RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2013-05783
COUNSEL: NONE
HEARING DESIRED: NO
APPLICANT REQUESTS THAT:
1. His Non-Judicial Punishment (NJP) under Article 15 of the
Uniform Code of Military Justice (UCMJ) imposed on 1 Dec 11, be
declared void and removed from his records and the $3,820.00 of
forfeiture in pay be reimbursed.
2. His referral Letter of Evaluation (LOE) for the period 25 Apr
11 through 5 Dec 11, be declared void and removed from his records
or in the alternative be modified to reflect as non-adverse.
3. His Officer Performance Report (OPR) for the period 13 Jun
11 through 1 Apr 12, be declared void and removed from his records
or in the alternative be modified to reflect as non-adverse.
4. His AF Form 8, Certificate of Aircrew Qualification, dated
14 Dec 11, be set-aside and removed from his records, or in the
alternative be modified to reflect the findings of the Flying
Evaluation Board (FEB) and Board of Inquiry (BOI).
5. He be reinstated into aviation service.
APPLICANT CONTENDS THAT:
In 2011, while serving in Afghanistan he performed a 1G aileron
roll in an MC-12 aircraft. The maneuver was performed by many of
the MC-12 pilots; however, he and two other pilots were the only
ones to face adverse actions as a result.
The primary question in the case was whether a maneuver was
performed that was known to be unauthorized or prohibited in the
MC-12. The Air Force claimed it was unauthorized or prohibited
because the Pilot Operating Handbook (POH) for the civilian
derivation of the MC-12 (Beechcraft King Air 350) prohibited
aerobatic maneuvers for the commuter configuration of the King
Air.
After the maneuver was performed, the Air Force claimed the
civilian POH was to be considered the equivalent to an Air Force
Dash-1 technical order, which was disputed. As a result of having
performed the maneuver and been onboard aircraft when others
performed it, he faced multiple adverse actions and hearings.
The core argument is that the MC-12 was rushed into service ahead
of a Dash-1 being established. The MC-12 was not identical to the
Beech King Air - it is a military modification of that aircraft.
The unauthorized/prohibited maneuvers and flight parameters for
the MC-12 were being established at the same time they were
operating in theater. They were never instructed, officially or
unofficially, formally or informally, that the civilian POH was
supposed to be followed as equivalent to a Dash-1. To the
contrary, they were flying the MC-12 in support of the special
operations mission in Afghanistan and in a manner very different
than the commuter version of the Beech King Air would be flown
(which is what the POH applied to).
An 1G aileron roll is a safe, nonaggressive maneuver that can be
performed uneventfully by any aircraft in the Air Force or
civilian inventory. It is a maneuver flown daily by Air Force
fighter pilots, and it is commonplace in the F-15 and T-
38 communities in which he flew prior to the MC-12. Moreover, he
had a reason to perform the roll as a confidence maneuver
particularly for the on-board enlisted crew who felt uncomfortable
in a small turbo prop plane. The crews' general lack of
confidence in the MC-12 was based not only on their lack of
familiarity with such an airframe, but based on a near fatal
incident in which one of the MC-12 pilots became disoriented
during a storm and wound up in a nearly unrecoverable dive.
He prevailed in the FEB and was recommended for continued flying.
However, the Air Education and Training Command commander
(AETC/CC) disqualified him from further aviation service,
rendering him permanently grounded. A Major faced an FEB that
arrived at the same conclusion. However, the same convening
authority and AETC/CC agreed with the recommendation of the
Majors FEB and he was returned to flying status. The other
pilot, a Captain, did not face an FEB at all, nor did any other
pilot.
He requested reconsideration of the adverse actions he received
based on discovering a Flight Crew Information File (FCIF) that
was not previously provided and contradicted the Air Forces claim
that the POH had been considered equivalent to a Dash-1 during his
deployment.
His reconsideration request was denied and the AETC/CC attempted
to administratively discharge him. Once again, he prevailed in
front of the administrative discharge board and was retained.
The flying maneuver was considered by three separate Air Force
boards of officers including two separate boards of pilots and the
15 officers who sat on those three boards came to consistent
conclusions, yet he is still not permitted to fly and his flying
and personnel records are full of references to him performing a
maneuver that was prohibited or not authorized.
His past and present immediate commanders all supported and
testified on his behalf. However, their support appears not to
have mattered to the AETC/CC. In addition, it appears not to have
mattered that the AETC/CC nonconcurred with his FEB, but concurred
with the Majors FEB and the Captain was not ordered to appear
before a FEB.
He had no reason to believe that the findings of two
administrative boards clearing him of the alleged misconduct (and
another board that cleared the Major would be ignored. Had he
known that would be the case, he would have turned down the
Article 15 and demanded trial by court-martial.
In support of his requests, the applicant provides a 21-page
memorandum, copies of the FEB findings and recommendations,
Administrative Discharge Board findings, AF Form 3070C, Record of
NJP Proceedings (Officer); LOE, OPR, AF Form 8 and various other
documents associated with his requests.
The applicants complete submission, with attachments, is at
Exhibit A.
STATEMENT OF FACTS:
The applicant is currently serving on active duty in the grade of
lieutenant colonel.
According to the POH and Federal Aviation Administration (FAA)
Approved Airplane Flight Manual, dated Oct 07, Acrobatic
maneuvers, including spins, are prohibited.
According to an AF Form 3070C, dated 27 May 10, on or about 16 Apr
10, the applicant, in a public place, exposed his genitals while
in uniform, to the disgrace of the Armed Forces, in violation of
Article 133, UCMJ. The applicant consulted counsel, waived his
right to demand trial by court-martial, and accepted the NJP. He
submitted written matters in his own behalf but did not request a
personal appearance. The commander determined he committed the
offense alleged, and imposed punishment consisting of forfeiture
of $500.00 pay per month for two months and a reprimand. The
applicant did not appeal the commanders decision but submitted
matters regarding the Officer Selection Record (OSR) decision.
The commander decided the action would not be filed in his OSR.
The Article 15 action was reviewed by the servicing and General
Court-Martial Convening Authority (GCMCA) Staff Judge Advocate
(SJA) offices and determined to be legally sufficient.
According to a Commander-Directed Investigation (CDI) dated 24 Nov
11, on 18 Nov 11, the 9th Air and Space Expeditionary Task Force-
Afghanistan commander (9 AETF-A/CC) appointed an Investigating
Officer (IO) to conduct an investigation into three areas, only
one allegation was substantiated:
ALLEGATION #1: Were prohibited flight maneuvers performed by
members of the 4th Expeditionary Reconnaissance Squadron (4ERS).
ANALYSIS/CONCLUSION: A preponderance of the evidence existed
to show that members of the 4 ERS engaged in Barrel Rolls, a
flight maneuver prohibited while piloting an MC-12, on at least
three occasions. SUBSTANTIATED.
RECOMMENDATION: The IO recommended the applicant receive (as
a minimum) an Article 15 based on his involvement in all three
flights, his rank, role as a primary enabler, and attempts to
conceal his actions. In addition, it was recommended that the
Major receive an Article 15 based on rank, experience and evidence
showing he also piloted a prohibited maneuver. Further, it was
noted that all the officers involved demonstrated a breakdown in
judgment, airmanship, and basic flight discipline.
According to AF Form 3070C, dated 1 Dec 11, on or about 11 Sep 11,
22 Sep 11 and 26 Oct 11, the applicant was derelict in the
performance of his duties in that he willfully failed to refrain
from executing unauthorized aerobatic maneuvers as it was his duty
to do, in violation of Article 92, UCMJ. The applicant consulted
counsel, waived his right to demand trial by court-martial, and
accepted the NJP. He submitted written matters in his own behalf
but did not request a personal appearance. The commander
determined he committed the offense alleged, and imposed
punishment consisting of forfeiture of $3,820.00 pay per month for
two months and a reprimand. The portion of punishment which
extended to forfeitures in excess of $1,910.00 per month for two
months was suspended through 30 May 12, at which time it was to be
remitted without further action unless sooner vacated.
The applicant did not appeal the commanders decision or submit
matters regarding the Officer Selection Record (OSR) decision.
The commander decided the action would be filed in his OSR. The
Article 15 action was reviewed by the servicing and General Court-
Martial Convening Authority (GCMCA) Staff Judge Advocate (SJA)
offices and determined to be legally sufficient.
AF/CV memorandum, AF/CC FCIF 11-10, Flight Discipline, dated 5 Dec
11, states in part that aircrew members will adhere to the basic
principles of flight discipline and the disregard of basic flight
discipline principles, including the execution of unauthorized
maneuvers, cannot, and will not be tolerated.
The 9th Operations Group Commander (9th OG/CC) memorandum, ACC
FCIF U11-01 MC-12W Aircraft Maneuvering Flight Restrictions, dated
6 Dec 11, states in part in the absence of Air Force TO Dash-
1 data, maneuver restrictions are in accordance with the FAA-
approved Hawker Beechcraft Corporation Super King Air 350ER and
350CER Pilots Operating Handbook. Ref page 2-16 Maneuver
Limits; Acrobatic maneuvers including spins are prohibited.
On 13 Dec 11, the applicant received a Commander-Directed
downgrade in the following flight areas: Safety, Crew Discipline
and Risk Management. Specifically, the 4 ERS/CC stated the
applicant performed aerobatic maneuvers prohibited by the MC-12W
FAA-approved flight manual; demonstrated a clear lack of judgment,
allowing potentially dangerous situations to develop putting the
aircraft and his crewmembers at risk; failed to exercise strict
flight and crew discipline; violated and ignored rules with
respect to aircraft maneuvering; failed to provide direction or
lead his crew in taking the proper and necessary corrective
actions; failed to assess and mitigate risk by willfully and
negligently performing unauthorized maneuvers; displayed a lack of
concern and complete disregard for preserving combat capability;
and as a pilot in command, he failed to establish proper balance
between command authority and crewmember participation. Further,
the commander noted, that due to a severe lack of judgment
displayed in the applicants actions, he would remain unqualified
until further notice.
On 15 Dec 11, the applicant was notified of the 71 FTW/CCs intent
to convene a FEB to develop and consider evidence concerning his
professional qualifications as a pilot and make recommendations
regarding his future use in flying duties. On 19 Dec 11, in
response to the FEB notification memorandum, dated 15 Dec 11, the
applicant, through counsel, objected to the FEB and stated the
processing of his case was tainted by the appearance of Undue
Command Influence (UCI). Specifically, the Vice Chief of Staff of
the Air Force (VCSAF) and the Combined Forces Air Component
Commander (CFACC) have chosen to make an example out of him and
the allegations against him before the case is resolved. They
not only expressed their personal feelings about the case, but
have signaled to their subordinates the case is being followed at
the highest levels of the Air Force and what adverse consequences
are to be expected at those levels. On 6 Jan 12, the applicant,
through counsel was notified his objection to the FEB was not
substantiated and the FEB would proceed. In addition, it was
noted there was no evidence of UCI.
On 8-9 Feb 12, a FEB convened and considered all the evidence
presented to it, in closed session and found the applicant DID
exhibit a lack of judgment on 11 Sep 11, 22 Sep 11 and 26 Oct 11,
by accomplishing or allowing to be accomplished rolling maneuvers,
a full 360 degrees of roll, in the MC-12W, similar to the
instrument aileron roll described in AFMAN 11-217V1, Instrument
Flight Procedures; DID NOT intentionally disregard instructions,
regulations or procedures while accomplishing or allowing to be
accomplished these rolling maneuvers on 11 Sep 11, 22 Sep 11 and
26 Oct 11. The FEB noted the evidence presented during the FEB
indicates incomplete, confusing and contradictory MC-12W guidance.
While a roll was not specifically prohibited by existing guidance,
the aircraft was not certified for aerobatics; and while there
were many benefits to rapid procurement and employment of the MC-
12W to operations in Afghanistan, the existing written guidance in
the POH did not address the tactical employment requirements of
the MC-12W. Lastly, the FEB noted a Dash 1 technical order had
not been published. The FEB stated that although the applicant
executed poor judgment on three separate dates, they considered
this one event and recommended he be retained in aviation service
due to his otherwise sound aviation record.
On 5 Mar 12, the 71 FTW/CC (convening authority) reviewed the FEB
proceedings, attachments and legal reviews and non-concurred with
the boards recommendation that the applicant be retained in
aviation service. Specifically, the commander stated that
regardless of whether the rolling maneuvers technically violated
instructions, regulations or procedures, the applicants lack of
judgment was very concerning. First, he clearly should have
discussed the maneuvers with his commanders prior to taking the
initiative to undertake them. Second, he participated in the
rolling maneuvers on three separate dates over a 45 day period.
Therefore, he could not treat this as a single event in good
faith. Third, one of the rolls was flown by his co-pilot, at
his direction, so he could reenlist an airman in the back of the
aircraft just to make the reenlistment a memorable event. Fourth,
he demonstrated this lack of judgment a mere 14 months after
receiving an Article 15 for displaying his testicles in public at
the club in front of civilian employees and student pilot family
members. Further, the commander noted the applicant was
influential within the pilot community and that his aviation
record prior to 11 Sep 11, was outstanding; however, his aviation
decisions by rolling the MC-12W have not only impacted himself but
those he was flying with. The applicant was the senior aviator on
each flight; therefore, he was ultimately responsible for his
decisions and should be held accountable. Lastly, the commander
stated the applicant was not fit to be in any position to
influence aviators in the future and based on these multiple
incidents, the best interest of the Air Force was to disqualify
the applicant from aviation service.
On 9 Jul 12, the AETC/CC concurred with the convening authority
and directed the applicant be disqualified from aviation service.
AETC/A3V notified AF/A3O-FT and AFPC to enter a copy of the FEB
proceedings into the applicants personnel record and take
recommended reassignment actions.
On 26 Oct 12, the 71 FTW/CC recommended the AETC/CV initiate
action under the provisions of AFI 36-3206, Administrative
Discharge Procedures for Commissioned Officers, for Serious or
recurring misconduct punishable by military or civilian
authorities against the applicant.
On 11 Dec 12, the applicant, through counsel, requested the
AETC/CC reconsider the prior adverse actions taken against him for
allegedly deviating from aviation standards and guidance based on
newly discovered evidence. Specifically, the applicant requested
his Article 15, dated 1 Dec 11, be set aside, his referral LOE and
OPR be removed and reconsideration of the FEB non-concurrence at
all command levels. The applicant states he obtained a copy of
the ACC FCIF U11-10, dated 6 Dec 01 from the ACC Director of
Operations, which established the King Air 350 POH as the stand-in
for the nonexistent MC-12W Dash 1. The FCIF was dated 6 Dec
11 and issued 6 weeks after the last alleged performance of the
maneuver; the CDI was published 12 days prior to the FCIF; and his
Article 15 was finalized 10 days prior to the FCIF. The newly
obtained FCIF does not reference the existence of any previously
established guidance that the POH was a stand-in for the Dash 1.
Therefore, the only written guidance regarding the POH was issued
after the events at issue and specifically in response to them.
On 11 Feb 13, the AETC/CC reviewed the applicants requests for
reconsideration of prior adverse actions, dated 11 Dec 12;
however, he denied his requests. On this same date, the applicant
was notified of his commanders intent to recommend he be
discharged from the Air Force under the provisions of AFI 36-3206,
paragraph 3.6.4, for Serious or recurring misconduct punishable by
military or civilian authorities that required the applicant to
show cause for retention on active duty. The applicant
acknowledged receipt of the notification of show cause discharge.
On 20 Feb 13, after consulting with legal counsel, the applicant
elected to present his case before an Administrative Discharge
Board/Board of Inquiry (BOI) and to submit a statement on his own
behalf at the hearing
On 11 Mar 13, the applicant, through counsel, filed an Inspector
General (IG)/Article 138, UCMJ complaint with the Office of the
Judge Advocate General (AF/JA) alleging abuse of authority by the
AETC/CC. Specifically, the applicant contends his involuntary
discharge action was initiated in retaliation for him requesting
reconsideration of the adverse actions associated with the debated
flight maneuver. On 21 Mar 13, the AF/JA reviewed the complaint
and determined the Senior Officials Inquiries Directorate of the
IG (SAF/IGS) would address the IG complaint; however, the Article
138 complaint was returned without action. Specifically, Article
138 specifies that a member of the armed forces who believes
himself/herself wronged by his/her commanding officer applies to
that commanding office for redress. Only after redress is refused
may the member complain to a superior commissioned officer, who
forwards the complaint to the appropriate GCMCA.
On 8 Apr 13, the AETC/CC reviewed the applicants Article 138,
UCMJ complaint and after consulting with the SJA determined his
requests were not actionable under Article 138, UCMJ.
Specifically, Article 138 complaints related to officer discharge
actions are prohibited IAW AFI 51-904, Complaints of Wrongs under
Article 138, UCMJ. Further, it was noted that commanders do not
have the authority to investigate themselves. Accordingly, the
applicants complaint was denied and returned without action.
On 6 May 13, the applicant was notified of his commanders intent
to convene a BOI hearing to receive evidence and make findings and
recommendations whether the applicant should be retained in the
Air Force. On 16 May 13, the applicant, through counsel,
acknowledged receipt of the notification of the BOI hearing.
After consulting with counsel, the applicant elected not to make a
personal appearance before the BOI.
On 21-23 May 13, a BOI convened and considered all the evidence
presented to it, in closed session and found the applicant DID on
or about 16 Apr 10, expose his genitals while in uniform, to the
disgrace of the armed forces and was not, on or about 11 Sep 11,
22 Sep 11 and 26 Oct 11, derelict in the performance of his duties
in that he intentionally performed, allowed, or caused to be
performed, prohibited or unauthorized aerobatic maneuvers in the
MC-12W aircraft, while piloting the aircraft during three separate
flights in Afghanistan theater of operations. The BOI recommended
the applicant be retained in the Air Force.
OPR PERIOD RATING
13 Jun 10 12 Jun 11 Meets Standards
13 Jun 11 1 Apr 12 AF Form 77 (Does Not Meet Standards)
2 Apr 12 1 Apr 13 Meets Standards
2 Apr 13 10 Dec 13 Meets Standards
11 Dec 13 10 Dec 14 Meets Standards
AIR FORCE EVALUATION:
AF/A3O-AIF recommends denial of the applicants requests to be
reinstated into aviation service/qualification. The decision of
the AETC/CC to disqualify the applicant from aviation service as a
result of the findings during the FEB was not an error or
injustice. The AETC/CC executed his right as the final approval
authority for the FEB and concurred with the convening authoritys
recommendation that the applicant be disqualified from aviation
service based on his lack of judgment and violation of aviation
instructions on diverse occasions.
IAW AFI 11-402, Aviation and Parachutist Service, Aeronautical
Ratings and Aviation Badges, paragraph 4.6.8., the respondents
MAJCOM commander is the final approval authority for FEBs convened
at the MAJCOM level or below, which grants the MAJCOM/CC sole
authority to make the final determination on an FEB. Paragraph
4.5.6., states, the best interest of the Air Force is the prime
criterion when evaluating each case and paragraph 4.5.6.1.,
states Do not base a recommendation to disqualify on a single
incident disregarding an otherwise sound record. However, if the
incident demonstrates unacceptable performance or an intentional
disregard of regulations or procedures, a recommendation to
disqualify is appropriate. Further, paragraph 4.6.4., states
Nonconcurrence with FEB Recommendation, reviewing authorities
must specify reasons for nonconcurrence.
The complete AIF evaluation is at Exhibit C.
AFPC/DPSIM recommends denial of the applicants requests to set-
aside and remove his Article 15 and states in part that the
evidence presents only minor discrepancies which have no bearing
on the administrative action itself. Specifically, there is no
evidence on whether the commander properly finished the NJP, dated
25 Nov 11; however, this discrepancy does not invalidate the
commanders action and authority to administer NJP.
On 25 Nov 11, the applicant received NJP for failure to refrain
from executing an unauthorized aerobatic maneuver. The AF Form
3070C, reflects he acknowledged receipt on 30 Nov 11 and provided
a written presentation in response. On 11 Dec 11, the commander
imposed NJP and the applicant acknowledged receipt. However,
DPSIM cannot determine whether the applicant appealed the
commanders decision, or the commanders and appellate authorities
final decision, since the AF Form 3070 provided was incomplete.
The complete DPSIM evaluation is at Exhibit D.
AFPC/DPSID makes no recommendation regarding the applicants
request to void and remove his referral LOE and OPR.
Specifically, the applicants referral OPR, with a closeout date
of 1 Apr 12 and the optional LOE, with a closeout date of 5 Dec
11 [sic], were never made a matter of record; therefore, there are
no reports to contend. The applicant provided his copy of the
contested reports; however, without them ever being made a matter
of record or being a certified true copy of the original, they
cannot confirm the legitimacy of the reports and will not be
accepted.
IAW AFI 36-2406, Officer and Enlisted Evaluations, paragraph
1.4.3.1., states all evaluations are considered working copies
until they are made a matter of record. Further, paragraph
1.14.1.1.2., Missing, Late and Removed Evaluations, states if the
report is not located or cannot be justly reaccomplished, the
Human Resources (HR) specialist, who identified the discrepancy
will prepare an AF Form 77, (LOE) according to table 4.1 and
table 1.2, note 3, which states do not reaccomplish a lost or
missing report that is more than 18 months past the close-out
date. Since the report closeout date is well over 18 months, the
only action required is to place an AF Form 77 in the applicants
records stating No evaluation available for the period 13 Jun
11 through 1 Apr 12 for administrative reasons which were not the
fault of the member. The system reflects an overall rating of N
Does Not Meet Standards.
The complete DPSID evaluation, with attachment, is at Exhibit E.
AFLOA/JAJM recommends denial of the applicants requests to set-
aside and remove his NJP. The applicant received NJP for
willfully failing to refrain from executing an unauthorized
aerobatic maneuver in his MC-12W aircraft, as it was his duty to
do. He performed barrel rolls in the MC-12W aircraft on multiple
occasions, in violation of the applicable guidance and
regulations. On 26 Nov 11, he was served NJP and on 28 Nov 11, he
submitted a written response. In his response, the applicant
apologized for his actions and assured his commander he would
never fly in a way that would endanger his flight crew; however,
he acknowledged there were other standards which he was required
to follow while operating his aircraft. Further, he asked his
commander for the opportunity to redeem himself as a pilot and
officer. On 1 Dec 11, the commander determined the applicant
committed the offenses and punished him to forfeitures and a
reprimand.
Prior to issuing the NJP, a CDI was performed to gather evidence
surrounding the incidents. As a result of the investigation, the
applicants commander had sufficient evidence to believe he
committed the offenses. Despite the numerous letters of support,
the commander decided to go forward with the NJP and punish the
applicant. The commander followed all of the proper procedures
and the applicant was provided due process.
The applicant contends that because he received favorable outcomes
at his subsequent FEB and BOI, the NJP should be set-aside.
However, these subsequent proceedings are not a consideration when
determining if NJP is legally sufficient and therefore, have no
bearing on the determination.
The applicant had a previous NJP action; therefore, he was warned
about following standards. He was provided due process, afforded
the opportunity to consult with counsel and given the opportunity
to provide evidence and testimony to his commander in regard to
his case.
The complete JAJM evaluation is at Exhibit F.
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant refutes the Air Force Offices of Primary
Responsibility (OPRs) advisory opinions and states in part that:
The A3O-AIF advisory opinion is centered on the right of the
AETC/CC to make the decision not whether the decision was unjust
or erroneous. The opinion fails to mention the core argument of
his request, specifically, that three formal boards found that no
intentional or unintentional violation of aviation instructions
took place. These findings are directly counter to the rationale
stated by the AETC/CC in his Jun 2012, letter in which he
nonconcurred with the findings of the FEB, citing violation of
aviation instructions on multiple occasions.
No one or organization in the Air Force to include the AETC/CC has
ever provided an explanation of what specific aviation
instructions were violated on multiple occasions, which were used
in the AETC/CCs nonconcurrence letter. The advisory opinion does
not consider the AETC/DO FCIF from Dec 11, which he submitted to
AETC/CC as part of his Dec 12 request to reinstate him to flying
status. The FCIF establishes a policy that did not exist until
after the dates of the flying incidents investigated at the FEB
(as well as not existing at the time of the Article 15). The FCIF
shows no regulation, instruction, rule or policy was in place
which prohibited the maneuver he performed so a new FCIF was
issued in the absence of prior rules or guidance. The FCIF was
not possessed by him at the time of the FEB; therefore, this FCIF
was not considered at his or the other pilots FEBs but further
reinforces, supports, and validates those board findings that no
flying rule or guidance existed at the time that prohibited the
maneuver.
The advisory neither analyzed the enormous discrepancy between the
FEB findings and the AETC/CCs decision, nor does it provide any
explanation or rationale for the inconsistency. It is an
injustice that he has been grounded, citing rationale that has
been proven to be false in the findings in three formal AF boards.
Both he and another airman were accused of performing the same
maneuver, yet the recommendations were not equal. The difference
in how two virtually identical cases that occurred during the same
dates, were treated in a completely opposite manner by the chain
of command is unjust and inequitable.
The AIF advisory opinion fails to discuss the Q-3 Form 8 aspect of
his grounding (failed check ride) that resulted in his loss of
qualification as a MC-12W Instructor Pilot and Mission Commander.
This was the direct result of the erroneous belief that he
intentionally performed an unauthorized maneuver. No analysis of
this paperwork or his request to have it removed/overturned was
performed by AIF and no information was provided to counter his
claim that it should be removed.
The AFLOA/JAJM advisory opinion failed to consider the events,
evidence, testimony, or other information that was part of the
official record following the initial completion of the NJP in Nov
11. His case is one of those rare and unusual cases in which
significant evidence raised a question regarding his guilt. In
fact, his guilt was disproven despite the governments low legal
burden in the FEB and discharge board in which he prevailed.
The May 13 BOI transcripts contains testimony from his former
squadron commander that he voiced his doubts about the applicants
guilt to his commander, the 71st OG/CC and 71st FTW/CC in Apr 12.
However his former commanders doubts and the information which
fueled those doubts were ignored by the chain of command.
The set-aside request in Dec 12, introduced additional information
directly disputing the claim that he intentionally violated a
flight rule. The set aside request was denied by AETC/CC. During
the May 13 BOI, all of the previous evidence, testimony and board
findings were considered in aggregate, along with additional new
evidence and testimony. The omission of this in the advisory
opinion is especially glaring given that the BOIs findings
specifically state the opposite of the findings in the Article 15,
specifically: WAS NOT, while piloting the MC-12W aircraft during
three separate flights in Afghanistan derelict in the performance
of his duties in that he intentionally performed, allowed, or
caused to be performed, prohibited or unauthorized aerobatic
maneuvers.
There were three occasions where injustices occurred relating to
the Article 15; however, the JAJM advisory opinion does not even
acknowledge they exist. Instead, the opinion states we cannot
find clear injustice, error, or good cause to reverse or otherwise
change the commanders decisions with respect to the NJP.
The Article 15 is the core of his BCMR request to have it set-
aside and removed.
He is confused by the AFPC/DPSID advisory opinion. He signed the
final versions of the referral LOE and OPR. Therefore, as far as
he and his counsel at the time were aware, they exist somewhere in
his records even if DPSID was unable to locate them at AFPC.
Despite their non-existence in AFPCs records, they have been used
as rationale for promotion recommendations in 2013 and 2014, as
well as referenced by both the 70 OG/CC and 9 OG/CC in his OPR
submitted on 2013 and 2014. Although not on file at AFPC, it does
not preclude those signed documents from being discovered at
some point in the future, forgotten on some folder or office, and
being sent to AFPC for inclusion in the official record.
Finally, his case has been considered by three juries (the
administrative boards) who have found he did not do what he was
accused of even though the government had a very low burden of
proof.
A poorly conducted CDI led to an Article 15, and subsequently led
to his grounding from flight status, a referral LOE and OPR, and a
Q-3 Form 8. All of these adverse actions where based on the
erroneous analysis in the original CDI, which the government
refused to depart from despite the contrary evidence and findings
of the administrative boards. The government chose to depart from
the original CDI when it came to the Major; however, they just did
not depart from it in the same case against him. Three separate
formal administrative review boards have found in his favor. The
Majors FEB ended as his did, yet the government accepted the
Majors FEB but not his. While the purpose of these
administrative boards varied, the evidence and testimony given at
each of these boards was carefully considered by 15 separate
officers who consistently found conclusions completely opposite of
both the CDI and Article 15. Three separate times, three separate
boards have found that he did not violate aviation instructions or
perform prohibited maneuvers.
The additional injustice of the 71 FTW/CC having completely
opposite recommendations and outcomes to two identical FEBs (his
and the Majors) with no attempt or ability to explain this
difference, is completely unaddressed by any of these advisory
opinions. The fact that he has been permanently grounded, and
another pilot has continued flying with no adverse repercussions,
is a significant inequity and should be considered and rectified.
The advisory opinions seem to focus on procedures over substance;
findings that the adverse actions were taken according to the
procedures outlined in the instructions instead of looking at the
substance of what made the decisions at issue in his appeal unjust
and erroneous. This is a classic case of failing to see the
forest for the trees.
All of the negative actions he has requested to be removed
(Article 15, referral LOE and OPR, Q-3 Form 8 and grounding) are
inextricably related they hinge on the core accusation of him
having intentionally performed a prohibited maneuver which has
been successfully defended against multiple times. All of the
advisory opinions should have looked at this core issue first.
Perhaps the absence of such analysis indicates they looked at the
issue but knew it did not support the rubber stamp position of the
government to deny his appeal.
The applicants complete submission is at Exhibit G.
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 to warrant
setting aside/modifying his AF Form 8 or to reinstate him into
aviation service. We took notice of the applicant's complete
submission in judging the merits of the case; however, we find
insufficient evidence to substantiate that the applicant is the
victim of an error or injustice. The central point of the
applicants argument, as we understand it, is whether a maneuver
was performed that was known to be unauthorized or prohibited in
the MC-12. Consequently, he concludes that three formal boards
found that no intentional or unintentional violation of aviation
instructions took place. The applicant also alleges unjust and
inequitable treatment stating that both he and another airman were
accused of performing the same maneuver during the same dates, yet
were treated in a completely opposite manner. After a thorough
review of the evidence of record and noting the numerous character
reference letters provided by the applicant along with the
decisions of the FEB and the BOI, we are not persuaded that relief
is warranted. Although other boards may have found that there was
no intentional or unintentional violation in aviation
instructions, as noted by the applicants commander, regardless of
whether the rolling maneuvers technically violated instructions,
regulations or procedures, the applicants lack of judgment was
very concerning. Moreover, as pointed out by AF/A3O-AIF, AFI 11-
402, Aviation and Parachutist Service, Aeronautical Ratings and
Aviation Badges grants the MAJCOM/CC sole authority to make the
final determination on an FEB and the best interest of the Air
Force is the prime criterion when evaluating each case. It is our
opinion that the AETC/CCs decision to disqualify the applicant
from aviation service based on his demonstrated lack of judgment
was in the best interest of the Air Force. While the applicant
argues that he was treated differently than the other pilots, as
noted in the CDI dated 24 Nov 11, based on his involvement in all
three flights, his rank, role as a primary enabler, and attempts
to conceal his actions, we do not find that he has been unfairly
treated. Therefore, we find no basis to grant this portion of his
request. With respect to the applicants request that his NJP
under Article 15 imposed on 1 Dec 11, be declared void and removed
from his records and the forfeiture in pay be reimbursed, given
that we find no error or injustice in the AETC/CCs decision, we
are not inclined to disturb the judgments of commanding officers
absent a strong showing of abuse of discretionary authority. We
have no such showing here. Furthermore, we find no evidence that
during the nonjudicial punishment proceedings he was denied any
rights to which he is entitled. To the contrary, the evidence
before us indicates that he consulted counsel and waived his right
to demand trial by court-martial. He submitted written matters in
his own behalf, did not request a personal appearance, waived his
right to demand trial by court-martial, and accepted the Article
15 process as the forum for resolution of the charged offense.
Having exhausted that forum and not having received a favorable
result, he now contends that he had no reason to believe that the
findings of two administrative boards clearing him of the alleged
misconduct (and another board that cleared the Major would be
ignored and had he known he would have turned down the Article
15 and demanded trial by court-martial). However, as previously
stated, based on the applicants demonstrated lack of judgment, we
believe it was reasonable for the commander to initiate
nonjudicial proceedings. Moreover, we believe the appropriate
time for the applicant to have raised this issue was when first
offered the nonjudicial proceedings. Had he truly felt the charge
was not supported, he could have demanded a trial by court-
martial, with its higher standard of evidence, and contested the
charge against him, rather than accept the nonjudicial
proceedings. Therefore, this request is also denied. Regarding
the applicants request to remove the LOE for the period ending
5 Dec 11 and the OPR ending 1 Apr 12, as pointed out in DPSIDs
letter dated 3 Dec 14, these reports provided by the applicant
were never made a matter of record; consequently, no action can be
taken by the Board. Therefore, we agree with the recommendations
of the Air Force offices of primary responsibility and adopt the
rationale expressed as the basis for our conclusion the applicant
has failed to sustain his burden of proof that he has been the
victim of an error or injustice. In the absence of evidence to
the contrary, we find no basis upon which to favorably consider
this portion of his application.
4. Nothwithstanding the above, sufficient relevant evidence has
been presented to demonstrate the existence of an injustice to
warranting partial relief. We note that DPSID states the OPR
closing out 1 Apr 2012, was well over 18 months so the report was
never accepted to file and instead DPSID placed an AF Form 77 in
the applicants records stating "No evaluation available for the
period 13 Jun 2011 through 1 Apr 2012 for administrative reasons
which were not the fault of the member. The system reflects an
overall rating of "N" Does Not Meet Standards." Although we are
not persuaded that the contested report is not a true and accurate
assessment of his behavior and demonstrated potential during the
specified time period, given that DPSID determined that they
cannot confirm the legitimacy of the report and did not accept it
for file; we believe changing the AF Form 77 to reflect that it
does not meet standards constitutes an injustice. As such, we
recommend the applicants AF Form 77, Section IV, be amended to
delete the verbiage Does Not Meet Standards and the Military
Personnel Data System (MilPDS) be updated accordingly. Therefore
we recommend, his 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 the APPLICANT, be corrected to show that:
a. The AF Form 77, Letter of Evaluation, dated 25 October
2014, Section IV, Comments/Impact On Mission Accomplishment, be
changed from No evaluation available for the period 13 Jun
11 through 1 Apr 12 for administrative reasons which were not the
fault of the member. The system reflects an overall rating of N
Does Not Meet Standards, to No evaluation available for the
period 13 Jun 11 through 1 Apr 12 for administrative reasons which
were not the fault of the member.
b. The Military Personnel Data System (MilPDS) be updated to
reflect X Not Rated For This Period.
The following members of the Board considered AFBCMR Docket Number
BC-2013-05783 in Executive Session on 15 May 15, under the
provisions of AFI 36-2603:
Panel Chair
Member
Member
All members voted to correct the record as recommended. The
following documentary evidence pertaining AFBCMR Docket Number BC-
2013-05783 was considered:
Exhibit A. DD Form 149, dated 9 Dec 13, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AF/A3O-AIF, dated 25 Feb 14.
Exhibit D. Letter, AFPC/DPSIM, dated 3 Mar 14.
Exhibit E. Letter, AFPC/DPSID, dated 3 Dec 14, w/atch.
Exhibit F. Letter, AFLOA/JAJM, dates 12 Jan 15.
Exhibit G. Letter, SAF/MRBR, dated 20 Jan 15.
Exhibit H. Letter, Applicant, dated 16 Feb 15.
AF | BCMR | CY2014 | BC 2014 00799
The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C, D, E, and F. AIR FORCE EVALUATION: AFPC/DPSIM recommends denial of the applicants request to remove the LOR. Rather, as an administrative action, the standard of proof for an LOR (and referral OPR) is a preponderance of the evidence; i.e., that it is more likely than not that the fact occurred as...
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The applicant provided a rebuttal dated 23 Feb 99. Based on the applicant’s appeal and at the request of HQ AFMC/DO, HQ AFMC/JA performed another legal review on 12 Mar 99 and concluded that the FEB findings and recommendations were legally sufficient and recommended denial of the applicant’s request for a new FEB. A review of the FEB transcripts and exhibits by HQ AFMC/JA shows no reason to believe that the board did not properly weigh all testimony presented in this case.
AF | BCMR | CY2004 | BC-2003-03204
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According to DOF skill-sets taught in SUPT are military-unique requirements. The AETC/DOF evaluation, with attachments, is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to applicant on 22 Jul 2005 for review and response. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence...
AF | BCMR | CY2003 | BC-2003-01440
The course is a grueling three- day training in airsickness management for student pilots. _________________________________________________________________ AIR FORCE EVALUATION: HQ AETC/DOF recommends the application be denied. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Applicant states that his package proves his desire and willingness to complete any program that he may be selected for in the future.
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Based on a review of the facts, we agree she should have met an FEB after her elimination from FWQ training as an FEB would be the only correct action to evaluate retention in (or removal from) training, and qualification for continued aviation service. She failed two opportunities to complete fixed wing training and should have met an FEB. ____________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air...
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