RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2012-05168

		COUNSEL:  

		HEARING DESIRED: NO

________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His selection for promotion to the grade of Captain be 
reinstated with an effective date of rank of 30 May 2011.  

2.  The Air Force (AF) Form 4364, Record of Promotion 
Resolution, be corrected to remove attachment six. 

________________________________________________________________

APPLICANT CONTENDS THAT:

In a combined five-page brief of counsel the following 
contentions are made:  

	a.  His original promotion effective date was withheld pending 
an investigation and subsequent court-martial where he was found 
not guilty.  In accordance with (lAW) federal law and Air Force 
regulations, his effective date of promotion should be 
reinstated and his benefits restored.  Additionally, since he 
was not afforded the opportunity for review or response to the 
memorandum at attachment 6, of the Air Force Form 4364, it 
should be removed.  

	b.  He was  selected for promotion to the grade of Captain by 
the calendar year (CY) CY10B promotion board and notified of the 
promotion delay on 24 May 2011, because he was the subject of an 
ongoing command investigation.  His court-martial concluded on 
l3 Oct 20ll, with a verdict of “not guilty.”  Title 10 U.S.C. 
Section 624(e) states “if the officer is acquitted of the 
charges brought against him, the officer shall be retained on 
the promotion list and shall have the same date of rank, the 
same effective date for pay and allowances to the grade to which 
promoted, as if no delay had intervened.”  He respectfully 
requests his original promotion date and associated benefits be 
reinstated to 30 May 20ll.  

	c.  He signed the AF Form 4364 with 5 typed references in 
block 13.  He was given the opportunity to review and make 
comments if he desired.  Upon the return of the AF Form 4364 for 
his counter signature and to acknowledge receipt, approximately 
3 months later, a hand-written reference was listed in block 13 
as additional information for review.  He was not afforded an 
opportunity to review the additional reference and believes that 
it is a violation of AFI 36-2501, Officer Promotions and 
Selective Continuation, paragraph 5.7.3.  He does not believe 
the additional reference is information originating solely from 
his personnel record and therefore, must be derogatory in 
nature.  He respectfully request the additional reference be 
removed from the record.  

In support of his request, the applicant provides his counsel’s 
brief with attachments.  

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

________________________________________________________________

STATEMENT OF FACTS:

1.  The applicant is currently serving in the Regular Air Force 
in the grade of First Lieutenant, O-2.  

2.  According to the record of promotion propriety action, on 
10 August 2010, the applicant assaulted a fellow officer and a 
female civilian, wrongfully appropriated the female civilian's 
car, and drove the car while intoxicated, crashed the car and 
fled the scene of the crash.  On 24 May 2011, the applicant’s 
commander (9 BS/CC) initiated a promotion propriety action to 
delay the applicant’s promotion while he awaited trial before a 
general court-martial.  On 6 October 2011, SAF/MRB extended the 
delay of the applicant's promotion until 30 November 2011.  On 
13 October 2011, a general court-martial found the applicant 
“not guilty only by reason of lack of mental responsibility” for 
his actions on 10 August 2010.  

3.  On 21 November 2011, the applicant’s commander initiated a 
termination of his promotion delay and recommended that he be 
promoted on his original projected date of promotion of 
30 May 2011.  On 23 November 2011, the applicant acknowledged 
his commander's recommendation and waived his right to submit 
matters on his own behalf.  On 14 December 2011, the applicant’s 
wing commander (7 BW/CC) recommended he be removed from the 
promotion list.  On 20 Jan 2012, the 7 BW/CC provided written 
justification for his recommendation.  The 7 BW/CC memorandum 
was listed as Attachment 6 in Block 13 of the AF Form 4364.  In 
his recommendation to have the applicant removed from the 
promotion list, the 7 BW/CC stated that although the applicant 
cannot be held criminally liable for the charges he faced at his 
general court-martial, he should be “held accountable for the 
outrageously poor judgment he displayed immediately prior to the 
onset of his delirium” on 10 August 2010.  

________________________________________________________________


AIR FORCE EVALUATION:

1.  AFPC/DPSOO recommends denial.  DPSOO states per AF/JAA 
instructions, Active Duty Officer Promotion Propriety Actions, 
May 2012, if the reviewing commander's recommendation differs 
from the initiating commander's recommendation, the reviewing 
commander should provide a written memorandum to explain his or 
her recommendation.  The content of this memorandum should be 
limited to the commander's justification for his or her 
recommendation and deliberative process.  It is not necessary to 
serve this memorandum to the officer unless the memorandum 
addresses new derogatory information.  The memorandum did not 
contain any new derogatory information but the justification 
that the applicant's conduct fell far short of the “exemplary 
conduct” which is required for officer promotions under AFI 36-
2501 and 10 U.S.C., Section 8583.  The Secretary of the Air 
Force (SECAF) approved the removal action on 29 Feb 12.

2.  AFI 36-2501 specifies that commanders question a promotion 
when the preponderance of evidence shows the officer has not met 
the requirement for exemplary conduct set forth in Title 10, 
U.S.C., Section 8583 or is not mentally, physically, morally, or 
professionally qualified to perform the duties of the higher 
grade.  Air Force policy states that formal rules of evidence do 
not apply to a promotion propriety action.  All actions were 
reviewed by Air Force legal offices and were found to be legally 
sufficient to warrant the action taken.

The complete AFPC/DPSOO evaluation, with attachment, is at 
Exhibit C. 

1.  AFPC/JA recommends denial.  JA states that after a complete 
review of the case file, they concur that the decision to remove 
the applicant from the promotion list because he failed to 
adhere to the requirement for exemplary conduct was fully 
supported by the evidence of record and was legally sufficient.  

2.  The applicant claims that removing him from the promotion 
list following his acquittal at court-martial violates federal 
law, citing Section 624(e) of the United States Code (“if the 
officer is acquitted of the charges brought against him...the 
officer shall be retained on promotion list”).  While 10 U.S.C., 
Section 624(d)(l)(E)·- not 10 U.S.C., Section 624(e) as cited by 
applicant's counsel- provides that an officer acquitted of 
charges should ordinarily be retained on the promotion list, the 
provision contains a caveat under Section 624(d)(2) that an 
officer's promotion can nevertheless be delayed in any case 
where there is cause to believe the officer has not met the 
requirement for exemplary conduct set forth in 10 U.S.C., 
Section 8583.  This provides a basis as well to remove an 
officer from the promotion list where a preponderance of the 
evidence of record establishes failure to adhere to the 
exemplary conduct standard (See AFI 36-2501, paragraph 5.5.), 
and it was the basis relied upon by the 7 BW/CC in his 
recommendation for removal.  

3.  The applicant challenges the removal stating that the only 
basis for the removal relates to the circumstances of his court-
martial, at which he was found not guilty.  He argues that had 
there been any other basis to remove him from the promotion 
list, “Air Force regulations require that the removal be done 
immediately, not delayed to await a resolution of the trial,” 
citing AFI 36-2501, paragraph 5.1.1.  The applicant is incorrect 
that this provision requires that a removal be initiated even 
where the evidence would seemingly support immediate removal 
action.  It is a recommendation, not a requirement.  Moreover, 
where facts may be somewhat in dispute, and the nature or degree 
of the officer's mental responsibility might be at issue, it is 
not unreasonable to delay the outcome to fully develop all the 
facts in the case.  That is a commander's call, and in their 
opinion, the commander's decision here to delay was permissible 
under the Instruction.  

4.  The applicant also challenges the removal on the ground that 
he was not given an opportunity to review and respond to the 7 
BW/CC memorandum dated 20 January 2012, listed as Attachment 6 
in Block 13 of the AF Form 4364.  He bases this contention on 
AFI 36-2501, paragraph 5.7.3, wherein the reviewing commander is 
required to give an officer an opportunity to comment on all 
derogatory information added after the officer first reviews and 
acknowledges the initial recommendation, unless the information 
originated solely from the officer's personnel record.  In 
response, they note:

	a.  the AF Form 4364 notifies the officer that regardless of 
the initiating commander's recommendation, the promotion 
propriety action “could result in extension of the promotion 
delay, promotion with a date of rank adjustment, promotion upon 
the original effective date, or removal from the promotion 
list.”  

	b.   contrary to the applicant's speculation, SAF/GCM and 
AF/JAA gave 7 BW/CC an opportunity to provide justification for 
his recommendation (the 20 January 2012, memorandum) simply 
because it differed from that of the initiating commander.  

5.  All of the facts recited in the commander's memorandum are 
found in attachments to the AF Form 4364, to include the Record 
of Trial, the Findings of the Court, and the Military Judge's 
Memorandum to the Convening Authority.  The applicant 
acknowledged receipt of these attachments when he signed the AF 
Form 4364.  Consequently, no “new derogatory information” as 
contemplated by AFI 36-2501, was added to the file after the 
applicant first reviewed and acknowledged the initial 
recommendation.  Accordingly, 7 BW/CC was not obligated by 
regulation to provide his memorandum to the applicant before the 
file was forwarded to the Secretary, and there is no requirement 
to remove Attachment 6 from the record.  For the reasons 
explained above, they can discern no error prejudicial to the 
substantial rights of the applicant.  

The complete AFPC/JA evaluation, with attachment, is at Exhibit 
D.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

1.  In his response, the applicant states that he believes that 
AFPC/JA and DPSOO advisories are incorrect in their 
recommendation to disapprove his request to have his promotion 
date of rank reset to 30 May 2011, and to have the 7 BW/CC 
memorandum removed from his record.  He further states the 
argument for recommending denial of his request leaves out 
certain pertinent information that displays the vindictive 
nature of the actions taken against him by the former 7 BW/CC, 
and the overall administrative mishandling of the case.  

2.  The applicant expands on his contention that he was not 
afforded a chance to review and comment on the 7 BW/CC 
memorandum listed as attachment 6 to the AF Form 4364.  He 
asserts that AFI 36-2501, paragraph 5.7.3.1 requires that the 
reviewing commander give “the officer an opportunity to comment 
on all derogatory information added after the officer first 
reviews and acknowledges the initial recommendation, unless the 
information originated solely from the officer's personnel 
record.”  AFPC/JA did not rebut the fact that there was 
derogatory information in the 7 BW/CC memorandum, but simply 
that it was not new information.  

3.  The applicant expresses that the decisions he made that 
night, prior to the onset of the substance induced intoxication 
delirium, were no different, better or worse, than the decisions 
made by every member of his crew, all of whom were senior to 
him.  The 7 BW/CC chose not to hold them “administratively  
accountable” for “outrageously poor judgment,” and in fact, none 
of the other members of the crew received so much as a Letter of 
Counseling.  The decision to hold the junior member of the crew 
solely responsible, for the same judgment displayed by every 
member of the crew, cannot be viewed in any other way but a 
vindictive attack against an individual who was fully acquitted 
at a General Court-Martial.

4.  The applicant adds that during the time his promotion was 
delayed via the original AF Form 4363, he was in a rating period 
spanning from April 2011 through April 2012.  Regardless of the 
allegations that ultimately led to a court-martial, he was given 
a stratification as the #1 lieutenant in his flight and 
squadron, by both his flight commander and squadron commander.  
Most relevant, the 7 BW/CC, rated him as the #1 lieutenant out 
of 33 in the 7th Operations Group (OG).  The 7 BW/CC somehow 
considered him unfit for promotion during the same timeframe 
that he rated him as the best lieutenant in the OG.  The 7 BW/CC 
even stated that he was an “incredible leader in a top notch 
mobility shop.”  There is a clear discrepancy when the 7 BW/CC 
states that he was, in his opinion, the top lieutenant in the OG 
yet clearly unfit for promotion.  Based on the reasons outlined 
above, he believes that the AFPC advisors are incorrect in their 
recommendation to disapprove his request to have his promotion 
date of rank reset to 30 May 2011, and to have the 7 BW/CC 
memorandum removed from his record.  

The applicant’s complete response 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.  Insufficient relevant evidence has been presented to 
demonstrate the existence of error or injustice.  After 
reviewing all of the evidence provided, to include his rebuttal 
comments, we do not find these assertions, in and by themselves, 
sufficiently persuasive to override the evidence of record or 
the rationale provided by the Air Force offices of primary 
responsibility.  We are not persuaded by the evidence that the 
action taken by the wing commander was beyond his scope of 
authority, inappropriate, or arbitrary and capricious.  
Moreover, while the applicant’s counsel contends that he was not 
afforded a chance to review and comment on the wing commander’s 
memorandum listed as attachment six to the AF Form 4364, Record 
of Promotion Resolution, there was no evidence of “new 
derogatory information” added to the file after the applicant 
first reviewed and acknowledged the initial recommendation.  
Additionally, the AF Form 4364 notified the applicant that 
regardless of the initiating commander's recommendation, the 
promotion propriety action could result in, among other 
outcomes, “removal from the promotion list.”  Therefore we do 
not find a basis to recommend correcting the AF Form 4364 by 
removing attachment six.  In view of this determination, there 
exists no basis upon which to recommend favorable consideration 
on the remainder of the applicant’s requests.

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 this application 
in Executive Session on 22 August 2013, under the provisions of 
AFI 36-2603:

			, Chair
			, Member
			, Member

The following documentary evidence was considered in AFBCMR 
Docket Number BC-2012-05168:

    Exhibit A.  DD Form 149, dated 26 Oct 2012, w/atchs.
    Exhibit B.  Letter, Applicant’s Master Personnel Record.
    Exhibit C.  Letter, AFPC/DPSOO, dated 21 Dec 2012, w/atchs.
    Exhibit D.  Letter, AFPC/JA, dated 16 Jan 2013, w/atchs.
    Exhibit E.  Letter, SAF/MRBR, dated 7 Aug 2013.
    Exhibit F.  Letter, Applicant, dated 3 Oct 2012, w/atchs.




                                   
                                   Chair



AFBCMR
1500 West Perimeter Road, Suite 3700
Joint Base Andrews NAF Washington, MD 20762






Dear, 

	Reference your application submitted under the provisions of AFI 36-2603 (Section 1552, 
10 USC), AFBCMR Docket Number BC-2012-05168. 

	After careful consideration of your application and military records, the Board determined 
that the evidence you presented did not demonstrate the existence of material error or injustice.  
Accordingly, the Board denied your application.

	You have the right to submit newly discovered relevant evidence for consideration by the 
Board.  In the absence of such additional evidence, a further review of your application is not 
possible.

	BY DIRECTION OF THE CHAIR




				                                   
				                                   Chief Examiner
				                                   Air Force Board for Correction
				                                   of Military Records

Attachment:
Record of Board Proceedings



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WASHINGTON, DC


Office of the Assistant Secretary