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AF | BCMR | CY2013 | BC 2013 05783
Original file (BC 2013 05783.txt) Auto-classification: Approved
 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 
Major’s 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 Force’s 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 Major’s 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 applicant’s 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 commander’s 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 commander’s 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 Pilot’s 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 applicant’s actions, he would remain unqualified 
until further notice.

On 15 Dec 11, the applicant was notified of the 71 FTW/CC’s 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 board’s 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 applicant’s 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 applicant’s 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 applicant’s 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 commander’s 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 applicant’s 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 
applicant’s complaint was denied and returned without action.

On 6 May 13, the applicant was notified of his commander’s 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 applicant’s 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 authority’s 
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 respondent’s 
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 applicant’s 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 
commander’s 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 
commander’s 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 applicant’s 
request to void and remove his referral LOE and OPR.  
Specifically, the applicant’s 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 applicant’s 
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 applicant’s 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 
applicant’s 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/CC’s 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/CC’s 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 government’s 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 applicant’s 
guilt to his commander, the 71st OG/CC and 71st FTW/CC in Apr 12.  
However his former commander’s 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 BOI’s 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 commander’s 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 AFPC’s 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 
Major’s FEB ended as his did, yet the government accepted the 
Major’s 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 Major’s) 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 applicant’s 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 
applicant’s 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 applicant’s commander, regardless of 
whether the rolling maneuvers technically violated instructions, 
regulations or procedures, the applicant’s 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/CC’s 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 applicant’s 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/CC’s 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 applicant’s 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 applicant’s request to remove the LOE for the period ending 
5 Dec 11 and the OPR ending 1 Apr 12, as pointed out in DPSID’s 
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 applicant’s 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 applicant’s 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.

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