RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 	DOCKET NUMBER: BC-2014-01808
	
					COUNSEL:  
					
		HEARING DESIRED:  NO



APPLICANT REQUESTS THAT:

His official military record be corrected to reflect:

1.	The 16 Aug 11 decision of the Commander,      , to 
permanently disqualify him from aviation service, be removed.

2.	He be reinstated to permanent aviation service.

3.	Any lost pay associated with being permanently disqualified 
from aviation service be restored.


APPLICANT CONTENDS THAT:

After participating in a flying mission with a mishap, he and 
the other crew members of this flight underwent a safety 
investigation and a Flying Evaluation Board (FEB).  As part of 
the safety investigation and FEBs for the other aircrew members, 
he provided testimony on the condition of immunity.  Because the 
findings and recommendations of his FEB supported his return to 
aviation service, he believes the decision to permanently 
disqualify him from aviation service by the final approval 
authority,     , was either improperly influenced by immunized 
information in the safety investigation or simply arbitrary, 
capricious, and unreasonable.  This decision appears to be 
punitive in nature and contrary to guidance in AFI 11-402, 
Aviation and Parachutist Service, Aeronautical Ratings and 
Aviation Badges.

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


STATEMENT OF FACTS:

On 11 Jun 06, the applicant initially entered the Regular Air 
Force.

On 17 Sep 10, according to information provided by the 
applicant, he was the co-pilot during a flying mission where the 
crew flew through a severe thunderstorm and the aircraft 
suffered a four-engine flame out.  The crew landed the plane 
safely, with only minor damage.  As a result of this mishap, and 
subsequent safety investigation, he was subject to an FEB.

On 1 Apr 11, according to information provided by the applicant, 
an FEB was conducted at the applicant’s duty station.

In accordance with AFI 11-402, ”An FEB is not for punitive 
disciplinary action.  It is not a substitute for action under 
the UCMJ or any other administrative directives.  Do not use any 
aviation service action as a substitute for administrative or 
disciplinary action.  Incidents that involve fitness or punitive 
liability make an aircrew member liable to the same actions as a 
non-aircrew member.  When an aircrew member exhibits 
questionable professional qualities, consider initiating action 
outlined in paragraph 3.7.1.6.  After completing action under 
paragraph 3.7.1.6, convene an FEB if the member's potential for 
continued aviation service is still in question.”

On 18 Sep 11, according to information provided by the 
applicant, his wing commander concurred with the FEB 
recommendation to allow him to “continue to remain qualified for 
further aviation service as a pilot, remain in the    , and be 
allowed to wear the aviation badge.”

On 23 Nov 11, according to information provided by the 
applicant,    , recommended that     “approve recommendation 
returing all to aviation service.”

On 16 Feb 12, according to information provided by the 
applicant,     non-concurred with the FEB recommendations to 
return the applicant to aviation service.  Instead, he 
determined the applicant should be permanently disqualified from 
aviation service.  The basis for this action was his willful and 
intentional violation of Air Force technical orders for failure 
to complete required checklists, lack of proficiency, lack of 
airmanship, lack of crew resource management, and failure to 
meet standards.

On 26 Sep 13, the applicant resigned under the FY13 Voluntary 
Force Management Limited Active Duty Service Commitment waiver 
program, and was credited with 7 years, 3 months, and 16 days of 
active service.

The remaining relevant facts pertaining to this application are 
contained in the memoranda prepared by the Air Force offices of 
primary responsibility (OPR), which are attached at Exhibits C 
and D.




AIR FORCE EVALUATION:

AF/A3O-AIF recommends denial indicating there is no evidence of 
an error or an injustice.  Because the applicant’s FEB was 
conducted below the Major Command (MAJCOM) level, in accordance 
with AFI 11-402, Aviation and Parachutist Service, Aeronautical 
Ratings and Badges, the MAJCOM commander is the final approval 
authority.  According to the     memorandum, dated 16 Feb 13, 
the decision was made after a thorough review of the FEB 
recommendations.  As the sole authority to make the final 
determination on an FEB, the MAJCOM commander’s decision was 
properly conducted within his authority according to the 
governing directives.

A complete copy of the AF/A3O-AIF evaluation is at Exhibit C.

AFPC/JA recommends denial indicating there is no evidence of an 
error or an injustice.  While it is noted the applicant’s chain 
of command recommended him to remain on flying status, his claim 
that the     abused his discretion is unfounded.  The applicant 
provided no evidence the     misused his authority or used 
improper evidence in making his overall decision.  The FEB 
disclosed several wrongdoings on the part of the applicant and 
it can be presumed the     reviewed the totality of the evidence 
in making his final decision; which he did in compliance with 
AFI 11-402, Aviation and Parachutist Service, Aeronautical 
Ratings and Badges.

A complete copy of the AFPC/JA evaluation is at Exhibit D.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Through counsel, the applicant refutes the position of the OPRs 
and argues the final approval authority is insulated from abuse 
of discretion allegations because they are not obligated to 
state the justification for their decision(s).  This places the 
applicant at a distinct disadvantage because members of the BCMR 
have no way of knowing why the final decision was made.  
Additionally, he finds it highly unlikely that AMC/CC did not 
use improper evidence, given the amount documentation provided 
and secrecy surrounding the safety investigation process.  
Further, he requests access to any Staff Summary Sheets or other 
documentation provided to     during the safety investigation.  
In support of his position the applicant’s chain of command was 
the most relevant source to determine his competency as a pilot, 
he provided a chart depicting the number of flying hours amassed 
be each of the members that recommended retention, as compared 
to the flying hours of the final approval authority.




THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by 
existing law or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice.  We took 
notice of the applicant’s complete submission in judging the 
merits of the case; however, we agree with the opinion and 
recommendation of the Air Force office of primary responsibility 
(OPR) and adopt its rationale as the basis for our conclusion 
the applicant has not been the victim of an error of injustice.  
While Counsel’s arguments are duly noted, argument and 
conjecture is not an adequate basis for a finding that an 
applicant has been the victim of an error or injustice.  While 
the applicant and his Counsel claim that it is likely that     
improperly utilized information divulged by the applicant on the 
promise of immunity, or that his ultimate determination was 
arbitrary or capricious, the presumption of regularity in the 
conduct of government affairs dictates that, absent specific 
evidence to the contrary, it must be assumed that responsible 
government officials carried out their duties in good faith and 
in accordance with the provisions of the governing directives in 
effect at the time.  Other than his own uncorroborated 
assertions, the applicant has presented no evidence whatsoever 
that would lead us to believe that     acted inappropriately or 
outside his authority in making the ultimate determination in 
the applicant’s case.  As for the applicant’s request for Staff 
Summary Sheets or other documentation provided to     during the 
safety investigation, inasmuch as the Board is not the custodian 
for these documents, the applicant should submit his request for 
such documents      through the Freedom of Information Act 
(FOIA).  Therefore, in the absence of evidence to the contrary, 
we find no basis to recommend granting the requested relief.


THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not 
demonstrate the existence of material error or injustice; the 
application was denied without a personal appearance; and the 
application will only be reconsidered upon the submission of 
newly discovered relevant evidence not considered with this 
application.






The following members of the Board considered AFBCMR Docket 
Number BC-2014-01808 in Executive Session on 25 Feb 15 under the 
provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2014-01808 was considered:

	Exhibit A.  DD Form 149, dated 25 Apr 14, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AF/A3O-AIF, dated 14 May 14.
	Exhibit D.  Memorandum, AFPC/JA, dated 3 Jun 14.
Exhibit E.  Letter, SAF/MRBR, dated 1 Aug 14.
Exhibit F.  Letter, Applicant, dated 5 Sep 14. w/atchs