|Thomas J. Fiscus, 14th Judge Advocate General
United States Air Force
6 July 2006
General John D.W. Corley
Vice Chief of Staff, United States Air Force
1670 AF Pentagon
Washington, DC 20330-1670
Dear General Corley-
This is a re-attack to my 29 March 06 letter to the Chief and Jack Rives, which Jack Rives answered on 18 April 06 (Atch 1). My prior letter laid out my request for
Jack Rives to reverse his JA Professional Responsibility finding about me deleting email to impede the IG investigation. Jack’s letter sounded like it wrapped it up
pretty neatly, but it didn’t; it’s now worse. I’ve chosen to write to you instead of General Moseley because I’m hopeful that some vestige of our desert relationship
still exists. I’m asking you, as the friend you once were, to look at my situation one last time. It won’t take more than a few minutes to read what I have to say. It
will take you a few minutes more to ask a few questions and determine if what I ask is reasonable or not. I believe 32 years of service and having served together in
the sand box is worth a few minutes of an old friend’s time.
Conan, I did not improperly delete email and neither I nor my counsel could figure out what email I was accused of deleting until well after I had retired. In fact, Jack’
s letter makes clear that the AF never had anything but a suspicion that I improperly deleted email important to the case once I knew about the anonymous complaint.
The stunning part is that by the time the Professional Responsibility Inquiry was concluded, Jack knew there was no evidence to support General Cook imposing
Article 15 punishment for attempting to obstruct justice. Worse yet, Jack had to “invent” a theory different from the Article 15 Specification and hide it from me in
order to continue to justify a finding that I obstructed justice by deleting email.
If you will ask Jack a few simple questions and get answers that make logical sense, you will find I’m telling the truth. I was notified by General Jumper of the
anonymous complaint on 19 Aug 04. That is the crucial date for an obstruction of justice charge. If I knowingly deleted relevant email from Major Rodriguez after
being notified of the complaint, i.e., about 1000 hours on 19 August 04, then and only then would I be guilty of attempting to impede the investigation. Since the AF
already had all my email on 19 August 04, I could not have actually impeded the investigation. So, it’s crucially important to know what was in my email account on
19 August 04. Jack can talk until he’s blue in the face about any other date, but the ONLY important date is 19 August 04.
First question: Ask Jack to produce the evidence showing what email from Major Rodriguez was in my email accounts on 19 August 04. I believe he cannot show
you, because the investigators neglected to capture any email snapshots on that date. In the entire 105 page summary report, the investigators devoted only one line to
the issue of my email. On page 36 of the IG Report Summary (Atch 2), after describing an email sent to me by Major Rodriguez on 17 August and the fact that
General Jumper notified me of the complaint on 19 August, the entirety of the IG Report’s description of missing email consists of a single line, as follows:
“By the next Monday, 23 August 04, Major Rodriguez had deleted all notes to Maj Gen Fiscus from her official email files (Ex 55:66-68), and Maj Gen Fiscus’ account
likewise no longer contained evidence of their correspondence. (40:2-5)”
The wording may insinuate that email from Major Rodriguez was in my email account on 19 August 04, but the investigators do not claim or demonstrate that any was
there on that date. Hence, the investigators never said I improperly deleted email, only that there wasn’t any in my Inbox or Sent folder when they looked on 23
The investigators support the above observation in Exhibit 40 (Atch 3) of the report with two screenshots of my Inbox and two screenshots of my Sent files, all dated
23 August 04. Exhibit 40 also contains one undated screenshot of a subfolder labeled “Fiscus”, showing 11 emails from an address “B1u1aw,” which was Major
Rodriguez’ non-government email address. I accept Jack’s statement that the screenshot is of that Fiscus subfolder on 26 July 04 (almost four weeks before General
Jumper notified me). The IG report only notes the date 26 July 04 via some notations on emails from Maj Rodriguez taken from my Deleted items folder on that date.
That said, I don’t dispute the existence of the 11 emails in the Fiscus subfolder then. However, Exhibit 40 of the IG report has no screenshot of the Fiscus subfolder
on 19 August 04, 23 August 04, or of anytime thereafter, including 20 October 04.
Jack Rives’ letter says that the above information supports his finding that I deleted the entire “Fiscus” subfolder sometime between 26 July 04 and 20 October 04, and
that it is the same evidence that supported the Article 15 specification. That is clearly false.
The Article 15 specification covers a period of six days, 17 August - (again, an irrelevant date, since notification was not until 19 August) 23 August 04, the only dates
mentioned in the IG report. The specification makes no mention of the “Fiscus” subfolder. If, as Jack says, the IG investigators checked my email account on 20
October 04, just before completing the investigation, it is never mentioned or documented in the IG Report. The date 20 October 04 never appears in the IG Report.
So, if 20 October 04 was somehow important, I was never notified of it at any time during any of the proceedings. Nonetheless, Admiral MacDonald’s notification
letter to me concerning the Professional Responsibility inquiry cites the IG report and the Article 15 findings as the evidence supporting the Professional Responsibility
allegation that I improperly deleted email. (Atch 4) The Article 15 findings are irrelevant to the Professional Responsibility inquiry because they added no information to
what was in the IG Report.
Question 2: Ask Jack if he used evidence in the Professional Responsibility inquiry that was not included in the IG Report and which was not provided to me and my
counsel. The answer is yes. In January 05, the JAG inquiry investigator, Admiral MacDonald, took several witness statements that were not provided to me,
including a statement from Mr. Warren Bowman from the AF Communications Agency. (Atch 5) He evidently made some statement to MacDonald and may have
added some additional screenshots from my email account. I have never seen any of this. I believe this added “evidence” is where the 20 October date comes from,
since it is not in the IG Report. By the way, my FOIA/Privacy Act requests for those added statements have been denied to this day.
Question 3: Ask Jack if on 20 October 04, Mr. Bowman looked in my archive file (on the AF server) to determine if the Fiscus subfolder was there. The answer will
have to be “no” because I previously submitted a statement from Mr. Mario Woodberry to show that the Fiscus subfolder was still in existence in my archive files on
the AF server in January 05. Jack dismissed that information on the basis that all of my email was contained in a folder labeled Fiscus (just as yours is probably
labeled Corley). I’ve attached a more precise statement from Mr. Woodberry attesting to the existence of the Fiscus subfolder on the AF server in January 05. (Atch
Final Question: Ask Jack why, if the Article 15 specification was legally sufficient, would the Professional Responsibility investigator substitute something entirely
different covering a different time period? That is, why change the time period covered from six days to nearly three months? How is that more accurate than the
Art 15 Specification, which he cynically claims I didn’t contest? You could ask Jack how he knew the location and contents of the Fiscus subfolder on 19 August 04
if there were no screenshots of it on that date? Was there even a screenshot of it on 23 August 04? If it was missing on 23 August, why is it necessary to use the 20
October date? If it was present on 23 August, why go back to 26 July? You may want to ask Jack if he notified me in January 05 that, for the Professional
Responsibility case, he was talking about the Fiscus subfolder? If he says “yes,” get him to show you that he did, because he didn’t. Ask him why he allowed me and
my counsel to believe we were contesting the Art 15 specification findings while he was relying on different evidence to support a different theory? When you clear
away the chaff and flares, the answer is that Jack knew the Art 15 specification was legally insufficient and that if I challenged it in any civil litigation, it would be
thrown out. Therefore, he had to create a new basis that went beyond the IG Investigation to support the “obstruction of justice” allegation. Unfortunately, the
investigator either blew it by failing to tell me and my counsel that the theory and evidence was different or, he intentionally misled me and my counsel because he also
realized the Article 15 was insupportable. Either way, we were trying to defend while bound and blind. Simply put, you have enough to see that Jack Rives is already
in the position of having made false official statements and of having acted unethically. The same goes for Admiral MacDonald. Depending on the answers Jack gives
you to the above questions, he may have added more false official statements to it. It’s a pretty messy business gunning down your boss from behind as Jack Rives
I mentioned Jack’s cynicism in saying I “. . . did not contest the ‘accuracy’ of the Article 15 specifications.” As to “contesting” anything, counsel and I had only five
work days (no extensions allowed) from the time I received hundreds of pages of the IG report to try to assemble any defense, at Christmastime. The “deleting email”
allegation told us nothing about what we had to defend. Besides, as you see above, the Article 15 specification was not even the same thing I was supposedly
addressing in the JAG inquiry. At the Article 15 hearing we were told in no uncertain terms that we would be taken to trial if we tried to contest any part of the Article
15. My counsel begged Col LeEllen Coacher at AETC for evidence supporting the deleting email specification. He was told if we wanted the evidence we could
demand a court-martial. Why should anyone have to demand a court-martial to get the evidence to which they are entitled, even in an Article 15 proceeding? Now we
know the “evidence” never existed.
Conan, despite some harsh language above, I’ve come to you and the Chief in an effort only to get my name quietly cleared of this particular smear so I can get back
to practicing law. I’m not trying to make trouble for the AF, but please understand that my shock, horror and depression over this entire matter are beginning to wear
off and I’m finally seeing it for what it is. I’m not going to roll off this matter. I’m asking for a very limited thing which can be done painlessly with a one line letter
from Jack that says: “After further consideration, my 1 March 05 findings that you violated the AF Rules of Professional Responsibility 8.4 (b) and (d) by deleting
potentially relevant email, thereby obstructing justice, are hereby set aside and dismissed.” Under my proposal, no one has to admit they committed a crime by
manufacturing evidence, withholding it from me, trying to get me disbarred by misleading the Iowa Supreme Court with it and then lying to the Chief and Vice Chief of
Staff about it. (What you do with this knowledge is your own issue.) Under my proposal, no one even has to admit a mistake was made. Rives can claim to be a
paragon of fairness if he can stomach it, but this needs to be fixed, now.
Thank you for taking the time to read this and for allowing me to presume upon your friendship. I’ve never claimed that I didn’t make some big mistakes, but I
believe you know that I am not a liar. I have faith that you want justice, as I believe General Cook would have, had he not been misled about this aspect of my case.
I hope this will be my last stop in this saga.
Carolyn joins me in sending our warm regards to you and Alice. God bless you both.
1. AF/JA Letter, 18 Apr 06
2. IG Investigation Report Summary, Page 36
3. IG Investigation Report, Exhibit 40 – 6 pages
4. Notification Letter from Admiral MacDonald, 6 Jan 05 – 2 pages
5. Professional Responsibility Inquiry Report, 21 Jan 05, page 1
6. Memorandum from Mr. Mario Woodberry, 11 Jun 06 – 2 pages