for the mishap if not for the 
flyover.  Although the AFRC/CC did not rely on them, other 
reviewers also found the applicant responsible for the mishap.  
This makes the AFRC/CC’s determination reasonable and not 
arbitrary or capricious,” the applicant explains that this 
statement illustrates why he is requesting relief from the 
AFBCMR to clear his name from incorrect, untimely, incomplete 
and irrelevant information.  The AIB and SIB proceedings relied 
on incorrect and incomplete information.  The FEB was the first 
forum in which he was given the opportunity to defend himself 
with any degree of fairness and accuracy.  Key information was 
considered by the FEB but not by the AIB or SIB.  Even the 
AFRC/JA advisory opinion wrongfully used the initial ROI as 
justification even though the 8 Oct 97 FEB completely exonerated 
him from culpability and was the final determining legal action 
regarding the Class A Mishap by the Reserves.  The applicant 
cites specific information that was not available to the AIB and 
SIB in 1996.  

	3.  In response to AFRC/JA’s comment that if an addendum is 
added to the earlier reports as the applicant requests it should 
not use the word “exonerated,” the applicant quotes the 317 
AS/CC letter, dated 22 Jun 05, in which the it states “he was 
completely exonerated of responsibility for the accident as a 
result of the FEB.” 

	4.  In response to AFRC/JA’s comment that “He seems to 
believe that AFRC/CC’s denial of his return to flying status 
resulted in his failure to promote to Lt Col,” the applicant 
reiterates that his application is based on an aggregate of 
actions prejudicial to him beginning with the AFRC/CC’s denial 
and including the USAFA Interim Director of Admissions changing 
his promotion recommendation from “DP” to “P.”

	5.  In response to AFRC/JA’s comment that “In 1998, when he 
was green lighted to fly, the applicant chose to pursue a career 
with a civilian airline,” the applicant states that he was not a 
hired by Delta Airlines until four months after the FEB results.  
His decision to leave the Air Force Reserve was because his 
family had incurred significant financial hardship over the 
twelve months of the FEB investigation, which forced them to 
relocate to live with his parents where no Reserve duty was 
available. 

	6.  In response to AFRC/JA’s comment that, “The position 
with USAFA was a second chance for the applicant and his Air 
Force career.  Unfortunately, he did not take advantage of the 
opportunity as evidenced by the fact that he went before the O-5 
promotion board without completing ACSC—a known deal brake,” the 
applicant points out that the statement is inaccurate.  His 
records show he did successfully complete ACSC.  He also feels 
this statement contains prejudicial terminology unfairly 
implying wrongdoing on his part without reviewing his 
performance reports as an ALO.   

There is no contradicting document in the chronology of events 
that would lead him to believe that the recommendations from the 
AIB were not closed in the Oct 97 FEB.  Yet, decisions regarding 
his Air Force career continue to be based on the initial report, 
not the final action that superseded the original report 
(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 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 office of primary 
responsibility (OPR) and adopt its rationale as the basis for 
our conclusion the applicant has not been the victim of an error 
of injustice.  While we note that the two Flight Evaluation 
Boards (FEBs) did not find the applicant at fault for the Class 
A Mishap and recommended he retain his aviation status, the 
results of the FEBs did not in themselves establish a 
requirement for the AFRC/CC to rehire the applicant.  It is well 
within the discretion of the AFRC/CC to determine who flies 
within his organization, and whether the applicant agrees with 
the AFRC/CC’s decision or not, there is no evidence of an error 
in policy or procedure in the AFRC/CC’s execution of his 
authority concerning his decision not to hire the applicant.  
Similarly, the receipt of a draft Promotion Recommendation Form 
(PRF) annotated with a Definitely Promote “DP” prior to the 
final assignment of promotion recommendations is not a guarantee 
that a “DP” will be awarded for the selection board.  The 
applicant has submitted no evidence, other than his own 
suspicion, that his senior rater acted in an arbitrary or 
capricious manner in assigning him a Promote “P.”   Based on the 
presumption of regularity in the conduct of governmental 
affairs, we must assume the applicant’s senior rater’s decision 
was properly executed and in compliance with the directive under 
which it was affected.  Finally, while the Board understands the 
applicant’s desire to have earlier reports addressing the Class 
A Mishap amended based upon the results of the subsequent FEBs, 
amending official reports is not appropriate.  Each of these 
review activities was conducted for a different purpose and 
under a different authority and their final reports are stand-
alone documents.  Therefore, in the absence of evidence to the 
contrary, we find no basis to recommend granting the relief.

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-2012-02042 in Executive Session on 10 Oct 12, under 
the provisions of AFI 36-2603:

		 Panel Chair
		 Member
		 Member?

The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2012-02042 was considered:

	Exhibit A.  DD Form 149, dated 20 Mar 12, w/atch.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFRC/JA, dated 12 Jul 12.
	Exhibit D.  Letter, SAF/MRBR, dated 3 Aug 12.
	Exhibit E.  Letter, Applicant, 30 Aug 12, w/atchs.




                                   Panel Chair